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)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DEBORAH TAMBURRI,

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Plaintiff,
v.

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For the Northern District of California

United States District Court

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No. C-11-2899 EMC

SUNTRUST MORTGAGE, INC., et al.,

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ORDER REQUESTING
SUPPLEMENTAL BRIEFING

Defendants.
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At oral argument, the Court asked the parties why, even if Cal. Civ. Code § 2932.5 does not

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apply to deeds of trust, Plaintiff would not still have a viable wrongful foreclosure claim. The Court

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indicated that separate from § 2932.5, the entities initiating foreclosure (Recontrust and US Bank)

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may not have had a valid interest in the subject property because, while the Notice of Default was

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recorded on June 9, 2010, the assignment was not signed until June 10, 2010, and was not recorded

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until June 21, 2010. The Court asked the parties why Plaintiff would not have a wrongful

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foreclosure claim based on this timing problem. See Sacchi v. Mortgage Electronic Registration

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Systems, Inc., No. CV 11-1658 AHM (CWx), 2011 WL 2533029, at *5-6 (C.D. Cal. June 24, 2011)

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(holding that plaintiff had stated a plausible claim for relief against an entity that had "no beneficial

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interest in the Deed of Trust when it acted to foreclose on Plaintiffs' home."); Ohlendorf v. Am.

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Home Mortg., No. Civ. S-09-2081 LKK/EFB, 2010 U.S. Dist. LEXIS 31098, at *23 (E.D. Cal.

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March 31, 2010) ("[T]he process of recording assignments with backdated effective dates may be

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improper, and thereby taint the notice of default.").

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Defendants' counsel responded that the sale point, rather than the initiation of foreclosure, is

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what is relevant, implying that it may not matter whether the proper entity initiated foreclosure as

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long as the proper party actually executes the foreclosure sale itself. Counsel requested the

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opportunity to provide the Court with supplemental briefing on this issue.

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Accordingly, the Court hereby orders the parties to provide supplemental briefing to the

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Court as to whether a wrongful foreclosure or other claim for relief could be brought if the wrong

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party initiates foreclosure. The parties shall also address whether, in this case, the wrong party

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initiated foreclosure where a backdated assignment was not signed or recorded until after the Notice

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of Default was recorded. The parties shall file briefs of no more than seven (7) pages by November
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For the Northern District of California

United States District Court

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IT IS SO ORDERED.

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Dated: November 1, 2011

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_________________________
EDWARD M. CHEN
United States District Judge

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