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Barker v. Default Resolution Network

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA


November 12, 2008

KENNETH BARKER AND LOIS ANNE BARKER, PLAINTIFFS,
v.
DEFAULT RESOLUTION NETWORK; FIDELITY NATIONAL TITLE; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; ALBORG, VEILUVA & EPSTEIN; TITLE COURT SERVICES, INC.; GENPACT MORTGAGE SERVICES; JAMES GIPS; JULIE WAGNER; HOLLAND AND KNIGHT LLP; VITO COSTANZO; RICHARD PETTY; TAYLOR WOODS; MICHEAL VEILUVA; DARRELL MARTIN; AND DOES 1 THROUGH 50, INCLUSIVE, DEFENDANTS.

The opinion of the court was delivered by: Claudia Wilken, United States District Judge

ORDER GRANTING 10 PLAINTIFFS' MOTION TO FILE A SECOND AMENDED COMPLAINT

Plaintiffs Kenneth Barker and Lois Anne Barker have moved to file a second amended complaint. Defendants Default Resolution Network, Fidelity National Title Insurance Co., Mortgage Electronic Registration Systems, Inc., Alborg, Veiluva & Epstein, LLP, and Genpact Mortgage Services oppose the motion. The motion was taken under submission on the papers. Having considered all of the parties' papers, the Court grants the motion to file a second amended complaint.

This dispute arises out of a notice of default and election to sell under deed of trust for the property located at 2349 Royal Oaks Drive in Alamo, California. The notice was recorded on May 1, 2008 and, on May 8, 2008, served on Plaintiffs, the joint owners of the property. Plaintiffs allege that Defendants engaged in a scheme to foreclose on their home illegally in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO). Defendants moved to dismiss the original complaint because it did not plead with particularity each element of the RICO cause of action. On August 8, 2008, the Court granted Defendants' motion to dismiss with leave to amend. Docket no. 30. On September 5, 2008 Genpact recorded a new Notice of Default and Notice of Trustee's Sale curing a recording error and updating the reinstatement amount.*fn1 Plaintiffs allege that they received these notices on September 15, 2008. On September 8, 2008 Plaintiffs filed their first amended complaint and, within two weeks, Defendants filed motions to dismiss.

Instead of responding to the motion to dismiss, Plaintiffs filed a second amended complaint on October 9, 2008. Plaintiffs assert that the new Notice of Default and Notice of Trustee's Sale identified new and different facts that warrant the filing of a second amended complaint. The Court notes that the second amended complaint differs only slightly from the first amended complaint. It appears that the employees and individual attorneys working for the existing named defendants were added as new named defendants.

In the interest of judicial economy the Court GRANTS Plaintiffs' motion to file a second amended complaint. The Court will consider Defendants' motions to dismiss Plaintiffs' first amended complaint as applicable to Plaintiffs' second amended complaint. Within one week of the date of this order, Defendants may file a brief, no more than ten pages, to address any new facts or issues raised in Plaintiffs' second amended complaint. Plaintiffs' opposition is due three weeks from the date of this order, after Defendants' filing, and Defendants reply is due one week thereafter. If Plaintiffs do not file a timely opposition, the case will be dismissed for failure to prosecute.

IT IS SO ORDERED.

CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on November 12, 2008, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

William Stephen Fiske Michael John Veiluva Darrell Charles Martin Alborg, Veiluva & Epstein LLP 200 Pringle Avenue, Suite 410 Walnut Creek, CA 94596 Glenn Michael Perrell Glenn M Perrell 205 S Broadway Ste 302 Los Angeles, CA 90012 Kenneth Barker Lois Anne Barker 2349 Royal Oaks Drive Alamo, CA 94507 Richard William Petty Vito Anthony Costanzo Holland & Knight LLP 633 W 5th St, 21st Fl Los Angeles, CA 90071-2005


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