McDonald et al v. Indymac Mortgage Services et al

Filing 79

ORDER AFFORDING PARTIES OPPORTUNITY TO FILE SUPPLEMENTAL BRIEFING RE: STANDING; DEFERRING RULING PENDING SUBMISSION OF SUPPLEMENTAL BRIEFS. The parties are directed to file, no later than March 1, 2013, their supplemental briefs on the question of st anding, said briefs not to exceed ten pages in length. Any reply thereto shall be filed no later than March 15, 2013, and shall not exceed seven pages in length. Signed by Judge Maxine M. Chesney on February 15, 2013. (mmclc2, COURT STAFF) (Filed on 2/15/2013)

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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 For the Northern District of California United States District Court 10 DARRELL MCDONALD, et al., 11 12 13 14 No. C 12-4610 MMC Plaintiffs, v. INDYMAC MORTGAGE SERVICES, et al., Defendants. / ORDER AFFORDING PARTIES OPPORTUNITY TO FILE SUPPLEMENTAL BRIEFING RE: STANDING; DEFERRING RULING PENDING SUBMISSION OF SUPPLEMENTAL BRIEFS 15 16 Before the Court are three motions to dismiss plaintiffs’ First Amended Complaint, 17 filed, respectively, by (1) defendant Wells Fargo Bank, N.A. on November 28, 2013; (2) 18 NDeX West, LLC on November 29, 2012; and (3) OneWest Bank F.S.B. and Deutsche 19 Bank National Trust Company on November 29, 2012. Plaintiffs have filed opposition, to 20 which defendants have replied. 21 In reviewing the applicable law, it has come to the Court’s attention that a number of 22 plaintiffs’ claims may be subject to dismissal for lack of standing. See B.C. v. Plumas 23 Unified Sch. Dist., 192 F.3d 1260, 1264 (9th Cir. 1999) (noting “federal courts are required 24 sua sponte to examine jurisdictional issues such as standing”). In particular, for parties 25 who have filed for bankruptcy, the Bankruptcy Code provides that (1) the bankruptcy 26 “estate is comprised of . . . all legal or equitable interests of the debtor in property as of the 27 commencement of the [bankruptcy] case,” see 11 U.S.C. § 541(a)(1), and (2) “property of 28 the estate that is not abandoned . . . and that is not administered in the case remains 1 property of the estate,” see 11 U.S.C. § 554(d); see also Sierra Switchboard Co. v. 2 Westinghouse Elec. Corp., 789 F.2d 705, 706, 710 (9th Cir. 1986) (affirming dismissal of 3 emotional distress claim; holding plaintiff “lacked capacity to sue” because plaintiff’s “claim 4 . . . remained property of the bankruptcy estate” under § 541(a)(1)); 11 U.S.C. § 108(a) 5 (providing for time period within which “trustee may commence . . . action”). The Court 6 finds it appropriate to afford the parties an opportunity to file supplemental briefing on the 7 subject.1 8 Accordingly, the parties are hereby DIRECTED to file, no later than March 1, 2013, 9 their supplemental briefs on the question of standing, said briefs not to exceed ten pages in 10 length. Any reply thereto shall be filed no later than March 15, 2013, and shall not exceed 11 seven pages in length. In the interim, the Court will defer ruling on the pending motions to 12 dismiss. 13 IT IS SO ORDERED. 14 Dated: February 15, 2013 MAXINE M. CHESNEY United States District Judge 15 16 17 18 19 20 21 22 1 23 24 25 26 27 28 The claims the Court has identified as potentially covered by §§ 541(a)(1) and 554(d) are as follows: plaintiff’s First through Eleventh Causes of Action (“Fraud”); Thirteenth Cause of Action (“Violation of 15 U.S.C. § 1692 et seq the Fair Debt Collection Practices Act (FDCPA)”); Fourteenth Cause of Action (“Violation of RESPA 12 C.F.R. § 226 et seq. and 12 C.F.R. § 2605”); Sixteenth Cause of Action (“False Advertising, California Bus. and Prof. § 17500"); Seventeenth Cause of Action (“Wrongful Foreclosure”); Twentieth Cause of Action (“Negligent Infliction of Emotional Distress”); Twenty-Second Cause of Action (“Violation of California Civil Code § 2943(b)(1)”); and Twenty-Third Cause of Action (“Slander of Title”). If any defendant is of the view that any other cause(s) of action are covered by the Bankruptcy Code, it should discuss such additional cause(s) of action as well. 2

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