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Johnston v. Lindauer

July 19, 2010

CLIFF JOHNSTON, PLAINTIFF,
v.
CHARLENE LINDAUER, A/K/A CHARLENE MACALUSCO; VALUE HOME LOAN, DEFENDANTS.



The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER DENYING PLAINTIFF'S MOTIONS, SUA SPONTE DISMISSING CLAIMS AGAINST DEFENDANT LINDAUER AND DENYING VALUE HOME LOANS' MOTION FOR ATTORNEYS' FEES*fn1

Defendant Value Home Loan ("Value") moves under California Civil Code § 1717 for an award of $33,240 in attorneys' fees based upon fee-shifting provisions included in Plaintiff's loan and deed of trust agreements. (Docket No. 101.) Pro se Plaintiff Cliff Johnston does not oppose Value's attorneys' fees motion.

Value was granted summary judgment on Plaintiff's two federal claims under the Truth in Lending Act ("TILA") and the Home Owner Equity Protection Act ("HOEPA") in an order filed on January 12, 2010. Plaintiff's TILA and HOEPA claims against Defendant Lindauer remain pending since Lindauer filed a notice of bankruptcy on July 27, 2009.

After the Court granted Value's summary judgment motion, Plaintiff filed two unnoticed motions on February 5, 2010, in which he requests leave to amend his complaint and seeks to "reintroduce" his Real Estate Settlement Procedures Act ("RESPA") claim which he voluntarily dismissed at a hearing held on July 28, 2009. (Docket Nos. 104, 108.) Plaintiff also filed a motion to proceed in forma pauperis. (Docket No. 106.)

For the reasons stated below, Plaintiff's motions are denied, Plaintiff's remaining TILA and HOEPA claims against Defendant Lindauer are sua sponte dismissed for failure to state a claim, Value's motion for attorneys' fees is denied and this case shall be closed.

I. BACKGROUND

Plaintiff's claims concern a first deed of trust loan and a home equity line of credit loan he obtained from Value in January 2007. The terms of the first deed of trust loan were embodied in an adjustable rate note, and the terms of the home equity line of credit loan were stated in a home equity credit line revolving loan agreement. The first deed of trust loan was secured by a first deed of trust on Plaintiff's property; the home equity line of credit loan was secured by a second deed of trust also on Plaintiff's property. Plaintiff defaulted and Value foreclosed under the second deed of trust in February 2008, and sold Plaintiff's property to a third party.

Thereafter, Plaintiff filed a complaint in this federal court on June 26, 2007, alleging twenty-four claims under federal and state law. Plaintiff's claims largely concern his allegations that Defendants misrepresented information and failed to make certain disclosures when he obtained his loans.

Fourteen days before the trial was scheduled to commence, on July 14, 2009, the Court sua sponte dismissed Plaintiff's twenty state claims under 28 U.S.C. § 1367(c)(2), after finding that Plaintiff's state claims substantially predominated over his federal claims. The Court also sua sponte dismissed Plaintiff's Equal Credit Opportunity Act ("ECOA") claim for failure to state a claim. After the July 14 order issued, only Plaintiff's TILA, HOEPA and RESPA claims remained.

On July 28, 2009, the day trial was scheduled to begin, a hearing was held to address the parties' failure to file appropriate jury instructions. At the July 28 hearing, the Court dismissed Plaintiff's RESPA claim after Plaintiff sought to abandon that claim. Also at the July 28 hearing, following the parties disagreement on the elements of Plaintiff's TILA and HOEPA claims, the Court vacated the trial date and informed the parties that they would be required to submit briefs on Plaintiff's two remaining federal claims. However, "since the briefs filed... fail[ed] to clearly explain the law and facts applicable to Plaintiff's remaining federal claims," a summary judgment briefing schedule was established, and trial was again scheduled.

Value moved for summary judgment on Plaintiff's remaining claims on October 6, 2009, and this motion was granted on January 12, 2010. Value now seeks $33,240 in attorneys fees under California Civil Code § 1717 ("section 1717") and the fee-shifting provisions included in Plaintiff's loan agreements and deed of trusts.

II. PLAINTIFF'S MOTIONS & THE REMAINING CLAIMS AGAINST DEFENDANT LINDAUER

On February 5, 2010, Plaintiff filed a motion under Federal Rule of Civil Procedure 15(a) ("Rule 15(a)"), in which he seeks leave to amend his complaint to allege seven federal claims, including claims under RESPA and TILA. Also on February 5, 2010, Plaintiff filed a "motion for reconsideration," through which he seeks to "reintroduce" the RESPA claim he voluntarily dismissed at the July 28, 2009 hearing.

Rule 15(a), however, is not applicable to Plaintiff's request to amend his complaint; instead, Federal Rule of Civil Procedure 16's "good cause" standard governs. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992) (Federal Rule of Civil Procedure 16's "good cause" standard governs amendment after the issuance of a scheduling order). Since Plaintiff has not shown that good cause justifies allowing amendment of the scheduling order, his motion to amend his complaint is denied.

Further, review of Plaintiff's proposed first amended complaint reveals that it does not state any cognizable federal claims against Lindauer. Since Plaintiff's currently pled TILA and HOEPA claims alleged against Lindauer do not state a claim, they are sua sponte dismissed. See Pretrial Scheduling Order 4 (which warned that non-trial worthy issues could be eliminated sua sponte).

Lastly, Plaintiff's motion to proceed in forma pauperis is denied as moot since the filing fee has ...


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