Jacinto v. Ditech Financial LLC et al

Filing 64

ORDER GRANTING DEFENDANTS DITECH AND MERS' MOTIONS TO DISMISS; VACATING HEARING; DISMISSING ACTION. The hearing scheduled for January 6, 2017, is vacated. The Second Amended Complaint is dismissed without further leave to amend and the above-titled action is dismissed. Signed by Judge Maxine M. Chesney on 1/3/17. (mmclc2, COURT STAFF) (Filed on 1/3/2017)

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1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 MODESTA JACINTO, Plaintiff, 8 v. 9 10 DITECH FINANCIAL LLC, et al., Defendants. 11 United States District Court Northern District of California Case No. 16-cv-02815-MMC ORDER GRANTING DEFENDANTS DITECH AND MERS’ MOTION TO DISMISS; VACATING HEARING; DISMISSING ACTION Re: Dkt. No. 57 12 13 Before the Court is the “Motion to Dismiss Plaintiff’s Second Amended Complaint,” 14 filed December 1, 2016, by defendants Ditech Financial LLC (“Ditech”) and Mortgage 15 Electronic Registration Systems, Inc.’s (“MERS”) (collectively, “Moving Defendants”).1 16 Plaintiff Modesta Jacinto (“Jacinto”) has filed opposition,2 to which Moving Defendants 17 have filed a reply. Having read and considered the papers filed in support of and in 18 opposition to the motions, the Court deems the matter suitable for decision thereon, 19 VACATES the hearing scheduled for January 6, 2017, and hereby rules as follows. 20 By order filed October 26, 2016, the Court dismissed Jacinto’s First Amended 21 Complaint (“FAC”) in its entirety, and granted Jacinto leave to amend to allege sufficient 22 facts to support four of her seven causes of action. Thereafter, on November 14, 2016, 23 Jacinto filed her Second Amended Complaint ("SAC"). By the instant motion, Moving 24 25 26 27 28 1 A third defendant, National Default Servicing Corporation (“NDSC”), filed a “Declaration of Non-Monetary Status” in state court, and, to date, has not filed any additional documents. 2 Although, as Moving Defendants correctly point out, Jacinto’s opposition was filed one day late, the Court nonetheless has considered it in ruling on the instant motion. 1 Defendants argue, inter alia, that Jacinto has failed to cure the deficiencies previously 2 identified by the Court. As set forth below, the Court agrees. 3 With respect to Jacinto’s First Cause of Action, titled “Violation of Cal. Civ. Code 4 2924.17,” the only new allegations are conclusory in nature (see SAC ¶¶ 73-74), and, 5 further, fail to address, let alone cure, the deficiency previously identified by the Court, 6 specifically, the failure to allege facts to support her conclusory allegation that the amount 7 owed was incorrect. 8 9 Similarly, with respect to Jacinto’s Second Cause of Action, titled “Violation of the Covenant of Good Faith and Fair Dealing,” the only new allegation is conclusory in nature (see id. ¶ 83), and, further, fails to address, let alone cure, the deficiency previously 11 United States District Court Northern District of California 10 identified by the Court, specifically, the failure to allege facts to support her conclusory 12 allegation that she was denied the benefits of the loan contract. 13 Jacinto’s Third Cause of Action, titled “Violation of California Bus. & Prof. Code 14 Sections 17200 Et Seq.,” is unchanged in any respect, and, consequently, Jacinto has 15 failed to cure the deficiencies previously identified by the Court, specifically, the failure to 16 allege facts to support tolling of the statute of limitations and facts to support her 17 allegation that defendants marketed and funded a predatory loan. 18 Jacinto’s Fourth Cause of Action, titled “Declaratory Relief,” likewise is unchanged, 19 and, as said claim is derivative of her § 17200 claim, it fails for the reasons stated above 20 with respect to the Third Cause of Action.3 21 Lastly, as the deficiencies identified above are equally applicable to NDSC, the 22 SAC is subject to dismissal as against said additional defendant as well. See Silverton v. 23 Dep’t of Treasury, 644 F.2d 1341, 1345 (9th Cir. 1981) (holding, where court grants 24 motion to dismiss complaint as to one defendant, court may dismiss complaint against 25 non-moving defendant “in a position similar to that of moving defendants”). 26 27 28 3 In the FAC, the above-referenced four claims were set forth, respectively, as the Third through Sixth Causes of Action. 2 CONCLUSION 1 2 For the reasons stated above, defendants' motion to dismiss is hereby GRANTED, 3 and the above-titled action is hereby DISMISSED without further leave to amend. The 4 Clerk of Court shall close the file. 5 6 IT IS SO ORDERED. 7 8 Dated: January 3, 2017 MAXINE M. CHESNEY United States District Judge 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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