Susu et al v. Bayview Loan Servicing, LLC et al

Filing 43

ORDER GRANTING MOTION TO DISMISS by Judge William Alsup [granting 33 Motion to Dismiss]. (whasec, COURT STAFF) (Filed on 9/19/2018)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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VIOLETTE SUSU and JERRIES SOUSOU,

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For the Northern District of California

United States District Court

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Plaintiffs,

No. C 18-00135 WHA

v.
BAYVIEW LOAN SERVICING, LLC, THE
BANK OF NEW YORK MELLON f/k/a THE
BANK OF NEW YORK, AS TRUSTEE FOR
THE CERTIFICAHOLDERS OF CWALT,
INC. ALTERNATIVE LOAN TRUST 2005-82,

ORDER GRANTING
MOTION TO DISMISS

Defendants.
/
In this wrongful foreclosure action, defendants move to dismiss plaintiffs’ complaint

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pursuant to FRCP 12(b)(6) and 41(b). In 2005, pro se plaintiffs Violette Susu and Jerries

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Sousou took out a $1,612,500 home loan from America’s Wholesale Lender, evidenced by a

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promissory note and secured by a deed of trust on real property located in Dublin California.

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At oral argument for the instant motion to dismiss, defendants’ counsel represented that

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plaintiffs had not made any payments on their mortgage loan since June 2008 and that their

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current balance is approximately $2.7 million. In May 2017, a notice of default was executed

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and subsequently recorded in the Official Records of Alameda County. In August 2017 a notice

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of trustee’s sale was executed and thereafter recorded (Compl. ¶ 14, Exh. 1; RJN, Exhs. B–C).

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Plaintiffs subsequently brought a wrongful foreclosure action against five defendants,
including the defendants to this action in October 2017. Defendants moved to dismiss the

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complaint in the October 2017 action under FRCP 12(b)(6). After plaintiffs failed to meet the

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deadline to respond, they received two extensions to file a response. Rather than responding,

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plaintiffs voluntarily dismissed their case (Case No. 17-05879, Dkt. Nos. 1, 10–11, 18, 20–21,

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In January 2018, plaintiffs commenced this second pro se action for wrongful

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foreclosure based on the same loan, again naming Bayview and BNY Mellon as defendants.

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Plaintiffs then filed an emergency application for a restraining order to prevent the impending

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foreclosure sale on their property, but an order denied that application on the ground that

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plaintiffs were unlikely to succeed on the merits of their claims. During the course of this
action, plaintiff Violette Susu twice initiated proceedings in bankruptcy court and this Court

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For the Northern District of California

United States District Court

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twice issued stays of this action. Each time the bankruptcy court dismissed plaintiffs’ action for

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failure to comply with court orders. In May 2018, following the lifting of the second stay,

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defendants filed a motion to dismiss this action in its entirety. Plaintiff Jerries Sousou then

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again filed for bankruptcy, and a third stay of this action was issued. That stay subsequently

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lifted when defendants gave notice that plaintiffs had failed to comply with the bankruptcy

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court’s order. After the third stay of this action lifted, defendants re-filed and served their

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motion to dismiss plaintiffs’ complaint on July 31 (Dkt. Nos. 1, 16, 19–20, 22, 24–25, 31–34).

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Plaintiffs’ response to defendants’ motion to dismiss was due on August 14, but

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plaintiffs still have not filed a response. An order to show cause was served on plaintiffs on

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August 21. The order instructed plaintiffs to file a response by August 27 and stated that failure

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to do so would result in dismissal. That date has long passed and no response has been filed.

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At the hearing on defendants’ motion to dismiss well into the Court’s motion calendar, the

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Deputy Clerk called the case, but plaintiffs were not present. At oral argument, defendants’

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counsel represented that plaintiffs had called her the day before and told her that they would not

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appear at the hearing and wanted to dismiss their action against defendants (Dkt. No. 37).

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After considering the briefs filed herein and the oral argument submitted at the hearing
for this motion, defendants’ motion to dismiss is GRANTED. Because plaintiffs have failed to

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respond to deadlines governing this action, defendants’ motion to dismiss for failure to

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prosecute is also GRANTED. Plaintiffs’ complaint is hereby DISMISSED WITH PREJUDICE.

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IT IS SO ORDERED.

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Dated: September 19, 2018.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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