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