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Ronald Rose v. American Home Mortgage Servicing

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


May 29, 2012

RONALD ROSE, PLAINTIFF,
v.
AMERICAN HOME MORTGAGE SERVICING, INC., ET AL., DEFENDANTS.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Plaintiff is proceeding pro se in this action, referred to the undersigned pursuant to Local Rule 302(c)(21). Presently under submission is defendant American Home Mortgage Servicing, Inc.'s ("AHMSI") motion for judgment on the pleadings, filed March 8, 2012. Because plaintiff did not file an opposition, the court took the motion under submission without a hearing.

E.D. Local Rule 230(c) provides that "no party will be entitled to be heard in opposition to a motion at oral arguments if opposition to the motion has not been timely filed by that party." Rule 230(i) provides "failure to appear may be deemed withdrawal of ... opposition to the motion...." Not only has plaintiff failed to oppose a motion for judgment on the pleadings, he previously failed to oppose a previous motion to dismiss, prompting this court to issue an order to show cause on February 7, 2011.

With this history in mind, the undersigned has now reviewed the papers in support of the current motion. AHMSI's motion for judgment on the pleadings for the most part has merit. Plaintiff's FDCPA, RESPA and Title 18 U.S.C. § 2701 claims should be dismissed. AHMSI's motion is deficient only in asserting that there is no private right of action under RESPA. Plaintiff's claim arises under section 2605, which provides for individual recovery. See 12 U.S.C. 2605(f). Nevertheless, this claim is time barred since the deed of trust was executed on January 16, 2004, and this action was filed on October 15, 2010. (Def.'s Mot., Ex. 1.) See 12 U.S.C. § 2614 (providing for one year statute of limitations period for violations of §§ 2607 and 2608, and three year limitations period for violations of § 2605). Therefore, the motion should be granted in full.

Accordingly, IT IS HEREBY RECOMMENDED that: Defendant AHMSI's motion for judgment on the pleadings, filed March 8, 2012, (Dkt. no. 28) be granted, and this action be dismissed.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen (14) days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within seven (7) days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

20120529

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