Cortez v. New Century Mortgage Corporation et al

Filing 20


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1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 CLARISSA C. CORTEZ, Plaintiff, 8 9 United States District Court For the Northern District of California 10 11 No. 11-01019 CW v. NEW CENTURY MORTGAGE CORP; SAXON MORTGAGE SERVICES, INC.; OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY; and PACIFIC MORTGAGE CONSULTANTS, 12 ORDER GRANTING IN PART DEFENDANT SAXON MORTGAGE’S MOTION TO DISMISS AND ORDERING PLAINTIFF TO SERVE UNSERVED DEFENDANTS Defendants. / 13 14 15 This case involves the attempted foreclosure of pro se 16 Plaintiff Clarissa Cortez’ residence by Defendant Saxon Mortgage 17 Services, Inc. (Saxon). 18 action alleged against it in Plaintiff’s complaint.1 19 opposes the motion. 20 decided on the papers. Saxon moves to dismiss all causes of Plaintiff The matter was taken under submission and Having considered all the papers filed by 21 1 22 23 24 25 26 27 28 Saxon asserts that Defendants New Century Mortgage Corporation and Pacific Mortgage Consultants were not served when the case was in state court. The federal docket does not indicate that these Defendants were served after the case was removed. On March 29, 2011, Defendant Old Republic Default Management Services, erroneously sued as Old Republic National Title Insurance Company (Old Republic), filed a notice of filing of declaration of nonmonetary status in state court under California Civil Code section 2924l. Under this statute, Plaintiff has fifteen days from the date of service of the declaration to object to the non-monetary judgment status of the trustee. Plaintiff has not filed such an objection. Therefore, Old Republic is bound by any order or judgment issued by the Court regarding the subject deed of trust, but need not participate in the litigation. 1 the parties, the Court grants Saxon’s motion to dismiss, with the 2 exception of Plaintiff’s claim under California Civil Code section 3 2923.5. 4 5 BACKGROUND The following facts are taken from Plaintiff’s complaint and 6 the documents submitted by Saxon, of which the Court takes judicial 7 notice.2 8 9 In August 2005, Plaintiff refinanced the mortgage on her home located at 2609 Covelite Way, in Antioch, California (the United States District Court For the Northern District of California 10 property) with a $560,000 loan from New Century Mortgage 11 Corporation (New Century). 12 interest-only adjustable rate mortgage. 13 secured by a first deed of trust on the property. 14 Title Company was the trustee on the deed of trust. 15 2, 2005, the note and deed of trust were assigned to Deutsche Bank 16 Trust Company America, as trustee and custodian for HSBC Bank USA. 17 Saxon is the loan servicer for Deutsche Bank.3 The loan that was offered was an Repayment of the loan was Old Republic On September Sometime in 2007, 18 2 19 20 21 22 23 Although courts generally cannot consider documentary evidence on a motion to dismiss, doing so is appropriate when the pleadings refer to the documents, their authenticity is not in question and there are no disputes over their relevance. Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010); Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994) (holding that courts may properly consider documents “whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the [plaintiff's] pleadings”). 3 27 Plaintiff’s complaint alleges that New Century assigned the loan to Saxon. However, as indicated in the documents submitted by Saxon, this is incorrect. Although, on a motion to dismiss, the allegations in the complaint are to be taken as true, this does not apply when the allegations are contradicted by documents of which the Court may take judicial notice. See Data Disc, Inc. v. Systems Technology Assocs., Inc., 557 F.2d 1280, 1284 (9th Cir. 1977) (court may not assume truth of allegations if they are contradicted 28 2 24 25 26 1 Plaintiff became delinquent on her loan payments. 2 2008, a substitution of trustee was recorded whereby Old Republic 3 Default Management Services became trustee on the deed of trust. 4 Several notices of default and notices of trustee’s sale have been 5 recorded against the property, but were stayed when Plaintiff filed 6 for bankruptcy protection. 7 26, 2010; a Trustee’s Deed Upon Sale was recorded on March 9, 2010. 8 However, the sale was rescinded and, on March 29, 2010, a Notice of 9 Rescission of Trustee’s Deed Upon Sale was recorded.4 On March 26, The property was foreclosed on February The most United States District Court For the Northern District of California 10 recent notice of trustee’s sale was recorded on March 29, 2010 and 11 the sale of the property was scheduled to take place on August 27, 12 2010. 13 According to Saxon, the trustee’s sale has not yet occurred. Plaintiff alleges that the terms of her loan were not clear or 14 conspicuous; Defendants qualified her for a loan that they knew or 15 should have known that she could not pay; Defendants never 16 explained to her the negative amortization aspect of the loan; 17 Defendants engaged in predatory lending in making the loan to her; 18 she has been attempting to contact Defendants to negotiate a 19 modification of her loan, but they have not made a meaningful 20 offer; and she was the victim of fraudulent lender behavior. 21 on these allegations, Plaintiff asserts the following causes of 22 action against all Defendants: (1) breach of the implied covenant 23 of good faith and fair dealing; (2) violation of the Truth in 24 Lending Act (TILA), 15 U.S.C. § 1601 et seq.; (3) violation of the Based 25 26 by admissible evidence). 4 27 28 The sale was rescinded because it occurred while Plaintiff was protected by the bankruptcy stay. 3 Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. § 2601 et 2 seq.,; (4) violation of California Civil Code sections 1916.7b, 3 1916.7b(2), 1916.7(b)(4)(B),5 1916.7(b)(8),6 1916.7(c),7 1918.5, 4 1920, 1921,8 2079.16, and 1632; (5) violation of California 5 Commercial Code section 9313; (6) rescission; (7) fraud; (8) unfair 6 and deceptive business practices; (9) breach of fiduciary duty; 7 (10) unjust enrichment; (11) unconscionability, (12) predatory 8 lending in violation of California Business and Professions Code 9 section 17200; (13) quiet title; (14) failure to modify loan in 10 United States District Court For the Northern District of California 1 violation of California Civil Code sections 2923.5 et seq. and 11 2923.6; (15) wrongful foreclosure in violation of California Civil 12 Code sections 2923.5 et seq. and 2924; (16) declaratory and 13 injunctive relief; and (17) temporary restraining order and 14 preliminary and permanent injunctions. 15 16 LEGAL STANDARD A complaint must contain a “short and plain statement of the 17 claim showing that the pleader is entitled to relief.” 18 Civ. P. 8(a). 19 12(b)(6) for failure to state a claim, dismissal is appropriate 20 only when the complaint does not give the defendant fair notice of 21 a legally cognizable claim and the grounds on which it rests. 22 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Fed. R. When considering a motion to dismiss under Rule In 23 5 Plaintiff incorrectly labels this as § 1916.7B 24 6 Plaintiff incorrectly labels this as § 1916.7a(8). 25 7 Plaintiff incorrectly labels this as § 1916.710(C). 26 8 27 28 Plaintiff incorrectly labels §§ 1918.5, 1920 and 1921 as § 1918.5-1921.1920. 4 considering whether the complaint is sufficient to state a claim, 2 the court will take all material allegations as true and construe 3 them in the light most favorable to the plaintiff. 4 v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). 5 principle is inapplicable to legal conclusions; “threadbare 6 recitals of the elements of a cause of action, supported by mere 7 conclusory statements,” are not taken as true. 8 129 S. Ct. 1937, 1949-50 (2009) (citing Twombly, 550 U.S. at 555). 9 When granting a motion to dismiss, the court is generally 10 United States District Court For the Northern District of California 1 required to grant the plaintiff leave to amend, even if no request 11 to amend the pleading was made, unless amendment would be futile. 12 Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 13 F.2d 242, 246-47 (9th Cir. 1990). 14 would be futile, the court examines whether the complaint could be 15 amended to cure the defect requiring dismissal "without 16 contradicting any of the allegations of [the] original complaint." 17 Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990). 18 19 NL Indus., Inc. However, this Ashcroft v. Iqbal, In determining whether amendment DISCUSSION Saxon argues that this complaint is barred by the doctrine of 20 res judicata based on a previous case filed by Plaintiff against 21 the same Defendants that was dismissed without prejudice for 22 failure to prosecute. 23 al., C 10-4631 RS, Docket Nos. 25, 28. 24 number C 10-4631 RS does not bar this litigation because a 25 dismissal without prejudice for failure to prosecute is not a final 26 judgment on the merits. 27 Glickman, 123 F.3d 1189, 1192 (9th Cir. 1997) (Res judicata 28 See Cortez v. New Century Mortgage Corp., et The order dismissing case See Western Radio Servs. Co., Inc. v. 5 1 operates only where there is “(1) an identity of claims, (2) a 2 final judgment on the merits, and (3) identity or privity between 3 parties.”).9 4 Saxon argues that Plaintiff’s claims against it arising from 5 conduct that occurred during the loan application and negotiation 6 process must be dismissed because it became the loan servicer after 7 the loan closed and was assigned to Deutsche Bank. 8 is well-taken. 9 This argument Plaintiff’s complaint and opposition does not distinguish United States District Court For the Northern District of California 10 among the conduct undertaken by the four named Defendants. 11 Saxon’s duties, as loan servicer, were to receive any scheduled 12 periodic payments from Plaintiff pursuant to the terms of the loan, 13 and to make the payments of principal and interest and such other 14 payments with respect to the amounts received from Plaintiff as 15 were required pursuant to the terms of the loan. 16 § 2605 (definition of loan servicer in RESPA). 17 arguments in her opposition that Saxon is responsible for the acts 18 of the lender, New Century, due to a conspiracy or joint venture 19 between the four Defendants or through an agency relationship are 20 without merit. 21 acts that took place during the loan negotiation, origination and 22 closing must be dismissed for failure to state a claim against 23 Saxon. 24 certain disclosures be made in the loan origination process) and 25 RESPA (requiring certain disclosures to loan applicant). See 12 U.S.C. Plaintiff’s Therefore, all the claims against Saxon based upon These include the federal claims under TILA (requiring 26 9 27 28 Saxon incorrectly cites California res judicata law. However, federal law applies here. 6 Likewise, 1 the fraud, unfair business practices, breach of fiduciary duty, 2 breach of the implied covenant of good faith and fair dealing, 3 unconscionability, and predatory lending claims, which are based 4 upon conduct undertaken during the loan negotiation, origination 5 and closing processes, must be dismissed against Saxon. 6 Furthermore, the claims premised upon California Civil Code section 7 1916.7, governing disclosures for adjustable rate mortgages, 8 California Civil Code section 2079.16, governing lender-agent 9 relationships, California Civil Code section 1632, governing the United States District Court For the Northern District of California 10 translation of contracts into a foreign language, and other 11 statutes governing disclosures to potential borrowers must be 12 dismissed against Saxon for failure to state a claim. 13 under California Commercial Code section 9313, which Plaintiff 14 alleges requires Defendants to be in possession of the original 15 promissory note, governs the perfection of security interest in 16 collateral, and is dismissed because it does not apply to real 17 estate transactions. 18 The claim The Court will address the claims that are based on the 19 conduct of a loan servicer. 20 I. Failure to Modify Loan: California Civil Code Sections 2923.5, 2923.6 21 Plaintiff alleges that she: 22 23 24 25 26 was in default of her loan payments and has been attempting to achieve a meaningful and sustainable modification of the terms of her loan agreement with Defendants. Plaintiff provided Defendants with all necessary and requested documents and information in order to achieve a Loan Modification. Defendants made no attempts in good faith to provide Plaintiff with a meaningful and sustainable Loan Modification and simply strung Plaintiff along. . . . 27 28 7 1 2 Defendants . . . have a duty . . . to assess the Plaintiff’s financial situation and explore options for the Plaintiff to avoid foreclosure (California Civil Code Section 2923.5). 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 11 Defendants . . . have a duty . . . to implement a loan modification or workout plan for Plaintiff, in the best interest of their investors and/or loan pool when the loan is in payment default, or payment default is reasonably foreseeable, and anticipated recovery under the loan modification or workout plan exceeds the anticipated recovery through foreclosure on a net present value basis (California Civil Code Section 2923.6). Complaint at ¶¶ 168-70. California Civil Code section 2923.5 provides that: (a)(1) A mortgagee, trustee, beneficiary, or authorized agent may not file a notice of default pursuant to section 2924 until 30 days after contact is made as required by paragraph two . . . 12 13 14 15 16 17 18 19 20 (2) A mortgagee, beneficiary, or authorized agent shall contact the borrower in person or by telephone in order to assess the borrower’s financial situation and explore options for the borrower to avoid foreclosure. During the initial contact, the mortgagee, beneficiary, or authorized agent shall advise the borrower that he or she has the right to request a subsequent meeting and, if requested, the mortgagee, beneficiary, or authorized agent shall schedule the meeting to occur within 14 days. The assessment of the borrower’s financial situation and discussion of options may occur during the first contact, or at the subsequent meeting scheduled for that purpose. (b) A notice of default filed pursuant to Section 2924 shall include a declaration that the mortgagee, beneficiary, or authorized agent has contacted the borrower as required by this section . . . 21 22 23 24 25 (c) If a mortgagee, trustee, beneficiary, or authorized agent had already filed the notice of default prior to the enactment of this section and did not subsequently file a notice of rescission, then the mortgagee, trustee, beneficiary or authorized agent shall, as part of the notice of sale . . . include a declaration that either: 26 (1) States that the borrower was contacted to assess the borrower’s financial situation and to explore options for the borrower to avoid foreclosure. 27 (2) Lists the efforts made, if any, to contact the 28 8 1 borrower in the event no contact was made. 2 Although section 2923.5 addresses an authorized agent’s duty 3 to contact a defaulting borrower regarding loan modification 4 options, it does not require that the lender or agent actually 5 modify the borrower’s loan. 6 LP, 725 F. Supp. 2d 862, 877 (N.D. Cal. 2010). 7 contact and some analysis of the borrower’s financial situation. 8 Id. 9 that it failed to provide her with a loan modification proposal Davenport v. Litton Loan Servicing, It contemplates Plaintiff does not allege that Saxon did not contact her, but United States District Court For the Northern District of California 10 that she found to be meaningful and sustainable. 11 that she provided Saxon with the documents it requested to achieve 12 a viable loan modification indicates that loan modification 13 discussions took place. 14 claim that section 2623.5 was violated, it is dismissed. 15 is without leave to amend, because amendment would be futile. 16 Her allegation Because the facts that she pleads negate a Dismissal Section 2623.6 governs a servicer’s duty to parties and 17 investors in a loan pool to maximize the present value under a 18 pooling and servicing agreement. 19 duty on lenders or servicers to negotiate loan modifications. 20 Lopez v. Equifirst Corp., 2009 WL 3233912, *3 (E.D. Cal.). 21 Section 2923.6 does not impose a Saxon argues that Plaintiff’s section 2623.6 claim fails 22 because it provides no private right of action and because 23 Plaintiff is not a loan pool member and, therefore, is owed no duty 24 under this section. 25 provides that servicers of loan pools owe a duty to all parties in 26 the pool so that a workout is in the best interest of the parties 27 if a loan is in default. 28 Plaintiff responds that section 2923.6 This may be so, but is non-responsive to 9 1 Saxon’s arguments that Plaintiff is not in a loan pool and that 2 section 2923.6, like section 2923.5, does not impose a duty on 3 servicers to enter into loan modifications. 4 Ct., 185 Cal. App. 4th 208, 222-23 (2010) (§ 2923.6 merely 5 expresses the hope that lender will offer loan modifications on 6 certain terms; it imposes no duty on lenders or servicers actually 7 to modify a loan). 8 9 United States District Court For the Northern District of California 10 11 See also Mabry v. Sup. Therefore, this claim is dismissed without leave to amend as amendment would be futile. II. Wrongful Foreclosure: California Civil Code section 2923.5 Plaintiff alleges that all the Notices of Default and Notices 12 of Trustee’s Sale she received, including the latest one she 13 received on August 2, 2010, violated section 2923.5(b) or (c) 14 because they did not have the requisite declaration attached 15 indicating that Saxon contacted her to discuss a loan 16 modification.10 17 The gravamen of section 2923.5 is that a lender or servicer 18 cannot file a notice of default until it has contacted the borrower 19 in person or by telephone. 20 declaration in a notice of default that tracks the language of 21 section 2923.5(b) complies with the statute even if it does not 22 delineate which one of the three categories set forth in the 23 declaration applies to the particular situation. Mabry, 185 Cal. App. 4th at 221. Id. at 235. A The 24 25 26 27 28 10 The operative notice of trustee’s sale is the last one Plaintiff received on August 3, 2010. All others are moot because the sales that were noticed in them were stayed when Plaintiff filed for bankruptcy protection and the March 9, 2010 trustee’s sale was rescinded. 10 1 remedy for noncompliance is a postponement of the foreclosure sale 2 to permit the lender to comply with section 2923.5(b). 3 Saxon submits a copy of the notice of trustee’s sale dated 4 August 3, 2010. 5 entitled, “Declaration of Lender, Trustee or Authorized Agent Under 6 California Civil Code Section 2923.5(c),” which states that the 7 borrower was “contacted in order to access the borrower’s financial 8 situation and to explore options for the borrower to avoid 9 foreclosure,” and lists four dates in February and March, 2009 on RJN, Ex. 16. Attached to it is a document United States District Court For the Northern District of California 10 which Plaintiff was contacted. 11 to the trustee’s sale scheduled to take place in August, 2010. 12 Milyakov v. JP Morgan Chase Bank, 2011 WL 3879503, *3 (N.D. Cal.) 13 (questioning whether communications that took place over a year 14 before the notice of default was filed satisfies requirements of 15 section 2923.5(b)). 16 Plaintiff’s allegation that she did not receive the required 17 declaration. 18 19 These dates are over one year prior Furthermore, the Court must credit as true Therefore, Saxon’s motion to dismiss this claim is denied. III. Unjust Enrichment 20 This cause of action is based on the allegations that 21 Defendants acknowledged, accepted, and benefitted from the Plaintiff’s agreement to enter into the loan. A forced sale of Plaintiff’s home, and an allowance for Defendants to recoup the extreme profits enjoyed by forcing Plaintiff into an imbalance of principal to interest ratio, would be inequitable and unconscionable, while the Defendants enjoy the benefit of the Plaintiff’s actions without paying for their own breaches of the law and professional responsibilities. Wherefore, Plaintiff prays for restitution. 22 23 24 25 26 Complaint at ¶ 152. 27 28 11 See 1 California courts are split as to whether there is an 2 independent cause of action for unjust enrichment. 3 Hewlett-Packard Co., 582 F. Supp. 2d 1261, 1270-71 (C.D. Cal. 2007) 4 (applying California law). 5 not a cause of action, or even a remedy, but rather a general 6 principle which underlies various legal doctrines and remedies. 7 McBride v. Boughton, 123 Cal. App. 4th 379, 387 (2004). 8 McBride, the court construed a “purported” unjust enrichment claim 9 as a cause of action seeking restitution. Baggett v. One view is that unjust enrichment is Id. In There are at least United States District Court For the Northern District of California 10 two potential bases for a cause of action seeking restitution: 11 (1) an alternative to breach of contract damages when the parties 12 had a contract which was procured by fraud or is unenforceable for 13 some reason; and (2) where the defendant obtained a benefit from 14 the plaintiff by fraud, duress, conversion, or similar conduct and 15 the plaintiff chooses not to sue in tort but to seek restitution on 16 a quasi-contract theory. 17 implies a contract, or quasi-contract, without regard to the 18 parties’ intent, to avoid unjust enrichment. 19 Id. at 388. In the latter case, the law Id. Another view is that a cause of action for unjust enrichment 20 exists and its elements are receipt of a benefit and unjust 21 retention of the benefit at the expense of another. 22 SeoulBank, 77 Cal. App. 4th 723, 726 (2000); First Nationwide 23 Savings v. Perry, 11 Cal. App. 4th 1657, 1662-63 (1992). Lectrodryer v. 24 Plaintiff fails to allege that Saxon received money as a 25 result of Plaintiff’s agreement to enter into the loan or the loan 26 funding. 27 because, as stated above, Saxon was not involved in the loan 28 Nor can Plaintiff correct this deficiency by amendment 12 1 negotiations, closing or funding. 2 dismiss the claim for unjust enrichment is granted, without leave 3 to amend. 4 IV. Quiet Title 5 Therefore, Saxon’s motion to To state a claim for quiet title under California law, a 6 plaintiff’s complaint must contain: (1) a description of the 7 property; (2) the title of the plaintiff and its basis; (3) the 8 adverse claims to that title; (4) the date as of which the 9 determination is sought; and (5) a prayer for relief of quiet United States District Court For the Northern District of California 10 title. 11 seeking to quiet title in the face of foreclosure must allege 12 tender or an offer of tender of the amount borrowed. 13 Washington Mut. Bank, 637 F. Supp. 2d 700, 712 (N.D. Cal. 2009); 14 Arnolds Mgmt. Corp. v. Eischen, 158 Cal. App. 3d 575, 578-79 (1984) 15 (claim to set aside trustee’s sale must be accompanied by offer to 16 pay full amount of debt for which the property was security). 17 Cal. Civ. Proc. Code § 761.020. In addition, a plaintiff Mangindin v. Saxon correctly argues that the quiet title cause of action is 18 defective because it is entirely dependent on Plaintiff’s other 19 causes of action, which are all defective. 20 conclusory allegation that all Defendants claim an interest in the 21 property adverse to her cannot stand against Saxon, which is merely 22 the loan servicer. Further, Plaintiff’s 23 Saxon also correctly argues that this cause of action fails 24 because Plaintiff has not tendered the amount owing on the loan. 25 Plaintiff’s argument that she is not bound by the tender rule is 26 incorrect. 27 defaulting trustor’s attack upon an irregular sale, . . . once the 28 As explained in Arnolds Mgmt., “in the context of a 13 1 trustor fails to effectively exercise his right to redeem, the sale 2 becomes valid and proper. 3 irregular sale fails unless the trustor can allege and establish a 4 valid tender.” 5 A cause of action [regarding the] 158 Cal. App. 3d at 578. Saxon’s motion to dismiss the quiet title claim is granted. 6 Dismissal is without leave to amend because amendment would be 7 futile. 8 V. Declaratory Relief 9 The Declaratory Judgment Act (DJA) permits a federal court to United States District Court For the Northern District of California 10 "declare the rights and other legal relations" of parties to a case 11 of actual controversy. 12 Asarco, Inc., 792 F.2d 887, 893 (9th Cir. 1986). 13 controversy" requirement of the DJA is the same as the "case or 14 controversy" requirement of Article III of the United States 15 Constitution. 16 (9th Cir. 1994). 17 determine whether a declaratory judgment is appropriate. 18 Life Insurance Co. v. Robinson, 394 F.3d 665, 669 (9th Cir. 2005). 19 First, the court must determine if there exists an actual case or 20 controversy within the court's jurisdiction. 21 the court must decide whether to exercise its jurisdiction. 22 28 U.S.C. § 2201; Wickland Oil Terminals v. The "actual American States Ins. Co. v. Kearns, 15 F.3d 142, 143 Under the DJA, a two-part test is necessary to Id. Principal Second, if so, Id. Because all causes of action alleged against Saxon have been 23 adjudicated in its favor, no case or controversy exists between 24 Plaintiff and Saxon. 25 claim for declaratory relief is granted. 26 leave to amend because amendment would be futile. 27 VII. Rescission 28 Therefore, Saxon's motion to dismiss the 14 Dismissal is without 1 Plaintiff alleges that she is entitled to rescission based 2 upon TILA violations, failure to provide a mortgage loan 3 origination agreement and fraudulent concealment. 4 claims against Saxon have been dismissed without leave to amend, 5 they do not allow Plaintiff the remedy of loan rescission. 6 Further, Plaintiff’s claim for rescission under TILA fails because 7 she has not alleged the present ability to tender amounts owed 8 under the loan. 9 repayment of the amounts advanced by the lender.” Because these Rescission under TILA “should be conditioned on Yamamoto v. Bank United States District Court For the Northern District of California 10 of New York, 329 F.3d 1167, 1171 (9th Cir. 2003) (emphasis in 11 original) (citing LaGrone v. Johnson, 534 F.2d 1360, 1362 (9th Cir. 12 1976); see Garza v. Am. Home Mortgage, 2009 WL 188604, *5 (E.D. 13 Cal.) (stating that “rescission is an empty remedy without [the 14 borrower’s] ability to pay back what she has received”); Martinez 15 v. EMC Mortgage Corp., 2009 WL 2043013, *6 (E.D. Cal.) (noting 16 “absent meaningful tender, TILA rescission is an empty remedy, not 17 capable of being granted”). 18 to amend. 19 VIII. Injunctive Relief 20 This claim is dismissed without leave Injunctive relief is a remedy and not an independent cause of 21 action. 22 (E.D. Cal.) (citing Marlin v. AIMCO Venezia, LLC, 154 Cal. App. 4th 23 154, 162 (2007)). 24 claim for relief against Saxon, she is not entitled to injunctive 25 relief in the form of a temporary restraining order or a 26 preliminary or permanent injunction. 27 N.A., 2010 WL 4348127, at *16 (N.D. Cal.). 28 Parrish v. Indymac Bank, Inc., 2010 WL 2771915, at *5 Because Plaintiff has not otherwise stated a 15 Nguyen v. Wells Fargo Bank, Thus, Plaintiff’s 1 request for injunctive relief against Saxon is dismissed without 2 leave to amend because amendment would be futile. 3 IX. Other Defendants 4 As mentioned above, the docket shows that Plaintiff has not 5 yet served two named Defendants. 6 a plaintiff must serve the summons and complaint within 120 days of 7 the date of removal to federal court. Camillo v. Washington Mut. 8 Bank, 2010 WL 457346, *1 (E.D. Cal.). This case was removed on 9 March 4, 2011. In the case of a removed action, Therefore, the time to serve these Defendants has United States District Court For the Northern District of California 10 passed. 11 Defendants within thirty days from the date of this order. 12 Plaintiff must inform the Court that she has served Defendants by 13 filing a proof of service for each Defendant. 14 not serve these Defendants within thirty days, her claims against 15 them will be dismissed for failure to prosecute. However, the Court grants Plaintiff leave to serve 16 17 If Plaintiff does CONCLUSION Based on the foregoing, Saxon’s motion to dismiss (Docket No. 18 5) is granted, except for the claim under California Civil Code 19 section 2923.5, which may go forward. 20 21 IT IS SO ORDERED. 22 23 Dated: 11/3/2011 CLAUDIA WILKEN United States District Judge 24 25 26 27 28 16 1 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 2 3 CLARISSA C. CORTEZ, Case Number: CV11-01019 CW 4 Plaintiff, CERTIFICATE OF SERVICE 5 v. 6 NEW CENTURY MORTGAGE CORP et al, 7 Defendant. 8 9 United States District Court For the Northern District of California 10 11 12 / I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on November 3, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 13 14 16 Clarrisa C. Cortez 2609 Covelite Way Antioch, CA 94531 17 Dated: November 3, 2011 15 18 Richard W. Wieking, Clerk By: Nikki Riley, Deputy Clerk 19 20 21 22 23 24 25 26 27 28 17

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