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Case No.: 09-CV-04928-LHK
ORDER DISMISSING FIRST AMENDED COMPLAINT
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
TIMOTHY POWELL,
Plaintiff,
v.
GMAC MORTGAGE, LLC; NOEL MCCORD, ,
et al., and DOES 1-100, inclusive,
Defendants.
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Case No.: 09-CV-04928-LHK
ORDER DISMISSING FIRST
AMENDED COMPLAINT
Plaintiff has brought amended claims alleging violations of federal and California law
arising from a residential mortgage transaction against Defendants GMAC Mortgage, LLC
(GMAC) and Noel McCord. Plaintiffs’ claims were previously dismissed with leave to amend as
to GMAC. Because Plaintiff has not remedied the deficiencies in his complaint set forth in the
Court’s previous Order dismissing the case, and for the reasons set forth below, the Court hereby
DISMISSES the complaint WITH PREJUDICE as specified in this Order. Plaintiff is hereby
notified that Defendant McCord will be DISMISSED WITHOUT PREJUDICE for failure to serve
under Fed. R. Civ. P. 4(m), unless Plaintiff can show good cause why Ms. McCord was not timely
served.
I.
BACKGROUND
Plaintiff alleges that on October 23, 2006, he obtained a purchase money mortgage loan
from Residential Mortgage Capital to finance the purchase of his residence. First Amended
Case5:09-cv-04928-LHK Document65 Filed11/01/10 Page1 of 14
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Case No.: 09-CV-04928-LHK
ORDER DISMISSING FIRST AMENDED COMPLAINT
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Complaint (FAC, Dkt. No. 55) at ¶¶ 12-13. The loan provided $924,000.00 in financing to
purchase Plaintiff’s home. FAC ¶ 13. Plaintiff alleges that Residential and McCord misstated his
income on the loan application, contrary to the income information he provided them, and that this
resulted in his defaulting on the loan. FAC ¶¶ 15-17. Plaintiff further alleges that during the loan
application process, he was not given two copies of a Right to Cancel, was rushed through signing
the documents, and was not given required disclosures under the Real Estate Settlement Procedures
Act (“RESPA”). FAC ¶¶ 18-21. Plaintiff alleges that Residential assigned all rights under the loan
to GMAC on December 1, 2006, and that after this GMAC was the servicer and owner of the loan.
FAC ¶ 22. Finally, Plaintiff alleges that because his income was insufficient to support the loan, he
eventually defaulted on the loan and was in default as of February 1, 2009. FAC ¶ 23.
Plaintiff originally asserted twelve causes of action against five different defendants:
Residential, GMAC, McCord, PNC Bank, N.A. (PNC), and First Net Mortgage.See Compl. (Dkt.
No. 1); Order of May 24, 2010 Dismissing Claims (Dkt. No. 52). Plaintiff asserted the following
claims in his first Complaint: (1) violation of TILA and the Home Ownership and Equity
Protection Act (“HOEPA”); (2) violation of the California Rosenthal Act, Cal. Civ. Code § 1788et
seq.; (3) violation of RESPA, 12 U.S.C. § 2605 et seq.; (4) fraud; (5) breach of fiduciary duty; (6)
breach of contract; (7) breach of the covenant of good faith and fair dealing; (8) violation of
California Financial Code § 4970 et seq.; (9) violation of California Business and Professions Code
§ 17200 et seq.; (10) negligence; (11) usury; and (12) accounting. On November 20, 2009, the
Court granted Plaintiff’s motion to voluntarily dismiss Defendant Residential without prejudice.
PNC and GMAC separately moved to dismiss the claims in the first Complaint. Plaintiff
opposed GMAC’s Motion to Dismiss, but did not oppose PNC’s Motion. Judge Fogel (to whom
this case was previously assigned) dismissed all of Plaintiff’s claims. May 24, 2010 Order at 16.
Because Plaintiff failed to oppose PNC’s Motion, leave to amend was denied as to PNC, and this
party was dismissed with prejudice on June 22, 2010.See Dkt. No. 56. Judge Fogel granted
Plaintiff leave to amend as to GMAC within thirty days. May 24, 2010 Order at 16.
Plaintiff filed his FAC on June 22, 2010.See FAC, Dkt. No. 55. The FAC states claims
against GMAC and Ms. McCord, based primarily upon the alleged actions of Residential and Ms.
Case5:09-cv-04928-LHK Document65 Filed11/01/10 Page2 of 14
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Case No.: 09-CV-04928-LHK
ORDER DISMISSING FIRST AMENDED COMPLAINT
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McCord during the loan origination process (though the FAC does not name Residential as a
defendant). In the FAC, Plaintiff re-asserts the causes of action from his first Complaint other than
the usury claim. GMAC moved to dismiss the FAC.See Mot. to Dismiss FAC (Dkt. No. 58).
Plaintiff failed to file an opposition, or a statement of non-opposition under Local Rule 7-3(b), to
GMAC’s Motion. GMAC served notice that Plaintiff had failed to oppose its motion on October
12, 2010. Dkt. No. 64. The Court held a hearing on GMAC’s motion on October 27, 2010.
Neither Plaintiff nor his counsel attending the hearing.
Regarding Defendant McCord, Plaintiff has filed no proof of service on Ms. McCord of
notice of this case, and no waiver of service by Ms. McCord.
II.
LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if
it fails to state a claim upon which relief can be granted. To survive a motion to dismiss, the
plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). This “facial plausibility” standard requires the
plaintiff to allege facts that add up to “more than a sheer possibility that a defendant has acted
unlawfully.” Ashcroft v.Iqbal, 129 S. Ct. 1937, 1949 (2009). In deciding whether the plaintiff has
stated a claim, the Court must assume the plaintiff’s allegations are true and draw all reasonable
inferences in the plaintiff’s favor. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987).
However, the court is not required to accept as true “allegations that are merely conclusory,
unwarranted deductions of fact, or unreasonable inferences.”In re Gilead Scis.Sec.Litig., 536
F.3d 1049, 1055 (9th Cir. 2008). Leave to amend must be granted unless it is clear that the
complaint’s deficiencies cannot be cured by amendment.Lucas v.Dep’t. of Corr., 66 F.3d 245,
248 (9th Cir. 1995).
III.
ANALYSIS
a. Dismissal of Defendant McCord for Failure to Serve
Federal Rule of Civil Procedure 4 requires that service of process be made within 120 days
after the complaint is filed, and that proof of service be filed with the Court unless waived. Fed.
R. Civ. P. 4(l), (m). Ms. McCord was identified as a defendant in the first Complaint, filed on
Case5:09-cv-04928-LHK Document65 Filed11/01/10 Page3 of 14
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