Mar Partners 1, LLC v. American Home Mortgage Servicing, Inc. et al

Filing 24

ORDER GRANTING MOTION TO FILE FIRST AMENDED COMPLAINT by Judge Alsup granting 17 Motion to Amend/Correct ; plaintiff is required to E-FILE the amended document (whalc2, COURT STAFF) (Filed on 9/22/2010)

Download PDF
Mar Partners 1, LLC v. American Home Mortgage Servicing, Inc. et al Doc. 24 1 2 3 4 5 6 7 8 9 10 MAR PARTNERS 1, LLC, Plaintiff, v. AMERICAN HOME MORTGAGE SERVICING, INC.; POWER REO MANAGEMENT SERVICES, INC.; WELLS FARGO BANK, NATIONAL ASSOCIATION; DOES 1-50, inclusive, Defendants. / ORDER GRANTING MOTION TO FILE FIRST AMENDED COMPLAINT AND VACATING HEARING No. C 10-02906 WHA IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INTRODUCTION In this action regarding the purchase of nine bank-owned properties in Illinois, plaintiff moves to file first amended complaint. For the following reasons plaintiff's motion is GRANTED. STATEMENT Plaintiff, Mar Partners 1, LLC alleges that in May 2009 it entered into an oral agreement with defendants, American Home Mortgage Servicing, Inc. (AHMSI), Power REO Management Services, Inc., and Wells Fargo Bank to purchase nine bank-owned properties (Dkt. No. 17 Exh. 1 ¶ 8). The bidding process to purchase defendants' properties was presented, dictated and conducted by AHMSI pursuant to its written "AHMSI Large Volume REO Sales Process" packet Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 (Dkt. No. 17 Exh. 1 ¶ 7). Plaintiff was presented with the packet prior to May 2009. The packet contains the terms and conditions of the bidding process. Pursuant to oral agreement, plaintiff submitted bids to purchase the nine properties and was the winning bidder (Dkt. No. 17 Exh. 1 ¶ 9). In compliance with the packet, numerous related email and telephone correspondence, AHMSI agreed to deliver quitclaim deeds for the nine properties (Dkt. No 17 Exh. 1 ¶ 8). Plaintiff claims it performed all of its obligations under the agreement, paying the bid purchase price of $113,500 for the nine properties. Plaintiff alleges that defendants controlled the bidding process, all documentation, paperwork, and protocol for the sale of REO properties (Dkt. No. 17 Exh. 1 ¶ 11). Furthermore, plaintiff alleges that defendants did not, as a matter of custom and practice, offer any personally signed documentation in connection with the bid process, and with the exception of submitting a bid price, plaintiff did not have any ability to modify or change the terms of the defendants' REO bid process. For over a year, defendants failed to perform and plaintiff still has not received the quitclaim deeds or any portion of the purchase price despite repeated requests. Plaintiff has since repeatedly demanded a return of the $113,500 consideration (Dkt. No. 17 Exh. 1 ¶ 10). Plaintiff's original complaint was dismissed for failure to state a claim because the oral contract was barred by the statute of frauds (Dkt. No. 16). Under Illinois and California law, a real estate contract must be in writing. Plaintiff was given leave to amend and was advised to attach the written agreement between the parties regarding the nine properties. Plaintiff, however, argues that it never alleged the existence of a written contract between the parties and has only alleged the existence of a non-written agreement between the parties (Dkt. No. 22 at 3). Defendants allege that plaintiff, in the proposed amended complaint, quotes extensively from a written agreement between the parties and has avoided a pleading approach recognizing the written agreement because it would demonstrate that plaintiff's claims are without merit (Dkt. No. 19 at 2). Defendants, though, allege the existence of a written agreement between the parties, but do not attach such an agreement to its opposition to prove its existence. United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 1 2 3 4 5 6 7 8 9 10 Plaintiff still does not allege in its amended complaint that there was any written agreement or signed contract between the parties for the sale of the nine properties. Plaintiff asserts four claims based on these facts in its proposed first amended complaint: (1) estoppel to assert statute of frauds, (2) constructive trust, (3) money had and received, and (4) fraud (Dkt. No. 17 Exh. 1 ¶¶ 13­16). The claims in the proposed first amended complaint are based primarily on equitable grounds, on which plaintiff seeks restitution. ANALYSIS FRCP 15(a) provides that leave to amend should be freely given "when justice so requires." FRCP 15 provides the procedural mechanism for alleging new and supplemental claims against an opposing party. A pleading may be amended under FRCP 15 to eliminate certain claims or claims against certain parties. Plaintiff's proposed amended complaint changes the claim from breach of contract to equitable estoppel to bar defendants' reliance on the statute of frauds. In addition, plaintiff adds constructive trust, money had and received and fraud as claims in its proposed amended complaint. Plaintiff is within its right to amend its complaint, the motion is GRANTED. Of course, this order is for pleading purposes only and subject to revisiting after factual development. CONCLUSION Plaintiff's motion to file a first amended complaint is GRANTED. The hearing previously set for September 30, 2010, is hereby VACATED. United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IT IS SO ORDERED. Dated: September 22, 2010. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?