Witte v. Wells Fargo Home Mortgage et al

Filing 27

ORDER signed by Magistrate Judge Edmund F. Brennan on 02/02/17 ORDERING that Wells Fargo shall file within 5 days a declaration attesting to the authenticity of the submitted documents. Any further objection by plaintiff shall be filed within 5 days thereafter. Should Wells Fargo fail to file a declaration, its request for judicial notice will be denied. Upon the filing of any declaration and objection, the matter ( 8 Motion to Dismiss) will stand resubmitted. (Benson, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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THOMAS WITTE,

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No. 2:16-cv-691-KJM-EFB PS

Plaintiff,
v.

ORDER

WELLS FARGO HOME MORTGAGE;
WACHOVIA MORTGAGE; WELLS
FARGO BANK, NA,
Defendants.

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Defendant Wells Fargo Bank, N.A. (“Wells Fargo”) filed a request for judicial notice in

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conjunction with its pending motion to dismiss pursuant to Federal Rule of Civil Procedure

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12(b)(6). ECF No. 8-1. Wells Fargo seeks judicial notice of public records filed in the

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Sacramento County Recorder’s Office, court documents from the Sacramento County Superior

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Court, and letters from the Office of Thrift Supervision and Comptroller of the Currency. Id.

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However, as plaintiff has pointed out in his objections to the request, Wells Fargo has not

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submitted a foundational declaration attesting that it has submitted true and accurate copies of

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these public record documents nor has it cited to any official website where the records can be

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examined to determine that fact. Wells Fargo’s counsel states in the request that the documents

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submitted “are true and correct copies,” id. at 3-4, but no foundational declaration in support of

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that representation has been filed.
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Plaintiff has asserted objections challenging the authenticity of the submitted documents,

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ECF No. 9 at 3, and it is Wells Fargo’s burden to lay a proper foundation to support its request.

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In light of plaintiff’s objections judicial notice is inappropriate absent a declaration certifying the

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authenticity of the documents. See Rodriguez v. Wells Fargo Bank, N.A., 2011 WL 6304152, at

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*2 (“. . . Wells Fargo did not attach an affidavit certifying the authenticity of the documents or

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argue that such materials are self-authenticating.”).

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Accordingly, Wells Fargo shall file, within 5 days of the date of this order, a declaration

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attesting to the authenticity of the submitted documents. Any further objection by plaintiff shall

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be filed within 5 days thereafter. Should Wells Fargo fail to file a declaration, its request for

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judicial notice will be denied.
Upon the filing of any declaration and objection, the matter will stand resubmitted.
DATED: February 2, 2017.

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