Kim et al v. Select Portfolio Servicing, Inc. et al

Filing 21

ORDER REFERRING CASE TO ADR UNIT FOR ASSESSMENT TELEPHONE CONFERENCE, Motions terminated: 14 MOTION for Joinder, 5 MOTION to Dismiss. Signed by Judge Maria-Elena James on 1/6/2012. (cdnS, COURT STAFF) (Filed on 1/6/2012)

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UNITED STATES DISTRICT COURT

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Northern District of California

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LYNN KIM, et al.,

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No. C 11-5688 MEJ
Plaintiffs,

v.
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SELECT PORTFOLIO SERVICING, et al.,
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Defendants.
_____________________________________/

ORDER DENYING AS MOOT
DEFENDANT’S MOTION TO
DISMISS
ORDER REFERRING CASE TO ADR
UNIT FOR ASSESSMENT
TELEPHONE CONFERENCE

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Pending before the Court is Defendant’s Motion to Dismiss, filed on December 5, 2011.
(Dkt. No. 5.) However, on January 5, 2012, Plaintiff filed an Amended Complaint. (Dkt. No. 20.)

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For the Northern District of California

UNITED STATES DISTRICT COURT

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Under Federal Rule of Civil Procedure 15, a party may amend its pleading once “as a matter of

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course” within “21 days after service of a responsive pleading or 21 days after service of a motion.
Fed. R. Civ. P. 15(a)(1). Thus, as no prior amended complaints have been filed, Plaintiff would
have been entitled to file an amended complaint as a matter of course under Rule 15(a) by December

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26, 2011. However, based upon Plaintiff’s response to the Court’s order to show cause, (Dkt. Nos.
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17, 19), the Court discharges the OSC and shall permit the amendment. Thus, the amended
complaint supersedes the original complaint, and the original complaint is treated as non-existent.

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Since Defendant’s motion is based on Plaintiff’s original complaint, the Court hereby DENIES

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Defendant’s motion as moot.

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Plaintiff is advised that no further amendments may be made without seeking leave of Court

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pursuant to Rule 15 and Civil Local Rule 7. Any attempt to file an amended complaint without

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proper notice to Defendant under Civil Local Rule 7 and a court order shall be stricken.

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Pursuant to Civil Local Rule 16-8 and Alternative Dispute Resolution (ADR) Local Rule

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2-3, the Court refers this foreclosure-related action to the ADR Unit for a telephone conference to

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assess this case’s suitability for mediation or a settlement conference. The parties shall participate in

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a telephone conference, to be scheduled by the ADR Unit as soon as possible, but no later than

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January 25, 2012. The parties shall be prepared to discuss the following subjects:

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(1)

Identification and description of claims and alleged defects in loan

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(2)

Prospects for loan modification.

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(3)

Prospects for settlement.

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documents.

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The parties need not submit written materials to the ADR Unit for the telephone conference.

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In preparation for the telephone conference, Plaintiff 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 Plaintiff is seeking a loan modification to resolve all or some of the claims,
Plaintiff shall prepare a current, accurate financial statement and gather all of
the information and documents customarily needed to support a loan
modification request. Further, Plaintiff shall immediately notify Defendants’
counsel of the request for a loan modification.

(3)

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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For the Northern District of California

UNITED STATES DISTRICT COURT

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In preparation for the telephone conference, Defendant(s) shall do the following.

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(1)

If Defendants are unable or unwilling to do a loan modification after receiving
notice of Plaintiff’s 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

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held. After the telephone conference, the ADR Unit will advise the Court of its recommendation for

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further ADR proceedings.

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IT IS SO ORDERED.

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Dated: January 6, 2012

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_______________________________
Maria-Elena James

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Chief United States Magistrate Judge

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For the Northern District of California

UNITED STATES DISTRICT COURT

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