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Mays v. U.S. Bank National Ass.

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


December 1, 2009

DONNA LYNN MAYS AND RONALD MAYS, PLAINTIFFS,
v.
U.S. BANK NATIONAL ASS. AS TRUSTEE FOR THE SPECIALTY UNDERWRITING AND RESIDENTIAL FINANCIAL MORTGAGE LOAN ASSET BACKED CERTIFICATES SERIES 2006-AB3, ET. AL., DEFENDANTS.

The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge

ORDER TAKING MATTER UNDER SUBMISSION AND REQUIRING CLARIFICATION

Currently pending before the Court is Defendants' motion to dismiss or in the alternative motion for a more definite statement and/or to strike. Hearing is set for December 7, 2009, at 1:30 p.m. The Court has reviewed the submitted papers and has determined that this matter is suitable for decision without oral argument. Local Rule 78-230(h).

There is, however, one matter that requires clarification, and the clarification can be achieved without oral argument. In the Complaint, Plaintiffs allege that the "Notice of Right to Cancel" was defective in that the deadline date in which to cancel was not identified.

See Complaint at ¶ 46. In the motion to dismiss, Defendants argued inter alia that the date was in fact written in the notice and provided a copy of the notices. See Opposition at 9:11-15; Tye Dec. Exhibit B. Tye Declaration Exhibit B, which are two documents entitled "Notice of Right to Cancel," has a handwritten date of "8/22/06" in the section for when notice of cancellation must be sent. See Tye Dec. Exhibit B.*fn1 Despite the motion and the Exhibit, in the opposition to dismiss, Plaintiffs take the position that "Defendants do not dispute that there was a failure to insert the actual date on the lending from that [Plaintiffs] needed to know in order to not waive their Right to Cancel." Opposition at 3:17-18. Plaintiffs' position is contrary to Defendants' motion.

Plaintiffs are to clarify their position regarding Tye Declaration Exhibit B. Specifically, they are to expressly state whether they challenge the authenticity of the documents that comprise Tye Declaration Exhibit B. Plaintiffs are also to clarify whether their claim remains viable since a date of August 22, 2006, is plainly written on the document entitled "Notice of Right to Cancel."

Therefore, IT IS HEREBY ORDERED that:

1. The previously set hearing date of December 7, 2009, is VACATED, and the parties shall not appear at that time;

2. Plaintiffs shall file their clarifying brief (as described above) no later than 1:00 p.m. on December 7, 2009; and

3. As of December 7, 2009, the Court will take Defendant's motion to dismiss under submission and will thereafter issue its decision.

IT IS SO ORDERED.


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