Perez v. American Home Mortgage Servicing, Inc. et al

Filing 34

ORDER DISMISSING ACTION AGAINST DEFENDANT T.D. SERVICE COMPANY re 32 Order, (whalc2, COURT STAFF) (Filed on 9/4/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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PETRA PEREZ,

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For the Northern District of California

United States District Court

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No. C 12-00932 WHA

Plaintiff,
v.

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AMERICAN HOME MORTGAGE
SERVICING, INC., MORTGAGE
ELECTRONIC REGISTRATION
SYSTEM, INC., T.D. SERVICE
COMPANY, and DOES 1-50, inclusive,

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ORDER DISMISSING ACTION
AGAINST DEFENDANT T.D.
SERVICE COMPANY

Defendants.

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/

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On April 23, 2012, defendants American Home Mortgage Servicing, Inc. and Mortgage

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Electronic Registration System, Inc.’s motion to dismiss was granted. The order concluded that

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plaintiff Petra Perez, who is represented by counsel, insufficiently pled each alleged claim for

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relief. One claim was dismissed without leave to amend; the remaining claims were dismissed

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with leave to file a motion for leave to amend the complaint by May 7. Plaintiff did not seek

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leave to amend. Moreover, pursuant to the case management order, the deadline to add new

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parties or make pleading amendments was June 29. As all claims in the operative complaint

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have been dismissed against defendants American Home Mortgage Servicing, Inc. and Mortgage

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Electronic Registration System, Inc., the action was dismissed with prejudice as to those

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defendants.

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Defendant T.D. Service Company (“T.D. Service”) is the sole remaining defendant.

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Defendant filed a declaration of non-monetary status on February 7, prior to removal of this
action to federal court. Section 2924l provides that where “a trustee under a deed of trust is

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named in an action or proceeding in which that deed of trust is the subject, and in the event that

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the trustee maintains a reasonable belief that it has been named in the action or proceeding solely

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in its capacity as trustee, and not arising out of any wrongful acts or omissions on its part in the

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performance of its duties as trustee, then, at any time, the trustee may file a declaration of

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nonmonetary status.” Cal. Civ. Code § 2924l.

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Although this Court has held that Section 2924l declarations are generally not valid in

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federal court proceedings, it has treated a defendant as a nominal defendant where the parties

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have stipulated to non-monetary status. Avila v. Wells Fargo Bank, N.A., No. 12-CV-01237,

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Dkt. No. 22 (N.D. Cal. May 21, 2012) (Alsup, J.). By order dated July 9, the Court ordered a
stipulation of non-monetary status to be filed as to defendant T.D. Service by July 23; if no such

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For the Northern District of California

United States District Court

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stipulation was filed by that date, plaintiff was ordered to show cause why the reasons for

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dismissing the action stated in the dismissal order do not also apply to the claims alleged against

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T.D. Service. No stipulation was filed and plaintiff has not filed a statement showing cause.

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The complaint alleges that T.D. Service was trustee of record at the time the Notice of

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Default on the subject property was recorded. All of plaintiff’s claims against defendant T.D.

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Service, as well as the operative facts, are identical to those alleged against defendants American

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Home Mortgage Servicing, Inc. and Mortgage Electronic Registration System, Inc. Plaintiff has

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not sought leave to amend the complaint or shown cause why the April 23 dismissal order should

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not also apply to claims alleged against T.D. Service. Accordingly, because the claims against

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T.D. Service are no different than the dismissed claims against the other two defendants and

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plaintiff has made no showing to the contrary, the action is DISMISSED WITHOUT LEAVE TO

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AMEND

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defendant, judgment will be entered. Plaintiff is advised that she may appeal the dismissal of

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this action to the Court of Appeals for the Ninth Circuit but must file a notice of appeal within 30

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days of the entry of judgment against her.

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as against defendant T.D. Service. As there are no remaining claims against any

IT IS SO ORDERED.
Dated: September 4, 2012.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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