Phleger v. Countrywide Home Loans, Inc. et al

Filing 259

ORDER by Judge Saundra Brown Armstrong, GRANTING 238 Ex Parte Motion to Extend Motion Cut-Off Hearing Deadline to 01/20/09. (lrc, COURT STAFF) (Filed on 12/19/2008) Modified on 12/22/2008 (jlm, COURT STAFF).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JEAN PHLEGER, Plaintiff, v.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION No. C 07-01686 SBA ORDER [Docket No. 238]

COUNTRYWIDE HOME LOANS, INC., doing business as AMERICA'S WHOLESALE LENDER, et al., Defendants.

And related cross-, counter-, and third-party suits

This matter arises from a dispute over a $3.3 million mortgage and a $550,000 home equity line of credit secured against plaintiff/counter-defendant Jean Phleger's house in San Francisco. Phleger has sued defendants/counter-plaintiffs Countrywide Home Loans, Inc. dba America's Wholesale Lender, Countrywide Bank, N.A., and Reconstruct Company, N.A. (collectively, "Countrywide") for violating the Truth in Lending Act ("TILA"), 15 U.S.C. § 1601, et seq., cancellation, and recission. Countrywide has counter-sued Phleger for, inter alia, judicial foreclosure on the deeds of trust securing the mortgage and the line of credit. Phleger has sued third-party defendant Stewart Title of California, Inc. ("Stewart") for negligence, breach of fiduciary duty, and indemnity. Countrywide removed this matter to this Court on March 23, 2007. See Docket No. 1. On February 1, 2008, the Court set a December 16, 2008 cutoff for dispositive motions. See Docket No. 194. In October 2008, Phleger filed dispositive motions against Countrywide and Stewart, and Stewart cross-filed a dispositive motion. See Docket Nos. 200, 207, 211. On November 7, 2008, Countrywide filed a Motion for Summary Judgment or, in the Alternative, Motion for Partial Summary Judgment against Plaintiff. See Docket No. 241.

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/// When it tried to obtain a hearing date prior to the motion cutoff, however, none was available. See Docket No. 238. So, it instead obtained a hearing date for January 20, 2009. Id. Pursuant to instructions on the Court's web site, Countrywide filed with its motion, an Ex Parte Motion to Extend Motion Cut-Off Hearing Deadline, asking the Court to extend the motion cutoff to January 20, 2009. Id. In support, Countrywide asserts that it did not delay filing unreasonably or in bad faith, the parties recently continued the pre-trial dates from January to March 2009, and its client would be prejudiced and substantially harmed without a continuance. Id. In response, Phleger asserts that Countrywide should have filed earlier, it failed to meet and confer, and its dispositive motion is meritless. See Docket No. 247. In reply, Countrywide provides evidence it attempted to meet and confer. See Docket No. 249. The Court notes that there is no evidence Countrywide delayed filing unreasonably or in bad faith, and that the parties disagree regarding whether there was an attempt to meet and confer. Further, while Countrywide has asserted undue prejudice if there is no continuance, Phleger has not asserted undue prejudice by having to oppose. Finally, the Court notes that the parties continued the pre-trial dates to beyond Countrywide's hearing date. See Docket No. 255 (pre-trial conference continued to April 20, 2009). The Court thus GRANTS Countrywide's Ex Parte Motion to Extend Motion Cut-Off Hearing Deadline [Docket No. 238].

IT IS SO ORDERED.

December 19, 2008

_________________________________ Saundra Brown Armstrong United States District Judge

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