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Aaron Liebelt v. Quality Loan Service Corporation

February 24, 2011

AARON LIEBELT,
PLAINTIFF,
v.
QUALITY LOAN SERVICE CORPORATION, EMC MORTGAGE CRPORATION, INDIVIDUALLY AND AS JPMORGAN CHASE & CORRECTED*FN1 ORDER DISMISSING CO., WELLS FARGO BANK, NATIONAL FEDERAL CLAIMS WITH PREJUDICE
ASSOCIATION AS TRUSTEE FOR THE AND REMANDING REMANING CERTIFICATE HOLDERS OF STRUCTURED STATE CLAIMS ASSET MORTGAGE INVESTMENTS II INC. BEAR STEARNS MORTGAGE FUNDING TRUST 2007-AR4 MORTGAGE PASS THROUGH CERTIFICATES, SERIES 2007-
AR4, DOES 1 THROUGH 25,
DEFENDANTS.



The opinion of the court was delivered by: Lucy H. Koh United States District Judge

United States District Court For the Northern District of California

Defendants EMC Mortgage Corporation (EMC), JPMorgan Chase & Co., and Wells Fargo Bank, N.A., as Trustee for the Certificate Holders of Structured Asset Mortgage Investments II Inc. Bear Stearns Mortgage Funding Trust 2007-AR4 Mortgage Pass-Through Certificates, Series 2007-AR4 (Wells Fargo) (collectively, Defendants) moved to dismiss the First AmendedComplaint in this action. The parties stipulated to delay briefing and a hearing on this motion in 26 the hopes that they would settle the case, but no settlement has been reached. The Court has determined that this matter is suitable for decision without oral argument. See Civ. L. R. 7-1(b).

Therefore, the hearing and case management conference set for February 10, 2010 at 1:30 p.m. are hereby VACATED. For the reasons set forth below, the Court finds that Plaintiff has failed to state any federal claim. Plaintiff's federal claims were previously dismissed with leave to amend. TheCourt concludes that further leave to amend would be futile, and therefore DISMISSES the federalclaims with prejudice, and remands the remaining state claims to the Superior Court for Santa Clara County.

Settlement Procedures Act (RESPA, 12 U.S.C. §§ 2601 et seq.), and Fair Debt Collection Practices

I.PROCEDURAL BACKGROUND

The first complaint in this action was filed November 19, 2009 in the Superior Court for Santa Clara County. On December 15, 2009, Defendants removed to this Court. The Notice of Removal identified Plaintiff's Truth in Lending Act (TILA, 15 U.S.C. §§ 1601 et seq.), Real Estate Act (FDCPA, 15 U.S.C. §§ 1692, et seq.) claims as the basis for removal. The Plaintiff also stated several claims under California law. Defendants moved to dismiss the complaint. Judge Ware, to whom this case was previously assigned, granted the motion to dismiss as to the federal claims alleged.

Specifically, Judge Ware dismissed Plaintiff's FDCPA claim because it was based on foreclosure of the property which is the subject of this action, located at 3231 Cheshire Drive, San Jose, CA (the Property). Judge Ware held that "acts of foreclosing on a property pursuant to a deed 20 of trust are not debt collection within the meaning of the FDCPA." April 15, 2010 Order at 5.

Judge Ware, finding that no amendment could cure the deficiency, did not grant the Plaintiff leave to amend this claim.

which was based on underlying TILA and RESPA violations. Regarding TILA, Judge Ware found that Plaintiff's claim for TILA damages appeared to be barred by TILA's one-year statute of 26 limitations, and that Plaintiff had not sufficiently alleged that the statute should be equitably tolled.

April 15, 2010 Order at 6-7. Plaintiff was given leave to amend to assert facts to support tolling.

Judge Ware also dismissed Plaintiff's California Unfair Competition Law (UCL) claim,Id.

Finally, regarding RESPA, Judge Ware dismissed Plaintiff's RESPA claim. He held that Plaintiff had failed to provide sufficient detail regarding his purported Qualified Written Request, 3 and that he failed to sufficiently allege damages due to any RESPA violation. April 15, 2010 On April 27, 2010, Plaintiff filed a Motion for Reconsideration, or for Leave to File an Immediate Appeal, regarding dismissal of the FDCPA claim. Plaintiff claimed that a recent 1605 (2010), had materially changed the law regarding the FDCPA such that Plaintiff could state 9 an FDCPA claim based on foreclosure proceedings. Three days later, on April 30, 2010, Plaintiff 10 filed a First Amended Complaint (FAC). In the FAC, Plaintiff re-asserted his FDCPA claim.

Plaintiff acknowledged that this claim had been dismissed with prejudice, but asserted that he believed his Motion for Reconsideration would be granted and that he would be given the right to re-assert this claim based on the Jerman case.

Order at 8-9. Judge Ware granted leave to amend to address these issues. Id. at 10. 5 Supreme Court decision, Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 130 S. Ct. 8 United States District Court For the Northern District of California On May 28, 2010, Judge Ware denied Plaintiff's Motion for Reconsideration or Leave to File an Immediate Appeal. Judge Ware held that, contrary to the Plaintiff's contention, the cited authority "present[ed] no material change in the law warranting leave to file for reconsideration.

Jerman pertained to the narrow issue of whether a law firm that was acting as a debt collector 18 could invoke the 'bona fide error' defense to civil liability under the FDCPA based on a mistake of 19 law, namely, an incorrect interpretation of the legal requirements of the FDCPA. See 130 S. Ct. at 20 1624. Jerman has no bearing here, since the issue before the Court was whether the FDCPA 21 applies to foreclosure efforts." May 28, 2010 Order at 2-3. it fails to state a claim upon which relief can be granted. To survive a motion to dismiss, the Plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl.

Plaintiff to allege facts that add up to "more than a sheer possibility that a defendant has acted On August 2, 2010, this case ...


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