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Pantalion v. Resmae Mortgage Corp.

May 12, 2010

CHARITY MAE PANTALION, PLAINTIFF,
v.
RESMAE MORTGAGE CORPORATION, ET AL., DEFENDANTS.



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

ORDER AND FINDINGS AND RECOMMENDATIONS

Plaintiff is proceeding in this action pro se and has paid the filing fee. Previously pending on this court's law and motion calendar for March 25, 2010 was a motion to dismiss, filed January 28, 2010, by defendants Wilshire Credit Corporation ("Wilshire"), Mortgage Electronic Registration Systems, Inc., Merrill Lynch Mortgage Investors, Inc, and Merrill Lynch Investors Trust Series 2006 RM5. These defendants were represented by Barry Coleman of the Ryan law firm.*fn1 Attorney Mitchell Abdallah appeared for the first time on behalf of plaintiff. Also before the court is ResMAE's motion to dismiss, filed February 17, 2010, and taken under submission without a hearing on April 2, 2010. After hearing oral argument and reviewing the parties' papers, the court now issues the following findings and recommendations.

BACKGROUND

Plaintiff's complaint was filed in this court on August 17, 2009. Plaintiff alleges that on or about August 19, 2006, she obtained a loan from defendants Home Loans Direct, Annett, Desouki, and Cox secured by a deed of trust naming defendant ResMAE Mortgage Co. ("ResMAE") as the lender. (Compl. ¶¶ 22, 24-26). Plaintiff alleges that these defendants made misrepresentations regarding the terms of the loan which caused plaintiff to enter into it to her detriment. (Id. at ¶ 25.) Plaintiff alleges that MERS was a beneficiary on the Deed of Trust. (Id. at ¶ 9.) The complaint further asserts that as servicer for ResMAE Mortgage, defendant Wilshire Credit Corporation violated RESPA, TILA's disclosure requirements, and engaged in bad faith negotiations. (Id. at ¶ 15.) Defendants ResMAE, Merrill Lynch Mortgage Investor's Inc., and Merrill Lynch Investors Trust Series 2006 RM5 are accused of engaging in a scheme "to defraud borrowers and purchasers of Mortgage Backed Securities..." and are alleged to have violated SEC rules and regulations.*fn2 (Id. at ¶ 16.)

Plaintiff alleges violations of the Truth in Lending Act ("TILA") (15 U.S.C. § 1601) against defendant ResMAE, the Real Estate Settlement Procedures Act ("RESPA") (12 U.S.C. § 2605) against defendants DE HDL, Inc., Desouki, Cox, Lodes Capital Escrow, Inc., Hall, Fox Fields Financial Corp., and Fox, SEC rules and regulations, California's Rosenthal Act (Cal. Civ. Code §§ 1788 et seq.), unfair competition (Cal. Bus. and Prof. Code § 17200), fraud, breach of fiduciary duty, negligence, and to enforce rescission (Cal. Civ. Code § 2923.6). Plaintiff seeks an injunction preventing defendants from collecting on the loan or selling the property, as well as declaratory relief and damages.

DISCUSSION

I. MOTION TO DISMISS FOR INSUFFICIENT SERVICE OF PROCESS (Fed. R. Civ. P. 12(b)(5) (Defendants Wilshire Credit Corporation, Mortgage Electronic Registration Systems, Inc., Merrill Lynch Mortgage Investors, Inc, and Merrill Lynch Investors Trust Series 2006 RM5)

This group of defendants first moves to dismiss for insufficient service of process based on plaintiff's delay in service and defective service.

Pursuant to Fed. R. Civ. P. 4(m), service of process must be effectuated within 120 days after the complaint is filed. Plaintiff filed her complaint on August 17, 2009. On December 16, 2009, plaintiff filed a request for fifteen day extension of time to serve process. Her request was based on ongoing negotiations for a loan modification between plaintiff's attorneys and the primary defendant, because she had difficulties locating two individuals, and because her husband who normally assists her with this action was occupied with two family emergencies. On December 30, 2009, fifteen days after the deadline for service, and before the undersigned could review plaintiff's motion for extension of time, plaintiff served process on defendants by regular first class U.S. mail.

Federal law requires that a defendant corporation be served either:

(A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or

(B) by delivering a copy of the summons and complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to received service of process and - if the agent is one authorized by statute, and the statute so requires - by also mailing a copy of each to the defendant....

Fed. R. Civ. P. 4(h).

Under subdivision (e)(1), service on individuals may be effectuated pursuant to the laws of the forum state. California requires service on a person designated as agent for service of process where the defendant is a corporation. Cal. Civ. Proc. Code § 416.10. In lieu of personal delivery, Cal. Civ. Proc. Code § 415.20 permits service on a corporation by substituted service which requires leaving the summons and complaint during normal office hours at the office of the defendant with a person "who is apparently in charge" and thereafter mailing a copy of the summons and complaint to the defendant at that same office. California does provide for service by mail to defendants outside the state; however, the statute requires a return receipt. Cal. Civ. Proc. Code § 415.40. There is no evidence of such service in this case.Defendants do not indicate whether they are foreign or domestic corporations.

The only ostensible service on defendants is reflected in a proof of service filed December 31, 2009, indicating service on December 30, 2009 by first class U.S. mail. (Docket #5.)

Plaintiff's service was defective and defendants are entitled to dismissal on that ground. However, in order to forestall a probable re-filing, the undersigned rules on the merits.

In regard to defendants who have not yet made an appearance, however, plaintiff's service of process was defective and there is no assurance that other defendants have received service. Therefore, plaintiff will be given 21 days to effectuate proper service on all remaining defendants not party ...


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