Jacinto v. Ditech Financial LLC et al
Filing
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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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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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MODESTA JACINTO,
Plaintiff,
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v.
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DITECH FINANCIAL LLC, et al.,
Defendants.
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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
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Before the Court is the “Motion to Dismiss Plaintiff’s Second Amended Complaint,”
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filed December 1, 2016, by defendants Ditech Financial LLC (“Ditech”) and Mortgage
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Electronic Registration Systems, Inc.’s (“MERS”) (collectively, “Moving Defendants”).1
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Plaintiff Modesta Jacinto (“Jacinto”) has filed opposition,2 to which Moving Defendants
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have filed a reply. Having read and considered the papers filed in support of and in
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opposition to the motions, the Court deems the matter suitable for decision thereon,
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VACATES the hearing scheduled for January 6, 2017, and hereby rules as follows.
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By order filed October 26, 2016, the Court dismissed Jacinto’s First Amended
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Complaint (“FAC”) in its entirety, and granted Jacinto leave to amend to allege sufficient
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facts to support four of her seven causes of action. Thereafter, on November 14, 2016,
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Jacinto filed her Second Amended Complaint ("SAC"). By the instant motion, Moving
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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.
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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.
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Defendants argue, inter alia, that Jacinto has failed to cure the deficiencies previously
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identified by the Court. As set forth below, the Court agrees.
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With respect to Jacinto’s First Cause of Action, titled “Violation of Cal. Civ. Code
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2924.17,” the only new allegations are conclusory in nature (see SAC ¶¶ 73-74), and,
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further, fail to address, let alone cure, the deficiency previously identified by the Court,
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specifically, the failure to allege facts to support her conclusory allegation that the amount
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owed was incorrect.
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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
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United States District Court
Northern District of California
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identified by the Court, specifically, the failure to allege facts to support her conclusory
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allegation that she was denied the benefits of the loan contract.
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Jacinto’s Third Cause of Action, titled “Violation of California Bus. & Prof. Code
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Sections 17200 Et Seq.,” is unchanged in any respect, and, consequently, Jacinto has
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failed to cure the deficiencies previously identified by the Court, specifically, the failure to
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allege facts to support tolling of the statute of limitations and facts to support her
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allegation that defendants marketed and funded a predatory loan.
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Jacinto’s Fourth Cause of Action, titled “Declaratory Relief,” likewise is unchanged,
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and, as said claim is derivative of her § 17200 claim, it fails for the reasons stated above
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with respect to the Third Cause of Action.3
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Lastly, as the deficiencies identified above are equally applicable to NDSC, the
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SAC is subject to dismissal as against said additional defendant as well. See Silverton v.
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Dep’t of Treasury, 644 F.2d 1341, 1345 (9th Cir. 1981) (holding, where court grants
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motion to dismiss complaint as to one defendant, court may dismiss complaint against
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non-moving defendant “in a position similar to that of moving defendants”).
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In the FAC, the above-referenced four claims were set forth, respectively, as the
Third through Sixth Causes of Action.
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CONCLUSION
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For the reasons stated above, defendants' motion to dismiss is hereby GRANTED,
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and the above-titled action is hereby DISMISSED without further leave to amend. The
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Clerk of Court shall close the file.
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IT IS SO ORDERED.
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Dated: January 3, 2017
MAXINE M. CHESNEY
United States District Judge
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United States District Court
Northern District of California
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