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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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 EILEEN BEVERLY DUBIN, Plaintiff, 9 United States District Court For the Northern District of California 10 11 No. C-10-05065 EDL ORDER GRANTING WITHOUT LEAVE TO AMEND DEFENDANT’S MOTION TO DISMISS v. BAC HOME LOANS SERVICING, Defendant. 12 / 13 14 On September 22, 2010, Plaintiff Eileen Dubin filed a complaint in the Marin County 15 Superior Court against Defendants BAC Home Loans Servicing and Bank of America, alleging 16 claims for violations of the California Civil Code, violation of the Truth in Lending Act and 17 Regulation Z, unfair business practices, breach of contract, breach of the implied covenant of good 18 faith and fair dealing, and quiet title. Defendants removed this matter on November 9, 2010. 19 On November 16, 2010, Defendants filed a motion to dismiss. Although Plaintiff did not file 20 an opposition to the motion to dismiss, she appeared at the January 5, 2011 hearing and sought 21 additional time to oppose the motion. The Court granted Plaintiff’s request for additional time, and 22 Plaintiff filed her opposition on February 3, 2011. Defendant filed a reply on February 11, 2011. 23 Following a hearing on February 22, 2011 at which Plaintiff appeared and sought leave to amend her 24 complaint, the Court granted Defendants’ motion to dismiss with leave to amend on March 1, 2011. 25 That Order is incorporated here by reference. Plaintiff timely filed an amended complaint on March 26 22, 2011. 27 28 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. 1 As stated at the May 17, 2011 hearing, the Court takes no position on whether an allegation 2 of a valid and viable tender of payment of the debt is required before Plaintiff may state viable 3 claims based on Defendants’ actions under the circumstances of this case where there are no 4 allegations that Plaintiff’s home has been sold at a foreclosure sale. See Arnolds Management Corp. 5 v. Eischen, 158 Cal.App.3d 575, 578 (1984) (“It is settled that an action to set aside a trustee's sale 6 for irregularities in sale notice or procedure should be accompanied by an offer to pay the full 7 amount of the debt for which the property was security.”); Karlsen v. American Sav. & Loan Assn., 8 15 Cal.App.3d 112, 117 (1971) (“A valid and viable tender of payment of the indebtedness owing is 9 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 10 concludes that Plaintiff has failed to remedy the deficiencies in her complaint that were set forth in 11 the Court’s March 1, 2011 Order, and that therefore, her amended complaint fails to state any claims 12 upon which relief can be granted. Thus, for the reasons stated at the hearings in this matter and in 13 the Court’s March 1, 2011 Order, the Court grants Defendants’ motion to dismiss. Because the 14 Court has previously given Plaintiff leave to amend her complaint, and because Plaintiff neither filed 15 an opposition to the motion to dismiss nor appeared at the May 17, 2011 hearing, the Court declines 16 to give Plaintiff leave to amend. 17 IT IS SO ORDERED. 18 19 Dated: May 18, 2011 ELIZABETH D. LAPORTE United States Magistrate Judge 20 21 22 23 24 25 26 27 28 2

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