Miller et al v. Carrington Mortgage Services et al

Filing 159

ORDER Re Rule 56(d) Request. Signed by Judge Edward M. Chen on 6/11/2013. (emcsec, COURT STAFF) (Filed on 6/11/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RONALD BROOKS MILLER, et al.,

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For the Northern District of California

United States District Court

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No. C-12-2282 EMC

Plaintiffs,
v.

ORDER RE RULE 56(d) REQUEST

CARRINGTON MORTGAGE SERVICES,
et al.,

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Defendants.
___________________________________/

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Currently pending before the Court is Plaintiff Ronald Miller’s motion for summary

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judgment. The Court recently vacated the hearing on Mr. Miller’s motion, which had been set for

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June 6, 2013.

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In the motion, Mr. Miller asked to be granted summary judgment on his claim for wrongful

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foreclosure. At the Court has repeatedly emphasized in its prior orders, the critical document with

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respect to the claim for wrongful foreclosure is the assignment of deed of trust, which was recorded

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in the Alameda County Recorder’s Office on June 1, 2011. The assignment document on its face

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states that MERS, acting as nominee for Fremont Investment & Loan, assigns the deed of trust to

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Wells Fargo Bank N.A., as trustee, for Carrington Mortgage Loan Trust, Series 2006-FRE1 Asset-

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Backed Pass-Through Certificates. The assignment document was signed by Tom Croft, on behalf

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of MERS. The date of the assignment was purportedly February 25, 2010, but the notarization date

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for the document is May 20, 2011.

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In turn, the critical argument that Mr. Miller has raised with respect to the assignment

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document is that, even if the assignment was actually made in 2010, that was while Fremont was in

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bankruptcy and there is no evidence the bankruptcy court approved the assignment.

place prior to the Fremont bankruptcy. See Docket No. 119 (Defs.’ Supp. St. at 4). In support of

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this position, Defendants have submitted two documents to the Court. The first is a Mortgage Loan

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Purchase Agreement, dated June 28, 2006 (i.e., before the Fremont bankruptcy). The agreement

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states that Carrington Securities, LP will sell to Stanwich Asset Acceptance Company, L.L.C.

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certain mortgage loans purchased by Carrington Securities L.P. from Fremont Investment & Loan.

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The mortgage loans are identified in a Closing Schedule, but no Closing Schedule appears to have

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For the Northern District of California

Defendants have asserted that the assignment from Fremont to Wells Fargo actually took

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United States District Court

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been given to the Court so that it may determine whether Mr. Miller’s loan is one of the loans.

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The second document is a draft Pooling and Service Agreement, dated June 1, 2006,

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involving Stanwich Asset Acceptance Company, L.L.C.; Fremont Investment & Loan; and Wells

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Fargo Bank, N.A. No final agreement was provided to the Court. In any event, that Agreement

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does not establish that ownership of the instant loan had been transferred to the trust.

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According to Defendants, these documents give rise to a genuine dispute of material fact as

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to whether Mr. Miller’s loan was sold by Fremont to (ultimately) Wells Fargo prior to the Fremont

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bankruptcy. It does not. There is nothing concrete to show that Mr. Miller’s loan specifically was a

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part of the above transactions.

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Defendants, however, have made a final argument that Mr. Miller’s motion is premature and

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invoked the protection of Federal Rule of Civil Procedure 56(d). Rule 56(d) provides as follows:

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If a nonmovant shows by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify its opposition, the
court may:

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(1)

defer considering the motion or deny it;

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(2)

allow time to obtain affidavits or declarations or to take
discovery; or

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issue any other appropriate order.

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Fed. R. Civ. P. 56(d). Defendants argue that they have not had the opportunity to conduct discovery

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to obtain the evidence needed to disprove Mr. Miller’s claims. Defendants, however, have not

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identified with any specificity what discovery they need to take in order to appropriately litigate the

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wrongful foreclosure claim.

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Accordingly, the Court hereby orders Defendants to provide a supplemental brief describing

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with specificity precisely what discovery they need to take vis-a-vis Mr. Miller’s claim for wrongful

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foreclosure. Defendants must also explain why such discovery is needed since it would appear that

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documents (such as the final 2006 Pooling & Service Agreement and attached schedule) is

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presumably already in Defendants’ possession.
The supplemental brief shall be filed within one week of the date of this order. Defendants

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For the Northern District of California

United States District Court

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are forewarned that a failure to describe with sufficient specificity what discovery is necessary may

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lead to a denial of their Rule 56(d) request and the justification therefor, in which case the Court will

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likely grant Mr. Miller’s motion for summary judgment.

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IT IS SO ORDERED.

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Dated: June 11, 2013

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_________________________
EDWARD M. CHEN
United States District Judge

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