Ahmad v. Wells Fargo Bank N.A. et al

Filing 73

ORDER signed by Judge John A. Mendez on 12/13/2011 ORDERING that the 72 Motion for Reconsideration filed 12/6/2011 is DENIED. The Court's 7/1/2011 order dismissing Plaintiffs Second Amended Complaint with prejudice is REAFFIRMED. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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NADEEM AHMAD,

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Plaintiff,
v.

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Wells Fargo Bank N.A., et al.,
Defendants.

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Case No. 2:09-CV-1200 JAM-DAD
ORDER DENYING PLAINTIFF’S
MOTION FOR RECONSIDERATION

This matter was referred to a United States Magistrate Judge

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pursuant to Local Rule 302(c)(21).

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Magistrate Judge filed Findings and Recommendations which were

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served on the parties (Doc. # 62).

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Recommendations were filed (Doc. # 66).

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Findings and Recommendations and dismissed this matter with

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prejudice by an order filed on July 1, 2011 (Doc. # 68).

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On March 30, 2011, the

Objections to the Findings and
The Court then adopted the

Plaintiff Nadeem Ahmad (“Plaintiff”) then filed the present

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Motion for Reconsideration (“M.R.”) of the Court’s order adopting

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the Magistrate Judge’s Findings and Recommendations on December 6,

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2011 (Doc. # 72).
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28 U.S.C. § 636(b) and E.D. Local Rule 303 govern the standard

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for a Motion for Reconsideration.

The district court “may

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reconsider any pretrial matter . . . where it has been shown that

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the Magistrate Judge’s order is clearly erroneous or contrary to

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law.”

28 U.S.C. § 363(b)(1)A); E.D. Local Rule 303(f).

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In this case, the present motion does not ask the Court to

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reconsider the Magistrate Judge’s order, but instead asks the Court

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to reconsider its own order dismissing Plaintiff’s claims with

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prejudice.

Thus, the substance of this motion is properly

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characterized as an Application for Reconsideration pursuant to

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Local Rule 230(j), which permits a litigant to seek reconsideration

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of any motion.

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document filed pro se is to be liberally construed . . . .”)

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(internal quotations omitted).

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seeking reconsideration must present an affidavit or brief setting

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forth the following items:

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See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A

Under Local Rule 230(j) the party

1. when and to what Judge . . . the prior motion was
made;
2. what ruling, decision, or order was made thereon;
3. what new or different facts or circumstances are
claimed to exist which did not exist or were not
shown upon prior motion, or what other grounds
exist for the motion; and
4. why the facts or circumstances were not shown at
the time of the prior motion.
L.R. 230(j).
In the present matter, Plaintiff only claims that the

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Magistrate Judge’s Findings and Recommendations ignored the alleged

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fact that a Substitution of Trustee substituting Defendant Loanstar

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as the Trustee of the Deed of Trust for Plaintiff’s mortgage was

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fraudulent.

M.R., at 5-6.

The Magistrate Judge’s Findings and
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Recommendations as adopted by the Court, however, deal with this

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specific issue.

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Recommendations indicate that Plaintiff did not allege “the ability

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to tender the entire amount due on the mortgage loan to the

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lender.”

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fails because there was no allegation that Plaintiff can tender the

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full amount of the loan to the mortgagee, making any procedural

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deficiency in the trustee’s sale or accompanying documentation

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irrelevant.

Section I of the Magistrate Judge’s Findings and

Findings & Recommendations, at 7.

Plaintiff’s claim

See Somera v. Indymac Federal Bank, FSB, No. 2:09-cv-

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1947-FCD-DAD, 2010 WL 761221, at *8 (E.D. Cal. Mar. 3, 2010)

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(collecting authority).

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Magistrate Judge’s Findings and Recommendations was legally sound

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and it is now reaffirmed.

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Thus the Court’s prior order adopting the

Additionally, the Court’s prior order did consider the

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allegation that the Substitution of Trustee was invalid.

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Accordingly, Plaintiff has not satisfied Local Rule 203(j) by

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presenting new or different facts or circumstances that were not

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shown at the time of the Court’s previous order.

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ORDER

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For the reasons set forth above,

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denied; and

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2.

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The Motion for Reconsideration filed December 6, 2011 is

The Court’s July 1, 2011 order dismissing Plaintiff’s

Second Amended Complaint with prejudice is reaffirmed.

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IT IS SO ORDERED.
Dated: December 13, 2011
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JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE