Brunat et al v. IndyMac Federal Bank F.S.B. et al

Filing 69

ORDER denying 59 Plaintiff's Motion to Consolidate Cases/ Reassign Case ; granting 60 Plaintiff's Motion for Extension of Time to File notice of Appeal ; denying 66 Defendants' Motion to Dismiss/Strike the Notice of Appeal. Signed by Judge Frederick J Martone on 7/13/11.(DMT)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Vladimir Brunat, Dagmar Brunat

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Plaintiffs,
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vs.
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IndyMac Federal Bank; Deutsche Bank)
National Trust Company; Quality Loan)
Service Corporation, One West Bank, )
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Defendants.
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No. CV-09-1796-PHX-FJM
ORDER

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Before the court is plaintiffs’ motion to consolidate and reassign case (doc. 59),

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defendants’ response (filed in Deutsche Bank v. Vladimir Brunat, et al., CV-11-0944-PHX-

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GMS (D. Ariz. May 11, 2011) at doc. 6), and plaintiffs’ reply (doc. 67). Also before us is

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plaintiffs’ motion for extension of time to file a notice of appeal (doc. 60), defendants’

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response and motion to dismiss/strike plaintiffs’ notice of appeal (doc. 66), and plaintiffs’

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reply (doc. 68).

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In order to prevent the trustee’s sale of their property, plaintiffs filed the instant action

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challenging defendants’ security interest in the property under the Truth in Lending Act and

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Arizona state law governing notice of trustee’s sales. On April 6, 2011, we granted

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defendants’ motion for summary judgment on all claims (doc. 55) and on the same day

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judgment was entered in favor of defendants (doc. 56). On May 9, 2011, plaintiffs filed a

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notice of appeal (doc. 57).

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Following the entry of judgment, defendants filed a forcible entry and detainer action

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in state court, seeking to recover possession of the property. Plaintiffs then removed the

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action on the basis of diversity jurisdiction. See Deutsche Bank v. Vladimir Brunat, et al.,

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CV-11-0944-PHX-GMS (D. Ariz. May 11, 2011). Plaintiffs now seek to consolidate that

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case with the one currently before us.

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Rule 42(a), Fed. R. Civ. P., allows us to consolidate cases that contain a “common

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question of law or fact.” Notwithstanding that the two cases at issue involve similar parties

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and the same real property, the relevant law and facts underlying the two lawsuits are entirely

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distinct. In the instant case we considered plaintiffs’ challenges to defendants’ interests

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under the Truth in Lending Act and state statutory notice requirements related to trustee’s

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sales.

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possession—the merits of title are not litigated. A.R.S. § 12-1177(a); Curtis v. Morris, 186

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Ariz. 534, 925 P.2d 259 (1996). Because the two cases do not share a common question of

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law or fact, we deny plaintiffs’ motion to consolidate and/or reassign case (doc. 59). If it is

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plaintiffs’ intention to forestall eviction pending their appeal, their efforts are better directed

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through a motion to the Ninth Circuit Court of Appeals.

The only issue in a forcible entry and detainer action is the right of actual

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Rule 4(a)(1)(A), Fed. R. App. P., requires a party to file a notice of appeal with the

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clerk of the district court within 30 days after the judgment or order appealed from is entered.

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Plaintiffs acknowledge that they filed their notice of appeal 3 days after this deadline and

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now move for an extension of time to file the notice of appeal (doc. 60). Under Rule

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4(a)(5)(A), a district court can extend the time to file a notice of appeal if the motion to

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extend is filed no later than 30 days after the time prescribed by Rule 4(a), Fed. R. App. P.

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expires, and the party shows excusable neglect or good cause. In deciding excusable neglect,

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we consider (1) the danger of prejudice to the non-moving party, (2) the length of the delay

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and its potential impact on judicial proceedings, (3) the reason for the delay, and (4) whether

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the moving party’s conduct was in good faith. Pioneer Inv. Servs. Co. v. Brunswick Assocs.

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Ltd. P’ship, 507 U.S. 380, 395, 113 S. Ct. 1489, 1498 (1993).
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Plaintiffs’ counsel asserts that due to a calendaring error, he incorrectly filed the

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notice of appeal 3 days late. He argues that he nevertheless acted in good faith and that there

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is no prejudice to defendants given the brief delay.

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Defendants contend that they are prejudiced by the fact that plaintiffs have been living

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in the residence for over two years without making any payments, notwithstanding that title

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to the property was transferred to defendant Deutsche Bank in November 2009. This obvious

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prejudice, however, does not arise from the 3-day delay in filing the notice of appeal. Again,

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the decision to stay the eviction properly lies with the Circuit Court of Appeals. We

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conclude that the Pioneer Inv. Servs. factors weigh in favor of granting the 3-day extension.

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Therefore, IT IS ORDERED DENYING plaintiffs’ motion to consolidate and/or

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reassign cases (doc. 59). IT IS FURTHER ORDERED GRANTING plaintiffs’ motion

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to extend the time to file the notice of appeal (doc. 60), and DENYING defendants’ motion

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to dismiss/strike the notice of appeal (doc. 66).

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DATED this 13th day of July, 2011.

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