Pantalion v. Resmae Mortgage Corporation et al
Filing
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ORDER signed by Judge Morrison C. England, Jr., on 6/20/11, ORDERING that 46 plaintiff's motion for relief from judgment is DENIED. (Kastilahn, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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CHARITY MAE PANTALIAN,
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Plaintiff,
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No. 2:09-cv-02262-MCE-GGH
v.
ORDER
RESMAE MORTGAGE CORPORATION
et al.,
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Defendants.
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----oo0oo----
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Through this action Plaintiff, Charity M. Seymour, f.k.a.
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Charity M. Pantalion, (“Plaintiff”) seeks relief from this Court’s
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dismissal of her case against Defendant Christopher Cox on July 27,
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2010 (ECF No. 43) and Defendants ResMAE Mortgage Corp. (“ResMAE”),
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Wilshire Credit Corp. (“Wilshire”), Mortgage Electronic
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Registration Systems, Inc. (“MERS”), Merrill Lynch Mortgage
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Investors, Inc., and Merrill Lynch Investors Trust Series 2006 RM5
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on June 23, 2010 (ECF No. 42.).1
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///
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Defendants Home Loans Direct (“DE HDL”), Hisham Desouki, Jonathan
Annett, Fox Fields Financial, Inc., and Christopher Fox were served
but never entered a responsive pleading, and thus were in default
when the case was dismissed.
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Specifically, Plaintiff requests the Court re-open the case as to
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all Defendants pursuant to Federal Rule of Civil Procedure 60(b)(1)
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and (6).2
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Dismissal of the entire action against remaining Defendants Lodes
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Capital Escrow and Nikki Hall, (ECF No. 44.) and the Clerk of Court
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closed the case.
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On Dec 20, 2010 Plaintiff filed a Stipulation for
As a matter of background, Plaintiff’s original complaint was
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filed on August 17, 2009.
Plaintiff alleged that on or about
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August 16, 2006, she obtained a loan from several of the original
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Defendants which was secured by a deed of trust naming Defendant
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ResMAE as the lender. (Compl. 6-7, ECF No. 1).
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alleged that Defendants ResMAE and Wilshire violated the Truth in
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Lending Act (“TILA”), 15 U.S.C. § 1601 et seq., by failing to
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satisfy the statute’s disclosure requirements. (Id. at 9-11.)
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Furthermore, Plaintiff accused Defendants Wilshire, DE HDL,
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Desouki, Cox, Lodes Capital, Hall, Fox Fields, and Fox of violating
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the Real Estate Settlement Procedures Act (“RESPA”) (12 U.S.C.
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§ 2605), and, together with Defendants Merrill Lynch Mortgage
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Investor’s Inc. and Merrill Lynch Investors Trust Series 2006 RM5,
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of violating unspecified Securities and Exchange Commission (“SEC”)
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rules and regulations. (Id. at 11, 17.)3
Plaintiff also
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All further references to “Rule” or “Rules” are to the Federal
Rules of Civil Procedure unless otherwise noted.
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Plaintiff’s complaint also alleges various state causes of
action, including violations of California’s Rosenthal Act (Cal.
Civ. Code § 1788 et seq.), unfair competition (Cal. Bus. and Prof.
Code § 17200), misrepresentation, fraud, breach of fiduciary duty
and negligence; however, after the federal claims were dismissed,
the Court declined to exercise supplemental jurisdiction over the
state causes of action.
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The magistrate judge’s Findings and Recommendations, adopted
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by this Court, concluded the following: 1) Plaintiff’s service on
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all Defendants was defective, thus Defendants were entitled to
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dismissal; 2) the district court had no authority to issue an order
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addressing any claims against Defendant ResMAE due to a permanent
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injunction imposed by a Delaware Bankruptcy Court prohibiting any
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claims against this Defendant after June 15, 2007; 3) Plaintiff’s
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original complaint alleges RESPA violations against seven of the
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twelve Defendants; however, she provided no facts other than the
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conclusory allegation that Defendant Wilshire “acknowledged TILA
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and RESPA violations;” 4) Plaintiff alleged no facts related to any
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specific SEC violations; and 5) Plaintiff’s TILA claims were not
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only filed beyond the TILA statute of limitations but Plaintiff
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also did not tender repayment of the amount advanced by the lender
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as required by TILA.
(See F&R, ECF No. 34.)
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Plaintiff’s current motion requests the case be reopened
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pursuant to Rule 60(b) due to 1) alleged errors or neglect by the
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Court in interpreting TILA; 2) the court’s alleged failure to
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thoroughly read her Reply and Opposition; and 3) violation of her
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due process rights when she was denied an opportunity to amend her
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complaint at a March 25, 2010 hearing.
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No. 46-2.)
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(Mot. for Relief, ECF
A court has the power to revisit prior decisions of its own,
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though it should be loathe to do so in the absence of extraordinary
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circumstances, such as where the initial decision was “clearly
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erroneous.”
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800, 817 (1988).
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///
Christianson v. Colt Indus. Operating Corp., 486 U.S.
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Specifically, Rule 60(b) enumerates the grounds upon which a motion
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for relief from an order or judgment may be made. It specifies
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that:
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On motion and upon such terms as are just, the court may
relieve a party or a party’s legal representative from a
final judgment, order, or proceeding for the following
reasons: (1) mistake, inadvertence, surprise or excusable
neglect; (2) newly discovered evidence which by due
diligence could not have been discovered before the
court’s decision; (3) fraud by the adverse party; (4) the
judgment is void; (5) the judgment has been satisfied; or
(6) any other reason justifying relief.
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In the instant case, Plaintiff has not met the “clearly
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erroneous” standard for reopening this case on any of the grounds
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for dismissal cited in the Findings and Recommendations.
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Plaintiff’s motion does not address many of the specific issues
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raised by the Court, including the permanent injunction imposed by
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a Delaware Bankruptcy Court prohibiting any claims against
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Defendant ResMAE, or any of the RESPA and SEC deficiencies noted in
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the Findings.
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Further,
Similarly, Plaintiff’s motion fails to demonstrate the Court’s
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error in its application of TILA.
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from the Northern District of Illinois, Stewart v. BAC Home Loans
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Servicing, to justify her assertion that her claim is not time-
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barred despite being filed beyond § 1635(f) three-year limitations
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period. 2011 WL 862938 (N.D. Ill. Mar 10, 2011). However, the
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holding in Stewart is contrary to Ninth Circuit precedent that
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§ 1635(f) deprives a court of subject matter jurisdiction for any
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claim brought outside the three-year statute of limitations. See
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Miguel v. Country Funding Corp., 309 F.3d 1161, 1164 (9th Cir.
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2002).
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Plaintiff’s motion cites a case
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Finally, this case was closed in December 2010 after Plaintiff
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herself stipulated to the dismissal of the remaining defendants.
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The Court finds no compelling reason to reopen the case.
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Therefore, for the reasons set forth above, Plaintiff’s Motion for
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Relief from Judgment is DENIED.
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IT IS SO ORDERED.
Date: June 20, 2011
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__________________________________
MORRISON C. ENGLAND, JR
UNITED STATES DISTRICT JUDGE
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DEAC_Signature-END:
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Because oral argument will not be of material assistance, the
Court deems this matter suitable for decision without oral
argument. E.D. Cal. Local Rule 230(g).
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