Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Taylor v. GMAC Mortgage

September 28, 2010

GARY TAYLOR, AN INDIVIDUAL PLAINTIFF,
v.
GMAC MORTGAGE, LLC; AND DOES 1-10, DEFENDANTS.



The opinion of the court was delivered by: John A. Houston United States District Judge

ORDER GRANTING IN PART DEFENDANT'S MOTION TO DISMISS [Doc. No. 7]

INTRODUCTION

Pending before the Court is the motion to dismiss Plaintiff's complaint filed by Defendant GMAC Mortgage, LLC ( "Defendant"). The motions have been fully briefed by the parties. After a thorough review of the parties' submissions, and for the reasons set forth below, the motions are GRANTED IN PART. This Court also sua sponte DISMISSES Plaintiff's claims pursuant to the Truth In Lending Act. 15 U.S.C. § 1635 ("TILA").

BACKGROUND

1. Factual Background

On March 31, 2006, Plaintiff entered into a refinance loan transaction on his residence located at 518 Larchwood Drive, San Marcos, California with Equity 1 Lenders Group. First Amended Complaint ("FAC") ¶¶ 2-3. During the transaction, Plaintiff received Notice of Right To Cancel as required under the TILA but the Notice was not completed and the document did not include an expiration date of the right to cancel. FAC ¶ 5. Defendant subsequently purchased the note and deed of trust that comprised the refinance loan transaction. FAC ¶ 3. Apparently, Plaintiff initially made regularly scheduled payments but sometime thereafter, Plaintiff defaulted on the loan. On December 30, 2008 Plaintiff sent Defendant a notice of rescission. FAC ¶ 5. Defendant responded on January 14, 2009, and contested Plaintiff's right to rescission, arguing that it found no basis to conclude that there were any material disclosure errors that would give rise to an extended right of rescission. FAC ¶ 6. A couple of months later, Defendant commenced non-judicial foreclosure efforts, reporting negative payment information to the credit reporting agencies. FAC ¶ 8. Plaintiff then filed for Chapter 13 bankruptcy protection. FAC ¶ 8.

2. Procedural History

Plaintiff filed his complaint on July 14, 2009. Plaintiff alleges that Defendant violated the (1) TILA and Federal Reserve Regulation Z, 12 C.F.R §226 by failing to provide a completed "Notice of the Right to Cancel" that did not include a date of expiration of the right to cancel; (2) Perata Mortgage Relief Act, California Civil Code §2923.5 ("Perata") by failing to make good faith efforts to explore alternatives to the remedy of foreclosure; and (3) California's Unfair Competition Law, California Business and Professions Code §17200 at seq. ("UCL"), because Defendant's TILA and Perata violations support a §17200 cause of action.

On March 22, 2010, Defendant filed the instant motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. On March 22, 2010, Plaintiff filed an opposition to the motion. Defendant did not file a reply brief. This Court subsequently took the motion under submission without oral argument. See CivLR 7.1(d.1).

DISCUSSION

I. Legal Standard

A. Sua Sponte Dismissal Under Fed. R. Civ. P. 12(h)(3)

The court must dismiss an action, if it determines at any time that it lacks subject-matter jurisdiction. Fed. R. Civ. P. 12(h)(3). The justiciability of a claim is a jurisdictional question and may therefore be raised by the court sua sponte. Demille v. Belshe, 1995 WL 23636 *1(N.D. Cal.) (citing California Energy Resources Conservation & Development Commission v. Johnson, 783 F.2d 858, 864 (9th Cir. 1986) ("That the parties have not questioned the ripeness of an issue does not preclude the court from reaching the question of ripeness.") Id. Ripeness prevents the court from premature ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.