Avila v. Wells Fargo Bank National Association et al

Filing 22

ORDER GRANTING STIPULATED DESIGNATION OF NON-MONETARY STATUS by Hon. William Alsup granting 19 Stipulation.(whalc2, COURT STAFF) (Filed on 5/21/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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JOHN AVILA,

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For the Northern District of California

United States District Court

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Plaintiff,
v.
WELLS FARGO BANK;
WACHOVIA BANK, N.A.; NDEX WEST
LLC; and all persons or entities unknown
claiming any legal right, title, estate, lien or
interest in the property described in this
complaint adverse to Plaintiff’s title
thereto; and DOES 1 through 25, inclusive,

ORDER GRANTING
STIPULATED DESIGNATION
OF NON-MONETARY STATUS

Defendants.
/

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No. C 12-01237 WHA

This wrongful-foreclosure action was filed in Alameda County Superior Court

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in February 2012. Defendants subsequently removed the action to this district (Dkt. No. 1).

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Plaintiff agrees that defendant NDeX West, LLC was not involved in the origination or servicing

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of the loan at issue here. Pursuant to stipulation of both parties (Dkt. No. 19), it is hereby

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ORDERED that:

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1.
Defendant NDex West, LLC has been joined as a defendant
based on its limited role in handling a non-judicial foreclosure sale
as agent for the mortgage lenders and/or as successor trustee under
the subject Deed of Trust and solely for the purpose of having all
necessary parties before the Court;
2.
Plaintiff does not assert any claims for monetary relief
against Defendant NDex West, LLC, and plaintiff’s First Amended
Complaint does not allege any misconduct on defendant NDex
West, LLC’s part in the performance of its duties and/or in its
handling of the non-judicial foreclosure as agent for the mortgage
lenders and/or as successor trustee under the subject Deed of Trust.

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Defendant NDex West, LLC shall have no liability to plaintiff for
any monetary damages, attorney’s fees or costs of suit.

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3.
Defendant NDex West, LLC agrees to be bound by any
non-monetary judgment of order that may be entered by the Court
concerning (a) ownership and title to the subject property; (b) the
validity, enforceability and priority of the subject Deed of Trust;
and/or (c) the non-judicial foreclosure proceeding. Defendant
NDex West, LLC shall not be required to participate further in the
action or proceeding, shall not be subject to any monetary awards
as and for damages, attorney’s fees or costs, shall be required to
respond to any discovery requests as a nonparty, and shall be
bound by and Court order relating to the subject Deed of Trust.

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To be clear, this case differs from those in which a defendant merely files a declaration of

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non-monetary status pursuant to California Civil Code Section 2924l. Section 2924l declarations
are generally not valid in federal court proceedings. See Kennedy v. PLM Lender Services Inc.,

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For the Northern District of California

United States District Court

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No. 10-CV-04942, 2012 WL 1038632 at *5–6 (N.D. Cal. Mar. 27, 2012) (Alsup, J.). Instead,

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our parties have expressly agreed to be bound by the above terms. Defendant NDeX West, LLC

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shall accordingly be treated as a nominal defendant for the purpose of this action.

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IT IS SO ORDERED.

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Dated: May 21, 2012.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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