Hernandez v. Bank of America, Countrywide

Filing 15

ORDER Directing Plaintiff's Counsel to Serve this Order on Plaintiff and GRANTING Additional Time to File Opposition of Notice of Opposition, signed by Judge Oliver W. Wanger on 4/1/2011. (Kusamura, W)

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 modification request. UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

MARICELA VERDE HERNANDEZ, Plaintiff, v. BANK OF AMERICA, COUNTRYWIDE, Defendants.

1:11-cv-00001 OWW JLT ORDER DIRECTING PLAINTIFF'S COUNSEL TO SERVE THIS ORDER ON PLAINTIFF AND GRANTING ADDITIONAL TIME TO FILE OPPOSITION OR NOTICE OF OPPOSITION

I. INTRODUCTION This action concerns real property located at 6651 Via Del Mar, Bakersfield, California 93307 ("Subject Property"). appears from the Complaint that Plaintiff, Maricela Verde Herndandez, purchased the property on or about June 23, 2006 financed through a loan from "Countrywide, Bank of America." Doc. 1, Compl. ¶ 12. At some point, Plaintiff "began It

experiencing financial difficulties," and requested a loan modification from her lender.

Id. at ¶¶ 14-15.

The lender

requested additional information regarding Plaintiff's

Id. at ¶ 17.

On June 14, 2010, Bank of

America informed Plaintiff that it had "completed its review" of her modification request, but the results of that review are not 1

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articulated in the complaint.

Id. at ¶ 18.

Plaintiff appears to

allege that she and Defendant entered into an agreement to modify the loan, but the property was sold at auction on June 16, 2010.

See id.
Plaintiff, through counsel, requested rescission of the sale, which request was apparently denied.

See id. at ¶ 22.

Subsequently, Plaintiff filed a Complaint for Damages in the Superior Court for the "County of Bakersfield," which was accepted for filing by the Superior Court, Metropolitan Division, County of Kern, on December 8, 2010. The Complaint alleges

twelve state causes of action1 and various violations of federal law.

See Compl. at ¶ 19 (alleging violations of "12 U.S.C., 12

C.F.R., 15 U.S.C."); 4:27-5:4 (alleging a violation of the UCL "predicated upon Violations of [the Truth in Lending Act ("TILA")]"); 17:15 (seeking relief under TILA). On January 3, 2011, Defendant BAC Home Loans, erroneously sued as Bank of America, Countrywide, timely and properly removed pursuant to 28 U.S.C. § 1446(a), based upon federal question jurisdiction. Doc. 1. Defendant subsequently noticed for

hearing on March 14, 2011 a motion for judgment on the pleadings, or in the alternative for summary judgment.
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Doc. 8.

That

1. Breach of Contract; 2. Violation of California Business & Professions Code §§ 17200-17500, et seq.; 3. Breach of the Covenant of Good Faith and Fair Dealing; 4. Fraud and Intentional Misrepresentation of Fact; 5. Negligent Misrepresentation of the Fact; 6. Unlawful Business Practices (Cal. Fin. Code § 22302); 8. Cancellation and Vacation of Foreclosure Sale; 9. Quiet Title; 10. Fraudulent Inducement; 11. Intentional Infliction of Emotional Distress; 12. Negligent Infliction of Emotional Distress.

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hearing was continued to March 21, 2011.

Doc. 10.

Notice of the

new hearing date was served by U.S. Mail on Plaintiff's counsel.

See Docket Entry Dated 1/27/11.

Plaintiff, who is represented by

counsel, Emeka Godfrey Onwualu, failed to file any opposition.

See Doc. 13.

A March 15, 2010 minute order took the matter off

calendar and submitted the motion for judgment on the pleadings for decision on the papers. Doc. 14. The minute order was

served via U.S. Mail on Plaintiff's counsel. Dated 3/15/11.

See Docket Entry

Defendant's motion for summary judgment directs the court's attention to evidence suggesting Defendant is entitled to judgment on every claim in the case. To defeat a properly made

motion for summary judgment, the non-moving party must show there exists a genuine dispute (or issue) of material fact.

Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)).

A fact is

"material" if it "might affect the outcome of the suit under the governing law."

Id. at 248.

The Court is concerned that Plaintiffs' counsel has yet to enter an appearance in this case and failed to file any opposition or notice of non-opposition as is required by the local rules. E.D.C.A. Local Rule 78-230(c). In an abundance of

caution, the Court instructs Plaintiffs' counsel to serve a copy of this order on Plaintiff and return proof of service to the Court. Plaintiff will be afforded an additional fifteen (15) 3

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days from electronic service of this order on Plaintiff's counsel to inform the court whether or not Plaintiff intends to oppose the motion. If Plaintiff does not intend to oppose the motion

Plaintiff's counsel shall file a notice of non-opposition with the Court. See E.D.C.A. Local Rule 78-230(c).

SO ORDERED Dated: April 1, 2011 /s/ Oliver W. Wanger United States District Judge

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