Valenzuela, et al. v. American Home Mortgage Investment Trust 2005-2, et al.

Filing 49

SCHEDULING CONFERENCE ORDER Setting the following schedule: class certification hearing set for 12/7/2009 at 10:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger; motion for class certification due by 9/16/2009; filing deadline set for 10/14/2009 for receipt of response to motion; case management deadline set for 11/12/2009 for receipt of reply to same; order signed by Judge Oliver W. Wanger on 4/20/2009. (Rooney, M)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. I. Date of Scheduling Conference. April 17, 2009. Appearances Of Counsel. Browne Woods George LLP by Lee A. Weiss, Esq., appeared on behalf of Plaintiff. Severson & Werson by Erik Kemp, Esq., appeared on behalf of Defendants American Home Mortgage Investment Trust 2005-2 and Deutsche Bank National Trust Company. 1 ELVIN VALENZUELA and PHYLLIS ) VALENZUELA, individually, and on ) behalf of themselves and all ) others similarly situated ) ) Plaintiffs, ) ) v. ) ) AMERICAN HOME MORTGAGE ) INVESTMENT TRUST 2005-2, ) AMERICAN HOME MORTGAGE ) SECURITIES LLC, WELLS FARGO ) BANK, N.A., DEUTSCHE BANK ) NATIONAL TRUST COMPANY and DOES ) 1 through 10, inclusive, ) ) Defendants. ) ) ) 1:08-cv-1179 OWW SMS SCHEDULING CONFERENCE ORDER Class Certifications Motion Filing Deadline: 9/16/09 Opposition to Class Certification Motion Filing Deadline: 10/14/09 Reply to Class Certification Motion Filing Deadline: 11/12/09 Class Certification Hearing Date: 12/7/09 10:00 Ctrm. 3 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

III.

Summary of Pleadings. 1. This is a putative class action. Plaintiffs filed

their Class Action Complaint (the "Complaint") on August 12, 2008, which asserts numerous causes of action, including claims for violations of the Truth in Lending Act ("TILA"), 15 U.S.C. § 1601, et seq., violations of California's Unfair Competition Law ("UCL"), Bus. & Prof. Code § 17200, et seq., fraudulent omissions, breach of contract, and tortious breach of the implied covenant of good faith and fair dealing. The Court recently

dismissed the breach of contract and tortious breach of the implied covenant of good faith and fair dealing claims. The

Complaint seeks a variety of equitable remedies and damages. Plaintiffs' Statement 1. Plaintiffs, individually and on behalf of the proposed

classes, allege that Defendants failed to disclose important material information in connection with the Option Adjustable Rate Mortgage loans ("Option ARM") Defendants sold to Plaintiffs and other consumers. Plaintiffs allege that the loan documents

Defendants used to sell the Option ARM loans violate TILA. Plaintiffs contend that TILA requires all lenders, including Defendants, to make certain disclosures to borrowers concerning the terms and conditions of their home loans in a clear and conspicuous manner. Plaintiffs allege that Defendants failed to

clearly and conspicuously disclose, in their loan documents and in the federally required TILA disclosure statements: (i) the actual interest rate Defendants charged Plaintiff and consumers on their loans; (ii) that payments on the notes at the initial low interest rate would absolutely result in negative 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

amortization and that the principal balance absolutely would increase as a result; and (iii) that the initial interest rate provided was discounted and does not reflect the actual interest that Plaintiffs and others, were paying on the loans. Defendants

also failed to provide to Plaintiffs the low interest rate in the manner agreed to by the Parties. 2. Plaintiffs, individually and on behalf of the Class,

seek an order declaring that Defendants violated TILA, 15 U.S.C. § 1601, et seq.; that Plaintiffs have a right to rescind pursuant to 15 U.S.C. § 1635 and 12 C.F.R. § 226.23; and for an order rescinding Plaintiffs' individual mortgage; and for an order awarding other relief as the court deems just and proper. Plaintiffs also seek an order awarding Plaintiffs and Class members damages, restitution, and for declaratory and injunctive relief under Plaintiffs' state law claims for violation of the UCL and fraudulent omissions, and such other relief as is just and proper. fees. Defendants' Statement 1. Defendants deny that they are liable to Plaintiffs in Plaintiffs also seek litigation costs and attorneys

any respect. 2. Defendants contend that Plaintiffs' claims that

Defendants committed violations of TILA entitling them to rescission or damages, violated the UCL, or committed fraudulent concealment are wholly without merit. Defendants did not

originate Plaintiffs' loan or the putative class members' loans. The terms of Plaintiffs' loans were properly disclosed and Plaintiffs knowingly and voluntarily agreed to those terms. 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Defendants will show that Plaintiffs can establish neither liability or damages and all of these claims will fail. IV. Orders Re Amendments To Pleadings. 1. At this time, the parties do not anticipate any However, Plaintiffs anticipate that

amendment of the pleadings.

if a class is certified, they will seek to amend their complaint to include the subsequent purchasers of the loans of currently absent class members. Defendants believe addition of new parties

after class certification would be inappropriate. V. Factual Summary. A. Admitted Facts Which Are Deemed Proven Without Further

Proceedings. 1. Plaintiffs, Elvin Valenzuela and Phyllis

Valenzuela, at the time of the loan transaction, were residents of the Eastern District of California, Fresno Division. 2. Plaintiffs received an option ARM loan from

American Home Mortgage Acceptance, Inc., on or about June 23, 2005. 3. Defendant American Home Mortgage Investment Trust

2005-2 presently holds Plaintiffs' Option ARM loan as part of a pool of securitized loans as an assignee. 4. Defendant Deutsche Bank National Trust Company is

the indenture trustee under the mortgage pool for American Home Mortgage Investment Trust 2005-2. 5. B. The Valenzuelas' loan is current.

Contested Facts. Plaintiffs' Statement 1. Whether Defendants failed to disclose that 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

negative amortization was certain to occur. 2. Whether Defendants failed to disclose clearly that

the initial interest rate was discounted. 3. Whether Defendants failed to disclose clearly that

the initial interest rate would not apply for more than one month. 4. Whether Defendants failed to disclose clearly the

loan's true cost. 5. Whether Defendants' loan documents failed to

disclose material facts regarding the terms of Plaintiffs' Option ARM loan. Defendants' Statement 1. Whether Plaintiffs or any putative class members

actually and reasonably relied on any allegedly improper disclosures. 2. Whether Defendants made any disclosures to

Plaintiffs or the putative class members, and whether they had any duty to do so. 3. What information did plaintiffs and putative class

members have or review regarding the nature of the loans they entered into. 4. Did any Defendants' actionable conduct proximately

cause Plaintiffs or any putative class member any injury. 5. Whether Plaintiffs or class members' loans have

been repaid, modified, foreclosed or otherwise altered by agreement or operation of law in bankruptcy. 6. Whether any applicable statutes of limitation bar

the claims of Plaintiffs or any putative class members. 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B.

7.

Whether any statute of limitation tolling doctrine

applies to the claims of Plaintiffs or any putative class members. 8. Whether Plaintiffs and the putative class members'

claims satisfy the requirements of Federal Rule of Civil Procedure 23(a) and 23(b)(3). VI. Legal Issues. A. Uncontested. 1. Jurisdiction exists under 28 U.S.C. § 1331 and the

Truth in Lending Act. 2. Venue is proper under 28 U.S.C. § 1391.

Contested. Plaintiffs' Statement 1. Whether Defendants' loan documents violated TILA,

15 U.S.C. § 1601, et seq. 2. Whether Defendants engaged in unfair business

practices aimed at deceiving Plaintiffs and Class members before and during the loan application process. 3. Whether Defendants, by and through their officers,

employees, and agents failed to disclose that the interest rate actually charged on these loans was higher than the rate represented and promised to Plaintiffs and Class members. 4. Whether Defendants, by and through their officers,

employees and agents concealed, omitted and/or otherwise failed to disclose information they were mandated to disclose under TILA. 5. Whether Defendants failed to disclose the true

variable nature of interest rates on the Option ARM loans. 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

6.

Whether Defendants failed to properly disclose the

process by which negative amortization occurs, ultimately resulting in the recasting of the payment structure over the remaining lifetime of the loans. 7. Whether Defendants' had a duty to disclose and

failed to disclose that if Plaintiffs made payment according to the payment schedule in TILDS, negative amortization was certain to occur. 8. Whether the facts Defendants failed to disclose

concerning Plaintiffs' Option ARM loan were material. 9. Whether Defendants were aware of their fraudulent

omissions and intended to deceive Plaintiffs and Class members. 10. Whether Plaintiffs relied on Defendants'

fraudulent omissions in deciding to enter into the Option ARM loan. 11. Whether Defendants' scheme misleadingly portrayed

or implied that these loans were fixed rate loans, when Defendants knew that only the periodic payments were fixed (for a time) but that interest rates were not "fixed." 12. Whether Defendants' loan documents are "unlawful,"

"unfair," and "fraudulent" under the UCL. 13. Whether the terms and conditions of Defendants'

Option ARM home loans are unconscionable. Defendants Statement 1. Whether Plaintiffs or any putative class members

received disclosure statements compliant with TILA and Regulation Z. 2. Whether any alleged failure of compliance was 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

evident on the face of the disclosure statements within the meaning of 15 U.S.C. § 1641(a). 3. Whether Defendants may be held vicariously liable

under any theory for TILA violations allegedly committed by others in the origination of the Plaintiffs' and putative class members' loans. 4. Whether either Defendant committed any act that

was unlawful, unfair, or deceptive in a manner that caused harm to Plaintiffs or the putative class. 5. Whether Defendants can be held vicariously liable

under the UCL for third parties' actions. 6. Whether Defendants had any duty of disclosure and,

if so, the extent of that duty. 7. Whether Defendants can be held vicariously liable

for third parties' alleged failure to disclose. 8. Whether Plaintiffs' claims or putative class

member claims are barred by applicable statutes of limitation. 9. Whether Plaintiffs and the putative class members'

claims satisfy the requirements of Federal Rule of Civil Procedure 23(a) and 23(b)(3). VII. Consent to Magistrate Judge Jurisdiction. 1. The parties have not consented to transfer the

case to the Magistrate Judge for all purposes, including trial. VIII. 1. Corporate Identification Statement. Any nongovernmental corporate party to any action in

this court shall file a statement identifying all its parent corporations and listing any entity that owns 10% or more of the party's equity securities. A party shall file the statement with 8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

its initial pleading filed in this court and shall supplement the statement within a reasonable time of any change in the information. IX. Discovery Plan and Cut-Off Date. 1. The parties agree that initial disclosures should be

exchanged pursuant to Fed. R. Civ. P. 26(a)(1) within the time prescribed by the Rule. 2. In addition to discovery concerning Plaintiffs'

individual claims, Plaintiffs will be seeking discovery related to class certification, including the loan documents used by American Home Mortgage Investment Trust 2005-2 ("AHMIT 2005-2") and Deutsche Bank National Trust Company's ("Deutsche Bank") assignor, American Home Mortgage Acceptance, Inc., during the Class Period, and information necessary for Plaintiffs to establish numerosity. Plaintiffs will also be seeking discovery

related to AHMIT 2005-2 and Deutsche Bank's practices and conduct in connection with the formulation, development and implementation of the Option ARM loans at issue. At this time,

Plaintiffs agree to limit discovery to issues relevant to Plaintiffs' individual claims and issues relevant to class certification. 3. Defendants agree that discovery should be limited to

issues relevant to Plaintiffs' individual claims and class certification unless and until a class is certified. 4. Defendants have not reviewed specific discovery They may dispute that some, or much,

requests from Plaintiffs.

of the discovery Plaintiffs seek, particularly discovery about other alleged assignees of securitized loans, is proper. 9 This

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

may result in the need for the Court's assistance. Completion of Initial Discovery, Proposed Class Certification Briefing Schedule, and Proposed Schedule for Dispositive Motions. Merits Discovery. 5. The parties agree that merits discovery should close on

April 16, 2010. Expert Discovery. 6. The parties agree that initial expert disclosures

should be made on May 13, 2010, and that rebuttal expert disclosures should be made on June 10, 2010. should be completed by August 10, 2010. Class Certification Briefing Schedule. 7. Plaintiffs intend to file a motion for class Plaintiffs believe they will be able to file Plaintiffs believe Expert discovery

certification.

their motion on or before September 16, 2009.

that Defendants' opposition should be filed 28 days thereafter, that Plaintiffs' reply should be filed 28 days after the opposition and that the hearing should be held 2 weeks after the briefing is completed, or whenever it is convenient for the Court. 8. Defendants do not object to Plaintiff's proposed date

of September 16, 2009, as the deadline to move for class certification and agree that Defendants should have 28 days to file an opposition. However, Defendants believe 28 days for

Plaintiffs' reply is excessive and thus propose that Plaintiffs file their reply within 14 days instead. Defendants agree that

the hearing should be held 2 weeks after briefing is completed or 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

whenever it is convenient for the Court. Dispositive Motions. 9. The parties agree that dispositive motions should be

made no later than September 15, 2010. Discovery of Electronically Stored Information. 10. The parties have agreed to meet and confer on a

protocol that will govern the production of Electronically Stored Information in accordance with the Federal Rules of Civil Procedure. The parties intend to submit such a protocol in the

form of a case management order. Privilege or Work Product Issues. 11. At present, the parties are not aware of any issues To the extent

relating to claims of privilege or work product.

such issues arise in the future, the parties will confer to address them and, if necessary, bring them to the attention of the Court. Limitations on Discovery. 12. In light of the potential for additional defendants to

be added to this action if a class is certified (i.e., other assignees of Class members' Option ARM loans), Plaintiffs believe that the 10 deposition and 25 interrogatory limits are inappropriate in this case. In light of the number of potential

defendants, Plaintiffs propose that each party be permitted to take a maximum of 25 fact witness depositions pursuant to Fed. R. Civ. P. 30(a)(2) (expert depositions shall be treated separately and shall be limited to one deposition of each designated expert and rebuttal expert). Plaintiffs further propose that each party

be permitted to serve 25 interrogatories on each opposing party. 11

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

13.

Defendants dispute that additional defendants should be

added after class certification as proposed by plaintiffs, and do not believe that any discovery accommodations should be made on that basis. Defendants contend that the standard limitations for

discovery set forth in the Federal Rules of Civil Procedure are appropriate. If either party contends additional discovery is

needed, that party should not be permitted to exceed the limits established by the Federal Rules absent a showing of particularized need. Other Orders. 14. At present, the parties do not propose that this Court The The

enter any other orders under Fed. R. Civ. P. 16 or 26(c). parties expect that a confidentiality order is appropriate. parties will meet and confer about a proposed Stipulated

Protective Order and, if necessary, the parties will file an appropriate motion seeking its entry. The Court Orders: 1. The parties shall file their initial disclosures under

Rule 26 on or before May 8, 2009. 2. With regard to the class certification schedule, the

parties shall limit discovery to class certification issues and Plaintiffs shall file their class certification motion on or before September 16, 2009. Defendants shall file their Plaintiffs' reply The hearing shall

opposition on or before October 14, 2009.

shall be filed on or before November 12, 2009. be held on December 7, 2009. 3.

A Further Scheduling Conference will be held following

the ruling on the class certification motion to schedule the 12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

balance of the case. 4. The parties are ordered to complete all expert

discovery on or before August 13, 2010. 5. The parties are directed to disclose all expert Any rebuttal

witnesses, in writing, on or before May 13, 2010.

or supplemental expert disclosures will be made on or before June 14, 2010. The parties will comply with the provisions of Federal

Rule of Civil Procedure 26(a)(2) regarding their expert designations. Local Rule 16-240(a) notwithstanding, the written

designation of experts shall be made pursuant to F. R. Civ. P. Rule 26(a)(2), (A) and (B) and shall include all information required thereunder. Failure to designate experts in compliance

with this order may result in the Court excluding the testimony or other evidence offered through such experts that are not disclosed pursuant to this order. 6. The provisions of F. R. Civ. P. 26(b)(4) shall

apply to all discovery relating to experts and their opinions. Experts may be fully prepared to be examined on all subjects and opinions included in the designation. result in the imposition of sanctions. X. Motions - Hard Copy. 1. The parties shall submit one (1) courtesy paper copy to Failure to comply will

the Court of any motions filed that exceed ten pages and any motions that have exhibits attached. Exhibits shall be marked

with protruding numbered or lettered tabs so that the Court can easily identify such exhibits. XIII. 1. Trial. Plaintiffs demand a jury. 13 Defendants do not demand a

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

jury. 2. Counsels' Estimate Of Trial Time: a. At this time, trial length will depend upon the This issue will be

outcome of the class certification motion.

addressed in a supplemental scheduling order. 3. Counsels' attention is directed to Local Rules

of Practice for the Eastern District of California, Rule 285. XIV. Settlement Conference. 1. The parties agree to private mediation. They will

notify the Court any time they believe a settlement conference would be helpful. XV. Request For Bifurcation, Appointment Of Special Master,

Or Other Techniques To Shorten Trial. 1. Not requested at this time.

XVI. Related Matters Pending. 1. Plaintiffs have compiled the list of cases below.

Defendants have not been able to analyze whether or not these cases are related, and do not agree that they are. EASTERN DISTRICT OF CALIFORNIA Case Name Nelson v. Guild Mortgage Company Campbell v. Soma Financial, Inc. Quezada v. Loan Center of California, Inc. Vang, et al. v. Home Loan Funding, Inc. Bowman v. Mortgagetree Lending, Inc. Hill v. U.S. Financial Mortgage Corporation Nava v. VirtualBank /// 14 Civ. No. 1:08-cv-0678 OWW 1:08-cv-0170 OWW 2:08-cv-0177 WBS 1:07-cv-1454 AWI 1:08-cv-0119 AWI 1:08-cv-0235 AWI 2:08-cv-0069 FCD

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

CENTRAL DISTRICT OF CALIFORNIA Boisjolie v. SBMC Mortgage Saavedra v. GMAC Mortgage, LLC, et al. Conder v. Home Savings of America, et al. Krumme v. American Mortgage Network Valencia v. Home Savings Mortgage Schwartz v. Benchmark Lending Group Welch v. Casa Blanca Mortgage, Inc. Marshell v. IMPAC Funding Corp. Soloko v. Western Capital Mortgage Love v. First Mortgage Corporation Rohrmann v. First Metropolitan Funding Bagsby v. Stearns Lending, Inc. Bigverdi v. Countrywide Bank FSB Ly v. Gateway Business Bank Carroll v. Homecomings Financial LLC Boschma v. Home Loan Center, Inc. Gamelin v. Homefield Financial, Inc. Spicer v. IndyMac Bank FSB Guadiz v. MortgageIt, Inc. Swan v. Steward Financial, Inc. Cohen v. SCME Mortgage Bankers, Inc. Dubose v. Just Mortgage, Inc. Garrison v. Greenpoint Mortgage Funding Solof v. Washington Mutual Bank Yniguez v. Washington Mutual Bank Velazquez v. GMAC Mortgage Corporation Jackson v. Nationwide Discount Homeloans 15 2:07-cv-5521 AG 2:07-cv-7050 AG 2:07-cv-7051 AG 2:07-cv-7048 AG 2:07-cv-7049 AG 2:08-cv-0781 AG 2:08-cv-0783 AG 5:07-cv-1290 AG 8:08-cv-0012 AG 5:08-cv-0060 AG 2:08-cv-0313 AG 2:08-cv-0674 AG 2:07-cv-3454 AHS 2:07-cv-3772 AHS 2:07-cv-3775 AHS 8:07-cv-0613 AHS 8:07-cv-0612 AHS 2:07-cv-3456 AHS 2:07-cv-3782 AHS 2:07-cv-3459 AHS 2:07-cv-3778 AHS 2:08-cv-0133 AHS 2:07-cv-6490 AHS 2:07-cv-3451 R 2:07-cv-3137 R 2:08-cv-5444 DDP 5:08-cv-0063 AG

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Hill v. California Empire Financial Peel v. Brooks American Mortgage Corp. Tijerina v. American First Real Estate

5:08-cv-0056 VAP 8:08-cv-0049 JVS 5:08-cv-0055 SGL

NORTHERN DISTRICT OF CALIFORNIA O'Donnell v. Bank of America Corp. Plascencia v. Lending 1st Mortgage Jordan v. Paul Financial, LLC Amparan v. Plaza Home Mortgage 5:07-cv-4500 RMW 4:07-cv-4485 CW 3:07-cv-4496 SI 5:07-cv-4498 JF

Mandrigues v. World Savings, Inc. 5:07-cv-4497 JF (certified for multi-district treatment. The MDL transferee court is the Northern District of California, Hon. Jeremy Fogle.) Ralston v. Mortgage Investors Group Brooks v. ComUnity Lending, Inc. Romero v. First Magnus Financial Lymburner v. U.S. Financial Funds, Inc. 5:08-cv-0536 JF 5:07-cv-4501 JF 5:07-cv-4491 JF 3:08-cv-0325 EDL

SOUTHERN DISTRICT OF CALIFORNIA Christian v. American Sterling Bank Pence v. Union Fidelity Mortgage, Inc. STATE COURT Romero v. Bank of America XVII. 1. C-07-04500 (Fruin)/LASC 3:08-cv-0090 LAB 3:08-cv-0089 WQH

Compliance With Federal Procedure. The Court requires compliance with the Federal

Rules of Civil Procedure and the Local Rules of Practice for the Eastern District of California. To aid the court in the

efficient administration of this case, all counsel are directed to familiarize themselves with the Federal Rules of Civil Procedure and the Local Rules of Practice of the Eastern District of California, and keep abreast of any amendments thereto. /// 16

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

XVIII. 1.

Effect Of This Order. The foregoing order represents the best

estimate of the court and counsel as to the agenda most suitable to bring this case to resolution. The trial date reserved is If the parties determine at

specifically reserved for this case.

any time that the schedule outlined in this order cannot be met, counsel are ordered to notify the court immediately of that fact so that adjustments may be made, either by stipulation or by subsequent scheduling conference. 2. Stipulations extending the deadlines contained

herein will not be considered unless they are accompanied by affidavits or declarations, and where appropriate attached exhibits, which establish good cause for granting the relief requested. 3. Failure to comply with this order may result in

the imposition of sanctions.

IT IS SO ORDERED. Dated: April 20, 2009 emm0d6 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE

17