The opinion of the court was delivered by: David Alan Ezra United States District Judge
ORDER DENYING PLAINTIFF'S APPEAL FROM MAGISTRATE'S ORDER
GRANTING DEFENDANT'S MOTION TO (1) FILE COUNTER/CROSS CLAIM FOR FORECLOSURE OF MORTGAGE AND (2) AMEND THE RULE 16 SCHEDULING ORDER
Pursuant to Local Rule 7.2(d) the Court finds this matter suitable for disposition without a hearing. After reviewing the Appeal and the supporting memoranda, the Court DENIES Plaintiff's Appeal from Magistrate's Order Granting Defendant's Motion to (1) File Counter/Cross Claim for Foreclosure of Mortgage and (2) Amend the Rule 16 Scheduling Order.
The case at bar relates to a $5,200,000.00 mortgage loan that Plaintiff Douglas Himmelfarb ("Plaintiff") obtained from Washington Mutual Bank, FA ("WaMu") in September 2007 to refinance Plaintiff's home.
In his Complaint, Plaintiff alleges that Chris O'Brien, a WaMu employee, represented to Plaintiff that he could assist Plaintiff with refinancing his home at an initial interest rate of 9.5% for several months which would eventually drop to 5% for a thirty year period with payments of approximately $21,000.00 per month. ("Compl.", Doc. # 1, ¶ 13.) WaMu and Mr. O'Brien had earlier assisted Plaintiff in refinancing his home in February of 2007. (Id. ¶ 15.) At all relevant times, according to Plaintiff, he made clear his income was approximately $30,000 to $40,000 per month. Plaintiff allegedly relied on promises and representations made by Mr. O'Brien with respect to this mortgage loan. (Id. ¶ 19.)
The closing on the loan allegedly occurred at Plaintiff's home. (Id. ¶ 20.) According to Plaintiff, WaMu sent an unknown woman to deliver documents for Plaintiff's signature. (Id. ¶ 21.) Plaintiff alleges that she was not a notary and could not answer questions about Plaintiff's mortgage. (Id.) Plaintiff proceeded to enter into the mortgage loan with WaMu on or about September 22, 2001. (Id. ¶ 22.) At the closing, the woman sent by WaMu left a package of documents with Plaintiff, but it allegedly had only one copy of the Notice of Right to Cancel. (Id. ¶ 24.) Plaintiff claims to have received no documents at all from WaMu prior to closing and no one explained to Plaintiff the meaning behind any documents Plaintiff ultimately received. (Id. ¶ 23.)
According to Plaintiff, after the closing he was unable to contact Mr. O'Brien to obtain the lower rate of 5%. (Id. ¶ 26.) Further, Plaintiff later discovered that the loan application showed his income at $95,000.00 per month. (Id. ¶ 27.)*fn1
In connection with these facts, Plaintiff asserts six separate causes of action:
* Count I: Truth in Lending Act ("TILA") Violations
* Count II: Unfair and Deceptive Business Act Practices ("UDAP") Violations
* Count III: Unconscionability
* Count IV: Breach of ...