Barker et al v. Default Resolution Network et al

Filing 55

ORDER by Judge Claudia Wilken granting 42 Plaintiffs' Motion to File a Second Amended Complaint (scc, COURT STAFF) (Filed on 11/12/2008)

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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. DEFAULT RESOLUTION NETWORK; FIDELITY NATIONAL TITLE; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; ALBORG, VEILUVA & EPSTEIN; TITLE COURT SERVICES, INC.; GENPACT MORTGAGE SERVICES; JAMES GIPS; JULIE WAGNER; HOLLAND AND KNIGHT LLP; VITO COSTANZO; RICHARD PETTY; TAYLOR WOODS; MICHEAL VEILUVA; DARRELL MARTIN; and DOES 1 through 50, inclusive, Defendants. / KENNETH BARKER and LOIS ANNE BARKER, Plaintiffs, No. C 08-2898 CW ORDER GRANTING PLAINTIFFS' MOTION TO FILE A SECOND AMENDED COMPLAINT IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA Plaintiffs Kenneth Barker and Lois Anne Barker have moved to file a second amended complaint. Defendants Default Resolution Network, Fidelity National Title Insurance Co., Mortgage Electronic Registration Systems, Inc., Alborg, Veiluva & Epstein, LLP, and Genpact Mortgage Services oppose the motion. under submission on the papers. The motion was taken Having considered all of the parties' papers, the Court grants the motion to file a second amended complaint. 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This dispute arises out of a notice of default and election to sell under deed of trust for the property located at 2349 Royal Oaks Drive in Alamo, California. The notice was recorded on May 1, 2008 and, on May 8, 2008, served on Plaintiffs, the joint owners of the property. Plaintiffs allege that Defendants engaged in a scheme to foreclose on their home illegally in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO). Defendants moved to dismiss the original complaint because it did not plead with particularity each element of the RICO cause of action. On August 8, 2008, the Court granted Defendants' motion to Docket no. 30. On September 5, 2008 dismiss with leave to amend. Genpact recorded a new Notice of Default and Notice of Trustee's Sale curing a recording error and updating the reinstatement amount.1 Plaintiffs allege that they received these notices on On September 8, 2008 Plaintiffs filed their September 15, 2008. first amended complaint and, within two weeks, Defendants filed motions to dismiss. Instead of responding to the motion to dismiss, Plaintiffs filed a second amended complaint on October 9, 2008. Plaintiffs assert that the new Notice of Default and Notice of Trustee's Sale identified new and different facts that warrant the filing of a second amended complaint. The Court notes that the second amended complaint differs only slightly from the first amended complaint. It appears that the employees and individual attorneys working for the existing named defendants were added as new named defendants. Neither Plaintiffs nor Defendants informed the Court as to the nature of the recording error. 2 1 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In the interest of judicial economy the Court GRANTS Plaintiffs' motion to file a second amended complaint. The Court will consider Defendants' motions to dismiss Plaintiffs' first amended complaint as applicable to Plaintiffs' second amended complaint. Within one week of the date of this order, Defendants may file a brief, no more than ten pages, to address any new facts or issues raised in Plaintiffs' second amended complaint. Plaintiffs' opposition is due three weeks from the date of this order, after Defendants' filing, and Defendants reply is due one week thereafter. If Plaintiffs do not file a timely opposition, the case will be dismissed for failure to prosecute. IT IS SO ORDERED. Dated: 11/12/08 CLAUDIA WILKEN United States District Judge 3 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KENNETH BARKER et al, Plaintiff, v. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA Case Number: CV08-02898 CW CERTIFICATE OF SERVICE DEFAULT RESOLUTION NETWORK et al, Defendant. / I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on November 12, 2008, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. William Stephen Fiske Michael John Veiluva Darrell Charles Martin Alborg, Veiluva & Epstein LLP 200 Pringle Avenue, Suite 410 Walnut Creek, CA 94596 Glenn Michael Perrell Glenn M Perrell 205 S Broadway Ste 302 Los Angeles, CA 90012 Kenneth Barker Lois Anne Barker 2349 Royal Oaks Drive Alamo, CA 94507 Richard William Petty Vito Anthony Costanzo Holland & Knight LLP 633 W 5th St, 21st Fl Los Angeles, CA 90071-2005 Dated: November 12, 2008 Richard W. Wieking, Clerk By: Sheilah Cahill, Deputy Clerk 4

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