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Floyd v. Countrywide Home Loans, Inc.

United States District Court, Ninth Circuit

August 22, 2013

DANIEL FLOYD and KELLEY FLOYD, Plaintiffs,
v.
COUNTRYWIDE HOME LOANS, INC.; BAC HOME LOAN SERVICING LP f/k/a COUNTRYWIDE HOME LOANS SERVICING LP; THORNBURG MORTGAGE SECURITIES TRUST 2007-3; THORNBURG MORTGAGE SECURITIES TRUST 2006-6; RECONTRUST COMPANY NA; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; BANK OF AMERICA, N.A.; and DOES 1 through 10, Defendants.

FINDINGS & RECOMMENDATION

JEREMIAH C. LYNCH, Magistrate Judge.

Before the Court is the Defendants' Federal Rule of Civil Procedure 12(f) motion requesting the Court to strike Daniel and Kelly Floyd's Second Amended Complaint. For the reasons detailed below, the motion should be granted in part.

The facts underlying this case are well known to the parties and need not be repeated here except where necessary to clarify the discussion.

On March 12, 2013, the undersigned entered Findings and Recommendations on the Defendants' Fed.R.Civ.P. 12(b)(6) motion requesting dismissal of the Floyds' Amended Complaint for failure to state a claim upon which relief can be granted. With respect to the motion as it pertained to Bank of America N.A. ("Bank of America"), I recommended that entity should be dismissed without prejudice. I explained that while no facts were pled that would support a finding of liability against Bank of America on any causes of action as pled by the Floyds, :

Nonetheless Defendant Bank of America N.A. identifies itself in its brief as successor by merger to the interests of BAC Home Loan. Therefore, as a result of that merger it is possible that Bank of America N.A. may have assumed any liabilities of BAC Home Loan. Therefore, Bank of America N.A, should be dismissed without prejudice to allow the Floyds, if possible, to amend their pleading to add factual allegations establishing Bank of America N.A.'s liability for BAC Home Loan's conduct.
Dkt. 57, at 32.

On May 30, 2013, Chief District Judge Dana L. Christensen, the presiding District Judge, entered an order adopting in part and rejecting in part my Findings and Recommendations. With respect to Bank of America, rather than dismissing the Plaintiffs' Amended Complaint without prejudice he ordered that "Plaintiffs shall file a Second Amended Complaint that deletes the dismissed Defendants and clearly articulates their claims against Bank of America." Dkt. 61, at 8. The Floyds filed their Second Amended Complaint on June 14, 2013.

The Defendants predicate their motion to strike upon the assertion the Floyds exceeded the permission they were given to amend their complaint as against Bank of America. Specifically, the Defendants argue that Judge Christensen's order, read in conjunction with my Findings and Recommendations, only allowed the Floyds to articulate the facts supporting the Floyds' assertion that Bank of America is liable for BAC Home Loan's conduct. And Defendants assert the Second Amended Complaint includes "never-before pled grounds for the Floyds' negligence claim, repleading of grounds for the negligence claim that the Court has already dismissed with prejudice, and numerous other new factual allegations unrelated to the Floyds' claims against [Bank of America]" Dkt. 67, at 6.

The Floyds retort that in accordance with Judge Christensen's directive to clearly articulate their claims against Bank of America, the Second Amended Complaint merely expands upon the factual allegations that support their negligence claim pled in their First Amended Complaint. The parties are only partly correct in their respective arguments.

The pertinent operative allegations of the Floyds' negligence claim in the First Amended Complaint stated the Defendants breached the duties owed the Floyds in the following respects:

(1) they failed or refused to identify the holder of the note in response to Plaintiffs' inquiries;
(2) falsely claimed to be beneficiaries under the Deed of Trust;
(3) falsely claimed to be the Trustee;
(4) signed and recorded a notice of Trustee's sale without legal ...

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