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Nabil Mosarah; Ibtissam Hussein v. Suntrust Mortgage

June 7, 2012

NABIL MOSARAH; IBTISSAM HUSSEIN,
PLAINTIFFS,
v.
SUNTRUST MORTGAGE, A DELAWARE CORPORATION; NATIONSTAR, A DELAWARE CORPORATION; FANNIE MAE, A CALIFORNIA CORPORATION; AND DOES 1-100, INCLUSIVE,
DEFENDANTS.



ORDER RE: MOTION TO DISMISS COMPLAINT (Doc. 19)

I. INTRODUCTION

Defendant Mortgage Electronic Registration Systems, Inc., moves to dismiss the complaint of plaintiffs Nabil Mosarah and Ibtissam Hussein pursuant to Federal Rules of Civil Procedure 12(b)(6) and 9(b). For reasons discussed below, the motion shall be granted without leave to amend.

II. FACTS AND PROCEDURAL BACKGROUND

On September 29, 2011, plaintiffs Nabil Mosarah and Ibtissam Hussein (hereinafter referred to as"Plaintiffs") filed their complaint in Stanislaus Superior Court against defendants SunTrust Mortgage, Nationstar, Fannie Mae, Mortgage Electronic Registration Systems, Inc., and Does 1-100, inclusive, asserting sixteen causes of action for (1) declaratory relief (against all defendants), (2) fraud and conspiracy to commit fraud (against all defendants), (3) "tortious violation of statute [¶] Real Estate Settlement Procedures Act [¶] 12 USC section 2607(b)" (against all defendants), (4) conversion, (5) "Reformation (Note) as Against BOA, ReCon, 1st LAM and Does [sic]," (6) violation of California Business and Professions Code §§ 17200 et seq. (against SunTrust Mortgage), (7) violation of California Civil Code § 2923.6, (8) violation of § 1788.17 of the Rosenthal Fair Debt Collection Practices Act, (9) violation of California Civil Code § 1572, (10) injunctive relief (against all defendants), (11) wrongful foreclosure (against all defendants), (12) negligence (against SunTrust Mortgage and Does 1-10), (13) negligence (against Nationstar and Does 1-10), (14) negligent misrepresentation (against SunTrust Mortgage and Does 1-10), (15) violation of the Rosenthal Fair Debt Collection Practices Act (against SunTrust Mortgage and Does 1-10) and (16) violation of California Business and Professions Code §§ 17200 et seq. (against all defendants).*fn1

On October 13, 2011, defendant SunTrust Mortgage, Inc. ("Suntrust") removed the action to this Court pursuant to 28 U.S.C. §§ 1331, 1332, 1441 and 1446.

On November 9, 2011, Suntrust filed its motion to dismiss and/or strike the complaint pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(f).

On January 11, 2012, defendants Nationstar Mortgage, LLC ("Nationstar") and Federal National Mortgage Association ("FNMA," erroneously sued as Fannie Mae) filed their motion to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(6) and 9(b).

Plaintiffs did not file a written opposition to either motion to dismiss.

In an order issued March 9, 2012 and filed March 12, 2012, the Court granted Suntrust's and Nationstar's and FNMA's motions to dismiss and directed Plaintiffs to file an amended complaint within thirty days of entry of the order. Mosarah v. SunTrust Mortg., slip copy,2012 WL 844508 (E.D.Cal. 2012). No amended complaint was filed by Plaintiffs within the time allotted.

On April 23, 2012, Suntrust filed a notice regarding Plaintiffs' non-compliance with the Court's March 9, 2012 order directing them to file an amended complaint within thirty days of entry of the order and argued the Court should sua sponte dismiss the action with prejudice.

On April 30, 2012, Nationstar, FNMA and Mortgage Electronic Registration Systems, Inc. (hereinafter referred to as "MERS") filed a motion to dismiss the action with prejudice for failure to amend the complaint in accordance with the Court's March 9, 2012 order.

In an order issued May 16, 2012, the Court ordered Plaintiffs to show cause in writing by 4:00 p.m. on Thursday, May 24, 2012, why no amended complaint had been filed and why the action should not be dismissed for failure to comply with the Court's March 9, 2012 order. The Court cautioned that failure to show cause or otherwise respond would result in a dismissal of the action with prejudice as against Suntrust, Nationstar and FNMA. (The Court noted that because MERS had not filed a substantive motion to dismiss and was not a party to either Suntrust's or Nationstar's and FNMA's Rule 12 motions, the complaint would remain operative against MERS.)

Plaintiffs did not respond to the order to show cause, and the Court subsequently dismissed the action with prejudice as against Suntrust, Nationstar and FNMA.

On May 21, 2012, MERS filed its motion to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(6) and 9(b). ...


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