Linda C. Reed v. Wilmington Trust, National Association et al

Filing 28

NOTICE OF TENTATIVE RULING AND QUESTIONS FOR HEARING. Signed by Judge Jeffrey S. White on June 2, 2016. (jswlc3, COURT STAFF) (Filed on 6/2/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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LINDA C. REED,
Plaintiff,

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United States District Court
Northern District of California

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v.
WILMINGTON TRUST, N.A., et al.,
Defendants.

Case No. 16-cv-01933-JSW
NOTICE OF TENTATIVE RULING
AND QUESTIONS FOR HEARING ON
MOTIONS TO DISMISS AND FOR A
TEMPORARY RESTRAINIG ORDER
Re: Docket Nos. 11, 24

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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD, PLEASE TAKE NOTICE

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OF THE FOLLOWING TENTATIVE RULING AND QUESTIONS FOR THE HEARING

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SCHEDULED ON June 3, 2016, AT 9:00 a.m.:

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The Court has reviewed the parties’ briefs and, thus, does not wish to hear the parties

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reargue matters addressed in those briefs. The parties shall not file written responses to this

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Notice of Questions for hearing. If the parties intend to rely on legal authorities not cited in their

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briefs, they are ORDERED to notify the Court and opposing counsel of these authorities

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reasonably in advance of the hearing and to make copies of those authorities available at the

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hearing. If the parties submit such additional authorities, they are ORDERED to submit the

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citations to the authorities only, with pin cites but without argument or additional briefing. Cf.

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N.D. Civil Local Rule 7-3(d). The parties will be given the opportunity at oral argument to

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explain their reliance on such authority. The Court suggests that associates or of counsel attorneys

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who are working on this case be permitted to address some or all of the Court’s questions

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contained herein.

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The Court TENTATIVELY GRANTS Defendants’ motion to dismiss. The Court

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reserves ruling on whether leave to amend should be granted. The Court advises Defendants that

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it is not persuaded by their arguments regarding tender or that Plaintiff has no standing to contest

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the validity of the assignments. Defendants shall not reargue these issues at the hearing. The

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Court advises Plaintiff that it has not been persuaded by her arguments that the foreclosure is

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wrongful or that title has been slandered due to a gap in the chain of title, robo-signing, or a

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wrongful substitution of trustee. To the extent she premises her RESPA claim on any of those

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allegations, the Court also is not persuaded by those arguments. Plaintiff shall not reargue these

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issues at the hearing.

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The Court also is not persuaded that it should follow the ruling in Glaski v. Bank of
America, 218 Cal. App. 4th 1079 (2013), on the issue of whether the late assignment into the
ALRP 2014-2 Trust rendered it void, leaving the ALRP 2014-2 Trust without authority to

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United States District Court
Northern District of California

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foreclose on Plaintiff’s property. However, in order to assist the Court in determining whether it

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should grant Plaintiff leave to amend her Complaint, Plaintiff shall be prepared to address the

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following questions at the hearing:

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1.

In her opposition to the motion to dismiss, Plaintiff argues that she “has not alleged

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that the trust here was created under New York Trust Law as in Glaski.” (Opp. Br. at 9:1-2.) To

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the best of the Court’s recollection, at the hearing on the motion for a temporary restraining order,

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Plaintiff argued that she did not know whether the Pooling and Service Agreement for the 2014-2

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Trust was governed by New York law. In her Verified Complaint, however, “Plaintiff alleges on

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information and belief the ALRP 2014-2 Trust was formed under New York trust law, which

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provides that any ‘sale, conveyance or other act of the trustee in contravention of the trust … is

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void.’” (Compl. ¶ 35 (emphasis added), quoting Glaski, 218 Cal. App. 4th at 1098.) Plaintiff filed

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her complaint in state court, which permits pleading on information and belief of “any matters that

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are not within [her] personal knowledge, if [she] has information leading [her] to believe that the

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allegations are true.” Doe v. City of Los Angeles, 42 Cal. 4th 531, 550 (2007) (internal quotations

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and citation omitted).

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a.

If Plaintiff does not know what law governs the Pooling and Service Agreement for

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the 2014-2 Trust, what was the basis for alleging on information and belief that it was governed by

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and formed under New York law?
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b.

What is Plai
intiff’s best argument th she could without co
hat
d,
ontradicting h
her

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com
mplaint and in complian with her obligations u
nce
o
under Federa Rule of C
al
Civil Procedu Rule 11,
ure

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am
mend her com
mplaint to all
lege that the Pooling and Service Ag
d
greement for the 2014-2 was formed
r

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und and gove
der
erned by som other stat law, and th the other state law w
me
te
hat
r
would show t a late
that

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ass
signment wa void, rathe than voida
as
er
able?

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2.

The Court also is not pe
a
ersuaded that Plaintiff ha stated a R
t
as
RESPA claim What
m.

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fac if any, co
cts,
ould Plaintiff allege that would supp ort a claim t one of th named De
ff
that
he
efendants

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vio
olated a spec
cific provisio of RESPA Plaintiff shall be prep
on
A?
pared to resp
pond to this question by

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citi to a parti
ing
icular provis
sion of RESP and the s
PA
specific Defe
fendant who allegedly vio
olated the

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pro
ovision.

United States District Court
Northern District of California

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IT IS SO ORDER
S
RED.
Da
ated: June 2, 2016
,

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JE
EFFREY S. W
WHITE
Un
nited States D
District Judg
ge

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