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Daniels v. Comunity Lending, Inc.

United States District Court, Ninth Circuit

June 5, 2013

ELLINGTON DANIELS and DIANE DANIELS, Plaintiffs,
v.
COMUNITY LENDING, INC.; NEW CENTURY MORTGAGE; THE BANK OF AMERICA HOME LOANS; COUNTRYWIDE HOME LOANS; BANK OF AMERICA, N.A.; GINNIE MAE; THE BANK OF NEW YORK; MORTGAGE ELECTRONIC REGISTRATIONS SYSTEMS; and RECONTRUST COMPANY, N.A., Defendants.

ORDER

WILLIAM Q. HAYES, District Judge.

The matters before the Court are the Motion for Issuance of an Emergency Temporary Restraining Order to Stay the Sale of Real Property and Imposition of Preliminary Injunctive Relief Barring the Sale of the Real Property by Defendants ("Motion for Preliminary Injunctive Relief"), filed by Plaintiffs (ECF No. 23); the Motion for Judge's Signature of Lis Pendens, filed by Plaintiffs (ECF No. 25); and the Motion to Dismiss Plaintiffs' Complaint ("Motion to Dismiss"), filed by Defendants Bank of New York, Bank of America, N.A., ReconTrust Company, N.A., and Mortgage Electronic Registration Systems, Inc. (collectively, "Moving Defendants") (ECF No. 10).

I. Background

On February 28, 2013, Plaintiffs Ellington Daniels and Diane Daniels, proceeding pro se, filed a Complaint which asserts claims pursuant to the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, the Telephone Consumer Protection Act, 47 U.S.C. § 227, and the due process clause of the 14th Amendment to the United States Constitution. (ECF No. 1). The Complaint alleges that Defendants are unlawfully foreclosing on Plaintiffs' real property, and Defendants falsely asserted a right to collect and foreclose on Plaintiffs' loan.

On March 26, 2013, Plaintiffs filed a motion for temporary restraining order. (ECF No. 6). On March 27, 2013, the Court denied the motion for temporary restraining order for failure to comply with the requirements of Federal Rule of Civil Procedure 65. (ECF No. 7).

On April 16, 2013, the Moving Defendants filed the Motion to Dismiss. (ECF No. 10). The Moving Defendants contend that, pursuant to Federal Rule of Civil Procedure 12(b)(6), the Complaint should be dismissed with prejudice for failure to allege facts sufficient to state a claim.

On May 6, 2013, Plaintiffs filed an opposition to the Motion to Dismiss, accompanied by exhibits. (ECF No. 17). Plaintiffs contend that the Complaint adequately states a claim, and alternatively request that the Court grant Plaintiffs leave to amend to correct any deficiencies in the Complaint.

On May 13, 2013, the Moving Defendants filed a reply in support of the Motion to Dismiss. (ECF No. 18).

On May 28, 2013, Plaintiffs filed the currently-pending Motion for Preliminary Injunctive Relief. (ECF No. 23). Plaintiffs seek an order staying the sale of the real property at issue. Plaintiffs do not indicate if and when a sale has been scheduled, but Plaintiffs contend generally that the elements necessary for granting preliminary injunctive relief are present in this case.

On May 28, 2013, Plaintiffs filed the Motion for Judge's Signature of Lis Pendens. (ECF No. 25).

On June 3, 2013, the Moving Defendants filed a response in opposition to the Motion for Preliminary Injunctive Relief. (ECF No. 27).

On June 4, 2013, Plaintiffs filed a request for judicial notice and memorandum in support of the Motion for Preliminary Injunctive Relief. (ECF No. 29).

II. Motion to Dismiss

A. Standard of ...


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