Hatefi v. Wells Fargo Bank N.A. et al

Filing 15

ORDER signed by Judge Morrison C. England, Jr on 7/23/2010 ORDERING 6 Motion to Dismiss is granted with leave to amend. Plaintiff may file an amended complaint not later than 20 days from the date of this order. (Matson, R)

Hatefi v. Wells Fargo Bank N.A. et al

Doc. 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. WELLS FARGO BANK, N.A.; WACHOVIA BANK, FESB; WACHOVIA MORTGAGE F/K/A WORLD SAVINGS BANK FSB; CAL-WESTERN RECONVEYANCE CORPORATION; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., Defendants. ----oo0oo---This action arises out of a mortgage loan transaction in which Plaintiff Mitra Hatefi ("Plaintiff") financed her home in December 2005. Presently before the Court is a Motion by MITRA HATEFI, Plaintiff, ORDER No. 2:10-cv-01332-MCE-DAD UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Defendant Wachovia Mortgage, sued as "Wells Fargo Bank, N.A.," "Wachovia Bank, FSB," and "Wachovia Mortgage f/k/a World Savings Bank, FSB" ("Defendant") to Dismiss Plaintiff's Complaint in its entirety for failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff has failed to timely file an opposition. 1

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 law.

For the reasons set forth below, Defendant's Motion to Dismiss is granted. First, pursuant to Local Rule 230(c), opposition to a motion must be filed not less than fourteen (14) days prior to the date of the hearing. July 8, 2010. June 24, 2010. The date of the hearing on motion was set for Fourteen (14) days prior to the hearing was No opposition was filed as required.

Nonetheless, Plaintiff's federal claims fail as a matter of The statute of limitations has run on any cognizable claims

under the Truth-in-Lending Act ("TILA") or Home Ownership and Equity Protection Act ("HOEPA") as Plaintiff entered her loan in 2005 and the maximum statute of limitations available is for three years following execution of the loan. §§ 1635(f), 1640(e). See 15 U.S.C.

To the extent that Plaintiff alleges

violation of the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2605, for failure to notify her of transfer of servicer, Plaintiff has failed to allege actual damages, or a pattern or practice of noncompliance, as required for relief under RESPA. See 12 U.S.C. § 2605(f). Finally, Plaintiff's Fair

Debt Collection Practices Act ("FDCPA") is legally insufficient because a mortgage does not qualify as a debt under the FDCPA. See Izenberg v. ETS Servs., LLC, 589 F. Supp. 2d 1193, 1199 (C.D.Cal.2008); Diessner v. Mortgage Electronic Registration Systems, 618 F. Supp. 2d 1184, 1188-89 (D. Ariz. 2009); Landayan v. Washington Mutual Bank, 2009 WL 3047238, at *3 (N.D. Cal. Sept. 18, 2009). /// /// 2

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With no viable federal claim alleged, the Court declines to exercise pendant jurisdiction over Plaintiff's remaining state law claims. Accordingly, Defendant's Motion to Dismiss (Docket No. 6) is GRANTED with leave to amend.1 Plaintiff may file an amended complaint not later than twenty (20) days after the date this Memorandum and Order is filed electronically. If no amended complaint is filed within

said twenty (20)-day period, without further notice, Plaintiff's claims will be dismissed without leave to amend. IT IS SO ORDERED. Dated: July 23, 2010

_____________________________ MORRISON C. ENGLAND, JR. UNITED STATES DISTRICT JUDGE

Because oral argument will not be of material assistance, the Court deemed this matter suitable for decision without oral argument. Local Rule 230 (g). 3

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