Sullivan v. Washington Mutual Bank FA et al

Filing 92

ORDER DIRECTING COUNSEL TO APPEAR IN PERSON AT CMC ON 8/24/12 at 11:30 am. Signed by Judge Edward M. Chen on 8/22/12. (bpf, COURT STAFF) (Filed on 8/22/2012)

Download PDF
1 2 3 4 5 Brian McCauley (CA Bar No. 66762) J. BRIAN McCAULEY, Prof. Corp. 425 California Street, Suite 1700 San Francisco, CA 94104 Tel: (415) 974-1515 Fax: (415) 543-0125 Attorneys for Plaintiff Katy Sullivan, aka Katy Marie Sullivan 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 10 11 KATY SULLIVAN, also known as KATY MARIE SULLIVAN, CASE NO.: CV 09-2161 EMC CASE MANAGEMENT STATEMENT 12 Plaintiff, Court Conference Call: August 24, 2012; 11:30 a.m. 13 v. 14 WASHINGTON MUTUAL BANK, FA, JP MORGAN CHASE BANK, National Association, BANK OF AMERICA, National Association, LASALLE BANK, National Association CALIFORNIA RECONVEYANCE COMPANY; and Does 1 through 50, inclusive, 15 16 17 18 Trial Date: None Action Filed: April 22, 2009 California Superior Court, San Francisco Case No.: CGC 09-487634 Defendants. ORDER DIRECTING PARTIES TO APPEAR IN PERSON 19 20 21 TO THE CLERK OF THE ABOVE-ENTITLED COURT: 22 Plaintiff Katy Sullivan (“Plaintiff”) hereby submits this Case Management Statement in 23 preparation for the Court’s conference call on the status of a pending real estate sale, currently set for 24 Friday, August 24, 2012. 25 1. 26 27 Jurisdiction and Service Plaintiff has named the following as defendants: WASHINGTON MUTUAL BANK, FA, JPMORGAN CHASE BANK, National Association, BANK OF AMERICA, National Association, 28 1 2026911.1 1 LASALLE BANK, National Association, CALIFORNIA RECONVEYANCE COMPANY; and 2 Does 1 through 50, inclusive. 3 This court has jurisdiction, because Plaintiff, in the initial complaint, alleges violations of the 4 Federal Truth in Lending Act (“TILA”). See, Complaint. 5 2. 6 Status of the Case and Changes Since Previous Joint Statement: Plaintiff seeks statutory damages under TILA, as well as general damages. Plaintiff also 7 seeks rescission under TILA. According to Plaintiff, Defendants failed to make certain disclosures 8 required under the TILA at the time the subject loan was issued to Plaintiff. 9 that Defendants falsely represented the nature of the loan. Defendants deny these allegations and 10 contend that they did not participate in the lending process which is the subject of Plaintiff’s legal 11 action. 12 B. 13 Plaintiff also contends Disclosures: The parties have provided initial disclosures. 14 D. Discovery: 15 The Parties have accomplished only very limited discovery, which is currently stayed 16 pending efforts to sell half of the real estate in question and settle remaining issues; both parties plan 17 to conduct substantial discovery in the event that the settlement efforts are not successful, including 18 depositions of witnesses for both sides. 19 D. Settlement and ADR: 20 This action has attempted sale of one of the two condominium units which are the 21 subject of this Truth in Lending case, in order to reduce the existing loan and thereafter settle the 22 remaining issues by setting of reduced principal balance and/or modified terms thereon. The Parties 23 mediated this initially during December, 2009, but were unsuccessful. The mediating Defendants 24 requested further information from Plaintiff regarding financial and income matters (including 3 or 4 25 “short sale packages”); such were supplied. Over the past fifteen months, some five (5) offers for 26 the property have been received, with several financial packages being provided by Plaintiff to 27 Defendants’ counsel. During that same period, at least five (5) appraisals of the unit sought to be 28 sold have been engaged, inspections performed and believed completed. The market value of the 2 2026911.1 1 condominium unit for sale is believed to be at $500,000, although $515,000 or even $525,000 may 2 be attainable if a buyer had any confidence that a “short sale” approval would be forthcoming. 3 Defendants have not yet approved (or disapproved) a sale, notwithstanding the fact that all net 4 proceeds of the sale are to be paid to them; they have requested documents, appraisals, and estimated 5 settlement statements. Plaintiff has not conditioned her sale on any terms for payment of the 6 remaining, contended balance after the sale of the first condominium, or otherwise obstructed the 7 sale and payment of proceeds to defendants. For this latest offer, Defendants requested a “short sale 8 package”, which request was made on Friday, June 22. Plaintiff provided the completed package on 9 Monday, June 25. Further appraisal efforts occurred during the week just prior to the most recent 10 CMC appearance in this Court. Defendants were provided with an estimated escrow settlement 11 statement; Defendants requested that it instead be provided on a HUD-1 form, which was done. 12 The purchasers for this latest offer advised that if the approval was not obtained by the date 13 of the most recent CMC, that their offer would likely be withdrawn. Unfortunately, that indeed 14 happened; Buyer has withdrawn their offer within the past few days. 15 Defendants’ counsel has, during the morning of filing this Statement, advised that defendants 16 have two issues on which to confer and agree before an approval – whether to credit the sale 17 proceeds against loan principal (it is believed that defendants would likely consent to crediting 18 principal), and to confirm that an existing, junior “equity line” deed of trust (“HELOC”) can be 19 simply shifted over to the remaining condominium. Plaintiff, for her part, indeed prefers that the 20 proceeds of this sale be applied to principal and also believes that the HELOC (also made by one of 21 the defendants) be shifted onto just the remaining condominium after sale; she has kept that HELOC 22 current throughout this litigation. 23 Plaintiff is informed that if a “short sale” of $500,000, or even $515,000 or $525,000 is pre- 24 approved, the property will very likely receive an offer and close. The simple hurdle to closing the 25 sale and achieving a partial paydown, with remaining security for resulting, remaining balance 26 (albeit probably inadequate to cover defendants’ contended balance) is now that the property has 27 been on the market for over a year and there has at no time been adherence to any firm, reasonable 28 time to review and comment, much less approve. 3 2026911.1 1 This CMC Statement is submitted by Plaintiff’s counsel after receiving the above-mentioned 2 response from Defendants’ counsel this morning, which detailed the two remaining issues for his 3 clients. Defendants’ counsel also advised that he is involved with several ongoing trial efforts and 4 thus has been seriously pressured. Any statement made in this Statement is made without any 5 implication that Defendants are in complete agreement with its contents, although it correctly relates 6 the undersigned counsel’s understanding of the state of this matter. 7 Plaintiff respectfully suggests that the settlement conference currently set for September 8 2012 be retained; the upcoming conference call is requested to consider Defendants’ position on 9 these issues and some means of getting a prompt response from Defendants unless the same isn’t 10 available at that time. 11 Respectfully submitted, 12 13 14 DATED: August 21, 2012 15 By: /s/ J. Brian McCauley J. BRIAN MCCAULEY, ESQ.. Attorneys for Plaintiff, KATY SULLIVAN 16 17 18 RT U O NO 25 RT 26 ER H 27 dward Judge E 28 R NIA 24 DERED SO OR ED IT IS DIFI AS MO n M. Che FO 23 LI 22 ___________________DISTRIC ES TC Edward M. Chen T A T U.S. District Judge A 21 S 20 IT IS SO ORDERED that counsel are ordered to appear IN PERSON at the Further CMC on 8/24/12 at 11:30 a.m. UNIT ED 19 N F D IS T IC T O R C 4 2026911.1

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?