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Esther Cohn v. Bank of America

January 10, 2011

ESTHER COHN, PLAINTIFF,
v.
BANK OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Presently before the court is defendant's motion to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).*fn1 (Dkt. No. 15.) The court heard this matter on its law and motion calendar on January 6, 2011. Attorney John D. Pingel appeared on defendant's behalf. Plaintiff, who is proceeding without counsel, failed to appear.*fn2

The undersigned has considered the parties' briefs, oral arguments, and the record in this case and, for the reasons stated below, grants defendant's motion to dismiss without prejudice and, out of an out of an abundance of caution, provides plaintiff leave to file a first amended complaint. Additionally, as discussed below, the undersigned concludes that plaintiff's entire case is subject to dismissal with prejudice based on plaintiff's ongoing failures to prosecute her case and comply with the Federal Rules of Civil Procedure, the court's orders, and the court's Local Rules. In any event, the undersigned dismisses plaintiff's case without prejudice on the merits of her case, but will recommend the dismissal of her case with prejudice pursuant to Federal Rule of Civil Procedure 41(b) if plaintiff fails to file a timely first amended complaint or otherwise fails to prosecute her case or fails in the future to comply with the Federal Rules of Civil Procedure or the court's orders or Local Rules.

I. BACKGROUND

On April 13, 2010, plaintiff filed her complaint. (Compl., Dkt. No. 1.) Plaintiff's complaint consists of two pages and relates to the foreclosure and sale of her home located at 2140 Tarbolton Circle, Folsom, California 95630.*fn3 (See Compl. ¶ 8.) Although plaintiff's complaint is written as if the foreclosure had not yet occurred at the time of filing, judicially noticeable documents submitted by defendant reflect that plaintiff's home has already been foreclosed on and was sold at a trustee's sale on May 19, 2009. (Def.'s Req. for Judicial Notice ("RFJN"), Ex. F.)

In what appear to be her first two claims and her basis for subject matter jurisdiction, plaintiff alleges that Bank of America "violated the Protecting Tenants at Foreclosure Act of 2009[,] 12 U.S.C. 5201"*fn4 and "violated the Foreclosure Prevention Act of 2008[,] 12 U.S.C. 1701."*fn5 (Compl. ¶¶ 1-2.) It is unclear from these initial allegations which facts alleged in the complaint support or relate to these two claims or how defendant is alleged to have violated the specific public laws cited by plaintiff.

Plaintiff also alleges that "Countrywide used predatory lending tactics to get a loan for [plaintiff's] husband and [plaintiff] when [they] could not afford it." (Compl. ¶ 3.) Plaintiff does not allege any facts that explain the predatory lending tactics allegedly employed by Countrywide.

Plaintiff does allege some facts relating to the loans issued to her and her late husband. She alleges that she and her husband possessed a first mortgage, either numbered or under an account number of 072843206, and that "Countrywide changed the contract" from a "fixed five year rate to a variable rate interest loan" before the five years were over. (Compl.¶ 5.) Plaintiff alleges that this change, which resulted in a new loan under account number 167072147, forced her and her husband into a higher mortgage payment that they could not afford. (Id. ¶¶ 5-6.)

Plaintiff further alleges that because Countrywide was the "original creditor," plaintiff owes no money to Bank of America, and Bank of America may not foreclose on the subject property. (Compl. ¶ 8.) Without any explanation, plaintiff cites 15 U.S.C. § 1692a(4), which is the definition of the term "creditor" under the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq.*fn6 (Compl. ¶ 8.)

Plaintiff also alleges that "Countrywide did not offer a loan modification alternative to foreclosure" and that "Countrywide did not have a make home affordable plan" as required by the "Obama administration." (Compl. ¶¶ 9-10.) These allegations appear to relate to the Home Affordable Modification Plan ("HAMP"). One district court has described the HAMP program as follows:

HAMP is a government program, established pursuant to the Emergency Economic Stabilization Act of 2008, designed to promote loan modification and other foreclosure prevention services. Under HAMP, individual loan servicers voluntarily enter into contracts with Fannie Mae, acting as the financial agent of the United States, to perform loan modification services in exchange for certain financial incentives. The servicer's obligations under HAMP are set forth in the HAMP Agreement, as well as in Program Guidelines established by the Department of the Treasury.

Villa v. Wells Fargo, No. 10CV81 DMS (WVG), 2010 WL 935680, at *1 (S.D. Cal. Mar. 15, 2010) (unpublished).

Apparently in regards to the HAMP program, plaintiff alleges that Bank of America did not let [plaintiff and her husband] have a reasonable loan modification program to help prevent foreclosure." (Compl. ¶ 11.) Plaintiff alleges that Bank of America wanted her and her husband to pay a higher monthly payment than their original monthly payment, as well as the remaining balance of $353,495.65, which plaintiff alleges she does not possess. (Id. ¶ 11.) Finally, plaintiff alleges: "Bank of America and Countrywide is [sic] . . . taking advantage of me, a mentally disabled person who is collecting food stamps and has Medi-Cal to help pay for my medical expenses."*fn7 (Id. ¶ 13.)

In terms of relief, plaintiff seeks: (1) "[a] monetary settlement of $700,000 with no money owing to anybody"; (2) the deed to the property at issue "with no owning [sic] balance"; and (3) an order requiring defendant to pay "any court, legal and other fees associated with this case. (Compl. at 2:23-25.)

On August 31, 2010, defendant BAC Home Loan Servicing, LP, formerly known as Countrywide Home Loan Servicing LP, which contends it was erroneously sued as Bank of

America, filed a motion to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff repeatedly failed to file an opposition to defendant's motion to dismiss and, eventually, the undersigned entered findings and recommendations dismissing plaintiff's case for failure to prosecute, failure to comply with the court's orders, and failure to comply with the court's Local Rules. (Dkt. No. 23.) Plaintiff objected to those findings and recommendations, and her objections indicated some minimal effort to prosecute her case, albeit without any regard for the rules of procedure and the Local Rules. Although skeptical of plaintiff's efforts, the undersigned vacated the findings and recommendations out of an abundance of caution and ordered plaintiff to file an opposition to defendant's motion on or before December 16, 2010. (Dkt. No. 27.) Plaintiff filed a three-page opposition on December 16, 2010, and defendant filed a reply brief. (Dkt. Nos. 28, 29.)

II. DISMISSAL PURSUANT TO RULE 41(b)

As noted above, defendant filed the pending motion to dismiss on August 31, 2010. In the ensuing months, plaintiff demonstrated an inability to respond to the motion despite clear warnings about the consequences of such a failure, including dismissal of her case. (See Order, Oct. 5, 2010, Dkt. No. 19.) In short, plaintiff demonstrated to the court that she had chosen not to actively prosecute her lawsuit or comply with the court's orders, the Federal Rules of Civil Procedure, and the court's Local Rules.

As a result, on November 4, 2010, the undersigned entered findings and recommendations that recommended the dismissal of plaintiff's case pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute her case and for failure to comply with the court's orders, the Federal Rules of Civil Procedure, and the court's Local Rules. (Findings & Recommendations, Nov. 4, 2010, Dkt. No. 23.) A detailed procedural history is included in those findings and recommendations.

On November 15, 2010, plaintiff filed objections to the findings and recommendations and contended that, contrary to the recitation of facts in the findings and recommendations, plaintiff had filed documents with the court in response to the court's orders. (Dkt. No. 24.) She also contended that she attempted to appear at "the courthouse" on October 5, 2010, apparently believing that defendant's motion to dismiss would be heard on that date. This assertion was despite the fact that no hearing was ever noticed by defendant for October 5, 2010, or otherwise set by the court for that date.

On November 22, 2010, defendant filed a response to plaintiff's objections. (Dkt. No. 25.) Briefly stated, defendant requested that the court grant its motion to dismiss on the merits.

On December 1, 2010, the undersigned entered an order vacating the previously entered findings and recommendations. (Order, Dec. 1, 2010, Dkt. No. 27.) As stated in that order, the undersigned remained skeptical of the truthfulness of plaintiff's representations stated in her objections filed with the court. Nevertheless, out of an abundance of caution and because dismissal is generally a severe sanction, the undersigned vacated the findings and recommendations, reset defendant's motion to dismiss for a new hearing date, and ordered that plaintiff respond to the motion. The undersigned warned plaintiff that this was plaintiff's final opportunity to demonstrate that she is taking this lawsuit seriously and that the undersigned would recommend the dismissal of this action with prejudice if plaintiff subsequently failed to prosecute her action or comply with the court's orders, the Federal Rules of Civil Procedure, or the court's Local Rules.

As noted above, although plaintiff filed a three-page written opposition to defendant's motion to dismiss, she failed to appear at the hearing on defendant's motion to dismiss on January 6, 2011. Plaintiff's failure to appear at the hearing is yet another example of her failure to prosecute her case and conform her conduct to the court's orders and Local Rules. These failures persist despite the fact that the court has warned plaintiff on multiple occasions that such deficient conduct would result in the dismissal of her case with prejudice. The undersigned would be justified in recommending the dismissal of plaintiff's case with prejudice pursuant to Federal Rule of Civil Procedure 41(b).*fn8 Defendant has diligently pursued the dismissal of this case on the merits, and the court has spent dozens of hours trying to convince plaintiff that she should pay attention to her lawsuit. Nevertheless, out of an abundance of caution, the undersigned will reach the merits of defendant's motion and dismiss plaintiff's complaint without prejudice to the filing of an amended complaint. However, if ...


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