Dizon v. Wells Fargo Home Mortgage

Filing 16

Order by Hon. Samuel Conti Adopting 13 Report and Recommendations, Dismissing Complaint, and Referring Disciplinary Matter to Magistrate Judge.(sclc2, COURT STAFF) (Filed on 12/11/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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JERRY P. DIZON,
Plaintiff,

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For the Northern District of California

United States District Court

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v.

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WELLS FARGO, N.A.,

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Defendant.

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Case No. 12-4623-SC
ORDER ADOPTING
RECOMMENDATION, DISMISSING
COMPLAINT, AND REFERRING
DISCIPLINARY MATTER TO
MAGISTRATE JUDGE

Now pending before the undersigned is Magistrate Judge

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Nathanael Cousins's Recommendation to dismiss the Complaint of

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Plaintiff Jerry P. Dizon ("Plaintiff").

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Judge Cousins issued his Recommendation on November 26, 2012, and

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thus the time for objections to the Recommendation lapsed on

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December 10, 2012.

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3.

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expressed concern over the lack of diligence evinced by Plaintiff's

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counsel, Mandip Purewal of the National Consumer Law Group, and

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ordered Mr. Purewal to "provide a copy of this Order to [Plaintiff]

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and e-file a declaration stating that he has complied with this

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Order."

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Court has received neither an objection to the Recommendation nor

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the required declaration of compliance.

ECF No. 13 ("Rec.").

Id. at 9; Fed. R. Civ. P. 72(b); Civ. L.R. 72-

Further, when Judge Cousins issued the Recommendation, he

Rec. at 8.

The December 10 deadline has passed and the

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The Court turns first to the Recommendation of dismissal.

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Having reviewed Judge Cousins's Recommendation and found it to be

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thorough, well-reasoned, and correct, the Court ADOPTS the

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Recommendation as its Order.

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for judicial notice and its unopposed motion to dismiss are both

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GRANTED.

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follows:

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•

ECF Nos. 6, 7.

Defendant Wells Fargo, N.A.'s request

Plaintiff's claims are DISMISSED as

Claim 1 (breach of contract) is DISMISSED WITH LEAVE TO
AMEND.

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United States District Court

For the Northern District of California

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Claim 2 (fraud) is DISMISSED WITH LEAVE TO AMEND.

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•

Claim 3 (negligence) is DISMISSED WITH PREJUDICE.

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•

Claim 4 (intentional tort) is DISMISSED WITH PREJUDICE.

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Claim 5 (failure to modify loan under the California
Foreclosure Prevention Act) is DISMISSED WITH PREJUDICE.

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Claim 6 (declaratory and injunctive relief) is DISMISSED
WITH PREJUDICE.

Plaintiff has LEAVE to file an amended complaint, consistent

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with this Order and the guidance contained in Judge Cousins's

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Recommendation, within thirty (30) days of the signature date of

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this Order.

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this case.

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Failure to do so will result in final dismissal of

Turning to the lack of diligence displayed by Mr. Purewal, the

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undersigned shares Judge Cousins's concerns.

The Court recently

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dismissed another mortgage foreclosure case brought, but neglected,

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by Mr. Purewal.

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2012 WL 5914514 (N.D. Cal. Nov. 26, 2012).

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Judge Cousins the issue of whether to sanction or otherwise

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discipline Mr. Purewal for noncompliance with the Order requiring

See Barrientos v. CitiMortgage, Inc., 12-4653-SC,

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The Court REFERS to

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Mr. Purewal to provide a copy of the Recommendation to his client

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and to e-file a declaration of compliance on or before December 10,

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2012.

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6(a).

28 U.S.C. § 636(b); Civ. L.R. 72-1; see also Civ. L.R. 11-

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IT IS SO ORDERED.

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Dated: December 11, 2012
UNITED STATES DISTRICT JUDGE

United States District Court

For the Northern District of California

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