Nelmida v. Flagstaf Bank, FSB et al

Filing 15

ORDER GRANTING 4 MOTION TO DISMISS WITH LEAVE TO AMEND. Signed by Judge Jeremy Fogel on June 15, 2011. (jflc3, COURT STAFF) (Filed on 6/15/2011)

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**E-filed 6/15/2011**
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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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CAROL G. NELMIDA, an individual,
Plaintiff,

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ORDER1 GRANTING MOTION TO
DISMISS WITH LEAVE TO AMEND

v.

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Case Number 5:11-cv-1580-JF/HRL

[Re: Docket No. 4]
FLAGSTAR BANK, FSB; JOAN H. ANDERSON,
an individual; CITIMORTGAGE, INC., a New
York Corporation; CAL WESTERN
RECONVEYANCE CORPORATION, a California
Corporation; FANNIE MAE A/K/A FEDERAL
NATIONAL MORTGAGE ASSOCIATION;
MORTGAGE ELECTRONIC REGISTRATION
SYSTEMS, INC., a Delaware Corporation; and
Does 1 through 50, inclusive
Defendants.

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Plaintiff Carol G. Nelmida filed the instant action on March 8, 2011, in the Santa Clara
Superior Court, alleging twenty-nine claims arising from home loans she obtained on June 10,
2003. Defendants CitiMortgage Inc., Federal National Mortgage Association (Fannie Mae), and
Mortgage Electronic Registration Systems, Inc. (MERS) removed the case to this Court and
moved to dismiss the complaint.

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This disposition is not designated for publication in the official reports.

Case No. 5:11-cv-1580 JF
ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND
(JFLC3)

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Under this Court’s Civil Local Rules, Plaintiff’s opposition was due at least twenty-one

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days before the noticed hearing date of June 24, 2011–here, not later than June 3, 2011. See Civ.

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L.R. 7-3(a). As of the date of this order, Plaintiff has not filed opposition papers.

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Several of Plaintiffs’ claims arise from a loan obtained more than seven years before the

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action was filed and do not allege facts sufficient to allege that the relevant statutes of limitations

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should be tolled. In addition, several of the claims appear to be based on the allegation that the

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note or deed of trust are void or voidable because the note was not produced prior to foreclosure.

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However, as recent cases reaffirm, “California law does not require possession of the note as a

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precondition to nonjudicial foreclosure under a deed of trust.” Pagtalunan v. Reunion Mortgage

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Inc., No. C-09-00162 EDL, 2009 WL 961995, at*2 (N.D. Cal. Apr. 8, 2009). The other

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arguments raised by Defendants are similarly well-taken. For these reasons, and because it is

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unopposed, the motion to dismiss will be granted with leave to amend. Any amended pleading

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shall be filed by July 7, 2008.

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ORDER

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For good cause shown,

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(1)

the motion to dismiss is GRANTED, WITH LEAVE TO AMEND;

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(2)

any amended pleading shall be filed by July 7, 2008;

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(3)

the hearing date of June 24, 2011 is VACATED.

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DATED: June 15, 2011

__________________________________
JEREMY FOGEL
United States District Judge

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Case No. 5:11-cv-1580 JF
ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND
(JFLC3)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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CAROL G. NELMIDA, an individual,
Plaintiff,

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Case Number 5:11-cv-01580 JF/HRL
CERTIFICATE OF SERVICE

v.
FLAGSTAR BANK, FSB; JOAN H. ANDERSON,
an individual; CITIMORTGAGE, INC., a New
York Corporation; CAL WESTERN
RECONVEYANCE CORPORATION, a California
Corporation; FANNIE MAE A/K/A FEDERAL
NATIONAL MORTGAGE ASSOCIATION;
MORTGAGE ELECTRONIC REGISTRATION
SYSTEMS, INC., a Delaware Corporation; and
Does 1 through 50, inclusive
Defendants.

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I, the undersigned, hereby certify that I am an employee of the Office of the Clerk,
United States District Court, Northern District of California.
On June 15, 2011, I served a true and correct copy of the attached document to each of
the persons hereinafter listed by placing said copy in a postage paid envelope and depositing said
envelope in the United States mail, or by placing said envelope in the outgoing mail delivery
receptacle located in the Clerk’s Office:

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Carol G Nelmida
109 Tennant Avenue
San Jose, CA 95138
DATED: June 15, 2011

For the Court
Richard W. Weiking, Clerk

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By:
/s/
Diana Munz
Courtroom Deputy Clerk

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Case No. 5:11-cv-1580 JF
ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND
(JFLC3)