Bank of New York Mellon v. City of Richmond, California et al

Filing 29

Ex Parte Application re 28 MOTION to Dismiss for Lack of Jurisdiction EX PARTE MOTION TO SHORTEN TIME AND FOREGO HEARING filed by City of Richmond, California, Gordian Sword LLC, Mortgage Resolution Partners L.L.C., Richmond City Council. (Attachments: # 1 Declaration Declaration of Eric P. Brown in Support of Ex Parte, # 2 Exhibit Exhibit A to the Declaration of Eric P. Brown, # 3 Exhibit Exhibit B to the Declaration of Eric P. Brown, # 4 Exhibit Exhibit C to the Declaration of Eric P. Brown, # 5 Exhibit Exhibit D to the Declaration of Eric P. Brown, # 6 Exhibit Exhibit E to the Declaration of Eric P. Brown, # 7 Exhibit Exhibit F to the Declaration of Eric P. Brown, # 8 Exhibit Exhibit G to the Declaration of Eric P. Brown, # 9 Exhibit Exhibit H to the Declaration of Eric P. Brown, # 10 Proposed Order Proposed Order)(Leyton, Stacey) (Filed on 9/20/2013)

EXHIBIT C

Case3:13-cv-03663-CRB Document68 Filed09/11/13 Page1 of 3

1 STEPHEN P. BERZON (SBN 46540)
SCOTT A. KRONLAND (SBN 171693)
2 JONATHAN WEISSGLASS (SBN 185008)
3 ERIC P. BROWN (SBN 284245)
Altshuler Berzon LLP
4 177 Post Street, Suite 300
San Francisco, CA 94108
5 Tel: [phone]
Fax: [phone]
6 E-mail: [e-mail]
[e-mail]
7
[e-mail]
[e-mail]
8
9 Attorneys for Defendants City of Richmond and
Mortgage Resolution Partners LLC
10
11 BRUCE REED GOODMILLER (SBN 121491)
City Attorney
12 CARLOS A. PRIVAT (SBN 197534)
Assistant City Attorney
13 CITY OF RICHMOND
450 Civic Center Plaza
14
Richmond, CA 94804
15 Telephone: [phone]
Facsimile: [phone]
16 E-mail: [e-mail]
[e-mail]
17
Attorneys for Defendant City of Richmond
18

Attorney for Defendant
Mortgage Resolution Partners LLC

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

19
20

21 WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Trustee, et al.,
22
Plaintiffs,

23
24

WILLIAM A. FALIK (SBN 53499)
100 Tunnel Rd.
Berkeley, CA 94705
Tel: [phone]
Fax: [phone]
E-mail: [e-mail]

v.

25 CITY OF RICHMOND, CALIFORNIA, a
26 municipality, and MORTGAGE
RESOLUTION PARTNERS LLC,
27
Defendants.
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Case No. CV-13-3663-CRB
DEFENDANTS’ SUPPLEMENTAL
MEMORANDUM RE: MOTION TO
DISMISS FOR LACK OF JURISDICTION
(DOC. 38) AND MOTION FOR
PRELIMINARY INJUNCTION (DOC. 8)
Date: Sept. 12, 2013
Time: 10:00 am
Place: Courtroom 6, 17th Floor
The Hon. Charles R. Breyer

Defs’ Suppl. Memo re Motion to Dismiss & Preliminary Injunction, Case No. CV-13-3663-CRB

Case3:13-cv-03663-CRB Document68 Filed09/11/13 Page2 of 3

DEFENDANTS’ SUPPLEMENTAL MEMORANDUM RE:
MOTION TO DISMISS FOR LACK OF JURISDICTION (DOC. 38)
AND MOTION FOR PRELIMINARY INJUNCTION (DOC. 8)

1
2
3

At the September 10, 2013 meeting of the Richmond City Council, the following agenda

4 item was approved:
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I-2. HEAR a report from staff on Richmond CARES -- the Local Principal
Reduction Program, and DIRECT staff to: (1) to work to set up a Joint Powers
Authority (JPA) together with other interested municipalities, as a next step forward
in the development of this program; (2) to confirm that no loans will be acquired by
the City through eminent domain before coming back to the full City Council for a
vote; and (3) to continue working with MRP to resolve any remaining legal issues.1

9 As such, the legal status of this matter remains unchanged: The City of Richmond is exploring the
10 idea of acquiring underwater mortgage loans to reduce principal balances, but its City Council has
11 not adopted a resolution of necessity to authorize the use of eminent domain authority, or even held
12 a public hearing on whether to adopt a proposed resolution of necessity, or even given notice of
13 such a public hearing. Moreover, if a Joint Powers Authority is created with other interested
14 municipalities to further develop a principal reduction program, then it might be the JPA, as
15 opposed to the City, that would be exercising eminent domain authority, should such authority ever
16 be exercised.
17

All that being so, this lawsuit was and remains a SLAPP suit that should be dismissed for

18 lack of jurisdiction.
19 Dated: September 11, 2013

Respectfully submitted,

20

/s/ Scott A. Kronland
Scott A. Kronland

21

Stephen P. Berzon
Scott A. Kronland
Jonathan Weissglass
Eric P. Brown
Altshuler Berzon LLP

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1

This agenda item was modified slightly before approval, to also require: 1) a monthly
status report from the JPA, and 2) City staff to report back to Council in 30 days regarding status,
including efforts to set up a JPA and to resolve remaining legal issues. There are no official
minutes of the meeting yet.
1
Defs’ Suppl. Memo re Motion to Dismiss & Preliminary Injunction, Case No. CV-13-3663-CRB

Case3:13-cv-03663-CRB Document68 Filed09/11/13 Page3 of 3

1
2

Attorneys for Defendants
City of Richmond and
Mortgage Resolution Partners LLC

4

Bruce Reed Goodmiller
Carlos A. Privat
City of Richmond

5

Attorneys for Defendant City of Richmond

3

6

William A. Falik

7
8

Attorney for Defendant
Mortgage Resolution Partners LLC

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Defs’ Suppl. Memo re Motion to Dismiss & Preliminary Injunction, Case No. CV-13-3663-CRB