Vann v. Wells Fargo Bank et al
Filing
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ORDER. Signed by Judge Hamilton on 8/27/2012. (pjhlc1, COURT STAFF) (Filed on 8/27/2012)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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KEITH A. VANN,
Plaintiff,
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v.
ORDER
WELLS FARGO BANK, et al.,
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For the Northern District of California
United States District Court
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No. C 12-1181 PJH
Defendants.
_______________________________/
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Plaintiff Keith A. Vann filed the original complaint in the above-entitled action in
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Alameda County Superior Court on February 24, 2012, against defendants Wells Fargo
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Bank, f/k/a Wachovia Mortgage, f/k/a World Savings Bank (“Wells Fargo”); LSI Title Co. as
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agent for Cal-Western Reconveyance (“Cal-Western”); and Golden West Financial
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Corporation. The dispute involved a loan that plaintiff obtained from Wells Fargo, secured
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by a deed of trust on property located in Oakland, California. When plaintiff fell behind on
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the loan payments, the property was sold as part of a non-judicial foreclosure.
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On March 9, 2012, Wells Fargo filed a notice of removal, alleging diversity
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jurisdiction. Wells Fargo asserted that although both Golden West Financial Corporation
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and Cal-Western were California citizens, they were nominal parties only and could be
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ignored for purposes of diversity jurisdiction. Golden West Financial Corporation was the
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trustee on the original deed of trust, but was substituted out as trustee before plaintiff filed
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the lawsuit. Cal-Western was a trustee at the time the lawsuit was filed, but Wells Fargo
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claims that as a trustee, Cal-Western was acting as a mere stakeholder.
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On March 28, 2012, Cal-Western filed a declaration of non-monetary status
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pursuant to California Civil Code § 2924l, indicating that it had been named in the action
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solely in its capacity as trustee, and had no involvement in the alleged wrongdoing, and
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also that it agreed to be bound by any non-monetary judgment.
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On April 4, 2012, plaintiff filed a first amended complaint (“FAC”) asserting 29
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causes of action, apparently against “all defendants.” In addition to Wells Fargo and Cal-
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Western, he named as defendants Golden West Savings Association Service Co., and two
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law firms. Neither LSI Title Company nor Golden West Financial Corporation was named
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as a defendant in the FAC, and those defendants were terminated.
two law firms. On April 12, 2012, Cal-Western filed another Civil Code § 2924l declaration
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of non-monetary status, as to the FAC. Plaintiff never responded to either of Cal-Western’s
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For the Northern District of California
Summons was issued as to Golden West Savings Association Service Co. and the
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United States District Court
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declarations of non-monetary status.
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On May 2, 2012, plaintiff filed a request for entry of default as to Golden West
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Savings Association Service Company. He claimed in a declaration May 1, 2012 that he
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had served this defendant on April 4, 2012, and that he had filed the proof of service with
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the court on May 9, 2012. However, no proof of service was filed. On May 15, 2012, the
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clerk declined the default, stating “No proof of delivery on file.” Since that time, no proof of
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service of the summons and FAC has been filed.
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On May 24, 2012, the court issued an order granting Wells Fargo’s motion to
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dismiss, as well as the motions of the two law firms. The claims against those defendants
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were dismissed with prejudice. Thus, two defendants remain in the case – Golden West
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Savings Association Service Co., and Cal-Western.
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With regard to Golden West Savings Association Service Co., more than 120 days
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have passed since the filing of the first amended complaint (where plaintiff for the first time
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named this defendant). Plaintiff is hereby ORDERED to file a proof of service, no later than
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September 7, 2012, showing that the summons and first amended complaint were served
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on Golden West by August 3, 2012, the time allowed under Federal Rule of Civil Procedure
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4(m). If plaintiff is unable to establish service by that date, or fails to file the proof of service
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by September 7, 2012, Golden West will be dismissed from the case.
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With regard to Cal-Western, the court will consider plaintiff’s response, if any, to the
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question whether Cal-Western should be dismissed as a nominal party. Accordingly, the
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court will allow plaintiff until September 10, 2012, to file a response to Cal-Western’s
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declarations of non-monetary status.
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IT IS SO ORDERED.
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Dated: August 27, 2012
______________________________
PHYLLIS J. HAMILTON
United States District Judge
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For the Northern District of California
United States District Court
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