Vertido et al v. GMAC Mortgage Corp. et al

Filing 31

ORDER DISMISSING ACTION. ~ "The Clerk of the Court is directed to close this case." ~ Signed by JUDGE DAVID ALAN EZRA on 4/26/2012. (afc)CERTIFICATE OF SERVICEParticipants registered to receive electronic n otifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
ANTHONY S. VERTIDO an
individual, AND DARLENE M.
VERTIDO an individual,

)
)
)
)
Plaintiffs,
)
)
vs.
)
)
GMAC MORTGAGE CORP, a
)
Business Entity, form unknown;
)
GMAC MORTGAGE, LLC, a
)
Business Entity form unknown,
)
FEDERAL NATIONAL
)
MORTGAGE ASSOCIATION, a
)
Business Entity form unknown,
)
MORTGAGE ELECTRONIC
)
REGISTRATION SYSTEMS, INC. )
a Business Entity form unknown; and )
DOES 1–100 inclusive,
)
)
Defendants.
)
_____________________________ )

CV. NO. 11-00360 DAE-KSC

ORDER DISMISSING ACTION
On June 6, 2011, Plaintiffs Anthony S. Vertido and Darlene M.
Vertido (collectively, “Plaintiffs”) filed a Complaint in this Court against
Defendants GMAC Mortgage Corp., GMAC Mortgage, LLC, Federal National
Mortgage Association, and Mortgage Electronic Registration Systems (collectively
“Defendants”), alleging that Plaintiffs had been lured into a predatory mortgage

loan. (“Compl.,” Doc # 1.) Specifically, Plaintiffs’ Complaint alleges the
following Counts:
•

Count I:

Declaratory Relief. (Id. ¶¶ 42–45.)

•

Count II:

Injunctive Relief. (Id. ¶¶ 46–49.)

•

Count III:

Contractual Breach of Implied Covenant of Good
Faith and Fair Dealing. (Id. ¶¶ 50–56.)

•

Count IV:

Violation of TILA, 15 U.S.C. § 1601, et. seq. (Id.
¶¶ 57–66.)

•

Count V:

Violation of Real Estate Settlement and Procedures
Act (RESPA). (Id. ¶¶ 67–73.)

•

Count VI:

Rescission. (Id. ¶¶ 74–78.)

•

Count VII: Unfair and Deceptive Business Act Practices
(UDAP). (Id. ¶¶ 79–85.)

•

Count VIII: Breach of Fiduciary Duty. (Id. ¶¶ 86–90.)

•

Count IX:

Unconscionability– UCC-2-3202. (Id. ¶¶ 91–94.)

•

Count X:

Predatory Lending. (Id. ¶¶ 95–109.)

•

Count XI:

Quiet Title. (Id. ¶¶ 110–13.)

•

Count XII: Wrongful Foreclosure and Ejectment. (Id.
¶¶ 114–117.)
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The claims in Plaintiffs’ Complaint relate to a mortgage and note
entered into on or about November 21, 2005 for the purchase of real property
located at 38 Lehuapueo Place, Wailuku, Hawaii (the “Subject Property”). (Id.
¶ 2–3.)
According to the filings by the parties, the mortgage, which was
recorded in the Bureau of Conveyances on November 29, 2005, lists GMAC
Mortgage Corp. as the originating lender on the loan. (Doc. # 19-5.) On
November 3, 2009, GMAC Mortgage LLC recorded a Notice of Mortgagee’s
Intention to Foreclose Under Power of Sale, which was recorded in the Bureau of
Conveyances. (Doc. # 19-6.) The foreclosure auction took place on February 16,
2010, and the Subject Property was sold to GMAC Mortgage, LLC. (Doc. # 19-7.)
The Subject Property was subsequently conveyed to the Federal National Mortgage
Association (“FNMA”) by Quitclaim Deed recorded on April 19, 2010. (Doc. 198.) On September 8, 2010, FNMA filed a Complaint for Ejectment in the District
Court of the Second Circuit, Wailuku Division, State of Hawai‘i. (Compl. Ex. B.)
On June 6, 2011, Plaintiffs filed their Complaint. Plaintiffs alleged
that Defendants “failed to provide the requisite Federal forms and disclosures
including but not limited to the Truth in Lending act, Equal Opportunity Credit
Act, Fair Lending/Fair Debt Collection Act as well as others.” (Compl. ¶ 10.)
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Plaintiffs also asserted that Defendants failed to perform their due diligence and
failed to properly qualify Plaintiffs for an affordable loan. (Id. ¶¶19–21.)
Plaintiffs further alleged that GMAC received “Unjust Enrichment from receiving
a ‘discount fee.’” (Id. ¶¶ 22-23.)
On September 27, 2011, Defendants filed a Motion to Dismiss. (Doc.
# 19.) Plaintiffs did not file an opposition, and Defendants did not file a reply.
The Court held a hearing on Defendants’ Motion to Dismiss on January 17, 2012.
On the same day, the Court issued an Order Granting Defendants’ Motion to
Dismiss Complaint. (Doc. # 29.) The Court granted Plaintiffs leave to amend their
Complaint, except for their TILA rescission claim. (Id. at 31.) The Court advised
Plaintiff as follows:
The Court will stay the effect of this Order for 30 days, after which Plaintiffs
will have 30 days to file an amended Complaint. Failure to do so will result
in dismissal of this action with prejudice. Plaintiffs are advised that the
amended complaint must clearly state how each of the named defendants
have injured them, and it must also clearly identify the statutory provisions
under which Plaintiffs’ claims are brought.
(Id.) To date, Plaintiffs have not filed an amended complaint nor taken further
action in these proceedings.

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DISCUSSION
Federal Rule of Civil Procedure (“Rule”) 41(b) provides as follows:
[A] dismissal under this subdivision (b) and any dismissal not under
this rule-except one for lack of jurisdiction, improper venue, or
failure to join a party under Rule 19-operates as an adjudication on the
merits.
Fed. R. Civ. P. 41(b). Rule 41(b) grants district courts the authority to sua sponte
dismiss actions for failure to prosecute or for failure to comply with court orders.
See Link v. Wabash R.R. Co., 370 U.S. 626, 629–31 (1962) (“The power to invoke
this sanction is necessary in order to prevent undue delays in the disposition of
pending cases and to avoid congestion in the calendars of the District Courts.”).
The Court has discretion to dismiss a plaintiff’s action for failure to comply with
an order requiring him to file an amended pleading within a specified time period.
Pagtalunan v. Galaza, 291 F.3d 639, 640 (9th Cir. 2002) (discussing factors a court
must weigh to determine whether to dismiss a claim for failure to comply with a
court order).
Before dismissing an action for failure to prosecute, the court must
weigh the following factors: “(1) the public’s interest in expeditious resolution of
litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to
defendants/respondents; (4) the availability of less drastic alternatives; and (5) the

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public policy favoring disposition of cases on their merits.” Id. at 642 (citing
Ferdik v. Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir. 1992)).
I.

Expeditious Resolution and Need to Manage Docket
The Court informed Plaintiffs that it would stay the effect of its Order

Granting Defendants’ Motion to Dismiss for 30 days, after which Plaintiffs would
have 30 days to file an amended Complaint. (See Doc. # 29 at 31.) Plaintiffs’
failure to amend their complaint hinders the Court’s ability to move this case
forward and indicates that Plaintiffs do not intend to prosecute this action. See
Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (“The public’s
interest in expeditious resolution of litigation always favors dismissal.”). This
factor plainly favor dismissal.
II.

Prejudice to Defendants
The risk of prejudice to a defendant is related to the plaintiff’s reason

for failure to prosecute an action. See Pagtalunan, 291 F.3d at 642 (citing Yourish,
191 F.3d at 991). Plaintiffs offer no excuse or explanation for their failure to file
an amended complaint. When a party offers no excuse for failing to comply with a
court’s order, the risk of prejudice to the opposing party weighs in favor of
dismissal. See Yourish, 191 F.3d at 991–92.

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III.

Availability of Less Drastic Alternatives
The next factor, the availability of less drastic alternatives, also

weighs in favor of dismissal. Although Plaintiffs had failed to state a claim upon
which relief could be granted, the Court sought to avoid dismissing the Complaint
with prejudice by granting Plaintiffs leave to amend their Complaint. See
Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (“The district court
need not exhaust every sanction short of dismissal before finally dismissing a case,
but must explore possible and meaningful alternatives.”). Plaintiffs have given this
Court no indication that they intend to prosecute this action. In fact, to date
Plaintiffs have taken no further action in these proceedings. This Court has
attempted to explore “possible and meaningful alternatives to dismissal.” Id.
Plaintiffs have been non-responsive and noncompliant with respect to these
alternatives. Given Plaintiffs’ failure to prosecute this action, there is no
appropriate alternative to dismissal.
IV.

Public Policy
Public policy favoring the disposition of cases on their merits

ordinarily weighs against dismissal. It is, however, a plaintiff’s responsibility to
prosecute the action at a reasonable pace and to refrain from dilatory and evasive
tactics. See Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir. 1991).
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Plaintiffs have failed to discharge this responsibility despite the Court’s order to
the contrary. Given these circumstances, the public policy favoring the resolution
of disputes on the merits does not outweigh the other factors favoring dismissal.
Plaintiffs’ Action is therefore DISMISSED.
CONCLUSION
For these reasons, Plaintiffs’ Action is DISMISSED. The Clerk of
the Court is directed to close this case.
IT IS SO ORDERED.
Dated: Honolulu, Hawaii, April 26, 2012.

_____________________________
David Alan Ezra
United States District Judge

Vertido v. GMAC Mortgage Corp., et al., Cv. No. 11-00360 DAE-KSC; ORDER
DISMISSING ACTION

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