Linares et al v. U.S. Bank National Association, et al

Filing 22

MEMORANDUM AND ORDER granting 2 Motion to Dismiss subject to affording Plaintiffs leave to amend their Complaint, within thirty days of this order; adopting 14 Report and Recommendations; finding as moot 17 Motion for Extension of Time; finding as moot 19 Motion for Extension of Time to File Objection to 14 REPORT AND RECOMMENDATIONS. So Ordered by Chief Judge William E. Smith on 8/1/2017. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
GONZALO LINARES and
)
BLANCA LINARES,
)
)
Plaintiffs,
)
)
v.
)
C.A. No. 16-481 S
)
U.S. BANK NATIONAL ASSOCIATION,
)
et al.,
)
)
Defendants.
)
___________________________________)
MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
In

the

aftermath

of

a

foreclosure

proceeding

Gonzalo

Linares and Blanca Linares (“Plaintiffs”) brought suit against
their mortgage provider, owner, and servicer (“Defendants”). The
allegations

in

the

Complaint

include:

Count

I

(Breach

of

Contract), Count II (Violation of the Covenant of Good Faith and
Fair Dealing), Count III (Violation of the Truth in Lending
Act),

and

Count

IV

(Violation

of

the

Fair

Debt

Collection

Practices Act). (See Amended Compl., ECF No. 1-2.) Defendants
moved to dismiss this case under Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim upon which relief may be
granted.

(See

Mot.

to

Dismiss,

ECF

No.

2.)

That

matter

was

referred to Magistrate Judge Lincoln D. Almond for report and
recommendation.
1

As

was

Complaint

noted

in

this

by

Magistrate

case

is

Judge

Almond,

“substantively

the

Amended

identical”

to

the

Amended Complaint in Pemental v. The Bank of New York Mellon, et
al., C.A. No. 16-483. (Report and Recommendation 2, ECF No. 14.)
The

Amended

removed

to

Complaints
federal

in

court

Pemental
on

the

and

same

this
day

case

and

were

also

the

same

by

attorneys. (Id.) Given that the issues presented in both cases
are “substantively identical,” Magistrate Judge Almond relied
primarily on the analysis of Magistrate Judge Sullivan in her
Report and Recommendation in Pemental.
In that case, Magistrate Judge Sullivan found that all four
claims failed under the Rule 12(b)(6) standard, but recommended
that

the

plaintiff

be

provided

thirty

days

to

correct

the

deficiencies in the Amended Complaint. (See C.A. No. 16-483,
Report and Recommendation, ECF No. 14.) Magistrate Judge Almond,
“[a]fter

closely

reviewing

Judge

Sullivan’s

Report

and

Recommendation in Pemental in the context of the pleadings and
arguments set forth in this case,” found “her reasoning to be
thorough,

legally

supported

and

persuasive,

and

equally

applicable in this case.” (Report and Recommendation 4, ECF No.
14.)

Magistrate

recommended

Judge

disposition

Almond
and

therefore

supporting

entirety.” (Id.)

2

“adopt[ed]

rationale

in

her
their

After

an

independent

review

of

this

matter,

the

Court

agrees with Magistrate Judge Almond’s recommendation. The Court
has

already

adopted

Magistrate

Judge

Sullivan’s

Report

and

Recommendation in Pemental. Based on the facts alleged in the
Amended Complaint in this case, the Court finds that the same
deficiencies exist as were evident in Pemental. The Report and
Recommendation (ECF No. 14) is therefore ACCEPTED. Plaintiffs
are provided thirty days from the date of this Order to file an
amended complaint that corrects the deficiencies discussed in
Magistrate

Judge

Sullivan’s

Report

and

Recommendation

in

Pemental and adopted in Magistrate Judge Almond’s Report and
Recommendation in this case.

IT IS SO ORDERED.

William E. Smith
Chief Judge
Date: August 1, 2017

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