Sims et al v. Wells Fargo Home Mortgage

Filing 11

ORDER RE: MOTION TO DISMISS; REFERRING CASE TO ADR UNIT FOR ASSESSMENT TELEPHONE CONFERENCE (SI, COURT STAFF) (Filed on 11/16/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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MICHAEL SIMS and SUDIE SIMS,

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United States District Court
United States District Court
For the Northern District of of California
For the Northern District California

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No. C 11-04768 SI

Plaintiffs,

ORDER RE: MOTION TO DISMISS;
REFERRING CASE TO ADR UNIT FOR
ASSESSMENT TELEPHONE
CONFERENCE

v.
WELLS FARGO HOME MORTGAGE, and
DOES 1-10, inclusive,
Defendants.

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On August 17, 2011, plaintiffs, proceeding pro se, filed a complaint against defendant Wells

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Fargo Home Mortgage (“Wells Fargo”) in the Superior Court of California, County of Santa Clara.
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Plaintiffs allege that Wells Fargo financed a loan for the purchase of plaintiffs’ home, located at 6880
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Eagle Ridge Drive, Gilroy, California, but is now unlawfully attempting to foreclose against them. See
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Compl. ¶ 15. Plaintiffs sought a temporary restraining order against Wells Fargo to prevent foreclosure,
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which was granted by the state court. See Doc. 1 at 30. Defendants thereafter removed the action to
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this Court in accordance with 12 U.S.C. § 1332 on the basis of diversity jurisdiction. See Doc. 1 at 2.
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On October 3, 2011, Wells Fargo filed a motion to dismiss plaintiffs’ complaint. Doc. 6. On
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November 3, 2011, plaintiffs filed an opposition to the motion. Doc. 9. A hearing is scheduled for the
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motion on November 18, 2011. The Court has received and read the moving papers, and considers the
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matter SUBMITTED. The hearing set for November 18, 2011 is hereby VACATED.
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Prior to the issuance of an order on this motion, and pursuant to Civil Local Rule 16-8 and ADR
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Local Rule 2-3, the Court refers this foreclosure-related action to the Alternative Dispute
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Resolution (ADR) Unit for a telephone conference to assess this case’s suitability for mediation
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or a settlement conference. Plaintiffs and defendants’ counsel shall participate in a telephone
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conference, to be scheduled by the ADR Unit as soon as possible but no later than December 15, 2011.
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Plaintiffs and defendants’ counsel shall be prepared to discuss the following subjects:

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(1)

Identification and description of claims and alleged defects in loan
documents.

(2)

Prospects for loan modification.

(3)

Prospects for settlement.

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The parties need not submit written materials to the ADR Unit for the telephone
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conference.
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In preparation for the telephone conference, plaintiffs shall do the following:
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(1)

Review relevant loan documents and investigate the claims to
determine whether they have merit.

(2)

If plaintiffs are seeking a loan modification to resolve all or some of the
claims, plaintiffs shall prepare a current, accurate financial statement
and gather all of the information and documents customarily needed to
support a loan modification request. Further, plaintiffs shall
immediately notify defendant’s counsel of the request for a loan
modification.

(3)

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Provide counsel for defendants with information necessary to evaluate
the prospects for loan modification, in the form of a financial
statement, worksheet or application customarily used by financial
institutions.

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In preparation for the telephone conference, counsel for defendants shall do the

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United States District Court
For the Northern District of California

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following.
(1)

If defendants are unable or unwilling to do a loan modification after
receiving notice of plaintiffs’ request, counsel for defendants shall
promptly notify plaintiff to that effect.

(2)

Arrange for a representative of each defendant with full settlement
authority to participate in the telephone conference.

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The ADR Unit will notify the parties of the date and time the telephone conference
will be held. After the telephone conference, the ADR Unit will advise the Court of its
recommendation for further ADR proceedings. The Court will not issue an order resolving
defendant’s motion to dismiss until after it receives the recommendations from the ADR Unit.
IT IS SO ORDERED.
Dated: November 16, 2011
SUSAN ILLSTON
United States District Judge

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