Palce v. JP Morgan Chase Bank National Association et al

Filing 21

ORDER GRANTING MOTION TO DISMISS 7 WITH LEAVE TO AMEND AND VACATING HEARING DATE. Signed by Judge Jeremy Fogel on August 16, 2011. (jflc1, COURT STAFF) (Filed on 8/16/2011)

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**E-Filed 8/16/2011**

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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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DELIA S. PALCE,

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ORDER1 GRANTING MOTION TO
DISMISS WITH LEAVE TO AMEND
AND VACATING HEARING DATE

Plaintiff,

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Case Number 5:11-cv-02932-JF (HRL)

v.
JP MORGAN CHASE BANK, a National
Association F/K/A WASHINGTON MUTUAL
BANK; CALIFORNIA RECONVEYANCE
COMPANY, a California Corporation, and DOES
1 through 50, inclusive,

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[Re: Docket Nos. 7, 8, 9]

Defendants.

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This action arises from a loan secured by the residence of Plaintiff Delia S. Palce

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(“Palce”). Palce seeks to set aside a nonjudicial foreclosure sale that was conducted on April 8,

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2011 by Defendant California Reconveyance Company (“Cal Reconveyance”) acting as trustee

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for the lender under the Deed of Trust.2 Defendants move to strike certain portions of the

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

See Ex. A to Defendants’ Request for Judicial Notice. Although Defendant Washington
Mutual Bank (“Washington Mutual”) is listed as the lender on the Deed, it since has been
acquired by JP Morgan Chase Bank. Id. at Exs. A, E.
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Case No. 5:11-cv-02932-JF (HRL)
ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND AND VACATING HEARING DATE
(JFLC1)

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complaint and to dismiss the complaint in its entirety. The Court concludes that the motions are

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appropriate for determination without oral argument and will vacate the hearing date of August

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19, 2011. See Civ. L.R. 7-1(b).

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Pursuant to Civ. L.R. 7-3(a), Plaintiff was required to file opposition to the motions not

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more than fourteen days after the motions were noticed and served, here not later than July 19,

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2011.3 As of the date of this order, Plaintiff has yet to file opposition papers. Because the

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motion to dismiss appears well-taken and is unopposed, the motion will be granted, with leave to

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amend.

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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)

Defendants’ request for judicial notice in support of the motion to dismiss also is
GRANTED as to the Deed of Trust and Purchase Agreement identified in Exs. A
and E;

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(3)

Defendants’ motion to strike is TERMINATED as moot;

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(4)

any amended pleading shall be filed within twenty (20) days after the date of this
order; and

(5)

the hearing date of August 19, 2011 is VACATED

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DATED: August 16, 2011

__________________________________
JEREMY FOGEL
United States District Judge

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Originally, Defendants noticed the instant motions for hearing on August 2, 2011.
However, the matter was reassigned on June 27, 2011, and Defendants re-noticed the motions for
hearing on August 19, 2011.
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Case No. 5:11-cv-02932-JF (HRL)
ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND AND VACATING HEARING DATE
(JFLC1)

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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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DELIA S. PALCE,

Case Number 5:11-cv-02932-JF (HRL)

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Plaintiff,
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CERTIFICATE OF SERVICE
v.
JP MORGAN CHASE BANK, a National
Association F/K/A WASHINGTON
MUTUAL BANK; CALIFORNIA
RECONVEYANCE COMPANY, a
California Corporation, and DOES 1 through
50, inclusive,

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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.

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On August 16, 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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Delia S Palce
2685 Rosalinda Court
San Jose, CA 95121

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DATED: August 16, 2011

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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-02932-JF (HRL)
ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND AND VACATING HEARING DATE
(JFLC1)