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Darlene Bowland v. Vanda Karamehmedovic

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


May 20, 2011

DARLENE BOWLAND,
PLAINTIFF,
v.
VANDA KARAMEHMEDOVIC, AN INDIVIDUAL; NEWCAL FINANCIAL GROUP, INC., A CALIFORNIA CORPORATION;
WORLD SAVINGS BANK, FSB, A CALIFORNIA CORPORATION;
WACHOVIA MORTGAGE, FSB, A NORTH CAROLINA CORPORATION;
WELLS FARGO BANK, N.A., A CORPORATION AND DOES 1 THROUGH 100, INCLUSIVE,
DEFENDANTS.

The opinion of the court was delivered by: Lucy H. Koh United States District Court For the Northern District of California United States District Judge

ORDER SETTING BRIEFING SCHEDULE

Defendant Wells Fargo Bank N.A. (successor by merger to Wachovia Mortgage, FSB, 20 formerly known as World Savings Bank, FSB) ("Wells Fargo") has filed a motion to dismiss Plaintiff's complaint. The motion is set for hearing on September 1, 2011 at 1:30 p.m. The Court 22 hereby sets a briefing schedule for Defendant's motion:

Opposition: due June 3, 2011

Reply: due June 10, 2011

If possible, the Court will resolve the motion to dismiss on the papers in advance of the hearing date. The case was removed from state court by Defendant Wells Fargo on the basis of a 27 single federal claim (claim 1, for violation of the Truth in Lending Act or TILA, 15 U.S.C. § 1601 28 et seq.). It appears, based on the Complaint, that TILA rescission may be unavailable because the property has already been sold. See 15 U.S.C. § 1635 ("An obligor's right of rescission shall 2 expire three years after the date of consummation of the transaction or upon the sale of the 3 property, whichever occurs first."). It also appears that Plaintiff's claim for TILA damages is 4 barred by the one-year statute of limitations. 15 U.S.C. § 1640(e). Plaintiff's Opposition should 5 address these issues and whether she can allege facts to support equitable tolling of her TILA 6 damages claim. If the Court finds that Plaintiff cannot state a federal claim, or if the Plaintiff 7 voluntarily dismisses the TILA claim, the Court will dismiss the TILA claim and remand the remaining state claims.

IT IS SO ORDERED.

20110520

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