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)
1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
9
NORTHERN DISTRICT OF CALIFORNIA
10
United States District Court
For the Northern District of California
8
SAN JOSE DIVISION
11
Esterlita Cortes Tapang,
12
13
14
15
16
17
18
19
20
21
22
23
24
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.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No.: 12-CV-02183-LHK
ORDER GRANTING MOTION TO
DISMISS WITHOUT PREJUDICE
Plaintiff Esterlita Cortes Tapang (“Plaintiff”) brings this action against Defendants Wells
25
Fargo Bank, N.A. (“Wells Fargo Bank”), successor by merger to Wells Fargo Bank Minnesota,
26
N.A., as Trustee f/k/a Norwest Bank Minnesota, N.A., as Trustee for the registered holders of
27
Structured Asset Securities Corporation (“SASC”), Amortizing Residential Collateral Trust,
28
Mortgage Pass-Through Certificates, Series 2002-BC9 (“WFB Trustee”); Structured Asset
1
Case No.: 12-CV-02183-LHK
ORDER GRANTING MOTION TO DISMISS WITHOUT PREJUDICE
1
Securities Corporation, Amortizing Residential Collateral Trust, Mortgage Pass-Through
2
Certificates, Series 2002-BC9 (“SASC Trust”); Structured Asset Securities Corporation (“SASC”);
3
Finance America, LLC (“FAL”); Ocwen Loan Servicing, LLC (“Ocwen”); Mortgage Electronic
4
Registration Systems, Inc. (“MERS”); and Western Progressive, LLC (“Western Progressive”)
5
(collectively, “Defendants”).
6
On the night of May 1, 2012, Plaintiff filed an ex parte application for a temporary
7
restraining order seeking to enjoin the sale of the real property located at 1724 Noranda Drive, Unit
8
1, Sunnyvale, California 94087 (the “Property”), which was supposed to take place on May 2,
9
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
10
in violation of Civil Local Rule 65-1(a)(1), the Court was unable to determine either what causes of
11
action Plaintiff was asserting or whether she demonstrated a likelihood of success on the merits.
12
Accordingly, the Court denied the ex parte TRO application. ECF No. 5. Plaintiff then filed a
13
Complaint with the Court on May 2, 2012. ECF No. 6.
14
The trustee’s sale, which was supposed to take place on May 2, 2012, was then rescheduled
15
for May 23, 2012. See ECF No. 9 (“2d TRO”) at 2. Plaintiff filed another ex parte TRO
16
application on May 22, 2012, again, the night before the Trustee’s sale was to take place. See id.
17
The Court denied Plaintiff’s second ex parte TRO application on May 23, 2012, due to Plaintiff’s
18
failure to comply with the procedural requirements for seeking an ex parte TRO and her failure to
19
show a likelihood of success on the merits. See ECF No. 11. The Court also ordered Plaintiff to
20
serve all Defendants by May 25, 2012. Id. at 7. Plaintiff failed to do so, prompting the Court to
21
issue an Order to Show Cause Why the Case Should Not Be Dismissed For Failure to Prosecute
22
(“OSC”). ECF No. 12. Plaintiff filed a response to the OSC on June 8, 2012, affirming that
23
service on all Defendants was completed on May 29, 2012. ECF No. 14.
24
On June 19, 2012, Defendants filed a Motion to Dismiss, ECF No. 16, which they then
25
amended on June 22, 2012, ECF No. 18. On August 30, 2012, the Court granted Defendants’
26
Motion to Dismiss with leave to amend.
27
28
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.
2
Case No.: 12-CV-02183-LHK
ORDER GRANTING MOTION TO DISMISS WITHOUT PREJUDICE
1
41. Pursuant to Civil Local Rule 7-3(a), Plaintiff’s opposition to the Motion to Dismiss was due on
2
October 23, 2012. However, Plaintiff has never filed an opposition. On April 22, 2013, the Court
3
again issued an Order to Show Cause Why the Case Should Not Be Dismissed For Failure to
4
Prosecute. ECF No. 46. On April 29, 2013, more than six months after Plaintiff’s opposition to
5
the Motion to Dismiss was due, Plaintiff’s counsel filed a declaration apologizing to the Court for
6
the oversight and stating that Plaintiff intended to file a Notice of Non-Opposition. ECF No. 47.
7
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
9
Defendants’ Motion to Dismiss without prejudice. The Case Management Conference and Order
10
United States District Court
For the Northern District of California
8
to Show Cause hearing set for May 8, 2013, are hereby VACATED. The Clerk shall close the file.
11
IT IS SO ORDERED.
12
13
Dated: May 7, 2013
_________________________________
LUCY H. KOH
United States District Judge
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
Case No.: 12-CV-02183-LHK
ORDER GRANTING MOTION TO DISMISS WITHOUT PREJUDICE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?