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Ortiz v. Mortgage IT

August 12, 2010

YADIRA ORTIZ, PLAINTIFF,
v.
MORTGAGE IT, INC., A FOREIGN CORPORATION AUTHORIZED TO DO BUSINESS IN CALIFORNIA; AMERICA'S SERVICE COMPANY, A FOREIGN CORPORATION AUTHORIZED TO DO BUSINESS IN CALIFORNIA; HOMEFINDERS REALTY, A BUSINESS ENTITY UNKNOWN; DOES 1 THROUGH 30, INCLUSIVE, DEFENDANTS.



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

ORDER

The matters before the Court are the Motion to Dismiss Plaintiff's Second Amended Complaint (Doc. # 63) filed by Defendant America's Servicing Company, the Motion to Strike Portions of Plaintiff's Second Amended Complaint (Doc. # 64) and Motion to Dismiss Plaintiff's Second Amended Complaint (Doc. # 65) filed by Defendant Mortgage It, Inc., and the Request for Dismissal of America's Servicing Company (Doc. # 66) filed by Plaintiff Yadira Ortiz.

BACKGROUND

This action relates to Plaintiff's mortgage. Plaintiff initiated this action by filing her Complaint in the Superior Court for the State of California, County of San Diego on August 14, 2009. (Doc. # 1 at 7). On September 25, 2009, Defendant Mortgage It, Inc. ("Mortgage It") filed a Notice of Removal joined by Defendant America's Servicing Company ("ASC").

Id. Mortgage It and ASC stated this Court has jurisdiction pursuant to 28 U.S.C. § 1332. Id. at 2. Defendant Homefinders Realty ("Homefinders") was not served in the state court suit. (See Doc. # 2). On October 28, 2009, Plaintiff filed a First Amended Complaint ("FAC"). (Doc. # 14). On December 9, 2009, the Court denied Plaintiff's Application for a Temporary Restraining Order. (Doc. # 38). On March 9, 2010, the Court dismissed the FAC as to Defendants Mortgage It and ASC. (Doc. # 47). On April 1, 2010, the Court dismissed the action as to Homefinders because Plaintiff failed to serve Homefinders and failed to respond to an Order to Show Cause. (Doc. # 49). On May 28, 2010, the Court granted Plaintiff leave to file a Second Amended Complaint ("SAC") against ASC and Mortgage It, but not against Homefinders. (Doc. # 61). Also on May 28, 2010, Plaintiff filed her SAC, which is the operative pleading in this case. (Doc. # 62). On June 11, 2010, ASC filed its motion to dismiss. (Doc. # 63). On June 14, 2010, Mortgage It filed its motion to strike and motion to dismiss. (Docs. # 64-65). On June 30, 2010, Plaintiff filed her request to dismiss ASC. (Doc. # 66).

ALLEGATIONS OF THE COMPLAINT

Plaintiff owns a home at 1477 Windchime Avenue in Chula Vista, California. (Doc. # 62 at 6). Plaintiff refinanced her mortgage through Homefinders on May 8, 2007. Id. Homefinders helped Plaintiff obtain a second mortgage from Mortgage It. Id. Plaintiff was an unsophisticated borrower. Id. An employee of Homefinders told Plaintiff that she would be able to reduce her monthly payments, but in fact, Plaintiff's mortgage payment increased. Id. at 6-7. Plaintiff "was informed and believed" that Homefinders and Homefinders' employee who assisted Plaintiff with the refinance were "acting in a fiduciary capacity on her behalf." Id. at 6. Plaintiff's loan with Mortgage It was later assigned to ASC as a loan servicer and owner or partial owner of the loan. Id. at 7.

Plaintiff's loan became unaffordable in late 2008 and Plaintiff "began exploring the possibility of a refinance." Id. at 7. While researching refinance options, Plaintiff realized the disclosures she received when she refinanced violated state and federal law. Id. Plaintiff was not provided with "the broker's early disclosures." Id. Homefinders Realty's agent failed to "offer a one day inspection prior to the settlement of the transaction." Id. Plaintiff's debt-to-income ratio was 74.98% before her mortgage rate adjusted and 103.601% after her mortgage rate adjusted. Id. at 8. Plaintiff was not properly informed of her right to cancel the loan. Id. at 8-9. Plaintiff received a document entitled "Right to Cancel," but the document does not include the date when Plaintiff's right to rescind expired. Id. Mortgage It "has produced a copy of a notice of the right to rescind which was signed by Plaintiff and contained the correct expiration date for the Notice of Right to Rescind.... [h]owever, this document nor any copy of it were ever provided to Plaintiff at consummation of the loan." Id. at 9. Plaintiff's finance charges were miscalculated, resulting in an overstatement of the finance charges in her loan documents. Id. The interest Plaintiff would be charged was not clearly stated. Id. at 9-10. Plaintiff was also not provided with "historical index values" on an adjustable rate loan, privacy disclosures, or other required disclosures. Id. at 10. Plaintiff sent a letter rescinding the loan on December 17, 2008. Id. at 11. However, Defendants "failed to take the required and appropriate actions to reflect the termination of any security interest." Id.

Plaintiff alleges claims for (1) violations of the federal Truth In Lending Act (TILA); (2) declaratory relief; (3) fraud; and (4) negligent misrepresentation. Id. at 12-14. ANALYSIS

I. Motions Pertaining to ASC

Plaintiff filed her request for dismissal of ASC pursuant to Federal Rule of Civil Procedure 41(a). (Doc. # 66). Because ASC has not filed an answer or a motion for summary judgment, the Request for Dismissal automatically dismissed the case as to ASC upon receipt by the Court. See Fed. R. Civ. P. 41(a)(1)(A). Plaintiff's request for dismissal is granted. ASC's motion to dismiss is denied as moot.

II. Mortgage It's Motions

A. Motion to ...


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