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Tate v. Indy Mac Bank FSB

September 3, 2010

TATE
v.
INDY MAC BANK FSB, ET AL.



The opinion of the court was delivered by: Honorable Otis D. Wright II, United States District Judge

CIVIL MINUTES - GENERAL

Proceedings (IN CHAMBERS): ORDER (1) GRANTING DEFENDANT MORTGAGEIT'S MOTION TO DISMISS AND (2) RENDERING MOOT DEFENDANT'S MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT [6, 7]

Currently before the Court are Defendant MortgageIT's Motions (1) to Dismiss and (2) to Strike Portions of Plaintiff Bishop Tate's ("Plaintiff") Complaint. (Docket Nos. 6, 7.) The Court deems the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; L.R. 7-15. Having carefully considered the parties' arguments and the papers submitted, the motion to dismiss GRANTED, thereby rendering the motion to strike MOOT.

I. FACTUAL BACKGROUND

On March 26, 2010, Plaintiff instituted this action against Defendants Indy Mac Bank FSB, Mortgage Electronic Registration Systems, Inc., MortgageIT, Quality Loan Service Corp., One West Bank FSB, and Deutsche Bank National Trust Co. (collectively, "Defendants") alleging claims for: (1) violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692f; (2) violation of the FDCPA, 15 U.S.C. § 1692g"; (3) violation of 15 U.S.C. § 1692e; (4) violation of the Real Estate Settlement Procedures Act of 1974 ("RESPA"), 12 U.S.C. § 2605; (5) violation of RESPA, 12 U.S.C. §2607; (6) violation of the Truth in Lending Act, 15 U.S.C. § 1601; (7) violation of the Bank Tying Act, 12 U.S.C. § 1972; (8) breach of implied covenant of good faith, UCC § 1-304; (9) undue influence; (10) quiet title; (11) "void or set aside deed of trust"; (12) "void or set aside foreclosure sale"; (13) accounting; (14) fraud; (15) violation of California Rosenthal Act; and (16) constructive trust. (Docket No. 1.)

On April 23, 2010, Plaintiff and MortgageIT filed a stipulation to dismiss with prejudice the First, Second, Third, Fourth, and Fifteenth causes of action as to MortgageIT. (Docket Nos. 4, 5.) Before the Court is MortgageIT's motion to dismiss the remaining claims against it: (1) injunctive relief; (2) declaratory relief; (3) violation of RESPA, 12 U.S.C. § 2607; (4) violation of TILA, 15 U.S.C. § 1601; (5) violation of the Bank Tying Act, 12 U.S.C. § 1972; (6) quiet title; (7) void or set aside foreclosure sale; (8) accounting; and (9) fraud. (Docket No. 7.)

This is the second lawsuit filed by Plaintiff against the Defendants (hereinafter, the "Second Action"). In the first lawsuit, Bishop Tate v. Indy Mac Bank FSB et al., CV 09-05042 ODW (PLAx) (hereinafter, the"First Action"), Plaintiff brought largely the same causes of actions against the same Defendants. (See First Action, Notice of Removal, Exh. H; see also, First Action's Complaint, First Amended Complaint ("FAC"), and Second Amended Complaint ("SAC").) Defendants moved to dismiss Plaintiff's FAC in the earlier-filed case, and the Court granted the motion with leave to amend. (Def. MortgageIT's Request for Judicial Notice ("RJN"), Exh. A [November 30, 2009 Order].)

Thereafter, Plaintiff filed its SAC in the First Action on December 15, 2009. (See The First Action, Docket No. 38.) Defendant MortgageIT moved to dismiss the SAC, and Plaintiff did not oppose the motion. On March 4, 2010, the Court granted MortgageIT's motion, dismissed Plaintiff's SAC, and closed the case pursuant to Local Rule 7-12. (Def. MorgageIT's RJN, Exh. B.)

Thereafter, Plaintiff filed the instant Complaint, which contains the same deficient allegations found in the previously dismissed complaints filed by Plaintiff in the First Action. In fact, a side-by-side comparison of the operative complaint in this action and the FAC and SAC reveals that Plaintiff has not successfully cured the defects raised by the Court in its November 30, 2009 Order. For the reasons further explained below, Defendant MortgageIT's motion to dismiss is granted.

II. DISCUSSION

A. Violation of RESPA, 12 U.S.C. § 2607

Section 2607, except in certain circumstances, prohibits giving or receiving "any fee, kickback, or thing of value" for the referral of a real estate settlement service involving a federal mortgage loan. 12 U.S.C. § 2607(a). The Complaint alleges that Defendants violated section 2607 because they "paid fees, or kickbacks, or a thing of value pursuant to an agreement . . . to third parties." (Second Action, Compl. ¶ 115.) In its November 30, 2009 Order, the Court dismissed this particular cause of action on the basis that it was time-barred and Plaintiff failed to allege facts that equitable tolling was appropriate. (Def. MortgageIT's RJN, Exh. A at 10.) Again, Plaintiff failed to cure these deficiencies and amendment at this juncture appears to be futile. Because Plaintiff has not alleged facts that establish that equitable tolling of the statute of limitations is appropriate, Plaintiff's claim for violation of § 2607 is dismissed with prejudice as to MortgageIT.

B. Violation of TILA

As noted by the Court in its November 30, 2009 Order, a Plaintiff may assert claims for monetary damages and/or rescission under TILA. See 15 U.S.C. §§ 1635(f), 1640(e). Claims for damages under TILA must be brought within one year from the date on which the transaction underlying the alleged violation is consummated. 15 U.S.C. § 1640(e); see also King v. California, 784 F.2d 910, 915 (9th Cir. 1986). On the other hand, claims for rescission pursuant to TILA must be brought within three years of the date of the consummation of the transaction or upon the sale of the property, whichever occurs first. See 15 U.S.C. § 1635(f); 12 C.F.R. § 226.23(a)(3). Further, the Ninth Circuit has held that equitable tolling of the statute of limitations may be warranted in ...


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