Mary Amaral, et al v. Wachovia Mortgage Corporation et al

Filing 118

ORDER on Defendants Carrington Mortgage Services, LLC and Wachovia Mortgage, FSB's Motions to Dismiss 77 & 84 , Wachovia's Motion to Strike 86 , and Plaintiffs' Motion to File Second Amended Complaint 97 , signed by Judge Oliver W. Wanger on 3/1/2011. (Carrington Mortgage Services, LLC and Wachovia Mortgage Corporation terminated.) (Gaumnitz, R)

1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 FRESNO DIVISION 6 MARY AMARAL, JOE AMARAL and 7 DANNY AMARAL, 8 9 v. Plaintiffs, CASE NO. 09-CV-00937 OWW-GSA ORDER ON DEFENDANTS CARRINGTON MORTGAGE SERVICES, LLC AND WACHOVIA MORTGAGE, FSB'S MOTIONS TO DISMISS, WACHOVIA'S MOTION TO STRIKE, AND PLAINTIFFS' MOTION TO FILE SECOND AMENDED COMPLAINT

10 WACHOVIA MORTGAGE, FSB; CARRINGTON MORTGAGE 11 SERVICES, LLC; and DOES 1-50, inclusive, 12 Defendants. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
GILMORE, WOOD, VINNARD & MAGNESS
A PROFESSIONAL CORPORATION P.O. BOX 28907 FRESNO, CA 93729-8907

On November 15, 2010, defendant Carrington Mortgage Services, LLC ("Carrington"), and Wachovia Mortgage, FSB's ("Wachovia") motions to dismiss the first amended complaint, Wachovia's motion to strike, and Plaintiffs Mary Amaral, Joe Amaral and Danny Amaral's motion to file a second amended complaint came on regularly for hearing before the Honorable Oliver W. Wanger. The Court, having read and considered the parties' various motions, the requests for judicial notice, all opposition and reply papers:

IT IS THEREFORE ORDERED THAT: 1.) The Court finds that the First Amended Complaint fails to allege facts sufficient to support a causal link between Carrington's alleged failure to provide notice and Plaintiffs' alleged damages. Accordingly, Plaintiffs' RESPA claim against Defendant Carrington is DISMISSED WITH PREJUDICE;
9009-0\00204110.000

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09-CV-00937 OWW-GSA [PROPOSED] ORDER ON DEFENDANTS CARRINGTON MORTGAGE SERVICES, LLC AND WACHOVIA MORTGAGE, FSB'S MOTIONS TO DISMISS, WACHOVIA'S MOTION TO STRIKE, AND PLAINTIFFS' MOTION TO FILE SECOND AMENDED COMPLAINT

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2.) The Court finds that the First Amended Complaint fails to allege that

2 Plaintiffs suffered damages as a result of Carrington or Wachovia's alleged statutory 3 violation. Accordingly, Plaintiffs' claims under California Civil Code section 2937 against 4 Defendants Carrington and Wachovia are DISMISSED WITH PREJUDICE; 5 3.) The Court finds that the fraud and conversion claims in the First

6 Amended Complaint are preempted by HOLA. Accordingly, Plaintiffs' fraud and 7 conversion claims against Wachovia are DISMISSED WITH PREJUDICE; 8 4.) The Court finds that Plaintiffs' proposed state law claims against

9 Wachovia are preempted by HOLA and amendment to add such claims would be futile. 10 The Court further finds Plaintiffs' motion to amend to include Fremont Reorganizing 11 Corporation as a defendant under Plaintiffs' RESPA and California Civil Code Section 12 2937 claims would be futile. Plaintiffs' motion to amend the First Amended Complaint is 13 GRANTED with respect to MTC and Vasquez only and DENIED with respect to all other 14 requests. Plaintiffs must comply with Federal Rule of Civil Procedure 9(b) where 15 applicable; 16 17 5.) Wachovia's motion to strike is DENIED AS MOOT; and 6.) Plaintiffs shall file an amended complaint on or before February 22,

18 2011. Defendants shall file a response within ten (10) days of service of the amended 19 complaint. 20 21 22 DATED: March 1, 2011 23 24 25 26 27 28
GILMORE, WOOD, VINNARD & MAGNESS
A PROFESSIONAL CORPORATION P.O. BOX 28907 FRESNO, CA 93729-8907

IT IS SO ORDERED.

/s/ OLIVER W. WANGER UNITED STATES DISTRICT JUDGE

9009-0\00204110.000

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09-CV-00937 OWW-GSA ORDER ON DEFENDANTS' MOTIONS TO DISMISS, WACHOVIA'S MOTION TO STRIKE, AND PLAINTIFFS' MOTION TO AMEND