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Maricela Verde Hernandez v. Bank of America

May 11, 2011

MARICELA VERDE HERNANDEZ,
PLAINTIFF,
v.
BANK OF AMERICA, COUNTRYWIDE, DEFENDANTS.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

ORDER GRANTING MOTION FOR JUDGMENT ON THE PLEADINGS (DOC. 8)

I.INTRODUCTION

This action concerns real property located at 6651 Via Del Mar, Bakersfield, California, 93307 ("Subject Property"). The Complaint, apparently drafted by counsel, is riddled with typographical errors and partial sentences, making it difficult to understand. It appears from the Complaint that Plaintiff, Maricela Verde Herndandez, purchased the property on or about June 23, 2006 financed through a loan from "Countrywide, Bank of America." Doc. 1, Compl. ¶ 12. At some point, Plaintiff "began experiencing financial difficulties," and requested a loan modification from her lender. Id . at ¶¶ 14-15. The lender requested additional information regarding Plaintiff‟s modification request. Id . at ¶ 17. On June 14, 2010, Bank of America informed Plaintiff that it had "completed its review" of her modification request, but the results of that review are not articulated in the complaint. Id . at ¶ 18. Regardless of the outcome, the property was sold under the power of sale on June 16, 2010. Id .

Plaintiff, through counsel, requested rescission of the sale, which request was apparently denied. See id . at ¶ 22. Subsequently, Plaintiff filed a Complaint for Damages in the Superior Court for the "County of Bakersfield," which was accepted for filing by the Superior Court, Metropolitan Division, County of Kern, on December 8, 2010. The Complaint alleges twelve causes of action:

1. Breach of Contract;

2. Violation of California Business & Professions Code §§ 17200-17500, et seq .,

3. Breach of the Covenant of Good Faith and Fair Dealing;

4. Fraud and Intentional Misrepresentation of Fact;

5. Negligent Misrepresentation of the Fact;

6. Unlawful Business Practices (Cal. Fin. Code § 22302);

8. Cancellation and Vacation of Foreclosure Sale;

9. Quiet Title;

10. Fraudulent Inducement;

11. Intentional Infliction of Emotional Distress;

12. Negligent Infliction of Emotional Distress.

The Complaint also contains allegations that Defendant violated various provisions of federal law. See Compl. at ¶ 19 (alleging violations of "12 U.S.C., 12 C.F.R., 15 U.S.C."); 4:27-5:4 (alleging a violation of the UCL "predicated upon Violations of TILA"); 17:15 (seeking relief under TILA).

On January 3, 2011, Defendant BAC Home Loans, erroneously sued as Bank of America, Countrywide, timely and properly removed this case to federal court pursuant to 28 U.S.C. § 1446(a), based upon federal question jurisdiction. Doc. 1. Defendant subsequently noticed for hearing on March 14, 2011 a motion for judgment on the pleadings, or in the alternative for summary judgment. Doc. 8. That hearing was continued to March 21, 2011. Doc. 10. Notice of the new hearing date was served by U.S. Mail on Plaintiff‟s counsel. See Docket Entry Dated 1/27/11. Plaintiff, who is represented by counsel, failed to file any opposition. See Doc. 13. A March 15, 2010 minute order took the matter off calendar and submitted the motion for judgment on the pleadings for decision on the papers. Doc. 14. The minute order was served via U.S. Mail on Plaintiff‟s counsel March 15, 2011. In an abundance of caution, an Order directing Plaintiff‟s counsel to serve notice of the pending dispositive motion on Plaintiff was served by mail on Plaintiff‟s counsel May 1, 2011. Doc. 15. Plaintiff‟s counsel ...


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