Thompson v. Residential Credit Solutions et al

Filing 31

MEMORANDUM AND ORDER signed by Judge William B. Shubb on 5/2/2012 Re 25 Motion to Dismiss Third Amended Complaint: IT IS ORDERED that Residential Credit Solutions, Inc. and Merscorp's motion to dismiss be, and the same hereby is, GRANTED; and this action is hereby DISMISSED WITH PREJUDICE as against Residential Credit Solutions, Inc. and Merscorp, Inc. dba Mortgage Electronic Registration System, Inc. and as nominee for American Brokers Conduit and American Home Mortgage Servicing, Inc. I T IS FURTHER ORDERED that within ten days of this Order Gregory Harper shall either (1) pay sanctions of $200.00 to the Clerk of the Court, or (2) submit a statement of good cause explaining his failure to comply with Local Rule 230(c). cc: Finan - Sac. (Kirksey Smith, K)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

----oo0oo----

11
12

LORNA DELORES THOMPSON,

13
14
15

NO. CIV. 2:11-2261 WBS DAD

Plaintiff,
MEMORANDUM AND ORDER RE:
MOTION TO DISMISS THIRD
AMENDED COMPLAINT

v.

25

RESIDENTIAL CREDIT SOLUTIONS,
INC., a Delaware Corporation;
AMERICAN BROKERS CONDUIT, A
DIVISION OF AMERICAN HOME
MORTGAGE INVESTMENT
CORPORATION, a Maryland
Corporation; MERSCORP, INC.
dba MORTGAGE ELECTRONIC
REGISTRATION SYSTEM, INC. AS
NOMINEE FOR AMERICAN BROKERS
CONDUIT, AMERICAN HOME
MORTGAGE SERVICING, INC., and
all persons unknown, claiming
any legal or equitable right,
title, estate, lien, or
interest in the property,
described in the complaint
adverse to Plaintiff’s title,
and any cloud on Plaintiff’s
title thereto, and DOES 1-100,
inclusive,

26

Defendants.

16
17
18
19
20
21
22
23
24

/
27
28
1

1

----oo0oo----

2

Plaintiff Lorna Delores Thompson brings this action

3

against defendants Residential Credit Solutions, Inc. (“RCS”),

4

American Brokers Conduit (“ABC”), a division of American Home

5

Mortgage Investment Corporation (“AHMIC”), Merscorp, Inc.

6

(“Merscorp”), dba Mortgage Electronic Registration System, Inc.

7

(“MERS”) as nominee for American Brokers Conduit, and American

8

Home Mortgage Servicing, Inc. (“AHMSI”), arising from defendants’

9

allegedly wrongful conduct related to a residential loan.

RCS

10

and Merscorp now move to dismiss the Third Amended Complaint

11

(“TAC”) for failure to state a claim upon which relief can be

12

granted pursuant to Federal Rule of Civil Procedure 12(b)(6).

13

(Docket No. 23.)

14

I.

Factual and Procedural Background

15

In July of 2007, plaintiff purchased her residence at

16

2220 Cobblestone Avenue in Fairfield, California (“the

17

property”), with a loan she obtained from ABC.

18

June 8, 2009, a Notice of Default was filed against the property

19

after plaintiff had accrued a total default of at least

20

$17,654.25.

21

26).)

22

monthly trial program by AHMIC.

23

that under the modification agreement, AHMIC agreed to forbear

24

from commencement of foreclosure proceedings as long as she was

25

current on the payments.

26

Notice of Rescission of Notice of Default was recorded.

27

4.)

28

second and operative Notice of Default was recorded on April 4,

(TAC ¶ 1.)

On

(Req. for Judicial Notice (“RJN”) Ex. 3 (Docket No.

Beginning in June 2010, plaintiff was placed on a modified
(TAC ¶ 18.)

(Id. ¶ 20.)

Plaintiff alleges

On October 18, 2010, a
(RJN Ex.

After plaintiff’s delinquency increased to $62,437.88, a

2

1

2011.

(Id. Ex. 5.)

2

On July 5, 2011, the National Default Servicing Corp.

3

(“NDSC”) was substituted as trustee under the Deed of Trust.

4

(Id. Ex. 7.)

5

Sale.

6

15, 2011, and a Trustee’s Deed Upon Sale was recorded on November

7

28, 2011.

(Id. Ex. 8.)

The foreclosure sale took place on November

(Id. Ex. 9.)
On July 18, 2011, plaintiff filed her First Amended

8
9

The same day, NDSC recorded a Notice of Trustee’s

Complaint (“FAC”) in the Superior Court of California, County of

10

Solano.

11

court based on diversity of citizenship.

12

2:20-25 (Docket No. 1).)

13

RCS and Merscorp’s motion to dismiss the FAC.

14

Plaintiff filed her Second Amended Complaint (“SAC”) on November

15

28, 2011.

16

granted RCS and Merscorp’s motion to dismiss the SAC.

17

No. 22.)

18

alleges claims against defendants for: (1) wrongful foreclosure

19

under California Civil Code section 2924; (2) promissory

20

estoppel; (3) breach of contract; (4) quiet title; and (5)

21

declaratory relief.1

22

II.

(Notice of Removal at

On November 22, 1011, the court granted

(Docket No. 13.)

(Docket No. 12.)

On January 26, 2012, the court
(Docket

Plaintiff filed her TAC on February 14, 2012.

The TAC

Judicial Notice
A court may take judicial notice of facts “not subject

23
24

On August 25, 2011, defendants removed the case to this

to reasonable dispute” because they are either “(1) generally

25
26
27
28

1

Plaintiff formally raises claim one for the first time
in her TAC, although it was raised in passing in her SAC. (See
SAC ¶ 62; Jan. 26, 2012, Order at 7 n.2 (Docket No. 22).)
Plaintiff previously raised variations of claims three and four
in her SAC and claims two and five in her FAC.
3

1

known within the territorial jurisdiction of the trial court or

2

(2) capable of accurate and ready determination by resort to

3

sources whose accuracy cannot reasonably be questioned.”

4

Evid. 201.

5

public record or of documents whose contents are alleged in the

6

complaint and whose authenticity is not questioned.

7

of L.A., 250 F.3d 668, 688-89 (9th Cir. 2001).

8

Fed. R.

The court may take judicial notice of matters of

Lee v. City

RCS and Merscorp have filed a request for judicial

9

notice in support of their motion to dismiss which contains nine

10

exhibits: (1) a copy of the Grant Deed, recorded in Solano County

11

on July 10, 2007; (2) a copy of the Deed of Trust, recorded in

12

Solano County on July 10, 2007; (3) a copy of the Notice of

13

Default and Election to Sell Under Deed of Trust, recorded in

14

Solano County on June 8, 2009; (4) a copy of the Notice of

15

Rescission, recorded in Solano County on October 18, 2010; (5) a

16

copy of the Notice of Default and Election to Sell Under Deed of

17

Trust, recorded in Solano County on April 4, 2011; (6) a copy of

18

the Corporation Assignment of Deed of Trust, recorded in Solano

19

County on May 3, 2011; (7) a copy of the Substitution of Trustee,

20

recorded in Solano County on July 5, 2011; (8) a copy of the

21

Notice of Trustee’s Sale, recorded in Solano County on July 5,

22

2011; and (9) a copy of the Trustee’s Deed Upon Sale, recorded in

23

Solano County on November 28, 2011.

(Docket No. 26.)

24

The court will take judicial notice of defendants’

25

exhibits as they are matters of public record whose accuracy

26

cannot be questioned.

27

III. Discussion

28

See Lee, 250 F.3d at 689.

On a motion to dismiss, the court must accept the
4

1

allegations in the complaint as true and draw all reasonable

2

inferences in favor of the plaintiff.

3

U.S. 232, 236 (1974), overruled on other grounds by Davis v.

4

Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322

5

(1972).

6

contain sufficient factual matter, accepted as true, to ‘state a

7

claim to relief that is plausible on its face.’”

8

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

9

Twombly, 550 U.S. 544, 570 (2007)).

Scheuer v. Rhodes, 416

“To survive a motion to dismiss, a complaint must

Ashcroft v.

This “plausibility

10

standard,” however, “asks for more than a sheer possibility that

11

a defendant has acted unlawfully,” and “[w]here a complaint

12

pleads facts that are ‘merely consistent with’ a defendant’s

13

liability, it ‘stops short of the line between possibility and

14

plausibility of entitlement to relief.’” Id. (quoting Twombly,

15

550 U.S. at 556-57).

16

A.

Wrongful Foreclosure Under California Civil Code

17

Section 2924

18

California Civil Code section 2924 provides a

19

“comprehensive statutory framework” that governs the non-judicial

20

foreclosure process.

21

(2d Dist. 1994); see Cal. Civ. Code § 2924 (listing, inter alia,

22

the requirements for a properly filed notice of default and the

23

timing and process for the foreclosure sale).

24

exhaustive nature of this scheme, California appellate courts

25

have refused to read any additional requirements into the non-

26

judicial foreclosure statute.

27

Ins. Co., 39 Cal. 3d 281, 288 (1985); Moeller, 25 Cal. App. 4th

28

at 834.

Moeller v. Lien, 25 Cal. App. 4th 822, 834

Because of the

See I.E. Assocs. v. Safeco Title

Plaintiff brings a claim for relief under section 2924,
5

1

arguing that RCS is not a holder or beneficiary of the Note and

2

is therefore unable to foreclose upon plaintiff’s property.

3

Under California Civil Code section 2924(a)(1), a

4

“trustee, mortgagee or beneficiary or any of their authorized

5

agents” may conduct the foreclosure process.

6

Civil Code section 2924b(4), a “person authorized to record the

7

notice of default or the notice of sale” includes “an agent for

8

the mortgagee or beneficiary, an agent of the named trustee, any

9

person designated in an executed substitution of trustee, or an

Under California

10

agent of that substituted trustee.”

11

trustor, the beneficiary may declare a default and proceed with a

12

nonjudicial foreclosure sale.”

13

California’s non-judicial foreclosure scheme does not explicitly

14

require a beneficial interest in the Note to foreclose.

15

the statute broadly allows a trustee, mortgagee, beneficiary, or

16

any of their agents to initiate non-judicial foreclosure.

17

“Upon default by the

Moeller, 25 Cal. App. 4th at 830.

Rather,

Plaintiff alleges that RCS was the servicer of the

18

loan, (TAC ¶ 58), which would make it an agent of the Note owner

19

authorized to conduct a non-judicial foreclosure under section

20

2924.

21

at *9 (S.D. Cal. Oct. 9, 2010) (holding that defendant, as

22

servicer of the loan, had the authority to record the Notice of

23

Default and enforce the power of sale under the deed of trust).

24

Additionally, the court has judicially noticed the May 3, 2011,

25

Assignment of Deed of Trust, in which ABC assigned all interest

26

in the Note and Deed of Trust to RCS.

27

assignment occurred prior to the July 5, 2011, Notice of

28

Trustee’s Sale.

See Caravantes v. Cal. Reconveyance Co., 2010 WL 4055560,

(RJN Ex. 6.)

This

RCS therefore had authority as the beneficiary
6

1

under section 2924 to conduct a non-judicial foreclosure of

2

plaintiff’s property.2

3

Furthermore, under California law there is no

4

requirement for the production of the original note to initiate a

5

non-judicial foreclosure.

6

Inc., No. 09-1381, 2009 WL 3122573, at *3 (E.D. Cal. Sept. 29,

7

2009) (citing Alvara v. Aurora Loan Servs., No. 09-1512, 2009 WL

8

1689640, at *6 (N.D. Cal. Jun. 16, 2009)); Kamp v. Aurora Loan

9

Servs., No. 09-00844, 2009 WL 3177636, at *4, (C.D. Cal. Oct. 1,

10

2009); Putkkuri v. Recontrust Co., No. 08-1919, 2009 WL 32567, at

11

*2 (S.D. Cal. Jan. 5, 2009).

12

foreclosure is illegal because no defendant is in possession of

13

the note therefore fails as a matter of law.

14

court will grant RSC and Merscorp’s motion to dismiss plaintiff’s

15

claim under California Civil Code section 2924.3

Oliver v. Countrywide Home Loans,

Plaintiff’s assertion that the

Accordingly, the

16
17
18
19
20
21
22
23
24
25
26
27
28

2

The TAC also alleges that the NDSC, which is not a
named defendant, filed the Notice of Trustee’s Sale. (TAC ¶ 14.)
This allegation is corroborated by the Notice of Trustee’s Sale,
(RJN Ex. 8), which the court has judicially noticed. The listing
of NDSC on the Notice of Trustee’s Sale is at odds with
plaintiff’s later allegation that “Defendant RCS is a servicer,
and as such, cannot foreclose on Plaintiff’s property,” (TAC
¶ 58) because it suggests that NDSC, and not RCS, conducted the
foreclosure sale.
3

In her claim under section 2924, plaintiff also appears
to also raise a claim for unjust enrichment. (See TAC ¶¶ 63-68.)
Unjust enrichment is not itself an independent claim for relief.
McKell v. Wash. Mut., Inc., 142 Cal. App. 4th 1457, 1490 (2d
Dist. 2006). The court therefore treats plaintiff’s unjust
enrichment argument as the relief requested under her section
2924 claim. A party is required to make restitution “if he or
she is unjustly enriched at the expense of another. A person is
enriched if the person receives a benefit at another’s expense.”
McBride v. Boughton, 123 Cal. App. 4th 379, 389 (1st Dist. 2004)
(quoting First Nationwide Sav. v. Perry, 11 Cal. App. 4th 1657,
1662 (6th Dist. 1992) (internal quotation mark and citation
omitted)). Because plaintiff fails to state a claim under
7

1

B.

2

Promissory Estoppel
Under California law, a plaintiff alleging a promissory

3

estoppel claim must show: (1) the existence of a promise “clear

4

and unambiguous in its terms”; (2) “reliance by the party to whom

5

the promise is made”; (3) that any reliance was both “reasonable

6

and foreseeable”; and (4) that the party asserting the estoppel

7

was injured by his reliance.

8

App. 4th 887, 901 (4th Dist. 2005) (quoting Laks v. Coast Fed.

9

Sav. & Loan Ass’n, 60 Cal. App. 3d 885, 890 (2d Dist. 1976)).

US Ecology, Inc. v. State, 129 Cal.

10

Plaintiff claims that RCS promised that it would not foreclose on

11

her property while it was evaluating her modification

12

application, (TAC ¶¶ 71-72), that she relied on RCS’s

13

representation, (id. ¶¶ 72-73), and that RCS breached the

14

agreement by foreclosing on her property before reaching a

15

determination on her modification application, (id. ¶ 74).

16

Here, as the court noted with regard to plaintiff’s

17

FAC, plaintiff fails to allege reliance to her detriment.

18

“Detrimental reliance is an essential feature of promissory

19

estoppel.”

20

BEN, 2010 WL 5340563, at *2 (S.D. Cal. Dec. 10, 2010).

21

“Detrimental reliance requires a showing that plaintiff has

22

undertaken a sufficient change of position in reliance on

23

defendant’s promise.”

24

ODW, 2012 WL 589639, at *5 (C.D. Cal. Feb. 22, 2012).

25

plaintiff claims that she “relied on the promise” of RCS, she

26

does not state how she would have acted in the absence of RCS’s

Beck v. Wells Fargo Home Mortg., N.A., No. 10-cv-2150

Penny v. NdeX West LLC, No. CV 11-05567Although

27
28

section 2924, her claim for relief based on unjust enrichment
also fails.
8

1

promise or how this reliance injured her.

2

off now than she would have been had RCS first determined not to

3

grant her modification application and then initiated foreclosure

4

proceedings.

5

Merscorp’s motion to dismiss plaintiff’s claim for promissory

6

estoppel.

7

C.

Accordingly, the court will grant RSC and

Breach of Contract
To state a claim for breach of contract under

8
9

Plaintiff is no worse

California law, plaintiffs must allege (1) the existence of a

10

contract; (2) plaintiffs’ performance or excuse for

11

nonperformance of the contract; (3) defendants’ breach of the

12

contract; and (4) resulting damages.

13

v. Tri-Valley Oil & Gas Co., 116 Cal. App. 4th 1375, 1390 (5th

14

Dist. 2004).

15

contract because foreclosing upon plaintiff before reaching a

16

determination under the June 2010 Modification Agreement violated

17

its terms.4

18

Armstrong Petroleum Corp.

Plaintiff alleges that defendants were in breach of

As in her SAC, plaintiff has once again failed to

19

demonstrate that the Modification Agreement was a valid contract.

20

“The general rule is that if an ‘essential element’ of a promise

21

is reserved for the future agreement of both parties, the promise

22

gives rise to no legal obligation until such future agreement is

23

made.”

24

433 (1959) (quoting Ablett v. Clauson, 43 Cal. 2d 280, 284

25

(1954)).

City of L.A. v. Super. Ct. of L.A. Cnty., 51 Cal. 2d 423,

Based on this principle, a number of courts have

26
4

27
28

Plaintiff’s claim for breach of contract, although
technically new in her TAC, is virtually identical in content to
her claim for anticipatory breach of contract raised in her SAC.
(See SAC ¶¶ 80-89.)
9

1

dismissed claims based on “agreements to agree.”

See, e.g.,

2

Grant v. Aurora Loan Servs., Inc., 736 F. Supp. 2d 1257, 1266

3

(C.D. Cal. 2010).

4

“agreements to negotiate” are enforceable.

5

v. Baskin Robbins U.S.A., 96 Cal. App. 4th 1251, 1255-60 (2d

6

Dist. 2002).

However, some courts have held that
See, e.g., Copeland

Plaintiff’s allegations that defendants breached their

7
8

obligations under the modification agreement are deficient for

9

two primary reasons.

First, plaintiff may be alleging an

10

unenforceable “agreement to agree” to a loan modification.

See

11

City of L.A., 51 Cal.2d at 433.

12

construes plaintiff’s SAC as alleging an “agreement to negotiate”

13

a loan modification and were to hold that such agreements are

14

enforceable, plaintiff has only alleged in conclusory fashion

15

that the parties entered into such an agreement.

16

once again failed to provide nonconclusory factual content from

17

which the court can plausibly infer that the parties entered into

18

an agreement to negotiate.5

19

plaintiff has detailed a series of interactions with defendants

20

involving plaintiff’s loan modification application, (see TAC ¶¶

21

78-88), such facts are only consistent with defendants’ liability

22

and do not give rise to plausible entitlement to relief.

Second, even if the court

Plaintiff has

See Twombly, 550 U.S. at 570.

While

See

23
5

24
25
26
27
28

Plaintiff attached a copy of the Modification Agreement
to her FAC, but not to her TAC. The agreement notes that “[u]pon
your having successfully made all payments under this letter
agreement, AHMSI’s sole obligation will be to further review and
consider your request for a loan modification. There is no
guarantee that your loan modification will be approved . . . .”
(FAC Ex. 3.) Because the Modification Agreement was not attached
to the TAC, the court declines to take its content into
consideration for the purposes of deciding defendants’ motion to
dismiss the TAC.
10

1

Iqbal, 556 U.S. 677-78.

2

Plaintiff additionally fails to plead how she was

3

damaged by defendants’ alleged breach other than being forced to

4

incur “costs and attorney fees.”

5

court will grant RCS and Merscorp’s motion to dismiss plaintiff’s

6

claim for breach of contract.

7

D.

Accordingly, the

Quiet Title
The purpose of a quiet title action is to establish

8
9

(TAC ¶ 90.)

one’s title against adverse claims to real property.

California

10

Code of Civil Procedure section 761.020 states that a claim to

11

quiet title requires: (1) a verified complaint, (2) a description

12

of the property, (3) the title for which a determination is

13

sought, (4) the adverse claims to the title against which a

14

determination is sought, (5) the date as of which the

15

determination is sought, and (6) a prayer for the determination

16

of the title.

17

Cal. Civ. Proc. Code § 761.020.6

The tender rule applies to a quiet title action.

18

Kozhayev v. America’s Wholesale Lender, No. CIV S-09-2841, 2010

19

WL 3036001, at *5 (E.D. Cal. Aug. 2, 2010); see also Shimpones v.

20

Stickney, 219 Cal. 637, 649 (1934).

21

doomed in the absence of Plaintiffs’ tender of the full amount

22

owed.”

23

4321604, at *8 (E.D. Cal. Oct. 26, 2010).

24

these proceedings, plaintiff has alleged in her TAC that she

A “quiet title action is

Gjurovich v. California, No. 1:10-cv-01871, 2010 WL
For the first time in

25
26
27
28

6

The court notes that plaintiff’s TAC is not in the form
of a verified complaint, which is expressly required pursuant to
California Code of Civil Procedure section 761.020. As discussed
further below, this omission is indicative of plaintiff’s overall
inability or unwillingness to properly plead the causes of action
that she has asserted.
11

1

“will if requested, tender all sum due.”

2

(TAC ¶ 93.)

California case law establishes that “[a] full tender

3

must be made to set aside a foreclosure sale, based upon

4

equitable principles.”

5

202 Cal. App. 4th 522, 526 (3d Dist. 2011).

6

that Plaintiff has offered to tender is insufficient.”

7

v. GMAC Mortg., LLC, No. 2:11-cv-01097-ODW, 2012 WL 777491, at *1

8

(C.D. Cal. Mar. 9, 2012).

9

it is made in good faith, the party making the tender has the

Stebley v. Litton Loan Servicing, LLP,
“[A] mere allegation
Chavers

“A valid and viable tender means that

10

ability to perform, and the tender must be unconditional.”

11

Alicea v. GE Money Bank, No. C 09-00091 SBA, 2009 WL 2136969, at

12

*3 (N.D. Cal. July 16, 2009); see also Chavers, 2012 WL 777491,

13

at *1 (tender offer must be credible); Cuaresma v. Deustche Bank

14

Nat’l Co., No. C-11-03829 RMW, 2011 WL 4727805, at *3 (N.D. Cal.

15

Oct. 7, 2011) (same).

16

Plaintiff does not allege that she has made full tender

17

to set aside the foreclosure sale.

18

seeking approval for loan modification further suggests that she

19

is unable to tender her delinquency of over $60,000, (RJN Ex. 5),

20

much less the full value of the loan.

21

without the money necessary to make the offer good and knows it

22

the tender is without legal force or effect.”

23

Sav. & Loan Ass’n, 15 Cal. App. 3d 112, 118 (1971).

24

the court will grant RCS and Merscorp’s motion to dismiss

25

plaintiff’s claim for quiet title.

26
27
28

E.

The fact that plaintiff was

“[I]f the offeror is

Karlsen v. Am.
Accordingly,

Declaratory Relief
Plaintiff’s final claim purports to state a cause of

action for declaratory relief.

Declaratory relief is not an

12

1

independent cause of action, but rather is a form of relief.

2

Nat’l Union Fire Ins. Co. v. Karp, 108 F.3d 17, 21 (2d Cir.

3

1997).

4

where, as here, the claim merely replicates other substantive

5

causes of action asserted in the pleading.

6

other claims have been dismissed and declaratory relief is not a

7

cause of action in and of itself, the court must grant RCS and

8

Merscorp’s motion to dismiss plaintiff’s cause of action for

9

declaratory relief.

10

See

As such, a claim for declaratory relief is improper

F.

Because plaintiff’s

Further Amendments
While leave to amend must be freely given, the court is

11
12

not required to permit futile amendments.

13

Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992); Reddy v.

14

Litton Indus., Inc., 912 F.2d 291, 296-97 (9th Cir. 1990); Rutman

15

Wine Co. v. E. & J. Gallo Winery, 829 F.2d 729, 738 (9th Cir.

16

1987); Klamath-Lake Pharm. Ass'n v. Klamath Med. Serv. Bureau,

17

701 F.2d 1276, 1293 (9th Cir. 1983).

18

and January 26, 2012, Orders, the court explicitly advised

19

plaintiff of the pleading defects in her FAC and SAC and how to

20

rectify them, and gave plaintiff the opportunity to file a TAC.

21

As explained above, plaintiff’s TAC fails to correct these

22

defects.

23

See DeSoto v. Yellow

In its November 22, 2011,

It is evident that further amendment will not help

24

plaintiff satisfy applicable pleading standards in her claims

25

against defendants.

26

out in its previous Orders remain uncorrected, the court can only

27

conclude that plaintiff is either unwilling or unable to properly

28

plead the causes of action she has asserted.

As the deficiencies that the court pointed

13

Cf. Garcia ex rel.

1

Marin v. Clovis Unified Sch. Dist., No. 08-1924, 2009 WL 2982900,

2

at *9 (E.D. Cal. Sept. 14, 2009).

3

further evidenced by the content of her opposition to defendants’

4

motion to dismiss, which largely discusses claims that are not

5

pleaded in the TAC and fails to address three of her claims

6

entirely.

7

appropriate.

8

III. Sanctions

Plaintiff’s unwillingness is

Dismissal without leave to amend is therefore

9

After prompting by this court, plaintiff filed her

10

papers in opposition to the defendants’ motion to dismiss on

11

April 24, 2012.

12

the granting of a motion must be filed and served not less than

13

fourteen days preceding the noticed hearing date.

14

for this matter was set for May 7, 2012, plaintiff filed her

15

papers one day late.

16

failed to timely file her opposition and the court previously

17

noted plaintiff’s tardiness in its January 26, 2012, Order.

18

Jan. 26, 2012, Order at 18 (Docket No. 22).)

19

unwillingness to comply with the Local Rules is both

20

disrespectful of this court’s time and further suggests that

21

plaintiff lacks interest in prosecuting her claims.

According to Local Rule 230(c), opposition to

As the hearing

This is the third time that plaintiff has

(See

Plaintiff’s

Local Rule 110 authorizes the court to impose sanctions

22
23

for “[f]ailure of counsel or of a party to comply with these

24

Rules.”

25

Gregory Harper, $200.00 payable to the Clerk of the Court within

26

ten days from the date of this Order, unless he shows good cause

27

for his failure to comply with the Local Rules.

28

Therefore, the court will sanction plaintiffs’ counsel,

IT IS THEREFORE ORDERED that RCS and Merscorp’s motion

14

1

to dismiss be, and the same hereby is, GRANTED; and this action

2

is hereby DISMISSED WITH PREJUDICE as against Residential Credit

3

Solutions, Inc. and Merscorp, Inc. dba Mortgage Electronic

4

Registration System, Inc. and as nominee for American Brokers

5

Conduit and American Home Mortgage Servicing, Inc.
IT IS FURTHER ORDERED that within ten days of this

6
7

Order Gregory Harper shall either (1) pay sanctions of $200.00 to

8

the Clerk of the Court, or (2) submit a statement of good cause

9

explaining his failure to comply with Local Rule 230(c).

10

DATED:

May 2, 2012

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

15