Dubin v. BAC Home Loans Servicing, LP et al

Filing 28

ORDER GRANTING WITHOUT LEAVE TO AMEND DEFENDANT'S MOTION TO DISMISS. Signed by Judge Elizabeth D. Laporte on 5/18/2011. (cgk, COURT STAFF) (Filed on 5/18/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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EILEEN BEVERLY DUBIN,
Plaintiff,

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United States District Court
For the Northern District of California

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No. C-10-05065 EDL
ORDER GRANTING WITHOUT LEAVE
TO AMEND DEFENDANT’S MOTION
TO DISMISS

v.
BAC HOME LOANS SERVICING,
Defendant.

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On September 22, 2010, Plaintiff Eileen Dubin filed a complaint in the Marin County

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Superior Court against Defendants BAC Home Loans Servicing and Bank of America, alleging

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claims for violations of the California Civil Code, violation of the Truth in Lending Act and

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Regulation Z, unfair business practices, breach of contract, breach of the implied covenant of good

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faith and fair dealing, and quiet title. Defendants removed this matter on November 9, 2010.

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On November 16, 2010, Defendants filed a motion to dismiss. Although Plaintiff did not file

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an opposition to the motion to dismiss, she appeared at the January 5, 2011 hearing and sought

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additional time to oppose the motion. The Court granted Plaintiff’s request for additional time, and

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Plaintiff filed her opposition on February 3, 2011. Defendant filed a reply on February 11, 2011.

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Following a hearing on February 22, 2011 at which Plaintiff appeared and sought leave to amend her

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complaint, the Court granted Defendants’ motion to dismiss with leave to amend on March 1, 2011.

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That Order is incorporated here by reference. Plaintiff timely filed an amended complaint on March

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22, 2011.

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On April 9, 2011, Defendants filed a motion to dismiss the amended complaint. Plaintiff did
not file an opposition to the motion to dismiss. On May 17, 2011, the Court held a hearing on
Defendants’ motion to dismiss. Plaintiff did not appear for the hearing.

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As stated at the May 17, 2011 hearing, the Court takes no position on whether an allegation

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of a valid and viable tender of payment of the debt is required before Plaintiff may state viable

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claims based on Defendants’ actions under the circumstances of this case where there are no

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allegations that Plaintiff’s home has been sold at a foreclosure sale. See Arnolds Management Corp.

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v. Eischen, 158 Cal.App.3d 575, 578 (1984) (“It is settled that an action to set aside a trustee's sale

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for irregularities in sale notice or procedure should be accompanied by an offer to pay the full

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amount of the debt for which the property was security.”); Karlsen v. American Sav. & Loan Assn.,

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15 Cal.App.3d 112, 117 (1971) (“A valid and viable tender of payment of the indebtedness owing is

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essential to an action to cancel a voidable sale under a deed of trust.”). However, the Court

United States District Court
For the Northern District of California

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concludes that Plaintiff has failed to remedy the deficiencies in her complaint that were set forth in

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the Court’s March 1, 2011 Order, and that therefore, her amended complaint fails to state any claims

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upon which relief can be granted. Thus, for the reasons stated at the hearings in this matter and in

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the Court’s March 1, 2011 Order, the Court grants Defendants’ motion to dismiss. Because the

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Court has previously given Plaintiff leave to amend her complaint, and because Plaintiff neither filed

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an opposition to the motion to dismiss nor appeared at the May 17, 2011 hearing, the Court declines

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to give Plaintiff leave to amend.

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IT IS SO ORDERED.

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Dated: May 18, 2011
ELIZABETH D. LAPORTE
United States Magistrate Judge

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