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Daniels v. Comunity Lending, Inc.

United States District Court, Ninth Circuit

January 6, 2014

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 to Dismiss Plaintiffs' First Amended Complaint ("Motion to Dismiss"), filed by Defendants Bank of New York Mellon, Bank of America, N.A. (sued as "The Bank of America Home Loans"), Countrywide Home Loans, Inc., ReconTrust Company, N.A., and Mortgage Electronic Registration Systems, Inc. (collectively, "moving Defendants") (ECF No. 45), and the Motion for Reconsideration of the Order setting aside the Clerk's entry of default and denying the motion for default judgment, filed by Plaintiffs (ECF No. 54).

I. Background

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

On June 30, 2013, the Court issued an Order granting a motion to dismiss the Complaint. (ECF No. 30). The Court stated: "No later than thirty (30) days from the date of this Order, Plaintiffs may file a motion for leave to file a first amended complaint, accompanied by a proposed first amended complaint." Id. at 8.

On July 9, 2013, Plaintiffs filed a document entitled, "Plaintiffs' Amended Complaint" ("First Amended Complaint"). (ECF No. 34). The First Amended Complaint alleges the following causes of action: (1) violation of the FDCPA; (2) violation of the Rosenthal Fair Debt Collection Practices Act; (3) violation of the TCPA; (4) violation of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681b(f); (5) negligence and not meeting condition precedent; (6) fraud; (7) cancellation of a voidable contract under California Revenue & Tax Code §§ 23304.1, 23305.5A and violation of California Corporations Code § 191(c)(7); (8) set aside trustee's sale; (9) void or cancel trustee's deed upon sale; (10) void or cancel assignment of deed of trust; (11) no agency standing, legal capacity; (12) breach of contract; (13) breach of implied covenant of good faith and fair dealing; (14) violation of Plaintiffs' Fourteenth Amendment rights; (15) unjust enrichment; (16) violation of California Business and Professions Code sections 17200 et seq.; (17) quiet title; and (18) slander of title.

On July 12, 2013, the Court issued an Order which stated: "[T]he Amended Complaint filed on July 9, 2013 is construed as a Motion for Leave to File a First Amended Complaint. Any opposition to the Motion for Leave to File a First Amended Complaint shall be filed no later than July 26, 2013." (ECF No. 35 at 1 (citation omitted)).

On July 29, 2013, Plaintiffs filed a Request for Clerk's Entry of Default and a Motion for Default Judgment. (ECF No. 37, 39). On July 31, 2013, Plaintiffs filed an Amended Motion for Default Judgment. (ECF No. 43). The Amended Motion for Default Judgment states that "Defendants have not responded to the Amended Complaint and the time for Defendants to answer the Amended Complaint expired on July 26, 2013." Id. at 3.

On July 30, 2013, the Clerk entered default as to Defendants Countrywide, Bank of America Home Loans and Ginnie Mae. (ECF No. 38).

On August 12, 2013, the Court issued an Order granting the unopposed Motion for Leave to File a First Amended Complaint and construing the document entitled, "Plaintiffs' Amended Complaint, " as the operative pleading in this case. (ECF No. 44). The Court ordered: "All served Defendants shall respond to the First Amended Complaint no later than fourteen (14) days from the date this Order is filed. The Amended Motion for Default Judgment is denied without prejudice to renew the motion if any Defendant does not file a timely response." Id. at 2 (citing Fed.R.Civ.P. 15(a)(3)).

On August 26, 2013, the moving Defendants filed the Motion to Dismiss Plaintiffs' First Amended Complaint and a Request for Judicial Notice. (ECF No. 45). The moving Defendants contend that the First Amended Complaint fails to adequately plead any of the causes of action alleged, and the moving Defendants request that the First Amended Complaint be dismissed with prejudice.

On August 28, 2013, Plaintiffs filed a Motion for Default Judgment against all Defendants. (ECF No. 47). On September 17, 2013, Plaintiffs filed an Amended Motion for Default Judgment. (ECF No. 50).

On November 4, 2013, the Court issued an Order denying the Motion for Default Judgment and Amended Motion for Default Judgment, and setting aside the Clerk's entry of default as to Defendants Countrywide, Bank of America Home Loans and Ginnie Mae. (ECF No. 52). The Court ordered that any opposition to the Motion to Dismiss the First Amended Complaint shall be filed no later than November 18, 2013, and any reply in support of the Motion to Dismiss shall be filed no later than November 25, 2013. Id. at 4.

On November 18, 2013, Plaintiffs filed the Motion for Reconsideration of the November 4, 2013 Order setting aside the Clerk's entry of default and denying the motion for default judgment, an opposition to the Motion to Dismiss, and a Request for Judicial Notice. (ECF Nos. 54, 56).

On November 25, 2013, the moving Defendants filed a reply in support of the Motion to Dismiss and an opposition to Plaintiffs' Request for Judicial Notice. (ECF Nos. 57, 58). On December 2, 2013, the moving Defendants filed an opposition to the Motion for Reconsideration of the November 4, 2013 Order. (ECF No. 59).

II. Motion for Reconsideration

Plaintiffs contend that Court set aside the Clerk's entry of default and denied the motion for default judgment in error because "per the court's [July 12, 2013] order, the Defendants did not file a timely response, " and "Defendants did not respond [to]... Plaintiffs' First Amended Complaint." (ECF No. 54 at 2).

The July 12, 2013 Order provided that Defendants may file an opposition to the Motion for Leave to File a First Amended Complaint, but the Order did not require an opposition to be filed. (ECF No. 35). Defendants did not file an opposition, and on August 12, 2013, the Court issued an Order stating that "pursuant to Federal Rule of Civil Procedure 15(a), the unopposed Motion for Leave to File a First Amended Complaint is GRANTED." (ECF No. 44 at 2). In the August 12, 2013 Order, the Court required all served Defendants to respond to the First Amended Complaint within fourteen days, or by August 26, 2013. Id. As stated in the November 4, 2013 Order, "Defendants timely filed a response to the Amended Complaint by filing the pending Motion to Dismiss the First Amended Complaint (ECF No. 45) on August 26, 2013." (ECF No. 52 at 3 (citing Fed.R.Civ.P. 12(a)(4)). The Motion for Reconsideration of the November 4, 2013 Order setting aside the Clerk's entry of default and denying the motion for default judgment is denied.

III. Motion to Dismiss

A. Standard of ...


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