Becker et al v. Wells Fargo Bank, NA, Inc. et al

Filing 87

ORDER signed by Judge Lawrence K. Karlton on 3/29/2012 DENYING 59 Motion for Reconsideration. This matter is returned to the Magistrate Judge for further proceedings. (Donati, J)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DENNLY R. BECKER, THE
BECKER TRUST DATED
MARCH 25, 1991,

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NO. CIV. S-10-2799 LKK/KJN
Plaintiffs,

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v.

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O R D E R
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WELLS FARGO BANK, N.A.,
WACHOVIA MORTGAGE
CORPORATION; DOES 1-20,

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Defendants.
/

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Plaintiff moves for reconsideration of the court’s August 1,

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2008 order.

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denied.

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I.

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For the reasons set forth below, the motion will be

BACKGROUND
Plaintiff Dennly R. Becker obtained several mortgages from

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“World Savings,” starting around 1983.

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mortgages are now owned by Wells Fargo Bank, N.A. and serviced by

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Wachovia

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defendants in state court, which the defendants removed here on the

Mortgage

Corp.

Plaintiff

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He alleges that the

filed

an

action

against

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basis of diversity jurisdiction.

In his First Amended Complaint,

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plaintiff added federal claims.

Defendants moved to dismiss,

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asserting federal preemption, among other grounds.

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On March 22, 2011, the Magistrate Judge issued an order

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granting defendants’ motion to dismiss several claims, but did so

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without prejudice.1

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of the Magistrate’s order.

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Findings and Recommendations that recommended that several other

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claims be dismissed with prejudice.

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Plaintiff filed a request for reconsideration
The Magistrate Judge also filed

On August 1, 2008 this court issued an order that adopted the

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Magistrate’s Findings and Recommendations in full.

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expressly found that plaintiff could not amend his complaint “to

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add allegations that his mortgages were somehow transferred to or

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acquired

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preempted by the Home Owners’ Lending Act (“HOLA”), 12 U.S.C. §§

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1461, et seq., and regulations.

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plaintiff’s reconsideration motion in part, but only to the extent

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that plaintiff would be permitted to add facts to an amended

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complaint in support of his claim under the Real Estate Settlement

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Procedures Act (“RESPA”).

by

unknown

entities,”

because

such

claims

This court

would

be

However, this court also granted

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Plaintiff has now filed this motion for reconsideration of the

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court’s reconsideration order, asserting that the court committed

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“clear error” in the court’s analysis of HOLA preemption.

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Defendants declined to consent to proceed before the
Magistrate Judge. Since plaintiff is proceeding pro per, however,
the Magistrate Judge was authorized to proceed by E.D. Cal.
R. 302(c)(21).
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II.

RECONSIDERATION STANDARD

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Before reconsideration may be granted there must be a change

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in the controlling law, facts, or other circumstances, the need to

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correct a clear error, or the need to prevent manifest injustice.

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U.S. v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997).

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motions to alter or amend a judgment made pursuant to Fed.R.Civ.P.

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59(a), motions to reconsider are not vehicles permitting the

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unsuccessful party to “rehash” arguments previously presented. Nor

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is a motion to reconsider justified on the basis of new evidence

As with

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which could have been discovered prior to the court's ruling.

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Finally, “after thoughts” or “shifting of ground” do not constitute

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an appropriate basis for reconsideration.

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III. ANALYSIS

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Plaintiff argues that he reaches a “different conclusion” than

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the court does on the meaning of Silvas v. E*Trade Marketing, 514

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F.3d 1001 (9th Cir. 2008) and 12 C.F.R. § 560.2(b)(10).

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nothing in plaintiff’s motion establishes error in the court’s

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reading of Section 560.2(b)(10) to preempt claims based upon the

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“‘sale, transfer, acquisition, and/or investment in Plaintiff’s

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mortgages.’”

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Section 560.2(b)(10) expressly preempts claims that are based upon

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the “sale or purchase of ... mortgages.”2

As

discussed

in

the

court’s

However,

order,

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The court requested further briefing from the parties on
whether HOLA preemption applied in this case. Dkt. No. 82. Both
parties’ briefing papers advise the court that HOLA preemption does
apply, and the court detects no clear error in its determination
to apply the HOLA standard.
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Moreover,

Section

560.2

preemption

is

known

as

“field

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preemption,” which has been described as “‘the pinnacle of federal

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preemption.’”

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Cir. 2011).

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preemption regime set forth in Section 560.2, they are “interpreted

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narrowly,”

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preemption.”

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IV.

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Aguayo v. U.S. Bank, 653 F.3d 912, 921 (9th
Although there are exceptions to the pervasive

and

“[a]ny

doubt

should

be

resolved

in

favor

of

Id.

CONCLUSION
For the reasons set forth above, and in the court’s August 1,

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2011 order:

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DENIED;

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Plaintiff’s motion for reconsideration (Dkt. No. 59), is

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This matter is returned to the Magistrate Judge for
further proceedings.

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IT IS SO ORDERED.

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DATED:

March 29, 2012.

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