Sanchez v. Wachovia Mortgage Corporation et al
Filing
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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)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
United States District Court
For the Northern District of California
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MARGARITA M. SANCHEZ,
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Plaintiff,
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v.
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WACHOVIA MORTGAGE CORPORATION, )
WELLS FARGO BANK, N.A., NDEX WEST, )
LLC, and Does 1-100, inclusive,
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Defendants.
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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
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alleging claims of negligence, negligence per se, and fraud against defendants. See Compl. (Dkt.
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No. 1, Ex. A). In the Complaint, Plaintiff sought a Temporary Restraining Order (TRO) to enjoin a
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foreclosure sale set for February 22, 2011 on her property at 4895 Peninsula Point Drive, Seaside,
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CA 93955. See Compl. at 5. Plaintiff alleged that defendants have refused to modify her loan in
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bad faith.
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On March 1, 2011, defendant Wachovia Mortgage (a division of Wells Fargo Bank, N.A.)
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(Defendant) removed the case to this Court on the basis of diversity jurisdiction. See Removal. On
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March 22, 2011, Defendant filed a Motion to Dismiss all the causes of action in the Complaint, and
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a Motion to Strike. The hearing on these Motions was set for April 28, 2011. Therefore, Plaintiff’s
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Opposition to both Motions was due on April 7, 2011. See Civ. L.R. 7-3. Plaintiff filed no
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Opposition, or statement of nonopposition, in violation of Civil Local Rule 7-3.
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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
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Temporary Restraining Order (TRO) seeking to enjoin a foreclosure sale set for April 15, 2011.
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See Dkt. No. 15. The Court found that Plaintiff had not articulated a likelihood of success on the
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merits of her claim, and that Plaintiff’s delay in bringing the application weighed against the
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fairness of granting her request. The Court also ordered Plaintiff to show cause why her case
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should not be dismissed for failure to prosecute in light of her failure to oppose Defendant’s
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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
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sale. Because the renewed TRO Application raised no new, persuasive legal or factual bases
United States District Court
For the Northern District of California
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indicating a likelihood of success on the merits, the Court denied the Application the day it was
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filed.
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Plaintiff’s attorney responded to the Order to Show Cause (OSC), claiming that Defendant
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falsified the proof of service of the removal papers and that she did not receive notice of the
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removal of the case until March 21, 2011. Plaintiff’s attorney states that she is “attaching . . .
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documents” evidencing proof of Defendant’s “fraud” on the Court, but nothing was attached to
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Plaintiffs’ filing. Plaintiff’s attorney also stated that Defendant had agreed to withdraw the Motion
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to Dismiss, and that that was the reason she did not file an opposition or statement of
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nonopposition to that Motion. Finally, Plaintiff’s attorney stated that she had a serious medical
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problem in mid-March.
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Defendant responded to the allegations regarding falsification of proofs of service and the
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alleged agreement to withdraw the Motion to Dismiss. Based on Defendant’s submission, the
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Court finds that Plaintiff’s attorney’s allegations are untrue. Should Plaintiff’s attorney submit
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further bad faith allegations to the Court, she is warned that the Court may order her to show cause
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why sanctions should not be imposed.
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Because Plaintiff’s attorney claims that she suffered a serious medical problem in March,
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the Court hereby grants Plaintiff leave to file an Opposition to Defendant’s Motion to Dismiss and
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Motion to Strike within 14 days of the date of this Order. If Plaintiff fails to file an Opposition,
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this case will be dismissed with prejudice.
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Case No.: 11-CV-00959-LHK
ORDER GRANTING PLAINTIFF LEAVE TO OPPOSE MOTIONS
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IT IS SO ORDERED.
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Dated: April 28, 2011
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_________________________________
LUCY H. KOH
United States District Judge
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United States District Court
For the Northern District of California
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Case No.: 11-CV-00959-LHK
ORDER GRANTING PLAINTIFF LEAVE TO OPPOSE MOTIONS
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