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Diane Beall, Fka Templin v. Onewest Bank

July 15, 2011

DIANE BEALL, FKA TEMPLIN
PLAINTIFF,
v.
ONEWEST BANK, F.S.B.'S LOAN SERVICE CORP.; ONEWEST BANK, F.S.B.; DOES 1-10,
DEFENDANTS.



The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. District Judge

ORDER GRANTING MOTION TO DISMISS, DENYING PLAINTIFF'S MOTION FOR QUALITY EXTENSION OF TIME TO FILE RESPONSE, AND DENYING AS MOOT QUALITY LOAN'S EX PARTE MOTION FOR ORDER EXCUSING QUALITY FROM FURTHER PARTICIPATION [Doc. Nos. 42, 46, and 37, respectively]

Before the Court is Defendant OneWest Bank, F.S.B.'s ("OneWest") Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(6) [Doc. No. 42] and Plaintiff's Motion for Extension of Time to File Response [Doc. No. 46]. For the reasons set forth below, the Court grants OneWest's Motion to Dismiss and denies Plaintiff's Motion for Extension of Time.

A. PLAINTIFF'S MOTION FOR EXTENSION OF TIME

On June 29, 2011, Plaintiff's attorney, Garry Harre, filed an Emergency Motion for Extension of Time to File Opposition to Motion to Dismiss and for Continuance of Hearing Because of Medical Condition of Attorney Garry Harre. [Doc. No. 46.] According to Plaintiff's motion, Mr. Harre has been suffering from a serious medical condition and asks that Defendant's Motion to Dismiss "not be granted until Plaintiff is given time to file an Opposition and be heard on the merits of the case with an Opposition considered by the Court or given an opportunity to retain new counsel and that Plaintiff be granted leave to Amend the Complaint." [Id. at 2.] Subsequently, Plaintiff filed a response in opposition to OneWest's Motion to Dismiss on her own behalf. Plaintiff is an attorney licensed by the state of California who was initially proceeding pro se and thereafter substituted Mr. Harre as counsel. Plaintiff informed the Court's law clerk that, although she had filed an opposition, she would still like a continuance in order to acquire a new attorney.

Having considered Plaintiff's request along with the procedural history in this case, the Court is disinclined to prolong this case further in order for Plaintiff to acquire a new attorney. Plaintiff's attorney drafted her Second Amended Complaint ("SAC") and Plaintiff, an attorney herself, filed an opposition to the Motion to Dismiss. The Court has all of the documentation necessary in order to consider the sufficiency of the SAC. Plaintiff, an attorney licensed by the state of California, filed this pro se initially and thereafter substituted Mr. Harre as counsel. Judge Gonzalez pointed out the deficiencies in Plaintiff's previous complaint and offered Plaintiff the opportunity to remedy those deficiencies through amendment. However, as discussed more fully below, the SAC suffers from the same deficiencies. Judge Gonzalez's order expressly stated that should Plaintiff's SAC fail to remedy these deficiencies, her claims would be dismissed with prejudice. Plaintiff has twice now had the opportunity to cure the defects in her complaint in order to survive a Rule 12(b)(6) motion and has been unable to do so. At this point, granting Plaintiff a continuance would simply serve to prejudice the Defendants by prolonging this matter when it does not appear that Plaintiff can successfully remedy her complaint.

For the foregoing reasons, the Court DENIES Plaintiff's Motion for Extension of Time to File a Response (Doc. No. 46).

B. DEFENDANT'S MOTION TO DISMISS FACTUAL BACKGROUND

Unless otherwise specified, the following facts are drawn from the Plaintiff's SAC. [Doc. No. In July of 2003, Plaintiff entered a mortgage loan transaction with IndyMac Bank, F.S.B. ("IndyMac"), to purchase a single-family residence in Lake Elsinore, California. The loan was secured by a Deed of Trust on the property. On June 8, 2008, IndyMac went into Receivership with the Federal Deposit Insurance Corporation ("FDIC"). On March 19, 2009, the FDIC, as receiver for IndyMac transferred the servicing rights of Plaintiff's loan to OneWest. Plaintiff alleges that OneWest only received the servicing rights on her loan and not the underlying debt obligation.

Defendant Quality Loan Service Corp. (Quality) recorded a Notice of Default on May 25, 2010. On July 7, 2010, a Substitution of Trustee was recorded, substituting Quality for First American Title Insurance Company as Trustee under the Deed of Trust. [Doc. No. 42-2.] On August 27, 2010, Quality filed a Notice of Trustee's Sale and scheduled a foreclosure sale for September 17, 2010. [Doc. No. 42]

PROCEDURAL HISTORY

Plaintiff initiated this lawsuit pro se on September 13, 2010 against Defendant OneWest, the purported current beneficiary of the loan, and Defendant Quality, the purported current trustee. The original Complaint alleged twenty causes of actions, and included a motion for a temporary restraining order and preliminary injunction, requesting the Court to enjoin the scheduled foreclosure sale, which the Court denied.*fn1 [Doc. No. 4]

On January 10, 2011, Plaintiff filed a first amended complaint ("FAC"), alleging ten causes of actions. [Doc. No. 15.] One West moved to dismiss the FAC. [Doc. No. 16.] The Court granted the motion to dismiss with prejudice in regards to some claims and without prejudice in regards to the others. [Doc. No. 36.] The Court granted Plaintiff twenty days to amend her complaint in order to remedy the deficiencies identified in the order. The order further stated that should Plaintiff's SAC fail to remedy these deficiencies, her claims would be dismissed with prejudice.

On April 09, 2011, Plaintiff filed her SAC alleging five causes of action*fn2 that were dismissed without prejudice in the Court's previous order: (1) Quiet Title, (2) Violation of the Real Estate Settlement Procedures Act ("RESPA") § 2605, (3) Fraud, (4) Violation of the Truth in Lending Act ("TILA") 15 U.S.C. § 1641, and (5) Violation of California Civil Code §17200, against OneWest, ...


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