Martinez v. Bank of America Corporation et al

Filing 22

ORDER DENYING 10 Motion to Dismiss as MOOT, signed by Magistrate Judge Gary S. Austin on 8/23/2012. (Kusamura, W)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT ROY MARTINEZ,
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Plaintiff,
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v.
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BANK OF AMERICA CORPORATION, et )
al.,
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Defendants.
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_____________________________________ )

1:11-cv-2061 AWI GSA
ORDER DENYING MOTION TO
DISMISS AS MOOT

(Document 10)

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On December 14, 2011, Plaintiff filed a complaint against Bank of America Corporation,
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BAC Home Loans Servicing, Countrywide Financial Corporation, America’s Wholesale Lender,
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Quality Loan Service Corporation, the Mortgage Electronic Registration System, and the Federal
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Home Loan Mortgage Corporation alleging unlawful mortgage practices and the unlawful
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foreclosure of his home. (Doc. 1). Plaintiff was granted in forma pauperis status and was
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advised that his complaint would be screened by the Court in due course. (Doc. 4).
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Subsequently, Plaintiff filed a First Amended Complaint on December 15, 2011, naming
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the same Defendants and alleging identical causes of action. (Doc. 3). Prior to the Court’s
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issuance of any summons pursuant to Rule 4 of the Federal Rule of Civil Procedure, on February
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16, 2012, Defendants Bank of America, N.A. erroneously sued as Bank of America Corporation;
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Bank of America, N.A., successor by merger to BAC Home Loans Servicing, LP fka

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Countrywide Home Servicing, LP (simply “BANA”); Mortgage Electronic Registration Systems,

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Inc. (“MERS”); and Federal Home Loan Mortgage Corporation (“Freddie Mac”) filed a Motion

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to Dismiss Plaintiff’s complaint. 1 (Doc. 10). On March 7, 2012, Chief Judge Anthony Ishii

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referred Defendant’s motion to the magistrate judge for consideration, as well as to allow this

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Court to screen Plaintiff’s complaint. (Doc. 12).

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Upon a review of the procedural posture of this case, the Court has determined that

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screening Plaintiff’s complaint is the most efficient use of judicial resources as the issues raised

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in the Motion to Dismiss are addressed in the screening order. Accordingly, the Court screened

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Plaintiff’s complaint and gave him leave to amend, thereby mooting Defendants’ Motion to

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Dismiss. Defendants are advised that the Court will screen any amended pleading filed by

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Plaintiff and if cognizable claims are present, will authorize the Clerk’s office to issue the

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appropriate summons. If Defendants wish to file a Motion to Dismiss after any summons has

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been issued, they may do so. Otherwise, filing a Motion to Dismiss prior to that time is

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premature as there are currently no pending cognizable claims.

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IT IS SO ORDERED.
Dated:
6i0kij

August 23, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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Although the operative complaint was the First Amended Complaint, the Motion to Dismiss only
references the initial complaint filed.

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