Dzvonick v. JP Morgan Chase et al

Filing 31

ORDER Denying 30 Motion for Sanctions Against the Defendants for Federal Code Violations. Signed by Magistrate Judge Peggy A. Leen on 3/22/12. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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TERRANCE LEE DZVONICK,

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Plaintiff,
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vs.
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JPMORGAN CHASE,
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Defendant.
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__________________________________________)

Case No. 2:10-cv-0598-GMN-PAL
ORDER
(Mtn for Sanctions - Dkt. #30)

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This matter is before the court on Plaintiff Terrance Lee Dzvonick’s Motion for Sanctions

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Against the Defendants for Federal Code Violations (Dkt. #30) filed March 13, 2012. The court has

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considered the Motion.

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Plaintiff filed the Complaint (Dkt. #1) in this case on April 26, 2010, and amended it on June

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25, 2012. See Amended Complaint (Dkt. #14). His Amended Complaint alleges that he obtained a

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loan from Washington Mutual Bank on September 26, 2006, secured by property located at 4982

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Shirley Street, Las Vegas, Nevada, 89119 (the “Property”). Subsequently, Plaintiff defaulted on his

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mortgage payment, and eventually, the Property was sold at a non-judicial foreclosure sale in February,

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2010. On September 6, 2011, Defendants Washington Mutual, National Association, and Nevada Legal

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News under Rule 4(m) of the Federal Rules of Civil Procedure for failure to effect timely service.

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There is currently a Motion to Dismiss (Dkt. #23) and a Motion to Expunge Lis Pendens (Dkt. #24)

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under submission to the district judge.

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The instant Motion requests an order entering sanctions against Defendants for failing to respond

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to questions he presented in a qualified written request (“QWR”). He contends Defendants did not

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acknowledge they received the QWR as required by 12 U.S.C. 2605(e)(1)(A) and Reg. X.

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§ 3500.21(e)(1). Plaintiff makes various claims concerning Defendants’ “lack of standing in this court”

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and “lack of standing in the Note and Deed of Trust,” contending Defendants did not have authority to

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foreclose on the Property. Plaintiff believes the Note was securitized and sold to a Wall Street

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investment company, and Defendants could not have acquired the Note from the FDIC. He contends the

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only way to prove Defendants did not own the Note and Deed of Trust is to receive responses to his

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QWR. He resent the QWR on March 8, 2012. He requests expedited responses to the QWR, along with

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leave to amend the Complaint after he receives information from Defendants.

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Plaintiff is correct that 12 U.S.C. § 2605 allows a borrower to send a QWR to his loan servicer,

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including his account number and a statement of the reasons he believes his account is in error.

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Alternatively, the request may also seek other information, provided the borrower states sufficient detail

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regarding that information. 12 U.S.C. § 2705(e)(1)(B). The servicer is then required, within sixty days,

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to make appropriate corrections to the borrower’s account and send the borrower notification of any

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corrections. Additionally, after conducting an investigation, the servicer must send a written explanation

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to the borrower that includes a statement of reasons the account is correct, the name of the person at the

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servicer’s place of business who can assist the borrower, and the information requested by the borrower

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or an explanation why the information cannot be obtained by the servicer. 12 U.S.C. § 2705(e)(2).

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Plaintiff’s Motion, however, is a procedurally-flawed attempt to assert an additional claim

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against Defendant JPMorgan Chase for an alleged violation of 12 U.S.C. § 2605(e). Plaintiff cannot

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raise a new legal cause of action against a Defendant by motion. If he wants to bring another claim

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against Defendant, he must seek leave of court to file a second amended complaint pursuant to Rule

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15(a)(2) because Defendant JPMorgan Chase has filed a responsive pleading. See Motion to Dismiss

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(Dkt. #23).

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Accordingly,

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IT IS ORDERED that Plaintiff’s Motion for Sanctions (Dkt. #30) is DENIED.

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Dated this 22nd day of March, 2012.

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________________________________________
PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

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