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Smith v. GMAC Mortgage

December 15, 2009


The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge


Plaintiff is proceeding in this action pro se and in forma pauperis. Previously pending on this court's law and motion calendar for November 5, 2009 were defendant GMAC Mortgage, LLC's ("GMAC") motions to dismiss and to strike, both filed separately on September 14, 2009. Also before the court are two amended complaints filed by plaintiff on August 27 and 31, 2009, as well as this court's order to show cause, filed September 8, 2009, and plaintiff's motion for sanctions, filed September 25, 2009. Plaintiff appeared in pro se. Defendant was represented by Natilee Riedman. After hearing oral argument and reviewing the parties' papers, the court now issues the following order.


Plaintiff alleges that GMAC is the alleged beneficiary of a mortgage which was transferred from the original lender, WMC Mortgage Co., and that he received a letter from the lender indicating the "loan was transferred and that it included other terms and agreements." (Am. Compl. at 1.) Plaintiff alleges that he asked for a thirty year fixed rate, but the loan ended being an adjustable rate with a balloon payment at the end, as well as a negative amortization. Plaintiff alleges that these terms were not fully disclosed to him, and the Truth in Lending Act ("TILA") was violated. Plaintiff states that he suffered irreparable damage as a result and had to file bankruptcy. He seeks damages in the amount of $805,000.

Plaintiff initiated this action in federal court on March 9, 2009. GMAC previously moved to dismiss and strike the complaint, and the motion to dismiss was granted by order of July 31, 2009. Plaintiff was directed to file an amended complaint. On August 27, 2009, plaintiff filed an amended complaint. (Dkt. # 44.) On August 31, 2009, plaintiff filed another document styled "amended complaint." (Dkt. # 45.) In a filing dated September 14, 2009, plaintiff explains that he did not file a second amended complaint, but that it was a "continuous complaint." He states that he thought the rules limited his complaint to five pages and that is why he filed a continuation of the amended complaint a few days later. (Dkt. # 54.) This filing is also a response to the court's order to show cause, filed September 8, 2009, directing plaintiff to explain a reference to his bankruptcy filing in an earlier pleading. DISCUSSION DEENDANT'S MOTION TO DISMISS

I. Legal Standards

In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S.Ct. 1848, 1850 (1976), construe the pleading in the light most favorable to the party opposing the motion and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1849, reh'g denied, 396 U.S. 869, 90 S.Ct. 35 (1969). The court will "'presume that general allegations embrace those specific facts that are necessary to support the claim.'" National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 256, 114 S.Ct. 798, 803 (1994), quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 2137 (1992). Moreover, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596 (1972).

The court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially noticed, Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987); and matters of public record, including pleadings, orders, and other papers filed with the court, Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986). The court need not accept legal conclusions "cast in the form of factual allegations." Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies could not be cured by amendment. See Noll v. Carlson, 809 F. 2d 1446, 1448 (9th Cir. 1987).

II. Analysis

Plaintiff's submission of his August 31st filing as a continuation of the amended complaint is not permitted. Local Rule 15-220 requires that an amended complaint be complete in itself. This is because, as a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Accordingly, once plaintiff files an amended complaint, the original no longer serves any function in the case. Therefore, "a plaintiff waives all causes of action alleged in the original complaint which are not alleged in the amended complaint," London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir.1981), and defendants not named in an amended complaint are no longer defendants, Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992).

Therefore, the first amended complaint will be considered in regard to defendant's motions to dismiss and to strike. The second amended complaint, filed August 31, 2009, (dkt. # 45), will be stricken.*fn2

Defendant moves to dismiss based on failure to allege facts supporting assignee liability, failure to state a claim under the TI LA, and motion for a more definite statement.*fn3

Plaintiff has filed an opposition to the motion to strike and the motion to dismiss, (dkt. # 55), claiming that this and other motions are "bogus," and the court should not waste time with 12(b)(6) and all the other motions. He also argues in regard to defendant's exhibits to its Request for Judicial Notice: "counsel tries to conclude discovery with a Request for Judicial Notice of Review, when the documents submitted was already mention in the complaint of the balloon Payment and riders which counsel tries insert as evidence without any plea or response of ...

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