Newsom et al v. Countrywide Home Loans, Inc. et al

Filing 52

ORDER: That Plaintiff shall file a Motion for Leave to Amend by no later than 07/30/10; Defendant shall file its Response by 08/11/2010; Plaintiffs Reply due 08/18/10 re 41 Motion for Leave to File Motion for Reconsideration; the 44 Motion to Dismiss Third Amended Complaint is DENIED WITHOUT PREJUDICE. Signed by Judge Saundra Brown Armstrong, on 7/20/10. (lrc, COURT STAFF) (Filed on 7/21/2010) Modified on 7/22/2010 (jlm, COURT STAFF).

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Newsom et al v. Countrywide Home Loans, Inc. et al Doc. 52 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION PETER AND STEPHANIE NEWSON, Plaintiffs, vs. Case No: C 09-5288 SBA ORDER Docket 41, 44 COUNTRYWIDE HOME LOANS, INC. DBA 10 AMERICA'S WHOLESALE LENDER, MORTGAGE ELECTRONIC 11 REGISTRATIONS SYSTEMS, INC., BANKERS ALLIANCE INC., JULIE 12 WHITESIDE, and DOES 1-20, inclusive, 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants. Plaintiffs, Dr. Peter Newsom and Stepanie Newsom (collectively "Plaintiffs"), allege that they were defrauded by their lender, mortgage broker and others in connection with the refinancing of their home in Woodside, California. On May 19, 2010, the Court granted in part and denied in part Defendant Countrywide Home Loans, Inc. dba America's Wholesale Lender's ("Defendant") motion to dismiss the Second Amended Complaint. Among other things, the Court ruled that the Home Owners Loan Act of 1933 ("HOLA") preempted Plaintiff's claims for violation of California's Unfair Competition Law and fraud. The Court granted leave to amend with respect to certain of the Plaintiffs' claims. In accordance with the Court's instructions, Plaintiffs filed a Third Amended Complaint on May 26, 2010, which Defendants have now moved to dismiss. Subsequently, Plaintiffs filed a motion for leave to file a motion for reconsideration under Civil Local Rule 7-9. Plaintiffs state that they recently learned that Defendant is not a Federal Savings and Loan Association covered by HOLA. Though styled a motion for leave to file a motion for reconsideration, Plaintiffs, in fact, are seeking "the opportunity to amend" 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 their pleadings in order to reinstate the claims which the Court found were preempted. (Docket 41 at 2.) Defendant has filed a statement of non-opposition to Plaintiffs' motion. At this juncture, the operative pleading on file is Plaintiffs' Third Amended Complaint. In the event the Court were to reconsider its prior ruling, Plaintiffs would necessarily have to file a Fourth Amended Complaint, which would supersede the Third Amended Complaint and render Defendant's pending motion to dismiss moot. The Court concludes that the more appropriate and efficient course of action is for Plaintiffs to file a motion for leave to amend to add causes of action, pursuant to Federal Rule of Civil Procedure 15(a). Accordingly, IT IS HEREBY ORDERED THAT: 1. By no later than July 30, 2010, Plaintiffs shall file a motion for leave to amend. Defendant shall file its response by August 11, 2010, and Plaintiffs shall file their reply by August 18, 2010. The opening and opposition briefs may not exceed ten pages, and the reply shall not exceed five pages. The Court will take the matter under submission on the date the reply is due. No hearing will be held on the motion unless otherwise ordered by the Court. Fed.R.Civ.P. 78(b). 2. Defendant's motion to dismiss the Third Amended Complaint is DENIED without prejudice. In the event the Court denies Plaintiff's motion for leave to amend, Defendant may renotice its motion on the Court's calendar. In that event, the parties need not refile their briefs (Docket 44, 50, 51) in connection with the motion. 3. This Order terminates Docket 41 and 44. IT IS SO ORDERED. Dated: July 20, 2010 ______________________________ SAUNDRA BROWN ARMSTRONG United States District Judge -2-

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