Lopez v. Executive Trustee Service, LLC et al

Filing 492

ORDER. IT IS ORDERED that the 484 Motion for Reconsideration filed by Capital One, N.A., successor by merger to Chevy Chase Bank, jointed in by T.D. Service Company 486 , is GRANTED. The 66 stipulation between Plaintiff Bryan Gr ay and Chevy Chase Bank regarding the Gray property and the 66 Order are vacated, and shall be of no further force or effect. To the extent Capital One, N.A., was bound by or liable under the 66 stipulation and order, it is released from liability. Signed by Judge Edward C. Reed, Jr on 10/31/2011. (Copies have been distributed pursuant to the NEF - KO)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JOSEFA S. LOPEZ, JOSE
TRINIDAD CASAS, MARIA C.
CASAS, LYNDON B. GRAVES,
TYRONE EVENSON,
MICHELLINA EVENSON, BRYAN
GRAY, HELEN GRAY, PATRICK
FRANKOSKI, et al.,

) Case No. 3:09-cv-00180-ECR-VPC
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ORDER
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Plaintiffs,
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vs.
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EXECUTIVE TRUSTEE SERVICES, )
LLC.; COUNTRYWIDE HOME
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LOANS, INC.; MERSCORP, INC., )
MORTGAGE ELECTRONIC
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REGISTRATION SYSTEMS,
)
RECONTRUST SAXON
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MORTGAGE SERGVICES, INC.; )
GALE GROUP dba T.D.
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FINANCIAL SERVICES, et al.,
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Defendants.
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)
On July 15, 2011, Plaintiff Bryan Gray filed an ex parte motion (#482) to

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enforce stipulation and order (#66) not to foreclose. We entered an order (#483)

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granting the motion. Since the order was entered without the opportunity for

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Defendants Chevy Chase Bank and T.D. Service Company to respond, the order

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provided that it was entered subject to the right of Chevy Chase Bank and T.D.

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Service Company to file a motion for reconsideration within 21 days.

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Our order was entered for the purposes of maintaining the status quo until
the said Defendants could be heard.
Capital One, N.A., successor by merger to Chevy Chase, now moves

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(#484) for reconsideration of our order (#483). Defendant T.D. Service

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Company has joined (#486) in the motion.

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The stipulation and Order (#66) provided that Chevy Chase Bank and its

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agents including trustee T.D. Service Company would not initiate or advance any

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foreclosure sale on the Gray property pending resolution of those claims asserted

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by Plaintiff Gray that could affect Chevy Chase Bank’s right to foreclose on the

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Gray property.
On July 15, 2009, the Court entered its order (#235) granting Chevy Chase

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Bank’s motion (#133) to dismiss the First Amended Complaint as to Defendant

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Chevy Chase Bank on the grounds that Plaintiffs failed to effectuate service in

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accordance with the Federal Rules of Civil Procedure (Fed.R.Civ.P.). As of July

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15, 2009, Chevy Chase Bank was no longer a party to this action.

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Thus, the claims asserted by Plaintiff Gray against Chevy Chase Bank that

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could affect the Bank’s rights to foreclose were resolved. Chevy Chase Bank

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was dismissed from the action and was no longer a party to the action. The

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stipulation and order (#66) were no longer in force and by their own terms had

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been terminated.

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Defendant Chevy Chase Bank was not required to meet the requirements

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of Fed.R.Civ.P. 59(e) or 60(b)(1) in making its motion for reconsideration. The

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motion was properly made pursuant to the court order (#483) which provided that

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the order was subject to the right of Defendants Chevy Chase Bank and T.D.

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Service Company to file a motion for reconsideration within 21 days. The

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motions (#484) and (#486) were made in accordance with our specific order

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(#483) which provided for the filing of the motion for reconsideration.

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Defendant T.D. Service Company joined (#486) in the Defendant Capital
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One, N.A., motion for reconsideration (#484). T. D. Service Company did not,

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however, join in and was not a party to the stipulation (#66) between Plaintiffs

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and Chevy Chase Bank, F.S.B., regarding Gray’s property. However, the

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stipulation (#66) provides that it is made on behalf of “Chevy Chase, its . . .

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agents, including trustee T.D. Service Company . . . .” Thus, in entering into the

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stipulation, Chevy Chase bank intended to bind Trustee T.D. Service Company

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as its agent to the requirements of the stipulation (#66).

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T.D. Service Company was subject to release from the stipulation on the

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same basis as Chevy Chase Bank, i.e., resolution of those claims asserted by

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Plaintiffs that could affect Chevy Chase Bank’s right to foreclose on the Gray

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property. As recited above, there has been such resolution because Chevy Chase

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Bank has been dismissed from the action. The stipulation by its own terms is no

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longer in effect as to either Chevy Chase Bank or T.D. Service Company.

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The ongoing MDL proceedings involving MERS do not affect the

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outcome. The stipulation has terminated by its own force. The MDL

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proceedings are not affected by it.

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IT IS ORDERED that the Motion for Reconsideration (#484) filed by

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Capital One, N.A., successor by merger to Chevy Chase Bank, joined in by T.D.

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Service Company (#486), is GRANTED. The stipulation (#66) between

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Plaintiff Bryan Gray and Chevy Chase Bank regarding the Gray property and the

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Order (#66) are vacated, and shall be of no further force or effect. To the extent

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Capital One, N.A., was bound by or liable under the stipulation and order (#66),

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it is released from liability.

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DATED this 31st day of October 2011.

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_____________________________
EDWARD C. REED, JR.
United States District Judge

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