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Rita P. Dinsmore-Thomas v. Central Mortgage Company D/B/A Central Mortgage Loan Servicing Company

May 3, 2011

RITA P. DINSMORE-THOMAS, PLAINTIFF(S),
v.
CENTRAL MORTGAGE COMPANY D/B/A CENTRAL MORTGAGE LOAN SERVICING COMPANY, DEFENDANT(S).



The opinion of the court was delivered by: David O. Carter United States District Judge

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Before the Court is a Motion for Summary Judgment ("Motion") filed by Defendant Central Mortgage Company D/B/A Central Mortgage Loan Servicing Company ("Defendant") in the above-captioned case. The Court has considered the moving and opposing papers and oral arguments and hereby GRANTS the Motion.

I. Background

This case arises from the foreclosure on Plaintiff Rita P. Dinsmore-Thomas's ("Plaintiff") home located at 481 North Seranado Street, Orange, California 92869 (the "Property"). On January 9, 2004, Plaintiff executed an Adjustable Rate Note with Downey Savings and Loan Association, F.A. in the amount of $210,000. The note was secured by a Deed of Trust encumbering the Property, recorded on January 22, 2004.

On December 1, 2005, Plaintiff was informed by letter that servicing of the loan had been transferred to Defendant. On August 1, 2008, Trustee Corps was appointed Trustee under the Deed of Trust. On August 6, 2008, Trustee Corps, acting as an agent for Defendant, recorded a Notice of Default and Election to Sell Under Deed of Trust due to Plaintiff's alleged failure to pay her loan. On November 13, 2008, Trustee Corps recorded a Notice of Trustee's Sale apprising Plaintiff that a sale would take place on December 3, 2008.

On December 2, 2008, and one day before the scheduled sale, Plaintiff filed a Verified Complaint against Defendant in the Central District. On that same day, Plaintiff filed an ex parte application for a temporary restraining order to stay the sale. On December 3, 2008, the Honorable Andrew J. Guilford denied the ex parte application, finding that Plaintiff had filed the action "extremely late, in the wrong court and with defective papers." Judge Guilford also ordered Plaintiff to show cause why sanctions should not be imposed against her. This matter was transferred to this Court on December 15, 2008, due to the then-pending related case by Plaintiff against Ameriprise Financial, Inc. (SACV 08-587 DOC (PLAx)). On February 4, 2009, Trustee Corps recorded a Trustee's Deed Upon Sale which exhibits that the Property was sold to Ameriprise Bank, F.S.B. on January 20, 2009.

Plaintiff fashioned her original complaint as consisting of three causes of action: (1) Declaratory Judgment, (2) Injunctive Relief, and (3) Nondisclosure, Fraud, and Statutory Damages. She primarily alleged that Defendant improperly foreclosed on the Property without providing her the requisite disclosures and also engaged in fraud through misrepresentations concerning her loan and failed to credit her account with payments tendered, citing to a myriad of federal and California state laws. Defendant brought a motion to dismiss or, alternatively, for summary judgment on April 6, 2009. The Court granted the motion to dismiss with leave to amend on May 7, 2009 (the "May 7, 2009 Order"). As a result, Plaintiff filed a First Amended Complaint ("FAC") on May 27, 2009, alleging a new Fourth Cause of Action for cancellation of instruments and quiet title. In the FAC, Plaintiff also responded to the Court's indication in its May 7, 2009 Order that she needed to allege that she had tendered payment in full under the Note, in the form of cash, check, or money order. In her FAC, she alleged that she had tendered payment in the form of a money order.

Defendant again brought a motion to dismiss on June 16, 2009, which this Court again granted on July 17, 2009 (the "July 17 Order"). By so doing, this Court noted that Plaintiff had failed to remedy many of the same deficiencies identified by the May 7 Order. Though the Court granted Plaintiff leave to amend in light of her pro se status, the Court informed Plaintiff that it would be her last opportunity to produce a cognizable complaint and "admonished [her] not to merely resubmit the same complaint but to address the concerns raised by the [July 17 Order]." See July 17 Order, 9.

Plaintiff proceeded to file her Second Amended Complaint ("SAC") on August 17, 2009. On September 28, 2009, the Court granted in part and denied in part the Motion to Dismiss (the "September 28, 2009 Order"). The Court only allowed one allegation in the third cause of action to go forward and found that "Plaintiff has at least alleged that she presented Defendant with a proper money order payment on April 29, 2008." September 28, 2009 Order. Defendant now brings the present Motion.

II. Legal Standard

The Court must view the facts and draw inferences in the manner most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993 (1962); Chevron Corp. v. Pennzoil Co., 974 F.2d 1156, 1161 (9th Cir. 1992). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact for trial, but it need not disprove the other party's case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S. Ct. 2505 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S. Ct. 2548 (1986). When the non-moving party bears the burden of proving the claim or defense, the moving party can meet its burden by pointing out that the non-moving party has failed to present any genuine issue of material fact. Musick v. Burke, 913 F.2d 1390, 1394 (9th Cir. 1990).

Once the moving party meets its burden, "an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must--by affidavits or as otherwise provided in this rule--set out specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party." FED. R. CIV. P. 56(e)(2); see also Anderson, 477 U.S. at 248-49. Furthermore, a party cannot create a genuine issue of material fact simply by making assertions in its legal papers. There must be specific, admissible evidence identifying the basis for the dispute. S.A. Empresa de Viacao Aerea Rio Grandense v. Walter Kidde & Co., Inc., 690 F.2d 1235, 1238 (9th Cir. 1980). The Supreme Court has held that "[t]he mere existence of a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for [the opposing party]." Anderson, 477 U.S. at 252.

III. Discussion

A. Procedural Objections Raised by ...


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