Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Rivas v. New Century Mortgage Corp.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


April 13, 2010

SUSANA RIVAS, PLAINTIFF,
v.
NEW CENTURY MORTGAGE CORPORATION, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Hayes, Judge

ORDER

The matter before the Court is Plaintiff's Motion for Leave to File Second Amended Complaint. (Doc. # 20).

BACKGROUND

This action concerns Plaintiff's mortgage. On April 10, 2009, Plaintiff initiated this action by filing her Complaint against Defendants New Century Mortgage Corporation, San Diego County Real Estate Services, Countrywide Home Loans, and American Servicing Company. (Doc. # 1). On August 7, 2009, Defendant Countrywide Home Loans filed a motion to dismiss. (Doc. # 4). On September 4, 2009, Plaintiff filed her First Amended Complaint ("FAC") as of right. (Doc. # 6). The FAC alleged nine causes of action: (1) Violation of the Real Estate Settlement Procedures Act ("RESPA"), (2) Violation of the Truth In Lending Act ("TILA"), (3) Violation of California Civil Code § 1632, (4) Violation of California Business & Professions Code § 17200, (5) Negligent Misrepresentation, (6) Fraud, (7) Rescission, (8) Quasi Contract, and (9) Determination of Validity of Lien. Id. at 1. On September 24, 2009, Countrywide Home Loans filed a Motion to Dismiss the First Amended Complaint. (Doc. # 9).

The Court granted the motion on January 20, 2010 and dismissed the FAC as to Countrywide Home Loans. (Doc. # 18). The order allowed Plaintiff to file a motion for leave to amend within thirty days of the date of the order. Id. at 8. On the same day, the Court also issued an Order to Show Cause why the case should not be dismissed as to New Century Mortgage Corporation, San Diego County Real Estate Services, and American Servicing Company for failure to serve the complaint within the 120-day period allowed pursuant to Federal Rule of Civil Procedure 4(m). (Doc. # 17). The Court ordered Plaintiff to respond on or before February 15, 2010 with either:

(1) proof of service of the summons and the Complaint to Defendants New Century Mortgage Corporation, San Diego County Real Estate Services, and American Servicing Company; or (2) a declaration under penalty of perjury showing good cause for failure to timely serve New Century Mortgage Corporation, San Diego County Real Estate Services, and American Servicing Company, accompanied by a motion for leave to serve process outside of the 120 day period.

Id. at 2. Plaintiff did not file a response. On February 18, 2010, the Court dismissed the action as to New Century Mortgage Corporation, San Diego County Real Estate Services, and American Servicing Company. (Doc. # 19).

On February 19, 2010, Plaintiff filed a Motion for Leave to File Second Amended Complaint. (Doc. # 20). Plaintiff's proposed Second Amended Complaint ("SAC") is attached to the motion. (Doc. # 20 at 6). On March 22, 2010, Countrywide Home Loans filed an opposition to Plaintiff's motion which contends it should be denied because the proposed SAC fails to cure the defects in the FAC and because the SAC fails to state a claim upon which relief may be granted. (Doc. # 23).

ANALYSIS

Plaintiff's proposed SAC names all of the original Defendants named in the FAC, including New Century Mortgage Corporation, San Diego County Real Estate Services, and American Servicing Company. (Doc. # 20 at 6). In her motion, Plaintiff requests an amended summons as to American Servicing Company on the grounds that "ASC was not added as a Defendant until 120 days after the filing of the original complaint, and could not therefore be served with the Complaint." Id. at 3-4. Plaintiff does not, however, address the fact that the Court also previously dismissed her claims against New Century Mortgage Corporation and San Diego County Real Estate Service for failure to serve within the 120-day period allowed pursuant to Federal Rule of Civil Procedure 4(m). See Doc. # 19.

Plaintiff's request for an amended summons as to American Servicing Company is denied. Plaintiff failed to comply with the Court's Order to Show Cause issued on January 20, 2010. (Doc. # 17). Plaintiff's FAC naming American Servicing Company as a defendant was filed on September 4, 2009. (Doc. # 6). Plaintiff failed to serve her FAC on American Servicing Company within 120 days of filing the FAC with the Court. Plaintiff has not offered any evidence of good cause for failure to serve within the 120-day period allowed pursuant to Federal Rule of Civil Procedure 4(m) as required by the Court's Order to Show Cause. See Doc. # 17 at 2.

Because the proposed SAC names three defendants who were not timely served and have been dismissed from the case, the Court will not permit Plaintiff to file the proposed SAC to add these same defendants back into the case.

CONCLUSION

Plaintiff's Motion for Leave to File Second Amended Complaint (Doc. # 20) is DENIED.

WILLIAM Q. HAYES United States District Judge

20100413

© 1992-2010 VersusLaw Inc.



Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.