Cazares v. Homeq Servicing et al

Filing 46

ORDER signed by Judge John A. Mendez on 10/7/2009 GRANTING 31 MOTION to DISMISS filed by Mortgage Electronic Registration Systems, Inc. and Homeq Servicing; Homeq Servicing and Mortgage Electronic Registration Systems, Inc. terminated. (Matson, R)

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ERIC D. HOUSER (SBN 130079) GEOFFREY C. BRETHEN (SBN 259873) HOUSER & ALLISON A Professional Corporation 9970 Research Drive Irvine, California 92618 Phone: [phone] Fax: [phone] Email: [e-mail] Attorneys for Defendants, BARCLAYS CAPITAL REAL ESTATE INC. dba HOMEQ SERVICING (erroneously sued herein as HomEq Servicing) and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA, SACRAMENTO DIVISION FRANCISCO CAZARES, ) ) ) Plaintiff, ) ) v. ) ) HOMEQ SERVICING, WMC ) MORTGAGE CORP., OLD ) REPUBLIC DEFAULT ) MANAGEMENT SERVICIES, ) MORTGAGE ELECTRONIC ) REGISTRATION SYSTEMS, INC., CHERRY CREEK MORTGAGE CO., ) ) INC., ANGEL BENAVIDEZ and DOES 1-20 inclusive, ) ) Defendants. ) ) ) CASE NO. 2:09-cv-01577-JAM-EFB HON. JOHN A. MENDEZ ORDER GRANTING MOTION TO DISMISS FIRST AMENDED COMPLAINT [FRCP 12(b)(6)]
DATE: TIME: DEPT: October 7, 2009 9:00 A.M. 6

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

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NOTICE OF MOTION AND MOTION TO DISMISS 1

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PLEASE TAKE NOTICE THAT Defendants BARCLAYS CAPITAL REAL ESTATE INC. dba HOMEQ SERVICING (erroneously sued herein as HomEq Servicing) and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.'S (collectively "Defendants") motion to dismiss Plaintiff's first amended complaint came on regularly for hearing on October 7, 2009 at 9:00 a.m. in Department 6 of the above-entitled Court, the Honorable John A. Mendez presiding. Joshua Abel, of Houser & Allison, APC, appeared on behalf of Defendants. Upon considering Defendants' motion to dismiss, the Court's file, and for other reasons stated on the record, the Court granted Defendants' motion to dismiss in its entirety on the grounds that Plaintiff failed to state facts sufficient to constitute a claim. Having considered the file herein, the moving papers, and good cause appearing, the Court rules as follows: 1. Pursuant to F.R.C.P. 12(b)(6), Plaintiff's First Amended Complaint fails to state facts sufficient to constitute a claim.

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NOTICE OF MOTION AND MOTION TO DISMISS 2

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2. Defendants' Motion to Dismiss is GRANTED. 3. Defendants are hereby dismissed with prejudice.

IT IS SO ORDERED.

DATED: October 7, 2009

/s/ John A. Mendez ___________ JOHN A. MENDEZ United States District Court Judge for the Eastern District of California

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NOTICE OF MOTION AND MOTION TO DISMISS 3

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PROOF OF SERVICE STATE OF CALIFORNIA COUNTY OF ORANGE ) ) SS )

I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action. My business address is 9970 Research Drive, Irvine, CA 92618. On October 7, 2009 I served the following document(s) described as follows: [PROPOSED] ORDER GRANTION MOTION TO DISMISS FIRST AMENDED COMPLAINT On the following interested parties in this action: Michael J.M. Brook Lanahan & Reilley 600 Bicentennial Way, Suite 300 Santa Rosa, CA 95403 Attorney for Plaintiff Michael J. Fox Pite Duncan, LLP 1820 E. First Street, Suite 420 Santa Ana, CA 92705 Attorney for Defendant Old Republic Default Management Services Lawrence D. Harris Law Offices of Glenn H. Wechsler 1655 N. Main St., Suite 230 Walnut Creek, CA 94596 Attorney for Defendant WMC Mortgage Corporation Carl D. Ciochon Wendel, Rosen, Black & Dean LLP 1111 Broadway, 24th Floor Oakland, CA 94607 Attorney for Defendant Cherry Creek Mortgage Co., Inc. and Angel Benavidez

[X ] VIA FIRST CLASS MAIL--CCP §§ 1013(a); 2015.5; FRCP 5: By placing a true copy thereof enclosed in a sealed envelope(s) addressed as above, and placing each for collection and mailing on the date following ordinary business practices. I am readily familiar with my firm's business practice and collection and processing of mail with the United States Postal Service and correspondence placed for collection and mailing would be deposited with the United States Postal Service at Irvine, California, with postage thereon fully prepaid that same day in the ordinary course of business.

PROOF OF SERVICE

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I declare under penalty of perjury, under the laws of the United States that the foregoing is true and correct. Executed on October 7, 2009 at Irvine, California. __________________________ Sherie Cleere

PROOF OF SERVICE

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