McDonnell et al v. Bank of America, N.A. et al

Filing 20

ORDER signed by Judge Kimberly J. Mueller on 9/27/12 GRANTING 7 Motion to Dimsiss. Plaintiff is granted twenty-one days from the date of this order to file an amended complaint with the required certification. (Matson, R)

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IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

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DIANE C. MCDONNELL and
JERRY D. FREY,

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Plaintiff,
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v.
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BANK OF AMERICA, et al.
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Defendants.
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______________________________)

No. CIV S- 12-0096 KJM EFB

ORDER

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Currently pending before the court is a motion to dismiss filed by defendants Bank of
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America and Recontrust Company (collectively, defendants). The court submitted the matter on
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the papers and now GRANTS the motion to dismiss.
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I. Background
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On December 6, 2011, plaintiffs filed a complaint in Calaveras County Superior
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Court, alleging violations of the Truth in Lending Act (TILA), 15 U.S.C. § 1601, et seq.; the
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Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. § 2601, et seq; the Equal Credit
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Opportunity Act (ECOA), 15 U.S.C. § 1691; and the Fair Credit Reporting Act, 15 U.S.C. §§
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1681-1681x, all stemming from the acquisition of and foreclosure on 5691 McCauley Road,
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Valley Springs, California. ECF No. 1-1.
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Defendants removed the case to this court on January 12, 2012 and on January 25,

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2012, filed the instant motion to dismiss. ECF No. 7. In their reply, plaintiffs acknowledged the

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shortcomings of their complaint but argued they should be given leave to amend so they could

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overcome the deficiencies of the claims as pleaded. ECF No. 10. Defendants did not file a

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reply.

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II. Analysis

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Federal Rule of Civil Procedure 15(a)(2) states “[t]he court should freely give

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leave [to amend its pleading] when justice so requires” and the Ninth Circuit has “stressed Rule

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15’s policy of favoring amendments.” Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149,

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1160 (9th Cir. 1989). “In exercising its discretion [regarding granting or denying leave to

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amend] ‘a court must be guided by the underlying purpose of Rule 15 -- to facilitate decision on

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the merits rather than on the pleadings or technicalities.’” DCD Programs, Ltd. v. Leighton, 833

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F.2d 183, 186 (9th Cir. 1987) (quoting United States v. Webb, 655 F.2d 977, 979 (9th Cir.

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1981)). However, “the liberality in granting leave to amend is subject to several limitations.

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Leave need not be granted where the amendment of the complaint would cause the opposing

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party undue prejudice, is sought in bad faith, constitutes an exercise in futility, or creates undue

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delay.” Ascon Properties, 866 F.2d at 1160 (internal citations omitted). In addition, a court

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should look to whether the plaintiff has previously amended the complaint.” Id. at 1161 (quoting

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Leighton, 833 F.2d at 186 n.3).

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Defendants allege that they are not the proper defendants, as they were not

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involved with the origination of the loan and because Recontrust was merely the trustee under

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the Deed of Trust. They also argue that plantiffs’ TILA, RESPA, and ECOA claims are time-

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barred. As noted, plaintiffs argue they will be able to tie the defendants to the loan origination

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and plead sufficient facts to show they may be entitled to equitable tolling.

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Judicial resources are best preserved by allowing plaintiffs to amend the
complaint to allege facts germane to a resolutions of the issues raised by the pleadings before the
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court resolves defendants’ motion. Plaintiff’s counsel is directed to review the defense motion to

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dismiss, and to meet and confer with defense counsel, before filing a second amended complaint.

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With any amended complaint, counsel shall file a one page certification that he has complied

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with this meet and confer directive.

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Plaintiff is granted twenty-one days from the date of this order to file an amended
complaint with the required certification. Defendants’ motion is denied without prejudice.
IT IS SO ORDERED.
DATED: September 27, 2012.

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UNITED STATES DISTRICT JUDGE

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