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Quintero Family Trust v. Onewest Bank

December 11, 2009

QUINTERO FAMILY TRUST; GEORGE HANNIBAL QUINTERO & CELIA G. QUINTERO, AS TRUSTEES; GEORGE HANNIBAL QUINTERO, AN INDIVIDUAL; AND CELIA G. QUINTERO, AN INDIVIDUAL, PLAINTIFFS,
v.
ONEWEST BANK, F.S.B. AS SUCCESSOR TO INDYMAC BANK, F.S.B., A FEDERALLY CHARTERED SAVINGS AND LOAN ASSOCIATION; IDNYMAC BANKCORP, INC., A CALIFORNIA CORPORATION; INDYMAC MORTGAGE SERVICES, A DIVISION OF ONEWEST BANK, F.S.B.; QUALITY LOAN SERVICE CORP., A CALIFORNIA CORPORATION; CLARION MORTGAGE CAPITAL, INC., A COLORADO CORPORATION; BILL LANEY, AN INDIVIDUAL; AND BREAKTHROUGH MARKETING, INC., A CALIFORNIA CORPORATION D/B/A HOME ASSET MORTGAGE, DEFENDANTS.



The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

ORDER DENYING PLAINTIFFS' EX PARTE APPLICATION [Doc. No. 45]

Currently before the Court is Plaintiffs' Ex Parte Application, filed on December 9, 2009, seeking another continuance of the hearing on Defendants' Motions to Dismiss and an order for a mandatory settlement conference. [Doc. No. 44]. On December 10, 2009, Defendants OneWest Bank, F.S.B. and Indymac Mortgage Services (collectively, "OneWest") and Clarion Mortgage Capital, Inc. ("Clarion") filed their oppositions to Plaintiffs' Ex Parte Application. [Doc. Nos. 48, 49]. Having considered the parties' arguments, and for the reasons set forth below, the Court hereby DENIES Plaintiffs' Ex Parte Application.

BACKGROUND

The facts of this case are known to the Court and the parties and need not be repeated herein.

I. Procedural History

Plaintiffs commenced the present action on July 17, 2009, and filed a First Amended Complaint on August 20, 2009, alleging fifteen causes of action against Defendants. [Doc. No. 2]. Since then, three Motions to Dismiss have been filed by: (1) OneWest; (2) Clarion; and (3) Bill Laney and Breakthrough Marketing, Inc. [Doc. Nos. 8, 11, 22].The hearings on these motions were first consolidated and scheduled to be heard on December 7, 2009, and were then rescheduled upon a joint motion for January 12, 2010, at 10:30 a.m. [Doc. Nos. 14, 26]. In the interim, Plaintiffs filed an Ex Parte Application seeking expedited discovery to allow them to respond to the Motions to Dismiss. [Doc. No. 15]. On October 16, 2009, the Court granted in part and denied in part Plaintiffs' Ex Parte Application. [Doc. No. 23]. Specifically, the Court granted Plaintiffs' request for "disclosure of the complete mortgage loan files in the Defendants' possession, including but not limited to the promissory note and the trust deed."(Order on Ex Parte Appl. for Expedited Discovery, at 3.)

On November 12, 2009, Plaintiffs filed a Motion for Temporary Restraining Order ("TRO") and Preliminary Injunction, asking the Court to enjoin Defendants from conducting a trustee's sale of the Property, at least until the matter can be considered on the merits. (Pl. P. & A. in support of TRO Motion, at 12.) The Court granted Plaintiffs' motion on the same day, entering a TRO and setting November 25, 2009 as the hearing date on the preliminary injunction. [Doc. No. 33]. On November 25, 2009, after holding a hearing on the preliminary injunction, the Court granted Plaintiffs' request for a preliminary injunction as to all Defendants, except Defendant Clarion. [Doc. No. 43].

On November 20, 2009, Plaintiffs filed a Motion for Sanctions against several Defendants and their respective counsel. [Doc. No. 39]. Subsequently, to promote judicial efficiency and for the parties' convenience, the Court scheduled the hearing on the Motion for Sanctions to be heard on the same day as the three Motions to Dismiss currently pending before the Court. [Doc. No. 41].

II. Current Ex Parte Application

A. Plaintiffs' arguments

In their Ex Parte Application, Plaintiffs allege that in light of the documents produced by Defendants in the limited discovery, Plaintiffs will now have to "add the real parties in interest previously concealed as new defendants." (Pl. Ex Parte Appl., at 2.) Specifically, Plaintiffs assert that contrary to OneWest counsel's representations at the hearing on the preliminary injunction, OneWest is no longer the owner of the subject loan, and therefore has no ownership interest in it. (Id. at 3-5.) Accordingly, Plaintiffs argue another continuance is necessary because, once the new parties are added as defendants, they will likely bring their own Motions to Dismiss, and therefore it will be judicially beneficial to coordinate those new motions with already pending Motions to Dismiss. (Id. at 5.)

Moreover, Plaintiffs assert that at least some of Defendants have expressed an interest in exploring settlement. (Id. at 6.) Thus, Plaintiffs also ask the Court to order a mandatory settlement conference "at least with respect to the parties that are interested in exploring settlement." (Id.)

B. Defendant Clarion's opposition

Defendant Clarion opposes Plaintiffs' Ex Parte Application on a number of grounds. First, Clarion asserts that the attorney filing the application on behalf of Plaintiffs, Mr. Pines, is no longer with the firm of Legal Objective but is with the firm of Pines & Associates. (Clarion's Opp., at 7.) According to Clarion, Mr. Pines should be required to submit ...


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