Tamburri v. Suntrust Mortgage, Inc. et al

Filing 71

ORDER Requesting Supplemental Briefing. Signed by Judge Edward M. Chen on 11/1/2011. (emcsec, COURT STAFF) (Filed on 11/1/2011)

Download PDF
1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 DEBORAH TAMBURRI, 9 Plaintiff, v. 11 For the Northern District of California United States District Court 10 No. C-11-2899 EMC SUNTRUST MORTGAGE, INC., et al., 12 ORDER REQUESTING SUPPLEMENTAL BRIEFING Defendants. ___________________________________/ 13 14 15 At oral argument, the Court asked the parties why, even if Cal. Civ. Code § 2932.5 does not 16 apply to deeds of trust, Plaintiff would not still have a viable wrongful foreclosure claim. The Court 17 indicated that separate from § 2932.5, the entities initiating foreclosure (Recontrust and US Bank) 18 may not have had a valid interest in the subject property because, while the Notice of Default was 19 recorded on June 9, 2010, the assignment was not signed until June 10, 2010, and was not recorded 20 until June 21, 2010. The Court asked the parties why Plaintiff would not have a wrongful 21 foreclosure claim based on this timing problem. See Sacchi v. Mortgage Electronic Registration 22 Systems, Inc., No. CV 11-1658 AHM (CWx), 2011 WL 2533029, at *5-6 (C.D. Cal. June 24, 2011) 23 (holding that plaintiff had stated a plausible claim for relief against an entity that had "no beneficial 24 interest in the Deed of Trust when it acted to foreclose on Plaintiffs' home."); Ohlendorf v. Am. 25 Home Mortg., No. Civ. S-09-2081 LKK/EFB, 2010 U.S. Dist. LEXIS 31098, at *23 (E.D. Cal. 26 March 31, 2010) ("[T]he process of recording assignments with backdated effective dates may be 27 improper, and thereby taint the notice of default."). 28 1 Defendants' counsel responded that the sale point, rather than the initiation of foreclosure, is 2 what is relevant, implying that it may not matter whether the proper entity initiated foreclosure as 3 long as the proper party actually executes the foreclosure sale itself. Counsel requested the 4 opportunity to provide the Court with supplemental briefing on this issue. 5 Accordingly, the Court hereby orders the parties to provide supplemental briefing to the 6 Court as to whether a wrongful foreclosure or other claim for relief could be brought if the wrong 7 party initiates foreclosure. The parties shall also address whether, in this case, the wrong party 8 initiated foreclosure where a backdated assignment was not signed or recorded until after the Notice 9 of Default was recorded. The parties shall file briefs of no more than seven (7) pages by November 8, 2011. 11 For the Northern District of California United States District Court 10 12 IT IS SO ORDERED. 13 14 Dated: November 1, 2011 15 _________________________ EDWARD M. CHEN United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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?