Valtierra et al v. Wells Fargo Bank, N.A. et al
Filing
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ORDER DISMISSING CASE signed by Chief Judge Anthony W. Ishii on 06/02/2011. CASE CLOSED. (Flores, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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RAFAEL VALTIERRA and OFELIA
VALTIERRA,
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Plaintiffs,
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v.
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WELLS FARGO BANK, N.A., FKA
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WACHOVIA MORTGAGE, CAL)
WESTERN RECONVEYANCE
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CORPORATION, WACHOVIA
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MORTGAGE FS, and 10 JOHN DOES, )
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Defendants.
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____________________________________)
CIV-F-10-1455 AWI GSA
ORDER DISMISSING CASE
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I. History
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On June 21, 2006, Plaintiffs Rafael and Ofelia Valtierra (“Plaintiffs”), obtained a
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$488,000 mortgage from World Savings Bank, FSB (“World Savings”) which through a number
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of corporate changes has become Defendant Wells Fargo Bank, N.A. (“Wells Fargo”). The loan
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was secured by a Deed of Trust against 1921 Katherine Court, Turlock, CA, which was recorded
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on July 5, 2006. The Deed of Trust named Plaintiffs as trustors, World Savings as beneficiary,
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and third party Golden West Savings Association Services Company as trustee. Plaintiff fell
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behind on payments, and a Notice of Default was recorded on August 3, 2009 by Defendant Cal-
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Western Reconveyance Corporation (“Cal-Western”). A Notice of Trustee Sale was recorded on
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November 5, 2009 setting a public auction for November 24, 2009; this document named Cal-
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Western as the trustee. The sale took place on March 8, 2010. Wells Fargo was the high bidder
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at $327,930.00; the outstanding amount Plaintiff owed on the mortgage had ballooned to
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$559,109.93. A Trustee’s Deed upon Sale was recorded on March 16, 2010, in which Cal-
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Western conveyed the property to Wells Fargo. At an unspecified date, Wells Fargo sent
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Plaintiff written notice of a program whereby Plaintiff had until April 30, 2010 to conduct a short
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sale. It is unclear what communications occurred between the parties concerning this program
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prior to the trustee sale.
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The origin of this case is not altogether clear. Wells Fargo filed a suit against Plaintiffs
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on April 2, 2010 in Stanislaus County Superior Court for unlawful detainer of the property.
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Summary judgment was granted in favor of Wells Fargo on June 24, 2010. Plaintiffs received an
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order to stay eviction proceedings on July 14, 2010, but were ultimately evicted on August 17,
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2010. Plaintiffs filed a notice of removal with the Stanislaus County Superior Court on August
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11, 2010. However, no notice of removal was filed in federal district court. Instead, Plaintiffs
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(proceeding pro se) filed a complaint in federal district court. Plaintiffs allege that they contacted
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Wells Fargo in November 2008 to formally dispute the mortgage, but that Wells Fargo and Cal-
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Western has continued to try to collect on the debt notwithstanding the dispute. The complaint
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alleged violations of the Fair Debt Collection Practices Act for seeking to collect on a debt
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without first verifying or validating it and violations of the Fair Credit Reporting Act for passing
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erroneous information to credit reporting agencies. Doc. 1. The complaint did not directly
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address Wells Fargo’s unlawful detainer claim. Nonetheless, Plaintiffs filed a “notice of
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contempt of federal jurisdiction” and a motion for a temporary restraining order. Docs. 4 and 5.
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Both dealt with Wells Fargo’s unlawful detainer claim and sought to reverse the eviction. Wells
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Fargo filed a motion to dismiss. Doc. 9. As far as can be determined from the docket, Cal-
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Western has not been served in this case. Plaintiffs’ request was denied. Doc. 11. Wells Fargo’s
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motion was granted. Doc. 16. Plaintiffs were granted leave to amend; they were given until
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March 14, 2011 to file an amended complaint and explain why Cal-Western has not been served.
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Plaintiffs have neither filed an amended complaint nor elaborated on Cal-Western’s service. On
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May 11, 2011, the court issued an order to show cause why the case should not be dismissed for
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lack of prosecution, requiring a written response by May 26, 2011. Doc. 18. Again, the deadline
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has passed and Plaintiffs remain silent.
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II. Legal Standards
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A court may dismiss an action based on a party’s failure to prosecute an action or failure
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to obey a court order. Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992). In
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determining whether to dismiss this action for failure to comply with the directives set forth in its
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order, “the Court must weigh the following factors: (1) the public’s interest in expeditious
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resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to
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defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy
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favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir.
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2002), citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992). “These factors are ‘not
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a series of conditions precedent before the judge can do anything,’ but a ‘way for a district judge
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to think about what to do.’” In re Phenylpropanolamine (PPA) Products Liability Litigation, 460
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F.3d 1217, 1226 (9th Cir. 2006), quoting Valley Eng’rs Inc. v. Elec. Eng'g Co., 158 F.3d 1051,
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1057 (9th Cir. 1998).
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III. Discussion
Weighing the relevant factors, the court finds dismissal for lack of prosecution
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appropriate. This suit can not proceed without the participation of Plaintiffs. “The public’s
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interest in expeditious resolution of litigation always favors dismissal.” Yourish v. California
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Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). Plaintiffs have neither filed an amended complaint
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nor explained why Cal-Western has not been served despite two court orders directing them to do
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so. “Whether prejudice is sufficient to support an order of dismissal is in part judged with
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reference to the strength of the plaintiff’s excuse for the default.” Malone v. United States Postal
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Service, 833 F.2d 128, 131 (9th Cir. 1987). In this case, Plaintiffs have provided no explanation
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for the lack of prosecution. There is no active complaint. Dealing with the case on its merits is
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impossible without the cooperation of Plaintiffs.
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IV. Order
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Accordingly, this action is DISMISSED with prejudice for Plaintiff’s failure to prosecute.
The Clerk of the Court is DIRECTED to close the case.
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IT IS SO ORDERED.
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Dated:
0m8i78
June 2, 2011
CHIEF UNITED STATES DISTRICT JUDGE
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