Tapang v. Wells Fargo Bank, N.A. et al

Filing 46

ORDER TO SHOW CAUSE Order to Show Cause Hearing set for 5/8/2013 02:00 PM. Show Cause Response due by 4/29/2013.. Signed by Judge Lucy H. Koh on 4/22/2013. (lhklc3, COURT STAFF) (Filed on 4/22/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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SAN JOSE DIVISION

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Esterlita Cortes Tapang,

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Plaintiffs,
v.
Wells Fargo Bank, N.A., successor by merger to
Wells Fargo Bank Minnesota, N.A., as Trustee
f/k/a Norwest Bank Minnesota, N.A., as Trustee
for the registered holders of Structured Asset
Securities Corporation, Amortizing Residential
Collateral Trust, Mortgage Pass–Through
Certificates, Series 2002–BC9; Structured Asset
Securities Corporation, Amortizing Residential
Collateral Trust, Mortgage Pass–Through
Certificates, Series 2002–BC9; Structured Asset
Securities Corporation; Finance America, LLC;
Ocwen Loan Servicing, LLC; Mortgage
Electronic Registration Systems, Inc.; and
Western Progressive, LLC; DOES 1 through
500, inclusive,
Defendants.

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Case No.: 12-CV-02183-LHK
ORDER TO SHOW CAUSE WHY CASE
SHOULD NOT BE DISMISSED FOR
FAILURE TO PROSECUTE

Plaintiff Esterlita Cortes Tapang (“Plaintiff”) brings this action against Defendants Wells

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Fargo Bank, N.A. (“Wells Fargo Bank”), successor by merger to Wells Fargo Bank Minnesota,

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N.A., as Trustee f/k/a Norwest Bank Minnesota, N.A., as Trustee for the registered holders of

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Structured Asset Securities Corporation (“SASC”), Amortizing Residential Collateral Trust,

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Mortgage Pass-Through Certificates, Series 2002-BC9 (“WFB Trustee”); Structured Asset
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Case No.: 12-CV-02183-LHK
ORDER TO SHOW CAUSE WHY CASE SHOULD NOT BE DISMISSED FOR FAILURE TO PROSECUTE

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Securities Corporation, Amortizing Residential Collateral Trust, Mortgage Pass-Through

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Certificates, Series 2002-BC9 (“SASC Trust”); Structured Asset Securities Corporation (“SASC”);

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Finance America, LLC (“FAL”); Ocwen Loan Servicing, LLC (“Ocwen”); Mortgage Electronic

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Registration Systems, Inc. (“MERS”); and Western Progressive, LLC (“Western Progressive”)

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(collectively, “Defendants”).

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On the night of May 1, 2012, Plaintiff filed an ex parte application for a temporary

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restraining order seeking to enjoin the sale of the real property located at 1724 Noranda Drive, Unit

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1, Sunnyvale, California 94087 (the “Property”), which was supposed to take place on May 2,

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2012. ECF No. 1. Because Plaintiff failed to file a complaint with her ex parte TRO application,

United States District Court
For the Northern District of California

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in violation of Civil Local Rule 65-1(a)(1), the Court was unable to determine either what causes of

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action Plaintiff was asserting or whether she demonstrated a likelihood of success on the merits.

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Accordingly, the Court denied the ex parte TRO application. ECF No. 5. Plaintiff then filed a

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Complaint with the Court on May 2, 2012. ECF No. 6.

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The trustee’s sale, which was supposed to take place on May 2, 2012, was then rescheduled

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for May 23, 2012. See ECF No. 9 (“2d TRO”) at 2. Plaintiff filed another ex parte TRO

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application on May 22, 2012, again, the night before the Trustee’s sale was to take place. See id.

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The Court denied Plaintiff’s second ex parte TRO application on May 23, 2012, due to Plaintiff’s

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failure to comply with the procedural requirements for seeking an ex parte TRO and her failure to

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show a likelihood of success on the merits. See ECF No. 11. The Court also ordered Plaintiff to

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serve all Defendants by May 25, 2012. Id. at 7. Plaintiff failed to do so, prompting the Court to

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issue an Order to Show Cause Why the Case Should Not Be Dismissed For Failure to Prosecute

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(“OSC”). ECF No. 12. Plaintiff filed a response to the OSC on June 8, 2012, affirming that

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service on all Defendants was completed on May 29, 2012. ECF No. 14.

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On June 19, 2012, Defendants filed a Motion to Dismiss, ECF No. 16, which they then

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amended on June 22, 2012, ECF No. 18. On August 30, 2012, the Court granted Defendants’

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Motion to Dismiss with leave to amend.

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Plaintiff filed a First Amended Complaint on September 17, 2012. ECF No. 32. On
October 9, 2012, Defendants filed a Motion to Dismiss the First Amended Complaint. ECF No.
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Case No.: 12-CV-02183-LHK
ORDER TO SHOW CAUSE WHY CASE SHOULD NOT BE DISMISSED FOR FAILURE TO PROSECUTE

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41. Pursuant to Civil Local Rule 7-3(a), Plaintiff’s opposition to the Motion to Dismiss was due on

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November 2, 2012. As of today, Plaintiff has not filed an opposition or statement of non-

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opposition to Defendants’ Motion to Dismiss.

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The Court hereby ORDERS Plaintiff to show cause why this case should not be dismissed

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for failure to prosecute. This Order does not authorize Plaintiff to file an untimely opposition to

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Defendants’ Motion to Dismiss. Plaintiff has until April 29, 2013, to file a response to this Order

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to Show Cause. A hearing on this Order to Show Cause is set for Wednesday, May 8, 2013, at

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2:00 p.m. Plaintiff’s failure to respond to this Order and to appear at the May 8, 2013 hearing will

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result in dismissal with prejudice for failure to prosecute. The Case Management Conference

United States District Court
For the Northern District of California

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currently scheduled for April 25, 2013, is hereby CONTINUED to May 8, 2013, and the hearing on

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Defendants’ Motion to Dismiss is VACATED.

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IT IS SO ORDERED.

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Dated: April 22, 2013

_________________________________
LUCY H. KOH
United States District Judge

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Case No.: 12-CV-02183-LHK
ORDER TO SHOW CAUSE WHY CASE SHOULD NOT BE DISMISSED FOR FAILURE TO PROSECUTE