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Alper v. Ocwen Loan Servicing, LLC

United States District Court, D. New Hampshire

March 5, 2018

Jay S. Alper and Colleen J. Alper
v.
Ocwen Loan Servicing, LLC

          Jay S. Alper, pro se

          Coleen J. Alper, pro se

          Joe N. Nguyen, Esq. L. John Vassalotti, III, Esq. Benjamin M. Greene, Esq.

          ORDER

          Joseph A. DiClerico, Jr. United States District Judge.

         Jay and Colleen Alper, proceeding pro se, brought suit in state court, alleging federal and state claims against Ocwen Loan Servicing, LLC. Ocwen removed the case to this court based on federal question jurisdiction, 28 U.S.C. § 1331. The Alpers move for leave to amend their complaint and also move to remand the case to state court. Ocwen objects, arguing that the motion is procedurally improper and the proposed amendments are futile.

         Because the Alpers move for both leave to amend and to remand the case, they have improperly combined two motions for separate relief into a single filing. LR 7.1(a)(1). Further, the motion to remand will not be ripe unless and until the motion to amend is granted. In light of their pro se status, however, the court will not require the Alpers to refile the motions in compliance with Rule 7.1(a)(1) and instead will consider the motions seriatim.

         I. Motion to Amend

         The Alpers move for leave to amend their complaint to withdraw their federal claims alleging that Ocwen violated the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq.[1] In support, they cite Federal Rule of Civil Procedure 15(a), which provides that leave to amend “shall be freely given when justice so requires.” The Alpers also explain that they are withdrawing their federal claims in order to avoid federal subject matter jurisdiction in support of their motion to remand.

         In response, Ocwen contends that the motion to amend is untimely. Ocwen also contends that the proposed amended complaint is futile because the claims are time barred, because the Alpers released their claims under the New Hampshire Fair Credit Reporting Act in 2014, and because the state law claims are preempted by the federal Fair Credit Reporting Act.

         A. Timing of Motion Ocwen

         contends that the motion for leave to amend is both too early and too late. In support, Ocwen cites Federal Rule of Civil Procedure 15(a)(1) that allows a plaintiff to amend as a matter of course within twenty-one days after serving the complaint or within twenty-one days after an answer or a motion under Rule 12(b). Because the Alpers' motion was filed more than twenty-one days after they filed their complaint in state court but before Ocwen filed a response, Ocwen contends that the motion cannot be considered.[2]

         Contrary to Ocwen's theory, the Alpers have moved for leave to amend, as provided in Rule 15(a)(2), and do not rely on amendment as a matter of course, as provided in Rule 15(a)(1). Therefore, the timing issue raised by Ocwen is meritless.

         B. Futility

         Ocwen also contends that the proposed amendment is futile because the claims are time barred, were released in a 2014 settlement agreement, and are preempted by the federal Fair Credit Reporting Act. The Alpers did not file a reply and, therefore, did not respond to Ocwen's ...


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