Sanchez v. Wachovia Mortgage Corporation et al

Filing 28

ORDER Granting Plaintiff Leave to File Opposition to Motions to Dismiss and Strike. Signed by Judge Lucy H. Koh on 4/28/2011. (lhklc2, COURT STAFF) (Filed on 4/28/2011)

1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT

8

NORTHERN DISTRICT OF CALIFORNIA

9

SAN JOSE DIVISION

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17

MARGARITA M. SANCHEZ,

)
)
Plaintiff,
)
v.
)
)
WACHOVIA MORTGAGE CORPORATION, )
WELLS FARGO BANK, N.A., NDEX WEST, )
LLC, and Does 1-100, inclusive,
)
)
Defendants.
)
)

Case No.: 11-CV-00959-LHK
ORDER GRANTING PLAINTIFF
LEAVE TO FILE OPPOSITION TO
DEFENDANT’S MOTION TO DISMISS

On February 22, 2011, Plaintiff filed a complaint in the Superior Court of Monterey County

18

alleging claims of negligence, negligence per se, and fraud against defendants. See Compl. (Dkt.

19

No. 1, Ex. A). In the Complaint, Plaintiff sought a Temporary Restraining Order (TRO) to enjoin a

20

foreclosure sale set for February 22, 2011 on her property at 4895 Peninsula Point Drive, Seaside,

21

CA 93955. See Compl. at 5. Plaintiff alleged that defendants have refused to modify her loan in

22

bad faith.

23

On March 1, 2011, defendant Wachovia Mortgage (a division of Wells Fargo Bank, N.A.)

24

(Defendant) removed the case to this Court on the basis of diversity jurisdiction. See Removal. On

25

March 22, 2011, Defendant filed a Motion to Dismiss all the causes of action in the Complaint, and

26

a Motion to Strike. The hearing on these Motions was set for April 28, 2011. Therefore, Plaintiff’s

27

Opposition to both Motions was due on April 7, 2011. See Civ. L.R. 7-3. Plaintiff filed no

28

Opposition, or statement of nonopposition, in violation of Civil Local Rule 7-3.
1
Case No.: 11-CV-00959-LHK
ORDER GRANTING PLAINTIFF LEAVE TO OPPOSE MOTIONS

On April 14, 2011, this Court issued an order denying Plaintiff’s ex parte Application for

1
2

Temporary Restraining Order (TRO) seeking to enjoin a foreclosure sale set for April 15, 2011.

3

See Dkt. No. 15. The Court found that Plaintiff had not articulated a likelihood of success on the

4

merits of her claim, and that Plaintiff’s delay in bringing the application weighed against the

5

fairness of granting her request. The Court also ordered Plaintiff to show cause why her case

6

should not be dismissed for failure to prosecute in light of her failure to oppose Defendant’s

7

Motions to Dismiss and Strike filed on March 22, 2011.
On April 18, 2011, Plaintiff filed a “renewed” ex parte Application for a TRO enjoining the

8
9

sale. Because the renewed TRO Application raised no new, persuasive legal or factual bases

United States District Court
For the Northern District of California

10

indicating a likelihood of success on the merits, the Court denied the Application the day it was

11

filed.

12

Plaintiff’s attorney responded to the Order to Show Cause (OSC), claiming that Defendant

13

falsified the proof of service of the removal papers and that she did not receive notice of the

14

removal of the case until March 21, 2011. Plaintiff’s attorney states that she is “attaching . . .

15

documents” evidencing proof of Defendant’s “fraud” on the Court, but nothing was attached to

16

Plaintiffs’ filing. Plaintiff’s attorney also stated that Defendant had agreed to withdraw the Motion

17

to Dismiss, and that that was the reason she did not file an opposition or statement of

18

nonopposition to that Motion. Finally, Plaintiff’s attorney stated that she had a serious medical

19

problem in mid-March.

20

Defendant responded to the allegations regarding falsification of proofs of service and the

21

alleged agreement to withdraw the Motion to Dismiss. Based on Defendant’s submission, the

22

Court finds that Plaintiff’s attorney’s allegations are untrue. Should Plaintiff’s attorney submit

23

further bad faith allegations to the Court, she is warned that the Court may order her to show cause

24

why sanctions should not be imposed.

25

Because Plaintiff’s attorney claims that she suffered a serious medical problem in March,

26

the Court hereby grants Plaintiff leave to file an Opposition to Defendant’s Motion to Dismiss and

27

Motion to Strike within 14 days of the date of this Order. If Plaintiff fails to file an Opposition,

28

this case will be dismissed with prejudice.
2
Case No.: 11-CV-00959-LHK
ORDER GRANTING PLAINTIFF LEAVE TO OPPOSE MOTIONS

1

IT IS SO ORDERED.

2

Dated: April 28, 2011

3

_________________________________
LUCY H. KOH
United States District Judge

4
5
6
7
8
9

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
Case No.: 11-CV-00959-LHK
ORDER GRANTING PLAINTIFF LEAVE TO OPPOSE MOTIONS