Bowland v. Karamehmedovic et al

Filing 20

ORDER Setting Briefing Schedule on Motion to Dismiss. Opposition due June 3, 2011. Reply due June 10, 2011. Signed by Judge Lucy H. Koh on 5/20/2011. (lhklc2, COURT STAFF) (Filed on 5/20/2011)

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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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)
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Plaintiff,
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v.
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VANDA KARAMEHMEDOVIC, an individual; )
NEWCAL FINANCIAL GROUP, INC., a
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California corporation; WORLD SAVINGS
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BANK, FSB, a California corporation;
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WACHOVIA MORTGAGE, FSB, a North
)
Carolina corporation; WELLS FARGO BANK, )
N.A., a corporation and DOES 1 through 100, )
inclusive,
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Defendants.
)
)
DARLENE BOWLAND,

Case No.: 11-cv-01667-LHK

ORDER SETTING BRIEFING
SCHEDULE

Defendant Wells Fargo Bank N.A. (successor by merger to Wachovia Mortgage, FSB,

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formerly known as World Savings Bank, FSB) (“Wells Fargo”) has filed a motion to dismiss

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Plaintiff’s complaint. The motion is set for hearing on September 1, 2011 at 1:30 p.m. The Court

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hereby sets a briefing schedule for Defendant’s motion:

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Opposition: due June 3, 2011

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Reply: due June 10, 2011

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If possible, the Court will resolve the motion to dismiss on the papers in advance of the

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hearing date. The case was removed from state court by Defendant Wells Fargo on the basis of a

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single federal claim (claim 1, for violation of the Truth in Lending Act or TILA, 15 U.S.C. § 1601

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et seq.). It appears, based on the Complaint, that TILA rescission may be unavailable because the
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Case No.: 11-CV-01667-LHK
ORDER REGARDING BRIEFING SCHEDULE ON MOTION TO DISMISS

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property has already been sold. See 15 U.S.C. § 1635 (“An obligor’s right of rescission shall

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expire three years after the date of consummation of the transaction or upon the sale of the

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property, whichever occurs first.”). It also appears that Plaintiff’s claim for TILA damages is

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barred by the one-year statute of limitations. 15 U.S.C. § 1640(e). Plaintiff’s Opposition should

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address these issues and whether she can allege facts to support equitable tolling of her TILA

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damages claim. If the Court finds that Plaintiff cannot state a federal claim, or if the Plaintiff

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voluntarily dismisses the TILA claim, the Court will dismiss the TILA claim and remand the

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remaining state claims.

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IT IS SO ORDERED.

United States District Court
For the Northern District of California

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Dated: May 20, 2011

_________________________________
LUCY H. KOH
United States District Judge

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Case No.: 11-CV-01667-LHK
ORDER REGARDING BRIEFING SCHEDULE ON MOTION TO DISMISS