1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSEPH V. VINUYA, et al., Case No. 21-cv-01839-BAS-MDD

12 Plaintiffs,

ORDER:

13 v. (1) GRANTING SLS’S UNOPPOSED 14 AFFINIA DEFAULT SERVICES, LLC, MOTION TO DISMISS (ECF No. 3); et al., 15 AND Defendants. 16 (2) TO SHOW CAUSE 17

18 19 20 Pending before the Court is Defendant Specialized Loan Servicing, LLC (“SLS”)’s 21 motion to dismiss Plaintiffs’ Complaint. (Compl., ECF No. 1; Def.’s Mot. Dismiss 22 (“Mot.”), ECF No. 3.) Because Plaintiffs do not oppose SLS’s motion, the Court grants 23 the motion and dismisses Plaintiffs’ claims against SLS without prejudice. In addition, the 24 Court orders Plaintiffs to show cause why their claims against Defendant Affinia Default 25 Services, LLC (“ADS”) should not be dismissed for failure to prosecute. 26 // 27 // 28 // 1 I. BACKGROUND 2 Plaintiffs Joseph V. Vinuya and Magdalena B. Dotimas filed the present action 3 against Defendants Affinia Default Services, LLC, and Specialized Loan Servicing, LLC 4 in the Superior Court of California, raising the following allegations. (Notice of Removal 5 ¶ 1, ECF No. 1; ECF No. 1-2 at 24.) Vinuya and Dotimas reside at 5956 Vista San 6 Guadalupe, San Diego, CA 92154 (“the Property”). (Compl. ¶ 1, ECF No. 1-2 at 13.) The 7 Property is Plaintiffs’ principal residence and home. (Id.) 8 On or around January 26, 2006, Ownit Mortgage Solutions, Inc. loaned Plaintiffs 9 $131,000, secured against Plaintiffs’ real property. (Compl. ¶ 12.) The loan was secured 10 against the Property through a second position Deed of Trust. (Id.) The Deed of Trust 11 named Chicago Title Company as the trustee. (Id.) In 2008, Plaintiffs began to fall behind 12 on the mortgage payments and proposed to the servicer a modification of the loan but did 13 not get a response. (Id. ¶¶ 13–14.) Plaintiffs believed that the loan had been charged off. 14 (Id. ¶ 15.) 15 The trustee, Chicago Title Company, assigned, transferred, or sold its rights as the 16 trustee under the Deed of Trust to Defendant ADS. (Id.) Plaintiffs did not receive notice 17 of this change. (Id.) Defendant SLS is the servicer of the loan. On or around June 28, 18 2021, ADS, on behalf of SLS, recorded a Notice of Default and Election to Sell Under 19 Deed of Trust (“Notice of Default”) on the Property. (Id. ¶ 16.) The Notice of Default 20 claimed the amount due on the loan was $156,351.76. (Ex. B. to Compl., ECF No. 1-2 at 21 37.) On October 18, 2021, ADS recorded a Notice of Trustee’s Sale on the Property, 22 providing that the sale would take place on November 15, 2021, at 10:00 a.m. (Dotimas 23 Decl. ¶ 9, ECF No. 4-3; id. Ex. C.) Plaintiffs moved for a temporary restraining order or 24 preliminary injunction to enjoin the sale. (ECF No. 4.) The Court denied Plaintiffs’ request 25 after holding a hearing, which was not attended by Plaintiffs nor their counsel. (ECF 26 No. 9). 27 Plaintiffs sued Defendants, raising claims under the Truth in Landing Act, 15 U.S.C. 28 § 1601 et seq.; federal Fair Debt Collection Practices Act, 15 U.S.C. § 1692; California 1 Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code § 1788 et seq.; promissory 2 estoppel; wrongful foreclosure; negligent misrepresentation; California Unfair 3 Competition Law, Cal. Bus. & Prof. Code Section 17200 et seq.; and Section 2924.17 of 4 the California Civil Code. (Compl, ECF No. 1.) Defendant SLS removed the action to 5 federal court and moved to dismiss the Complaint under Federal Rules of Civil Procedure 6 9(b) and 12(b)(6). (Notice of Removal, ECF No. 1; Mot., ECF No. 3.) Plaintiffs have not 7 opposed the motion. The motion is suitable for determination on the papers submitted 8 and without oral argument. See Fed. R. Civ. P. 78(b); Civ. L.R. 7.1(d)(1). 9 10 II. SLS’S MOTION TO DISMISS 11 Under this district’s local rules, a party opposing a motion must file either an 12 opposition or a statement of non-opposition no later than fourteen calendar days prior to 13 the noticed hearing date. Civ. L.R. 7.1(e)(2). The lack of an opposition to a motion “may 14 constitute a consent to the granting of a motion or other request for ruling by the court.” 15 See Civ. L.R. 7.1(f)(3)(c). The Ninth Circuit has held that a district court may properly 16 grant a motion to dismiss for the plaintiff’s failure to file timely opposition papers where 17 the plaintiff had notice of the motion and ample time to respond. See Ghazali v. Moran, 18 46 F.3d 52, 52 (9th Cir. 1995) (per curiam); see also Carrea v. Cate, No. 08CV2295 WQH 19 BLM, 2009 WL 2382533, at *3 n.3 (S.D. Cal. July 30, 2009). 20 Here, SLS’s motion to dismiss had a noticed hearing date of December 6, 2021, and 21 Plaintiffs’ deadline to oppose the motion was November 22, 2021. More than sixty days 22 have passed after the deadline, yet no opposition has been filed. The record does not 23 indicate that Plaintiff lacks notice of Defendants’ motion to dismiss. Because Plaintiff was 24 made aware of the motion and had ample time to respond to it, the Court deems Plaintiff’s 25 failure to oppose Defendant’s motion as consent to granting it. Civ. L.R. 7.1(f)(3)(c). In 26 addition, the Court’s own review of the record supports granting SLS’s motion to dismiss. 27 // 28 // 1 III. ORDER TO SHOW CAUSE 2 Under Rule 81 of the Federal Rules of Civil Procedure, after removal to federal 3 court, a defendant who has not answered before removal “must answer or present other 4 defenses or objections under these rules” within the following timeframe, whichever is 5 longer: 6 (A) 21 days after receiving—through service or otherwise—a copy of the initial pleading stating the claim for relief; 7

8 (B) 21 days after being served with the summons for an initial pleading on file at the time of service; or 9

10 (C) 7 days after the notice of removal is filed.

11 12 Fed. R. Civ. P. 81(c). 13 The Notice of Removal was filed with this Court on October 29, 2021. The state 14 court’s register of actions, attached to the Notice of Removal, indicates that proof of service 15 of process on ADS was filed on October 28, 2021. (ECF No. 1-3 at 2.) The register of 16 actions does not indicate that ADS answered Plaintiffs’ Complaint before removal. (Id.) 17 After removal, ADS has not responded to the Complaint or otherwise defended themselves 18 in this action. Thus, the Court will order Plaintiffs to show cause as to why their claims 19 against ADS should not be dismissed for failure to prosecute. See Fed. R. Civ. P. 41(b); 20 see also, e.g., Link v. Wabash R.R. Co., 370 U.S. 626, 629–31 (1962). 21 22 IV. CONCLUSION 23 Accordingly, the Court GRANTS Defendant SLS’s motion to dismiss as 24 unopposed. (ECF No. 3.) The Court DISMISSES WITHOUT PREJUDICE Plaintiffs’ 25 claims against SLS. 26 In addition, the Court ORDERS Plaintiffs TO SHOW CAUSE, on or before 27 February 14, 2022, why their claims against the remaining Defendant, ADS, should not 28 be dismissed for Plaintiffs’ failure to prosecute this action. Plaintiffs may adequately show 1 cause by requesting entry of default as to Defendant ADS or by establishing good cause 2 || for an extension of time to do so. 3 4 IT IS SO ORDERED. 5 A 6 || DATED: January 24, 2022 Ypilag (Lyohaa é 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28