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Vazquez v. Greenlight Financial Services

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


April 26, 2010

JULIETA VAZQUEZ, PLAINTIFF,
v.
GREENLIGHT FINANCIAL SERVICES, ET AL., DEFENDANT.

The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge

ORDER GRANTING MIDLAND MORTGAGE CO. AND US. BANK'S MOTION TO DISMISS [Doc. 27.]

Pending before the Court is Midland Mortgage Co. and U.S. Bank's motion to dismiss Plaintiff's First Amended Complaint ("FAC") for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). (Doc. 27.) For the reasons set forth below, the Court grants Defendants' motion.

This case arises out of a home loan and resulting foreclosure on Plaintiff Julieta Vazquez's home in Imperial County, California. Plaintiff filed suit against Defendant Greenlight Financial Services, the lender, Chicago Title Company and Midland Mortgage Company, as trustee and successor trustee on the note, U.S. Bank, as the purchaser of Plaintiff's home at the foreclosure sale, and GMAC as the loan servicer of Plaintiff's loan. (FAC ¶¶ 6-8, 19.)

The FAC lists five claims for relief: 1) Intentional Misrepresentation; 2) Accounting and Violation of RESPA; 3) Violations of TILA; 4) Violation of RESPA; and 5) Violation of California's Unfair Competition law. Claims 1, 3, 4, and 5 are asserted against Defendant Greenlight Financial Services. Claim 2 is asserted against Defendant GMAC. Plaintiff does not allege any claims against Midland Mortgage Co. or U.S. Bank.

Plaintiff concedes that the FAC has dropped all claims against U.S. Bank and Midland Mortgage, but nonetheless asserts that U.S. Bank remains in the action because it is not a bona fide purchaser of the home. Plaintiff does not provide any authority for keeping a defendant in an action when there are no claims pending against it. Accordingly, U.S. Bank and Midland Mortgage are dismissed from the action, without prejudice. Plaintiff, however, shall wait to file an amended complaint until the Court has ruled on Defendant Greenlight Financial's motion to dismiss, which is currently pending before the Court.

IT IS SO ORDERED.

20100426

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