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Orozco v. DHI Mortgage Co. Ltd

July 13, 2010

MARIA OROZCO, PLAINTIFF,
v.
DHI MORTGAGE CO. LTD, LP.; OCWEN LOAN SERVICING, LLC.; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; ET AL., DEFENDANTS.



The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge

ORDER: (1) GRANTING DEFENDANT DHI MORTGAGE COMPANY, LTD., L.P.'S MOTION TO DISMISS AND (2) DISMISSING ALL CLAIMS AGAINST DEFENDANT DHI MORTGAGE COMPANY, LTD., L.P. WITH PREJUDICE

(Doc. No. 45)

Presently before the Court is Defendant DHI Mortgage Company, LTD., L.P.'s motion to dismiss the Second Amended Complaint (SAC). (Doc. No. 45.) Also before the Court are Plaintiff's opposition and Defendant's reply. (Doc. Nos. 47 & 48.) After full consideration, the Court GRANTS Defendant's motion and DISMISSES WITH PREJUDICE all claims against Defendant DHI.

BACKGROUND

The factual background of this case was set forth in detail in the Court's February 10, 2010 Order granting the Defendants' motions to dismiss. (Doc. No. 33 (Prior Order) at 2.) That summary is incorporated by reference here.

Plaintiff filed the Complaint in this case on August 31, 2009. (Doc. No. 1.) On October 22, 2009, Defendant Ocwen filed a motion to dismiss. (Doc. No. 5.) Similarly, on November 3, 2009, Defendant DHI Mortgage Co. Ltd., L.P. filed a motion to dismiss. (Doc. No. 9.) The deadlines for Plaintiff's responses to these motions came and went without any substantive opposition. (Doc. Nos. 7 & 11.) Instead, Plaintiff sought additional time to amend her Complaint, which the Court granted. (Doc. Nos. 12, 13, & 14.) On November 30, 2009, Plaintiff filed her First Amended Complaint. (Doc. No. 16.) Again, Defendants DHI and Ocwen each filed a motion to dismiss. (Doc. Nos. 20 & 22.) And although Plaintiff timely responded to Defendant DHI's motion, her opposition to Defendant Ocwen's motion was outside of the time set by the Court. (Doc. Nos. 24, 27, & 28.) On February 10, 2010, the Court granted both motions to dismiss and dismissed the First Amended Complaint in part with prejudice and in part without prejudice. (Prior Order at 14.)

On January 21, 2010, while the second set of motions to dismiss were pending before the Court, Plaintiff filed a motion for leave to file a Second Amended Complaint. (Doc. No. 31.) She did so in spite of the Court's express directive that such a motion would not be considered. (See Doc. No. 19 ("The Court will not entertain any further requests to amend the complaint while a motion to dismiss is pending unless all parties indicate their consent to such motion in writing.").) Attached to this motion was a proposed Second Amended Complaint. (Doc. No. 31-2.) After dismissing the First Amended Complaint, the Court granted this motion and allowed Plaintiff until March 3, 2010 to file a Second Amended Complaint. (Prior Order at 14.)

On March 9, 2010, with no amended complaint on file, Defendant Ocwen moved the Court to dismiss the entire matter with prejudice. (Doc. No. 34.) Plaintiff requested that the Court deny this motion and allow her to have the Exhibit to her first motion to amend docketed as the SAC. (Doc. No. 37.) She made this request even though the proposed SAC was drafted prior to the Court's Order dismissing her First Amended Complaint. Although Defendants opposed the request, the Court granted Plaintiff's motion on April 16, 2010 and ordered the SAC filed. (Doc. No. 41.)

On April 26, 2010, Defendant DHI moved to dismiss the SAC. (Doc. No. 45.) Plaintiff filed her opposition on May 25, 2010 and DHI filed its reply on June 1, 2010. (Doc. Nos. 47 & 48.) // // //

LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the defense that the complaint "fail[s] to state a claim upon which relief can be granted," generally referred to as a motion to dismiss. The Court evaluates whether a complaint states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil Procedure 8(a), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Although Rule 8 "does not require 'detailed factual allegations,'... it [does] demand[] more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, -- US -, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 557).

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible when the facts pled "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556). That is not to say that the claim must be probable, but there must be "more than a sheer possibility that a defendant has acted unlawfully." Id. Facts "'merely consistent with' a defendant's liability" fall short of a plausible entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557). Further, the Court need not accept as true "legal conclusions" contained in the complaint. Id. This review requires context-specific analysis involving the Court's "judicial experience and common sense." Id. at 1950 (citation omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief.'" Id.

ANALYSIS

Defendant DHI originated Plaintiff's loan. (SAC ΒΆ 8.) The SAC sets forth claims against Defendant DHI for intentional misrepresentation, quiet title, violations of the Truth in Lending Act, the Real Estate Settlement Procedures Act, unfair business ...


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