Summary
finding that neither a "Nice Offer and Demands" nor related documents "constitutes written correspondence or QWRs within the meaning of RESPA."
Summary of this case from Osuna v. Bank of AmericaOpinion
Case No. 1:10-cv-03094-CL.
June 20, 2011
ORDER
Magistrate Judge Mark D. Clarke filed a Report and Recommendation, and the matter is now before this court. See 28 U.S.C. § 636(b)(1)(B), Fed.R.Civ.P. 72(b). If either party objects to any portion of a Magistrate Judge's Report and Recommendation, I make a de novo review of that portion of the Magistrate Judge's report. 28 U.S.C. § 636(b)(1)(C); McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F. 2d 1309, 1313 (9th Cir. 1981).
Here, plaintiffs object to the Report and Recommendation, so I have reviewed this matter de novo. I agree with Judge Clarke that the complaint must be dismissed in its entirety for failure to state a claim. As Judge Clarke notes, plaintiffs do not allege that foreclosure proceedings are pending against their property.
Because plaintiffs are representing themselves, I conclude that they may file an amended complaint. I agree with Judge Clarke that plaintiffs cannot state claims under the Truth in Lending Act or the Uniform Commercial Code, so those claims are dismissed with prejudice and may not be included in an amended complaint. The proposed amended complaint that plaintiffs attach to their objections does not correct the deficiencies pointed out by the Report and Recommendation.
CONCLUSION
Magistrate Judge Clarke's Report and Recommendation (#15) is adopted. Plaintiffs may file an amended complaint within thirty days from the date of this order.
IT IS SO ORDERED.