Murphy v. Wells Fargo Bank, N.A. et al

Filing 57

ORDER AFFORDING PARTIES LEAVE TO FILE SUPPLEMENTAL BRIEFING; CONTINUING HEARING. Murphy is hereby afforded leave to file supplemental opposition no later than November 18, 2011. In the event that Murphy files supplemental opposition, Wells Fargo is hereby afforded leave to file a supplemental reply no later than December 2, 2011. The hearing scheduled for November 4, 2011 is continued to December 16, 2011. Signed by Judge Maxine M. Chesney on November 1, 2011. (mmclc2, COURT STAFF) (Filed on 11/1/2011) (Additional attachment(s) added on 11/1/2011: # 1 Certificate of Service) (tlS, COURT STAFF).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

For the Northern District of California

United States District Court

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KAREN JO MURPHY,

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Plaintiff,
v.

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ORDER AFFORDING PARTIES LEAVE
TO FILE SUPPLEMENTAL BRIEFING;
CONTINUING HEARING

WELLS FARGO BANK, N.A.; WACHOVIA
MORTGAGE, a division of WELLS FARGO
BANK, N.A., and formerly known as
WACHOVIA MORTGAGE, FSB, formerly
known as WORLD SAVINGS BANK, FSB;
and DOES 1-50, inclusive,

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No. C 10-5837 MMC

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Defendants.

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Before the Court is the motion of defendant Wells Fargo Bank, N.A. (“Wells Fargo”),
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filed August 22, 2011, to dismiss plaintiff Karen Jo Murphy’s (“Murphy”) Second Amended
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Complaint (“SAC”); Murphy has filed opposition thereto, to which Wells Fargo has replied.
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Also before the Court is Wells Fargo’s motion, likewise filed August 22, 2011, to strike
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portions of the SAC; Murphy has filed a separate opposition thereto, to which Wells Fargo
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has not replied. The Court has read and considered the papers filed in support of and in
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opposition to the motions, and, as discussed below, finds it is appropriate to afford the
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parties leave to file supplemental briefing with respect to the Second Cause of Action.
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Although not raised by the parties, it would appear that Murphy’s Second Cause of
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Action, Quiet Title, is not a viable claim where, as here, a foreclosure and sale already have

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occurred. (See Second Am. Compl. at 3:17-18 (alleging that “[i]n or around June of 2010,"

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foreclosure was “completed”)); see also Distor v. U.S. Bank NA, No. C 09-02086 SI, 2009

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WL 3429700, at *6 (N.D. Cal. Oct. 22, 2009) (holding, “because the property has already

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been sold, quiet title is no longer an appropriate action to seek to undo the foreclosure”);

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Lopez v. Chase Home Fin., LLC, No. CV F 09-0449, 2009 WL 981676, at *7 (E.D. Cal. Apr.

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9, 2009) (noting, “[i]f the foreclosure is successful, title will change, and the quiet title claim

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is an improper means to challenge foreclosure”).

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Accordingly, Murphy is hereby afforded leave to file supplemental opposition, no

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later than November 18, 2011, and not to exceed seven pages in length exclusive of

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exhibits, to address the issue of whether she can proceed on her quiet title claim as a

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means to challenge a foreclosure sale that has already occurred. In the event that Murphy

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files supplemental opposition, Wells Fargo is hereby afforded leave to file a supplemental

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reply, no later than December 2, 2011, and not to exceed five pages in length exclusive of

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exhibits.

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In light of the above, the hearing scheduled for November 4, 2011 is hereby
CONTINUED to December 16, 2011.
IT IS SO ORDERED.

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Dated: November 1, 2011
MAXINE M. CHESNEY
United States District Judge

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