Sipe v. Countrywide Bank, et al.

Filing 39

ORDER on Defendants' Motions to Dismiss Plaintiff's First Amended Complaint 15 16 signed by Judge Oliver W. Wanger on 2/17/2010. Amended complaint, if any, due by 3/18/2010. (Esteves, C)

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WILKE, FLEURY, HOFFELT, GOULD & BIRNEY, LLP
ATTORN E Y S AT LAW

WILKE, FLEURY, HOFFELT, GOULD & BIRNEY, LLP DANIEL L. BAXTER (SBN 203862) 400 Capitol Mall, Twenty-Second Floor Sacramento, CA 95814 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant SIERRA PACIFIC MORTGAGE COMPANY, INC.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

VINCENT SIPE, Plaintiff, v. COUNTRYWIDE BANK; SIERRA PACIFIC MORTGAGE COMPANY, INC.; BANK OF MADERA COUNTY; COUNTRYWIDE DOCUMENT CUSTODY SERVICES, A DIVISION OF TREASURY BANK N.A.; MORTGAGE ELECTRONIC REGISTRATION SYSTEM, INC.; FINANCIAL ADVANTAGE, INC.; JOHN NORBERG; CAROL DESILVA; and Does 1-20, inclusive, Defendants.

Case No. 1:09-CV-00798-OWW-DLB ASSIGNED FOR ALL PURPOSES TO U.S. DISTRICT JUDGE OLIVER W. WANGER, Department 3 ORDER ON DEFENDANTS' MOTIONS TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT

Complaint Filed: May 4, 2009

The motions to dismiss of Defendants SIERRA PACIFIC MORTGAGE COMPANY, INC. ("Sierra Pacific"), COUNTRYWIDE BANK ("Countrywide"), and MORTGAGE ELECTRONIC REGISTRATION SYSTEM, INC. ("MERS") came on regularly for hearing on February 8, 2010 before the Honorable Oliver W. Wanger. Plaintiff appeared by and through Jonathan G. Stein of the Law Offices of Jonathan G. Stein, Elk Grove, California. Sierra Pacific appeared by and through Daniel L. Baxter of Wilke, Fleury, Hoffelt, Gould & Birney, LLP,
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-1[PROPOSED] ORDER ON DEFENDANTS' MOTIONS TO DISMISS (Case No. 09-00798 OWW/DLB)

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Sacramento, California. Countrywide and MERS appeared by and through Andrew W. Noble of Severson and Werson, San Francisco, California. After reviewing the paperwork submitted by the parties and hearing oral argument, the Court issued its Memorandum Decision and Order ("Memorandum Decision") granting the Defendants' respective motions to dismiss Plaintiff's First Amended Complaint. That ruling is recorded on the Court's docket as CM/ECF Document No. 37, and the language of the Memorandum Decision is incorporated into this Order as though fully set forth herein. Based on the above, IT IS HEREBY ORDERED THAT: 1. Sierra Pacific's motion to dismiss Plaintiff's First Cause of Action for Violation of

the Truth In Lending Act is GRANTED, and that cause of action (both insofar as it advances claims for damages and rescission) is DISMISSED WITH LEAVE TO AMEND. 2. Countrywide and Sierra Pacific's respective motions to dismiss Plaintiff's Second

Cause of Action for violation of the Rosenthal Fair Debt Collection Practices Act are GRANTED, and that cause of action is DISMISSED WITH LEAVE TO AMEND. 3. Countrywide, MERS, and Sierra Pacific's respective motions to dismiss Plaintiff's

Third Cause of Action for Negligence are GRANTED, and that cause of action is DISMISSED WITH LEAVE TO AMEND. 4. Countrywide and MERS's motion to dismiss Plaintiff's Fourth Cause of Action

for violation of the Real Estate Settlement Procedures Act is GRANTED, and that cause of action as to Countrywide and MERS is DISMISSED WITH LEAVE TO AMEND. 5. Sierra Pacific's motion to dismiss Plaintiff's Fourth Cause of Action for violation

of the Real Estate Settlement Procedures Act is GRANTED, and that cause of action as to Sierra Pacific is DISMISSED WITHOUT LEAVE TO AMEND. 6. Sierra Pacific's motion to dismiss Plaintiff's Fifth Cause of Action for breach of

fiduciary duty is GRANTED and that cause of action is DISMISSED WITHOUT LEAVE TO AMEND. /// ///
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-2ORDER ON DEFENDANTS' MOTIONS TO DISMISS (Case No. 09-00798 OWW/DLB)

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7.

Countrywide, MERS, and Sierra Pacific's respective motions to dismiss Plaintiff's

Sixth Cause of Action for fraud are GRANTED, and that cause of action is DISMISSED WITH LEAVE TO AMEND. 8. Countrywide, MERS, and Sierra Pacific's respective motions to dismiss Plaintiff's

Seventh Cause of Action for Violation of the Unfair Competition Law (California Business and Professions Code section 17200 et seq.) are GRANTED, and that cause of action is DISMISSED WITH LEAVE TO AMEND. 9. Sierra Pacific's motion to dismiss Plaintiff's Eighth Cause of Action for breach of

contract is GRANTED, and that cause of action is DISMISSED WITH LEAVE TO AMEND. 10. Sierra Pacific's motion to dismiss Plaintiff's Ninth Cause of Action for breach of

the implied covenant of good faith and fair dealing is GRANTED, that that cause of action is DISMISSED WITHOUT LEAVE TO AMEND. IT IS FURTHER ORDERED THAT, as to the causes of action for which amendment has been permitted, Plaintiff shall have until March 18, 2010, inclusive, to file and serve his amended complaint, if any. Defendants shall have thirty (30) days from the date of electronic service of any such amended complaint to answer or otherwise respond to that complaint. IT IS SO ORDERED.

DATED: February 17, 2010

/s/ OLIVER W. WANGER UNITED STATES DISTRICT COURT JUDGE

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-3ORDER ON DEFENDANTS' MOTIONS TO DISMISS (Case No. 09-00798 OWW/DLB)

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