Free Motion to Dismiss - District Court of California - California

Case 3:08-cv-00474-LAB-JMA

Document 5

Filed 04/17/2008

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Stuart B. Wolfe, Esq. (SBN 156471) emschiffer~wolfewyman.com
Yaron Shaham, Esq. (SBN 217192)

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yshaham~wolfewyman.com WOLFE & WYMAN LLP
5 Park Plaza, Suite 1100

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Irvine, California 92614-5979
Telephone: (949) 475-9200 Facsimile: (949) 475-9203

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Attorneys for DEFENDANT GMAC MORTGAGE, LLC
UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

PAMELA JEAN CRUZ,
Plaintiff,
v.

Case No. 3:08-cv-00474-LAB-JMA

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GMAC MORTGAGE, LLC, EXPERIAN INFORMATION SOLUTIONS, INC., and
Does 1 through 10 Inclusive,

NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF PAMELA JEAN CRUZ'S COMPLAINT PURSUANT TO FRCP 12(b)(6)
Date: Time: Place:
June 16,2008
11 : 15 a.m.

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Defendants.

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Courroom 9, 2nd Floor 940 Front Street San Diego, CA 92101

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TO THE HONORABLE LARRY ALAN BURNS, UNITED STATES DISTRICT COURT

JUDGE, PLAINTIFF PAMELA JEAN CRUZ, PLAINTIFF'S COUNSEL OF RECORD,

24 AND ALL OTHER INTERESTED PARTIES:

25 PLEASE TAKE NOTICE that on June 16, 2008, at 11: 15 a.m., or as soon thereafter as
26 the matter may be heard, in Courtroom 9 of

the above-entitled Court, Defendant GMAC Mortgage,

27 LLC ("GMACM") wil move (the "Motion") the Court for a dismissal of

the Plaintiffs Complaint
the Federal Rules of

28 with respect to GMACM only, pursuant to Rule 12(b) of

Civil Procedure.

1 H:IMal1ersIGMAC Mortgage Corporation (1353)1076 (Cmz)IPleadingsINotice of 12(b)(6) Motioii,doc

Case 3:08-cv-00474-LAB-JMA

Document 5

Filed 04/17/2008

Page 2 of 2

1 Specifically, this Motion is made on the grounds that the Plaintiffs Complaint fails to state
2 a cause of action for which relief can be granted. As to Cause of Actions Nos. 1 and 2, the
3 Plaintiff s fails to include necessary facts within his allegations. On or about April 2, 2007,

4 GMACM transferred the servicing rights to the subject loan and no longer made any credit agency
5 reports thereafter. With respect to Cause of Action No.3, there is no malice or wilful intent as

6 GMACM stopped servicing the subject loan prior to the Plaintiffs bankuptcy filing and stopped
7 reporting to Defendant Experian Information Solutions, Inc. ("Experian") pre-bankruptcy petition

8 (i.e., pre-petition). Finally, as to Cause of Action No.4, no actual controversy exists as GMACM
9 stopped servicing the subject loan pre-petition, stopped making contact with Experian pre-petition,

10 and informed the Plaintiff that a new entity would be charged with servicing the subject loan in

11 April 2007.

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This Motion is based this Notice of Motion and Motion, the concurently filed
Memorandum of Points and Authorities, the pleadings and papers on fie herein, and upon such
oral argument and evidence as may be presented at the hearing on the Motion.

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DATED: April /7, 2008

WOLFE & WYMAN LLP

BY:~~#~~
/YARON SHAHAM Attorneys for Defendant
.8TUART B. WOLFE

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GMAC MORTGAGE, LLC

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H:\Mal1crslGMAC Mortgage Corpratioii (1353)1076 (Cmz)\PleadingsINotice of 12(b)(6) MolIon,doc