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

Filing 50

Order by Hon. Lucy H. Koh granting 39 Motion to Dismiss Without Prejudice.(lhklc3, COURT STAFF) (Filed on 5/7/2013)

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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 GRANTING MOTION TO
DISMISS WITHOUT PREJUDICE

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 GRANTING MOTION TO DISMISS WITHOUT PREJUDICE

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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 GRANTING MOTION TO DISMISS WITHOUT PREJUDICE

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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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October 23, 2012. However, Plaintiff has never filed an opposition. On April 22, 2013, the Court

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again issued an Order to Show Cause Why the Case Should Not Be Dismissed For Failure to

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Prosecute. ECF No. 46. On April 29, 2013, more than six months after Plaintiff’s opposition to

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the Motion to Dismiss was due, Plaintiff’s counsel filed a declaration apologizing to the Court for

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the oversight and stating that Plaintiff intended to file a Notice of Non-Opposition. ECF No. 47.

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In light of Plaintiff’s stated intention of filing a Notice of Non-Opposition, and Plaintiff’s
prolonged delay in filing a response to Defendants’ Motion to Dismiss, the Court GRANTS

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Defendants’ Motion to Dismiss without prejudice. The Case Management Conference and Order

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United States District Court
For the Northern District of California

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to Show Cause hearing set for May 8, 2013, are hereby VACATED. The Clerk shall close the file.

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IT IS SO ORDERED.

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Dated: May 7, 2013

_________________________________
LUCY H. KOH
United States District Judge

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Case No.: 12-CV-02183-LHK
ORDER GRANTING MOTION TO DISMISS WITHOUT PREJUDICE