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FOSTER v. KAHAN

United States District Court, Northern District of California


May 1, 2003

CAROLINA FOSTER AND DWIGHT FOSTER PLAINTIFFS,
v.
STAN KAHAN, CHASE MANHATTAN MORTGAGE CORPORATION; LONESTAR MORTGAGE SERVICES, L.L.C.; DEPARTMENT OF VETERAN AFFAIRS; AND DOES 1 THROUGH 40 INCLUSIVE. DEFENDANTS.

The opinion of the court was delivered by: William Alsup, United States District Judge

JUDGMENT

For the reasons stated in this Court's order dismissing plaintiffs' claims to set aside the trustee sale, to cancel trustee's deed, to quiet title, for an accounting, and for fraud against the Department of Veteran Affairs, dated February 6, 2003, and its order granting summary judgment on plaintiffs' fraud claim against defendant Chase Manhattan Mortgage Corporation, dated April 24, 2003, judgment is hereby ENTERED against plaintiffs Caroline and Dwight Foster and in favor of defendants Stan Kahan, Chase Manhattan Mortgage Corporation, Lonestar Mortgage Services, LLC, and the Department of Veteran Affairs. The Clerk shall CLOSE the file.

IT IS SO ORDERED.

ORDER GRANTING CHASE MANHATTAN MORTGAGE CORPORATION'S MOTION FOR SUMMARY JUDGMENT
In this property-redemption action, pro se plaintiffs Caroline and Dwight Foster sought to overturn the foreclosure of their residential property and alleged fraud against defendants Chase Manhattan Mortgage Corporation and the Department of Veteran Affairs.

The VA filed a motion for summary judgment or to dismiss, and a hearing was

scheduled for December 12, 2002. Defendant Chase Manhattan Mortgage Corporation joined the federal defendant's motion. Plaintiffs did not file an opposition, but plaintiff Caroline Foster appeared at the hearing. The Court delayed oral argument on the motion due to plaintiffs' unpreparedness and ordered plaintiffs to submit an opposition by December 26, 2002. Plaintiffs' opposition, filed but not served on December 23, 2003, included a vague and conclusory declaration by Caroline Foster that asserted facts that plausibly could support fraud claims against the Department of Veteran Affairs and Chase Manhattan Corporation. Accordingly, on January 7, 2003, the Court ordered plaintiffs to each submit by January 17, 2003, a detailed declaration that backed up the facts cited in the opposition. Defendants Department of Veteran Affairs and Chase Manhattan Corporation were ordered to respond with counter-declarations within seven calendar days of plaintiffs' filing. On January 15, plaintiffs filed a request for a two-week extension to comply with the January 7 order. Due to a clerical error, the Court was not made aware of plaintiffs' request until after the two weeks expired. During that time and up to the Court's ruling on February 6, however, as well as to date, plaintiffs did not submit any declarations. On February 6, 2003, all of plaintiffs' claims except her claim for fraud against defendant Chase Manhattan Mortgage Corporation were dismissed with prejudice.

On February 27, defendant Chase filed the instant motion for summary judgment, which noticed a hearing for April 10. The attached certificate of service indicated that on February 25, the motion was sent to the Fosters at 24405 Amador Street, Hayward, California, 94541. Plaintiffs did not file an opposition. Because the Court realized that plaintiffs had filed in January a notice with the Court changing their contact address to 2530 Jacobs Place, Hayward, California, 94541, it vacated the hearing. On March 31, the Court sent an order to plaintiffs at their address of record alerting them that they had an obligation to file an opposition and that failure to do so could result in dismissal of this case. Plaintiffs were given until April 17 to file an opposition, and the hearing was set for May 1.

Plaintiffs did not file an opposition and did not appear at the hearing on May 1. Accordingly, for the reasons stated in Chase's motion for summary judgment, namely that plaintiffs have failed to articulate facts that would support a fraud claim against Chase, Chase's motion is GRANTED. Plaintiffs case is DISMISSED WITH PREJUDICE. The Clerk shall CLOSE the file.

IT IS SO ORDERED.

20030501

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