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