Olarte v. DHI Mortgage Company, LTD.

Filing 22

ORDER that 18 Motion for Deposit of Current Mortgage Payments is DENIED. Signed by Magistrate Judge Peggy A. Leen on 7/12/13. (Copies have been distributed pursuant to the NEF - MMM)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 7 8 9 10 11 JULIO C. OLARTE, ) ) Plaintiff, ) ) vs. ) ) DHI MORTGAGE, et al., ) ) Defendants. ) __________________________________________) Case No. 2:13-cv-00044-LDG-PAL ORDER (Mtn to Deposit - Dkt. #18) 12 13 This matter is before the court on Plaintiff Julio C. Olarte’s Motion for Deposit of Current 14 Mortgage Payments Into the Court Registry Pending the Outcome of Plaintiff’s Quiet Title Action (Dkt. 15 #18). The court has considered the Motion, and Defendant DHI Mortgage Company, Ltd.’s 16 (“Defendant”) Response (Dkt. #21). Plaintiff did not file a reply, and the time for filing one has now 17 run. 18 Plaintiff filed this quiet title action in state court, and it was removed to federal court by 19 Defendant on January 9, 2013. DHI filed a Motion to Dismiss on January 16, 2013, which is currently 20 under submission to the district judge. The instant Motion seeks an order permitting Plaintiff to deposit 21 his mortgage payments into the court registry during the pendency of this case. Plaintiff states that he is 22 and has been current in his mortgage payments and wants to ensure the court can “set aside his current 23 mortgage payments, pending the outcome of this action.” Motion at ¶ 6. Defendant responds that 24 Plaintiff’s Motion admits the subject property is encumbered by a mortgage, and the court should grant 25 the Motion to Dismiss. Defendant’s Motion to Dismiss (Dkt. #4), represents it no longer owns the 26 mortgage on the subject property because it sold the loan and transferred the servicing rights to Wells 27 Fargo Home Mortgage, effective November 1, 2011. Defendant claims it no longer has any interest in 28 the note or deed of trust that secures the subject property and does not service the loan, and therefore 1 Plaintiff cannot state a claim on which relief may be granted against it. The motion to dismiss 2 acknowledges that Plaintiff has an ownership interest in the real property involved in this case subject 3 to the terms and conditions of the promissory note and deed of trust Plaintiff executed when he 4 purchased the property. Wells Fargo Home Mortgage is not named in Plaintiff’s Complaint and is not a 5 party to this case. 6 Local Rule of Civil Practice 7-2(d) provides that the failure of a moving party to file points and 7 authorities in support of a motion constitutes a consent to the denial of the motion. LR 7-2(d). Plaintiff 8 states he is current in his mortgage obligations, and does not claim he does not claim that he does not 9 know to whom to send payments. Rather, Plaintiff states that he wants “to ensure there is no further 10 action beyond the consideration of Plaintiff’s quiet title action that Defendant use against Plaintiff for 11 any reason whatsoever and that Defendant is estopped from pursuing any further action in this case, 12 until all triable issues in this case are resolved.” It appears he wants to have his mortgage payments 13 deposited with the registry of the court so that if he is successful in this quiet title action the mortgage 14 payments will be repaid to him. As Plaintiff cites no legal authority for his request it will be denied. 15 16 17 IT IS ORDERED that Plaintiff’s Motion for Deposit of Current Mortgage Payments (Dkt. #18) is DENIED. Dated this 12th day of July, 2013. 18 19 20 21 _________________________________________ PEGGY A. LEEN UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 2

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