Kevin A. Fulton v. Bank of America N.A. et al

Filing 33

MINUTES (IN CHAMBERS) by Judge Christina A. Snyder: The Court GRANTS without prejudice Defendant Bank of America, N.A.'s Motion to Dismiss Plaintiff's Complaint 27 . Plaintiff shall file an amended complaint addressing the deficiencies identified in the Court's 12/6/2016 order within 14 days of the date of this order. Failure to do so shall result in dismissal with prejudice. Court Reporter: Not Present. (gk)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-04870-CAS(JCx)
Date May 8, 2017
KEVIN A. FULTON v. BANK OF AMERICA N.A. ET AL.

Present: The Honorable 

CHRISTINA A. SNYDER 

Attorneys Present for Plaintiffs: 

N/A 

Tape No.

Attorneys Present for Defendants: 

Not Present 

Not Present

Catherine Jeang 
Deputy Clerk 

Proceedings:  

Not Present 
Court Reporter / Recorder

(IN CHAMBERS) - DEFENDANT BANK OF AMERICA, N.A.’S
MOTION TO DISMISS (Dkt. 27, filed February 14, 2017)

The Court finds this motion appropriate for decision without oral argument. See
Fed. R. Civ. P. 78; C.D. Cal. Local Rule 7-15. Accordingly, the hearing date of May 15,
2017 is vacated, and the matter is hereby taken under submission.
On July 7, 2016 plaintiff Kevin A. Fulton, proceeding pro se, filed the instant
action against defendants Bank of America, N.A. (“BANA”), as successor in interest to
America’s Wholesale Lender, and Does 1–10 inclusive. Dkt. 1 (“Compl.”). Plaintiff
raises four claims: (1) declaratory relief, seeking a declaration that BANA and its
successors and/or assigns do not have any rights or interest in plaintiff’s Note or Deed of
Trust, or the property which authorized them to enforce the terms of the Note and Deed
of Trust; (2) the cancellation of the Deed of Trust, which plaintiff alleges is void for fraud
in the execution; (3) failure to comply with plaintiff’s notice to rescind in violation of 15
U.S.C. § 1601 et seq.; and (4) quiet title relating to violations of the Truth in Lending
Act. Id.1
On August 11, 2016, plaintiff requested an entry of default against BANA. Dkt.
10. On July 18, 2016, the Clerk entered a default pursuant to Federal Rule of Civil
Procedure 55(a). Dkt. 13. On August 25, 2016, plaintiff filed a motion for default
judgment against BANA. Dkt. 14.
On December 6, 2016, the Court denied plaintiff’s motion for a default judgment
because plaintiff “failed to establish the merits of any alleged claim as would be required

1

The parties are familiar with plaintiff’s allegations, which are set forth in greater
detail in the Court’s prior order dated December 6, 2016. See dkt. 22.

CV-4870 (05/17)

CIVIL MINUTES - GENERAL

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-04870-CAS(JCx)
Date May 8, 2017
KEVIN A. FULTON v. BANK OF AMERICA N.A. ET AL.

for entry of default judgment against BANA.” Dkt. 22 at 9. The Court directed BANA
to file a motion to set aside the default, along with a proposed answer, within 30 days. Id.
On February 6, 2017, the Court granted BANA’s motion to set aside the Clerk’s
default. Dkt. 26.
On February 14, 2017, BANA filed the instant motion to dismiss plaintiff’s
complaint. Dkt. 27. The Court twice continued the deadline for plaintiff’s opposition
and the hearing on BANA’s motion to ensure that plaintiff was aware that he was
required to file an opposition. See dkts. 30, 31. However, plaintiff has not filed an
opposition to BANA’s motion to dismiss.
“The failure to file any required document, or the failure to file it within the
deadline, may be deemed consent to the granting or denial of the motion[.]” C.D. Cal.
L.R. 7-12. In addition, in its order denying of plaintiff’s motion for a default judgment,
the Court has already concluded that plaintiff fails to state a claim against BANA on
which relief may be granted. See dkt. 22 at 5–7.
Accordingly, the Court GRANTS without prejudice BANA’s motion to dismiss
plaintiff’s complaint.
Plaintiff shall file an amended complaint addressing the deficiencies identified in
the Court’s December 6, 2016 order within fourteen (14) days of the date of this order.
Failure to do so shall result in dismissal with prejudice.
IT IS SO ORDERED.
Initials of Preparer

CV-4870 (05/17)

CIVIL MINUTES - GENERAL

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