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Paul Emmanuel Poutcheu Yossa v. Countrywide Home Loans

October 10, 2012

PAUL EMMANUEL POUTCHEU YOSSA, PLAINTIFF,
v.
COUNTRYWIDE HOME LOANS, INC., ET AL., DEFENDANTS.



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

FINDINGS AND RECOMMENDATIONS

Previously pending on this court's law and motion calendar for October 4, 2012, was defendants' motion to dismiss amended complaint and to expunge lis pendens, filed August 31, 2012. Plaintiff did not file an opposition but requested an extension of time in which to file one, which was denied by court order. Plaintiff was instead directed to appear at hearing prepared for oral argument. In response, plaintiff filed a motion for leave to file a second amended complaint on September 27, 2012. Plaintiff appeared at the hearing in pro se. Defendants were represented by Alison Lippa who appeared telephonically. After reviewing the papers and having heard oral argument, the court now issues the following findings and recommendations.

BACKGROUND

By screening order of March 6, 2012, the complaint was dismissed with leave to amend as to the RESPA and TILA claims. Dismissal of the FDCPA claim was recommended and that recommendation was adopted by the district court on May 18, 2012. After an interlocutory appeal and multiple extensions of time, plaintiff filed an amended complaint on June 26, 2012.

The amended complaint alleges that plaintiff refinanced a loan on two pieces of property on May 23, 2005, but that the loan was predatory because defendants targeted plaintiff based on his status as a minority of African descent. (FAC ¶¶ 1, 2, 17.) He contends that defendants made false promises, including that his monthly payments would be much lower than they were, that he would not be penalized for refinancing, and that the interest rate would be lower than it was. (Id. at ¶¶ 18-19.) The amended complaint also alleges that defendants did not provide plaintiff with proper disclosures, including a negative amortization feature, the costs of financing, the annual percentage rate, payment obligations, type of loan, and that they charged excessive fees and prepayment penalties. (Id. at ¶¶ 18-20.) The amended complaint seeks injunctive relief and damages.

Defendants filed their motion to dismiss on August 31, 2012. Instead of filing an opposition,*fn1 plaintiff filed a motion for leave to file a second amended complaint.

DISCUSSION

I. Motion for Leave to File a Second Amended Complaint

Plaintiff's motion seeks to add causes of action under the Fair Housing Act, the Equal Credit Opportunity Act, and the Civil Rights Act. Plaintiff asserts that this is his first request for leave to amend. Plaintiff's motion was not, however, accompanied by a proposed amended complaint. As a litigant proceeding in forma pauperis, plaintiff's pleadings are subject to evaluation by this court pursuant to the in forma pauperis statute. See 28 U.S.C. § 1915. Since plaintiff did not submit a proposed amended complaint, the court is unable to evaluate it. Plaintiff's motion for leave to amend must therefore be denied on this basis.

Moreover, the motion to amend must be denied on substantive grounds as well*fn2

Rule 15(a) (2) of the Federal Rules of Civil Procedure states "the court should freely give leave [to amend] when justice so requires." The courts weigh the following factors when considering a Rule 15 motion: "(1) bad faith; (2) undue delay; (3) prejudice to the opposing party; (4) futility of amendment; and (5) whether plaintiff has previously amended his complaint." Sisseton--Wahpeton Sioux Tribe v. U.S., 90 F.3d 351, 355--56 (9th Cir.1996). "The district court's discretion to deny leave to amend is particularly broad where plaintiff has previously amended the complaint." Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir.1990).

Schreiner v. Caiola, 2011 WL 219667, *3 (W.D. Wash. Jan. 24, 2011).

In this case, there is no evidence of bad faith; however, the inference can be drawn that plaintiff is needlessly delaying these proceedings, which in turn is causing prejudice to defendant. After this court issued its screening order directing plaintiff to file an amended complaint in twenty-eight days, and findings and recommendations that the FDCPA claim be dismissed on March 7, 2012, plaintiff not only received an extension of time in which to file objections to the findings and recommendations, he also sought and received additional time in which to file his amended complaint. He was permitted to file it within twenty-eight days after an order adopting or rejecting the findings and recommendations. (Dkt. nos. 4-7.) Instead of filing an amended complaint, however, plaintiff filed an interlocutory appeal. While that appeal was pending with the Ninth Circuit Court of Appeals, Judge England adopted the findings and recommendations on May 18, 2012. The appeal was dismissed on June 13, 2012; however, plaintiff sought and received another extension of time in which to file an amended complaint. It was not until June 26, 2012, that plaintiff finally filed an amended complaint in a case that had been opened since January 5, 2012. After defendants filed their motion to dismiss on August 31, 2012, plaintiff filed a request for extension of time in which to file an opposition. The court, becoming aware of plaintiff's conduct, denied the request but permitted plaintiff to appear at oral argument, despite Local Rule 230(c) which prohibits a party from being heard if an opposition has not been timely filed. (Dkt. no. 18.) Instead of filing an opposition, plaintiff thereafter filed a motion for leave to file a second amended complaint, which was not accompanied by a proposed amended complaint. On October 2, 2012, two days before the hearing, plaintiff filed an untimely document entitled "notice of opposition to defend[an]ts['] notice of no opposition to dismiss and defendants['] motion to dismiss complaint." (Dkt. no. 21.) This untimely filing has not been considered.

Plaintiff's actions in this case smack of delay for delay's sake. Plaintiff conceded at hearing that he is living in the house which is the subject of the foreclosure rent free and has not been making any mortgage payments. Defendant indicated at hearing that plaintiff had filed a bankruptcy petition which forced a stay of foreclosure proceedings in further delay of the case, but it was dismissed earlier this year. Plaintiff's filing of a lis pendens added further to the delay. These delay tactics prevented defendants from defending this case, from collecting mortgage payments, and from pursuing foreclosure proceedings, all to their detriment and cost, not only in terms of business, but in attorneys' fees.

The fourth factor, futility, also counsels in favor of denying plaintiff's motion to amend. At hearing plaintiff could not say why he did not bring his proposed additional claims earlier. In any event, amendment to add claims under the Fair Housing Act, the Equal Credit Opportunity Act, and the Civil Rights Act would be futile.

The Fair Housing Act protects against certain types of discrimination in regard to the sale or rental of housing on the basis of "race, color, religion, sex, familial status, or national origin." 42 U.S.C. ยง 3604(a) through (c). Claims must be brought, however, within two years after the alleged discriminatory ...


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