Capodiece et al v. Wells Fargo Bank et al

Filing 25

ORDER TO SHOW CAUSE, ORDER CONVERTING MOTION TO DISMISS INTO MOTION FOR PARTIAL SUMMARY JUDGMENT [re 6 MOTION to Dismiss Plaintiffs' Complaint filed by Wells Fargo Bank]. Show Cause Response due by NOON ON 5/8/2013. Hearing on MOTION FOR PARTIAL SUMMARY JUDGMENT set for 5/9/2013 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. Signed by Judge William Alsup on 4/12/2013. (whasec, COURT STAFF) (Filed on 4/12/2013)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 11 For the Northern District of California United States District Court 10 MICHAEL CAPODIECE and TERRY L. CAPODIECE, Plaintiffs, 12 13 No. C 13-00032 WHA v. 14 WELLS FARGO BANK and DOES 1–5, 15 ORDER TO SHOW CAUSE AND ORDER CONVERTING MOTION TO DISMISS INTO MOTION FOR PARTIAL SUMMARY JUDGMENT Defendants. / 16 17 In this wrongful foreclosure action, defendant moved to dismiss plaintiffs’ complaint. 18 Plaintiff’s counsel, Emmanuel Fomukong Fobi, failed to show at the April 11 hearing on the 19 motion. Without notice and in violation of local rules, another attorney, Yesenia Marisol 20 Santacruz, made a “special appearance” instead. Plaintiff’s counsel Emmanuel Fomukong Fobi 21 is hereby ORDERED TO SHOW CAUSE why he should not have to pay defendant’s attorney’s fees 22 and costs for appearing at the April 11 hearing. Attorney Santacruz is now also an attorney to be 23 noticed for plaintiffs and is ORDERED TO SHOW CAUSE for the same. She, however, may file a 24 motion to withdraw from this action, and if granted, she will no longer be subject to this order to 25 show cause. Counsel’s response is due by NOON, MAY 8. 26 One of plaintiffs’ claims is that an individual named Ric Juarez fraudulently signed and 27 filed in Dallas County, Texas, a substitution of trustee that swapped out Gold West Savings 28 Association Service Company with NDEX West, LLC as trustee of plaintiffs’ deed of trust. 1 Plaintiffs contend Ric Juarez was neither an agent or an employee of Wells Fargo (now the 2 successor-in-interest of the loan secured by the deed of trust) and therefore, Ric Juarez was not 3 authorized to sign the substitution of trustee. Plaintiffs contend that this establishes that NDEX 4 West was never correctly substituted. 5 Pursuant to FRCP 12(d), defendant’s motion to dismiss is hereby converted into a motion 6 for partial summary judgment. Defendants are ordered to submit sworn declarations of 7 individuals with first-hand knowledge of any chain of documentation regarding Ric Juarez’s 8 authorization that was in place at the time the substitution of trustee was filed. Defendant’s 9 response is due by NOON, APRIL 25, 2013. Plaintiffs’ counsel may submit declarations explaining why discovery is needed on the issue of Ric Juarez’s authorization by NOON, MAY 2, 11 For the Northern District of California United States District Court 10 2013. The hearing for partial summary judgment will be at 8:00 A.M., MAY 9, 2013. An order 12 regarding defendant’s motion to dismiss as to plaintiffs’ other claims will issue after the May 9 13 hearing. 14 15 IT IS SO ORDERED. 16 17 Dated: April 12, 2013. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 2

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