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Zbitnoff v. Nationstar Mortgage LLC

United States District Court, N.D. California

May 21, 2014

ANNA ZBITNOFF, Plaintiff,
v.
NATIONSTAR MORTGAGE LLC, Defendant.

ORDER DENYING MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT AND VACATING HEARING

WILLIAM ALSUP, District Judge.

INTRODUCTION

In this foreclosure-related action, borrower moves for leave to file an amended complaint. For the reasons stated below, the motion is DENIED. The hearing set for May 29 is hereby VACATED.

STATEMENT

The background has been set forth in prior orders (Dkt. Nos. 27, 45). In brief, pro se plaintiff, Anna Zbitnoff, commenced this foreclosure-related action in state court. Following removal, defendant NationStar Mortgage LLC, moved to dismiss the action for failure to state a claim pursuant to Federal Rule of Procedure 12(b)(6). On December 19, that motion was granted.

Plaintiff borrowed money from Lehman Brothers Holdings Inc., secured by a deed of trust on March 31, 2006. She defaulted and a trustee sale was scheduled for May 3, 2014 (Br. 4). In this action, she is trying to recover for "wrongful foreclosure." Jurisdiction is based on federal question.

In January 2014, plaintiff moved to file a first amended complaint. Plaintiff's motion was denied in a March 18 order, however, plaintiff was allowed to seek leave to amend her claims for mistake, fraud, fraudulent concealment, intentional misrepresentation, negligent misrepresentation, invasion of constitutional right to privacy, Section 2923.5 of the California Civil Code, and unfair competition.

Pursuant to that order, plaintiff now moves for leave to file a second amended complaint pursuant to the March 18 order. Defendant opposes plaintiff's motion, arguing that the proposed pleading fails to state a claim and is therefore futile. Defendant further argues that plaintiff has not identified how her amendments cure the deficiencies identified in the prior complaint.

Plaintiff would also add four proposed defendants: (1) Sage Point Lender Services, LLC; (2) Citibank, N.A., as trustee for Securitized Trust Lehman XS Trust 2006-5; (3) Structured Asset Securities Corporation; and (4) Aurora Loan Services LLC. The proposed second amended complaint would add seven new claims for relief: (1) lack of standing/wrongful foreclosure; (2) fraud in the inducement; (3) intentional infliction of emotional distress; (4) slander of title; (5) quiet title; (6) violations of the Truth in Lending Act ("TILA") and the Home Ownership and Equity Protection Act ("HOEPA"), 15 U.S.C. 1601, et seq.; 15 U.S.C. 1639, et seq.; and (7) violation of the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. 2601, et seq.

ANALYSIS

Under Rule 15, leave to amend should be freely given when justice so requires. The underlying purpose of Rule 15 is to facilitate decisions on the merits, rather than on the pleadings or technicalities. United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981). A principal limiting factor to the liberal amendment standard is that "[l]eave to amend need not be granted when an amendment would be futile." In re Vantive Corp. Sec. Litig., 283 F.3d 1079, 1097 (9th Cir. 2002). Pro se complaints are held to less stringent standards than complaints drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007).

This order will first address the eight claims that were the subject of the March 18 order. None of the previously-identified deficiencies have been cured. Repeated failure to cure deficiencies in a complaint is reason enough to deny leave to amend. See Abagninin v. AMVAC Chem. Corp., 545 F.3d 733, 742 (9th Cir. 2008). The proposed additional claims for relief all fail to state a claim. None of the claims for relief would survive a motion to dismiss; therefore, plaintiff's amendment is futile and is DENIED.

1. MISTAKE.

The proposed second amended complaint alleges that the lender "knew there would be no borrower-lender relationship" (Proposed Second Amd. Compl. ΒΆ 312). Because of this alleged mistake, plaintiff asserts that she benefitted from the loan agreement far less than she expected. Rule 9(b) requires that "[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake." This particularity requirement "includ[es] the who, what, when, where, and how of the misconduct charged.'" Ebeid ex rel. ...


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