Shirley v. WACHOVIA MORTGAGE FSB et al

Filing 45

STIPULATION AND ORDER Final Pretrial Conference set for 5/25/2012 10:00 AM in Courtroom 1, 17th Floor, San Francisco. Jury Selection set for 6/4/2012 10:00 AM in Courtroom 1, 17th Floor, San Francisco before Hon. Samuel Conti. Jury Trial set for 6/ 4/2012 09:30 AM in Courtroom 1, 17th Floor, San Francisco before Hon. Samuel Conti. Motion Hearing set for 4/6/2012 10:00 AM in Courtroom 1, 17th Floor, San Francisco before Hon. Samuel Conti.. Signed by Judge Samuel Conti on 10/24/11. (tdm, COURT STAFF) (Filed on 10/24/2011)

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Ryan Thomas (#230491)
[e-mail]
Roy N. Johnston (#185409)
[e-mail]
JOHNSTON THOMAS, Attorneys at Law
1400 N. Dutton Avenue, Suite 21
Santa Rosa, CA 95401
Tel: [phone] | Fax: [phone]
Attorneys for Plaintiffs,
John Shirley, individually and as trustee of the
John F. Shirley and Julie E. Shirley 2003
Trust and Julie Shirley
Mark T. Flewelling (#96465)
[e-mail]
Michael Rapkine (#222811)
[e-mail]
ANGLIN, FLEWELLING, RASMUSSEN
CAMPBELL & TRYTTEN, LLP
199 South Los Robles Avenue, Suite 600
Pasadena, CA 91101
Tel: [phone] | Fax: [phone]
Attorneys for Defendant and Third Party Complainant,
Wachovia Mortgage, a division of Wells Fargo Bank,
N.A., f/k/a Wachovia Mortgage, FSB (“Wachovia”)
Daniel M. Livingston (#105981)
[e-mail]
Alisha M. Louie (#240863)
[e-mail]
PAYNE & FEARS LLP
4 Park Plaza, Suite 1100
Irvine, CA 92614
Tel: [phone] | Fax: [phone]
Attorneys for Third Party Defendants
LSI Title Company, Lender Processing Services, Inc.
and Fidelity National Information Services, Inc.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA – SAN FRANCISCO DIVISION

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JOHN SHIRLEY, individually and as trustee
of the JOHN F. SHIRLEY and JULIE E.
SHIRLEY 2003 TRUST and JULIE
SHIRLEY,
Plaintiffs,

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vs.
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WACHOVIA MORTGAGE FSB, WELLS
FARGO BANK N.A. and DOES 1-10,

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Defendants.
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Case No. 3:10-cv-03870-SC
[Assigned to the Honorable Samuel Conti]
JOINT STIPULATION AND ORDER
GRANTING CONTINUANCE OF TRIAL
AND ASSOCIATED DEADLINES

JOINT STIPULATION
CASE NO. 3:10-CV-03870-SC

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WACHOVIA MORTGAGE, a division of
Wells Fargo Bank, N.A., formerly known as
Wachovia Mortgage, FSB,

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Third Party Complainant, )
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vs.
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LSI TITLE COMPANY; LENDER
PROCESSING SERVICES, INC.; FIDELITY )
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NATIONAL INFORMATION SERVICES,
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INC.; and ROES 1 through 10, inclusive,
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Third Party Defendants.
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TO THE HONORABLE COURT:
Pursuant to Local Rules 6-2, 7-12, and 40-1, plaintiffs John Shirley (individually and as

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trustee of the John F. Shirley and Julie E. Shirley 2003 Trust) and Julie Shirley, individually

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(“plaintiffs”), defendant and third party complainant Wachovia Mortgage, a division of Wells

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Fargo Bank, N.A., formerly known as Wachovia Mortgage, FSB (“Wachovia”), and third party

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defendants LSI Title Company, Lender Processing Services, Inc., and Fidelity National

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Information Services, Inc. (the “third party defendants”) (collectively, the “parties”) seek an order

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resetting existing case deadlines and the trial date. Grounds for the request are set forth in the

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following recitals.

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RECITALS
A.

On August 26, 2011, plaintiffs and Wachovia filed a joint stipulation that

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requested leave of court allowing Wachovia to file a third party complaint that would bring the

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third party defendants into this action. (Doc. 31). As noted in this stipulation, bringing the third

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party defendants into this suit served two critical functions. First, it served the interests of

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judicial economy, because the surviving claim in the First Amended Complaint and Wachovia’s

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claims against the third party defendants (as Wachovia’s closing agent) arise out of the same

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loan transaction and occurrence. A determination of all claims in one proceeding is necessary

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and appropriate to avoid the multiplicity of actions that would result if Wachovia were required
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JOINT STIPULATION
CASE NO. 3:10-CV-03870-SC

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to defend against plaintiffs’ claims and then litigate a separate action against the third party

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defendants for indemnification. Second, inclusion of all necessary defendants in this action will

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help facilitate serious settlement discussions.

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B.

On August 31, 2011, the Court issued an order that granted Wachovia leave to file

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a third party complaint by September 10, 2011. (Doc. 32). Wachovia filed and served its third

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party complaint on the third party defendants on September 8, 2011. (Docs. 33 - 36).

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C.

On October 5, 2011, Wachovia and the third party defendants filed a stipulation

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pursuant to Local Rule 6-1(a), allowing the third party defendants to file their response to

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Wachovia’s third party complaint by November 4, 2011. (Doc. 43). This will allow the response

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to be heard by the present cut-off for motion hearings in this case, which is set for December 9,

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2011. (Doc. 30).

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D.

As set forth in the accompanying Declaration of Michael Rapkine (“Rapkine

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Decl.”), counsel for the third party defendants has emphasized that given the fact that they were

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recently retained, it will not be possible to adequately prepare for trial should the present

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deadlines remain in place. (Rapkine Decl. ¶ 5). In addition, a continuance of the existing case

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schedule will allow the parties to engage in meaningful settlement discussions without the need

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for further motion practice.

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JOINT STIPULATION
CASE NO. 3:10-CV-03870-SC

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CERTIFICATE OF SERVICE

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I, the undersigned, declare that I am over the age of 18 and am not a party to this action.
I am employed in the City of Pasadena, California; my business address is Anglin, Flewelling,
Rasmussen, Campbell & Trytten LLP, 199 S. Los Robles Avenue, Suite 600, Pasadena,
California 91101-2459.

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On the date below, I served a copy of the following document entitled:

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JOINT STIPULATION AND ORDER GRANTING CONTINUANCE OF TRIAL AND
ASSOCIATED DEADLINES

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on all interested parties in said case addressed as follows:

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Served Electronically Via the Court’s CM/ECF System:

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Attorneys for Plaintiff

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Ryan Thomas, Esq.
Roy N. Johnston, Esq.
JOHNSTON | THOMAS
1400 N. Dutton Avenue, Suite 21
Santa Rosa, CA 95401
Tel.: [phone] | Fax: [phone]
Email: [e-mail]

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Served By Means Other Than Electronically Via the Court’s CM/ECF System:

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SEE ATTACHED SERVICE LIST

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(BY MAIL): I am readily familiar with the firm’s practice of collection and processing
correspondence by mailing. Under that same practice it would be deposited with U.S.
Postal Service on that same day with postage fully prepaid at Pasadena, California in the
ordinary course of business. I am aware that on motion of the party served, service is
presumed invalid if postal cancellation date or postage meter date is more than one day
after date of deposit for mailing in affidavit.
I declare under penalty of perjury under the laws of the United States of America that
the foregoing is true and correct. I declare that I am employed in the office of a member of
the Bar of this Court at whose direction the service was made. This declaration is executed in
Pasadena, California, on October 21, 2011.
/s/ Barbara Cruz
(Signature of Declarant)

Barbara Cruz
(Type or Print Name)

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CERTIFICATE OF SERVICE
CASE NO. 3:10-cv-03870-SC

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SERVICE LIST

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Attorneys for Third Party Defendants
LSI Title Company, Lender Processing Services, Inc.
and Fidelity National Information Services, Inc.
Daniel M. Livingston, Esq.
PAYNE & FEARS LLP
4 Park Plaza, Suite 1100
Irvine, CA 92614
Tel.: [phone] | Fax: [phone]
Email: [e-mail]

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Alisha M. Louie, Esq.
PAYNE & FEARS LLP
One Embarcadero Center, Suite 2300
San Francisco, CA 94111
Tel.: [phone] | Fax: [phone]
Email: [e-mail]

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CERTIFICATE OF SERVICE
CASE NO. 3:10-cv-03870-SC

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA – SAN FRANCISCO DIVISION

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JOHN SHIRLEY, individually and as trustee
of the JOHN F. SHIRLEY and JULIE E.
SHIRLEY 2003 TRUST and JULIE
SHIRLEY,

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Plaintiffs,
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vs.
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WACHOVIA MORTGAGE FSB, WELLS
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FARGO BANK N.A. and DOES 1-10,
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Defendants.
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WACHOVIA MORTGAGE, a division of
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Wells Fargo Bank, N.A., formerly known as
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Wachovia Mortgage, FSB,
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Third Party Complainant,
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vs.
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LSI TITLE COMPANY; LENDER
PROCESSING SERVICES, INC.; FIDELITY )
)
NATIONAL INFORMATION SERVICES,
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INC.; and ROES 1 through 10, inclusive,
)
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Third Party Defendants.
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)
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Case No. 3:10-cv-03870-SC
[Assigned to the Honorable Samuel Conti]
ORDER GRANTING CONTINUANCE OF
TRIAL AND ASSOCIATED DEADLINES

CASE NO. 3:10-CV-03870-SC
ORDER SETTING NEW DEADLINES

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Having read and considered the foregoing stipulation signed by all parties, and good cause
appearing:

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IT IS HEREBY ORDERED:

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amended schedule:

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Discovery Cutoff:

April 6, 2012

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Final Hearing Date For Motions: April 9, 2012

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Pretrial Conference:

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Commencement of Jury Trial:

April 6, 2012 @ 10:00 a.m.

May 28, 2012 May 25, 2012 @ 10:00 a.m.
June 6, 2012

June 4, 2012 @ 9:30 a.m.

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UNIT
ED

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Dated: October 24 , 2011

RT
U
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Judge S

RT

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onti

amuel C

NO

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A

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ER

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R NIA

HON. SAMUEL CONTIED
O DER
UNITEDISTATES R
T IS SO DISTRICT JUDGE

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FO

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S DISTRICT
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That all current case deadlines are vacated and the Court adopts the following

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F
D IS T IC T O
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CASE NO. 3:10-CV-03870-SC
ORDER SETTING NEW DEADLINES

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CERTIFICATE OF SERVICE

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I, the undersigned, declare that I am over the age of 18 and am not a party to this action.
I am employed in the City of Pasadena, California; my business address is Anglin, Flewelling,
Rasmussen, Campbell & Trytten LLP, 199 S. Los Robles Avenue, Suite 600, Pasadena,
California 91101-2459.

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On the date below, I served a copy of the following document entitled:
ORDER GRANTING CONTINUANCE OF TRIAL AND ASSOCIATED DEADLINES
on all interested parties in said case addressed as follows:
Served Electronically Via the Court’s CM/ECF System:

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Attorneys for Plaintiff

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Ryan Thomas, Esq.
Roy N. Johnston, Esq.
JOHNSTON | THOMAS
1400 N. Dutton Avenue, Suite 21
Santa Rosa, CA 95401
Tel.: [phone] | Fax: [phone]
Email: [e-mail]

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Served By Means Other Than Electronically Via the Court’s CM/ECF System:

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SEE ATTACHED SERVICE LIST

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(BY MAIL): I am readily familiar with the firm's practice of collection and processing
correspondence by mailing. Under that same practice it would be deposited with U.S.
Postal Service on that same day with postage fully prepaid at Pasadena, California in the
ordinary course of business. I am aware that on motion of the party served, service is
presumed invalid if postal cancellation date or postage meter date is more than one day
after date of deposit for mailing in affidavit.

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I declare under penalty of perjury under the laws of the United States of America that
the foregoing is true and correct. I declare that I am employed in the office of a member of
the Bar of this Court at whose direction the service was made. This declaration is executed in
Pasadena, California, on October 21, 2011.

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/s/ Barbara Cruz
(Signature of Declarant)

Barbara Cruz
(Type or Print Name)

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CASE NO. 3:10-cv-03870-SC
CERTIFICATE OF SERVICE

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SERVICE LIST

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Attorneys for Third Party Defendants
LSI Title Company, Lender Processing Services, Inc.
and Fidelity National Information Services, Inc.
Daniel M. Livingston, Esq.
PAYNE & FEARS LLP
4 Park Plaza, Suite 1100
Irvine, CA 92614
Tel.: [phone] | Fax: [phone]
Email: [e-mail]

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Alisha M. Louie, Esq.
PAYNE & FEARS LLP
One Embarcadero Center, Suite 2300
San Francisco, CA 94111
Tel.: [phone] | Fax: [phone]
Email: [e-mail]

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CASE NO. 3:10-cv-03870-SC
CERTIFICATE OF SERVICE

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Mark T. Flewelling (#96465)
[e-mail]
Michael Rapkine (#222811)
[e-mail]
ANGLIN, FLEWELLING, RASMUSSEN
CAMPBELL & TRYTTEN, LLP
199 South Los Robles Avenue, Suite 600
Pasadena, CA 91101
Tel: [phone] | Fax: [phone]
Attorneys for Defendant and Third Party Complainant,
Wachovia Mortgage, a division of Wells Fargo Bank,
N.A., f/k/a Wachovia Mortgage, FSB (“Wachovia”)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA – SAN FRANCISCO DIVISION

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JOHN SHIRLEY, individually and as
trustee of the JOHN F. SHIRLEY and
JULIE E. SHIRLEY 2003 TRUST and
JULIE SHIRLEY,

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)
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)
)
)
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Plaintiffs,
)
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vs.
)
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WACHOVIA MORTGAGE FSB, WELLS
)
FARGO BANK N.A. and DOES 1-10,
)
)
Defendants.
)
)
)
)
WACHOVIA MORTGAGE, a division of
)
Wells Fargo Bank, N.A., formerly known as
)
Wachovia Mortgage, FSB,
)
)
Third Party Complainant,
)
)
vs.
)
)
)
LSI TITLE COMPANY; LENDER
PROCESSING SERVICES, INC.; FIDELITY )
)
NATIONAL INFORMATION SERVICES,
)
INC.; and ROES 1 through 10, inclusive,
)
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Third Party Defendants. )
)

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Case No. 3:10-cv-03870-SC
[Assigned to the Honorable Samuel Conti]
DECLARATION OF MICHAEL
RAPKINE IN SUPPORT OF JOINT
STIPULATION AND ORDER
GRANTING CONTINUANCE OF TRIAL
AND ASSOCIATED DEADLINES

RAPKINE DECLARATION
CASE NO. 3:10-CV-03870-SC

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I, Michael Rapkine, declare:

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I am an attorney at law licensed before this Court and associated with the law firm

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of Anglin, Flewelling, Rasmussen, Campbell & Trytten LLP, counsel of record for defendant and

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third party complainant Wachovia Mortgage, a division of Wells Fargo Bank, N.A., formerly

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known as Wachovia Mortgage, FSB. (“Wachovia”). I make this declaration in support of the joint

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stipulation of all parties and proposed order granting a continuance of the trial date and associated

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deadlines.

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2.

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Having exhausted non-judicial alternatives in the hope of obtaining full

indemnification or partial indemnity towards a global settlement, Wachovia had no choice but to

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pursue its third party claims against the closing agent and affiliates (the “third party

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defendants”). On August 31, 2011, this Court issued an order that granted Wachovia leave to

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file a third party complaint by September 10, 2011. (Doc. 32). Wachovia filed and served its

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third party complaint on the third party defendants on September 8, 2011. (Docs. 33 - 36).

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3.

Pursuant to the current scheduling order in effect (Docs. 29 and 30), all discovery

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must be completed by December 6, 2011; all motions shall be heard by December 9, 2011; a pre-

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trial conference shall be held on January 27, 2012; and trial shall commence on February 6, 2012.

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4.

Given that the third party defendants just recently retained counsel, the undersigned

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respectfully requests that the existing case schedule be continued so that the third party defendants

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can assess their exposure, thereby allowing all parties to engage in meaningful settlement

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negotiations without the need for further motion practice.

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5.

More importantly, counsel for the third party defendants (Daniel M. Livingston of

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Payne & Fears, LLP) has emphasized that given the fact that they were recently retained, it will

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not be possible for his firm to adequately prepare for trial should the present case deadlines remain

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in place.

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6.

Pursuant to Local Rule 6-2(a)(2), this is the second request for a continuance in this

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action. Previously, plaintiff and Wachovia requested a one-month continuance of the hearing on

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Wachovia’s initial 12(b)(6) motion, which was granted by this Court. (Docs. 7 and 9).

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RAPKINE DECLARATION
CASE NO. 3:10-CV-03870-SC

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I declare under penalty of perjury under the laws of the United States and the State of

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California that the foregoing is true and correct. If called upon to testify, I would and could

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competently testify thereto.

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Executed this 21st day of October 2011, at Pasadena, California.

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/s/ Michael Rapkine
Michael Rapkine

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RAPKINE DECLARATION
CASE NO. 3:10-CV-03870-SC

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CERTIFICATE OF SERVICE

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I, the undersigned, declare that I am over the age of 18 and am not a party to this action.
I am employed in the City of Pasadena, California; my business address is Anglin, Flewelling,
Rasmussen, Campbell & Trytten LLP, 199 S. Los Robles Avenue, Suite 600, Pasadena,
California 91101-2459.
On the date below, I served a copy of the following document entitled:
DECLARATION OF MICHAEL RAPKINE IN SUPPORT OF
JOINT STIPULATION AND ORDER GRANTING CONTINUANCE
OF TRIAL AND ASSOCIATED DEADLINES
on all interested parties in said case addressed as follows:
Served Electronically Via the Court’s CM/ECF System:

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Attorneys for Plaintiff

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Ryan Thomas, Esq.
Roy N. Johnston, Esq.
JOHNSTON | THOMAS
1400 N. Dutton Avenue, Suite 21
Santa Rosa, CA 95401
Tel.: [phone] | Fax: [phone]
Email: [e-mail]

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Served By Means Other Than Electronically Via the Court’s CM/ECF System:

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SEE ATTACHED SERVICE LIST

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(BY MAIL): I am readily familiar with the firm’s practice of collection and processing
correspondence by mailing. Under that same practice it would be deposited with U.S.
Postal Service on that same day with postage fully prepaid at Pasadena, California in the
ordinary course of business. I am aware that on motion of the party served, service is
presumed invalid if postal cancellation date or postage meter date is more than one day
after date of deposit for mailing in affidavit.
I declare under penalty of perjury under the laws of the United States of America that
the foregoing is true and correct. I declare that I am employed in the office of a member of
the Bar of this Court at whose direction the service was made. This declaration is executed in
Pasadena, California, on October 21, 2011.
/s/ Barbara Cruz
(Signature of Declarant)

Barbara Cruz
(Type or Print Name)
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CASE NO. 3:10-cv-03870-SC
CERTIFICATE OF SERVICE

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SERVICE LIST

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Attorneys for Third Party Defendants
LSI Title Company, Lender Processing Services, Inc.
and Fidelity National Information Services, Inc.

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Daniel M. Livingston, Esq.
PAYNE & FEARS LLP
4 Park Plaza, Suite 1100
Irvine, CA 92614
Tel.: [phone] | Fax: [phone]
Email: [e-mail]

Alisha M. Louie, Esq.
PAYNE & FEARS LLP
One Embarcadero Center, Suite 2300
San Francisco, CA 94111
Tel.: [phone] | Fax: [phone]
Email: [e-mail]

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CASE NO. 3:10-cv-03870-SC
CERTIFICATE OF SERVICE