Middleton et al v. Guaranteed Rate, Inc. et al

Filing 41

ORDER that 33 and 35 Motions are DENIED. Signed by Judge Robert C. Jones on 1/25/16. (Copies have been distributed pursuant to the NEF - TR)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
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ERVIN MIDDLETON et al.,
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Plaintiffs,
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vs.
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GUARANTEED RATE, INC. et al.,
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Defendants.
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2:15-cv-00943-RCJ-GWF
ORDER

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This is an action to rescind a loan under the Truth in Lending Act (“TILA”). On March

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9, 2012, Plaintiff Ann Middleton (formerly Ann Gates) and her ex-husband Raymond Gates gave

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Defendant Guaranteed Rate, Inc. (“GRI”) a promissory note and deed of trust in order to

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purchase real property in Las Vegas, Nevada. GRI assigned the loan to Defendant Wells Fargo

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Bank, N.A. (“Wells Fargo”). Ann Middleton and Ervin Middleton (presumably her new

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husband) sued GRI and Wells Fargo in this Court for rescission and restitution under the Truth in

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Lending Act (“TILA”). Wells Fargo moved to dismiss, and GRI joined the motion. Plaintiffs

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opposed the motion and moved to strike it. The Court refused to strike the motion and granted it,

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ruling that although the suit was not on its face time-barred, that Plaintiffs needn’t allege

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willingness and ability to retender the loan proceeds, and that Plaintiffs had sufficiently alleged a

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failure to make the required TILA notifications, TILA simply did not apply to the purchase

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money mortgage in this case.
Plaintiffs appealed. The Court of Appeals directed Plaintiffs to pay the filing fee or file a

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motion to proceed in forma pauperis. Plaintiffs paid the fee but later asked this Court to

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reconsider dismissal and asked the Court of Appeals to voluntarily dismiss the appeal and refund

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the appeal filing fee. The Court of Appeals granted the motion to voluntarily dismiss the appeal

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but denied the motion to recover the filing fee without prejudice to renewal before this Court.

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Plaintiffs then filed a copy of the same motion in this Court. The Court granted the motion to

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refund the appeal filing fee and denied the motion to reconsider dismissal.
Plaintiffs have filed two further motions. First, Plaintiffs ask the Court to reinstate the

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appeal. That motion is denied for lack of jurisdiction. Such a motion must be made to the Court

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of Appeals. Second, Plaintiffs ask the Court to reconsider its order denying reconsideration of

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the order granting the motion to dismiss. The Court denies that motion for the reasons already

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given.
CONCLUSION

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IT IS HEREBY ORDERED that the Motions (ECF Nos. 33, 35) are DENIED.

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IT IS SO ORDERED.

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DATED this 25th day January, 2016.
Dated this 6th day of of January, 2016.

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_____________________________________
ROBERT C. JONES
United States District Judge

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