Pacray v. Shea Mortgage, Inc. et al, No. 1:2009cv01942 - Document 38 (E.D. Cal. 2010)
Court Description: MEMORANDUM DECISION AND ORDER DENYING Plaintiff's Motion For Reconsideration 37 , signed by Judge Oliver W. Wanger on 7/30/2010. (Gaumnitz, R)
Download PDF
<![CDATA[
Pacray v. Shea Mortgage, Inc. et al Doc. 38 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT FOR THE 7 EASTERN DISTRICT OF CALIFORNIA 8 9 RACHEL PACRAY, 10 Plaintiff, 11 12 vs. 13 SHEA MORTGAGE, INC., et al., 14 Defendants. 15 16 17 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. CV-F-09-1942 OWW/GSA MEMORANDUM DECISION AND ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION (Doc. 37) By Memorandum Decision and Order filed on April 23, 2010, 18 (April 23 Memorandum Decision, Doc. 31), Defendants motions to 19 dismiss the First Amended Complaint were granted as to the First, 20 Second and Third Causes of Action with prejudice and without 21 leave to amend. 22 to amend as to the Fourth Cause of Action. 23 Action was captioned Cancellation of Instrument and alleged: 24 25 The motions to dismiss were granted with leave The Fourth Cause of 54. A written instrument that purports to be a Deed of Trust executed by plaintiff is presently in existence and under ALS s control. 26 1 Dockets.Justia.com 1 2 55. The instrument, although apparently valid on its face, is voidable in that there is no enforceable underlying promissory note for the deed of trust to secure. 3 4 56. As a result, any obligation owed by PARCRAY to ALS is not secured by the underlying real property. 5 6 57. By this complaint, plaintiffs [sic] notify ALS of plaintiff s intent to cancel the deed of trust attached as Exhibit A. 7 In dismissing the Fourth Cause of Action with leave to amend, the 8 Court ruled: 9 10 11 12 13 14 15 16 Defendants assert that the allegation that there is no enforceable underlying promissory note for the deed of trust to secure is conclusory and contradicted by the allegation in Paragraphs 5 and 19 that Plaintiff purportedly entered into a loan repayment and security agreement on or about December 1, 2006 with Defendant SHEA ..., which required Plaintiff to repay a loan of $462,550.00 to SHEA and Plaintiff is willing and able to tender the face value of the note minus equitable set off to the true holder of the underlying promissory note whom plaintiff believes to be Shea Mortgage. 21 It is apparent that Plaintiff s allegation in the Fourth Cause of Action is based on the premise that the original promissory note must be produced before a non-judicial foreclosure can proceed. As noted, Plaintiff now concedes that this contention is without legal merit. See, e.g., Chilton v. Federal Nat. Mortg. Ass n, 2009 WL 5197869 (E.D.Cal., Dec. 23, 2009) and cases cited therein. 22 California Civil Code § 3412 provides: 17 18 19 20 23 24 25 26 A written instrument, in respect to which there is a reasonable apprehension that if left outstanding it may cause serious injury to a person against whom it is void or voidable, may, upon his application, be so adjudged, and 2 ordered to be delivered up or cancelled. 1 2 3 4 5 6 7 8 9 10 11 Defendants assert that the FAC fails to establish that the Deed of Trust is void or voidable, or that the Deed of Trust must be cancelled to avoid serious injury to Plaintiff. The foreclosure sale occurred on July 8, 2009, before this action was commenced. Therefore, Defendants contend, Plaintiff is no longer obligated to make payments under the promissory note or Deed of Trust. In addition, in order to cancel a voidable instrument, Plaintiff must restore to the beneficiary the amounts she borrowed pursuant to the promissory note and Deed of Trust. See Star Pacific Investments, Inc. v. Oro Hills Ranch, Inc., 121 Cal.App.3d 447, 457 (1981). Defendants assert that Plaintiff has not repaid or offered to repay the amount loaned. See discussion supra. 16 The Fourth Cause of Action is DISMISSED WITH LEAVE TO AMEND to state equitable or legal grounds for the claim for cancellation of instrument within the purview of Rule 11, Federal Rules of Civil Procedure. If Plaintiff proceeds to amend the Fourth Cause of Action, Plaintiff must allege the tender of the loan amount or the present ability to tender the loan amount. 17 ... 18 2. Plaintiff shall file a Second Amended Complaint within fifteen (15) days of electronic service of this Memorandum Decision and Order. Failure to timely comply will result in the dismissal of this action .... 12 13 14 15 19 20 21 Plaintiff did not file a Second Amended Complaint and Judgment of 22 dismissal was entered on May 27, 2010. (Doc. 36). 23 On July 28, 2010, Plaintiff, now proceeding in pro per, 24 filed a Motion for Reconsideration. 25 supported by her declaration: 26 3 Plaintiff s motion is 3. I have facts and circumstances which resulted in this adverse ruling that I would like the Court to consider in granting this motion. I was unable to meet the deadline given to file a second amended complaint due to the chaos in my personal life. First, I was dealing with the impending foreclosure of my home. Second, I was self-represented due to the fact that I lost my life savings which I invested in my home and therefore was unable to afford an attorney. 1 2 3 4 5 6 4. I intended on amending my complaint as instructed by the Court, however the financial stress I was experiencing along with looking for a new home unfortunately consumed all my emotional and physical energy. I have been adversely affected by the Court s decision to dismiss all claims against the Defendants in this case. 7 8 9 10 11 14 5. Due to the grave injustice that I would suffer should I be denied the opportunity to present my case before the Court, I respectfully request leave to amend my complaint and proceed with this case on its merits. 15 In support of her motion for reconsideration, Plaintiff 12 13 16 cites and relies on California Code of Civil Procedure § 1008. 17 California Code of Civil Procedure has no application to 18 Plaintiff s motion because federal courts must apply federal 19 procedural rules. 20 1016, 1018-1019 (S.D.Cal.2000). 21 reconsideration is governed by Rule 60(b), Federal Rules of Civil 22 Procedure. 23 24 See Clark v. Allstate Ins. Co., 106 F.Supp.2d Plaintiff s motion for Rule 60(b) provides: On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: 25 26 (1) mistake, inadvertence, surprise, or excusable neglect; 4 1 2 (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); 3 4 (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by the opposing party; 5 (4) the judgment is void; 6 7 8 (5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or 9 (6) any other reason that justifies relief. 10 Given Plaintiff s declaration, the merits of her motion for 11 reconsideration is governed by Rule 60(b)(1) and (b)(6). 12 As noted, Rule 60(b)(1) allows a court to relieve a party 13 from a final judgment because of mistake, inadvertence, 14 surprise, or excusable neglect. Such a motion must be made 15 within a reasonable time, not more than one year after the 16 judgment was entered. Here, Plaintiff s motion is timely, but 17 she fails to establish that her failure to comply with the April 18 23 Memorandum Decision was due to mistake, inadvertence, surprise 19 or excusable neglect. Plaintiff s declaration makes clear that 20 she did not comply with the April 23 Memorandum Decision because, 21 due to personal issues, she chose not to do so for personal and 22 emotional reasons. Plaintiff s averments that she was unable to 23 afford counsel is belied by the fact that she was represented by 24 counsel, Marc E. Visenat, throughout the pendency of this 25 litigation. No withdrawal of counsel has been sought or ordered 26 5 1 after a valid motion to withdraw counsel of record. 2 that she was unable to comply with the April 23 Memorandum 3 Decision because she was dealing with the impending foreclosure 4 of her home is contradicted by the fact, admitted at the hearing 5 on the motions to dismiss, that Plaintiff s home had been 6 foreclosed on July 8, 2009, before Plaintiff commenced this 7 action on August 24, 2009 in the Stansilaus County Superior 8 Court. 9 Her averment A motion brought under Rule 60(b)(6) must be based on 10 grounds other than those listed in the preceding clauses ... 11 Clause 60(b)(6) is residual and must be read as being exclusive 12 of the preceding clauses. 13 for extraordinary circumstances. Lafarge Conseils Et Etudes, 14 S.A. v. Kaiser Cement & Gypsum Corp., 791 F.2d 1334, 1338 (9th 15 Cir.1986). 16 demonstrates extraordinary circumstances which prevented or 17 rendered him unable to prosecute his or her case. 18 Trainer Wortham & Co., Inc., 452 F.3d 1097, 1102-1103 (9th 19 Cir.2006); Martella v. Marine Cooks & Stewards Union, 448 F.2d 20 729, 730 (9th Cir. 1971), cert. denied, 405 U.S. 974 (1972). 21 The party must demonstrate both injury and circumstances beyond 22 his control that prevented him from proceeding with the 23 prosecution or defense of the action in a proper fashion. 24 States v. Washington, 593 F.3d 790, 796-797 (9th Cir.2010); 25 United States v. Alpine Land & Reservoir Co., 984 F.2d 1047, 1049 26 (9th Cir. 1993). In addition, the clause is reserved A party merits relief under Rule 60(b)(6) if he Latshaw v. Here, Plaintiff has made no such showing. 6 United The 1 circumstances she describes in her motion were well within her 2 control. 3 belied by the facts - she was represented by counsel and her home 4 had already been foreclosed before this litigation was commenced. 5 Finally, Plaintiff s declaration makes no showing that she can 6 amend to allege, consistent with Rule 11, Federal Rules of Civil 7 Procedure, that she can the tender the loan amount or the present 8 ability to tender the loan amount, a prerequisite to the relief 9 sought. For the reasons stated, Plaintiff s motion for 10 11 reconsideration is DENIED. IT IS SO ORDERED. 12 13 Further, as noted, the averments in her declaration are Dated: 668554 July 30, 2010 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 7
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
