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Laura Gens v. Wachovia Mortgage Corp.

August 30, 2011


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

United States District Court For the Northern District of California


In an Order dated May 10, 2011, the Court granted Defendants' motion to dismiss Plaintiff's third amended complaint with prejudice and directed the Clerk to close the file. See 18 May 10, 2011 Order [dkt. #72]. On May 24, 2011, Defendants Wachovia Mortgage, FSB and 19 World Savings Bank filed a motion for a $17,986 award of attorney's fees. See Dkt. #73. The 20 Court deems Defendants' fee motion appropriate for resolution without oral argument, and vacates 21 the September 1, 2011 motion hearing. For the reasons explained below, Defendants' motion is 22 GRANTED IN PART AND DENIED IN PART. 23


This action arises from a $1.62 million adjustable rate mortgage (ARM) home loan made to 25 pro se Plaintiff Laura Gens by World Savings Bank on November 17, 2006. See May 10, 2011 26 Order at 3. The loan was secured by a Deed of Trust against the property at 4141 Old Trace Road, 27 Palo Alto, California (the "Property"). According to Plaintiff, the $1.62 million loan paid off a 28 prior loan she had from Washington Mutual for $1.56 million on the Property. In April 2008, a Notice of Default was recorded against the Property by the trustee Golden West Savings 2 Association Service Company. On November 4, 2008, a Notice of Trustee's Sale was recorded, 3 which identified a total amount owed of approximately $1.85 million. As noted throughout this 4 litigation, Plaintiff has refused to make monthly mortgage payments on the loan since 2008. 5

Instead, Plaintiff filed the instant action in Santa Clara County Superior Court on February 26, 2010, asserting claims revolving around alleged errors in the servicing of her loan and alleged 7 defects in the foreclosure process. Defendants removed the action to federal court on March 12, 8 2010. On March 18, 2010, Plaintiff filed an ex parte application for a temporary restraining order 9 to prevent a Trustee's Sale on the Property scheduled for March 22, 2010. The Honorable Jeremy 10 #18. After an unsuccessful settlement conference 12 injunction on the ground that Plaintiff did not establish a likelihood of success on the merits on any 13 of the claims in her First Amended Complaint. See May 12, 2010 Order by Judge Fogel Denying Plaintiff's First Amended Complaint, but also noted that the "new facts alleged by Plaintiff in the

On May 21, 2010, Plaintiff filed for Chapter 11 bankruptcy in the United States Bankruptcy Court for the Northern District of California (Case No. 10-55305). The bankruptcy code provides 19 for an automatic stay of any judicial or administrative proceeding against a debtor, but Judge Fogel 20 ruled that the automatic stay provision did not apply to this action because this case involves "a 21 claim by, not against, the debtor." See June 7, 2010 Order by Judge Fogel Re: Wachovia's 22 Plaintiff listed the Property as an asset valued at $3.9 million. See RJN, Exh. 4 at 1. Plaintiff also 24 listed a residential house in Lake Geneva, Wisconsin, which she valued at $500,000. Id. at 3. 25

26 has issued two substantive opinions on Plaintiff's claims. In the first, dated January 3, 2011, the 27

Amended Complaint. See January 3, 2011 Order Granting Defendants' Motion to Dismiss In Part Fogel granted Plaintiff's application for a temporary restraining order on March 19, 2010. See Dkt. 11

in April 2010, Judge Fogel denied a preliminary

Prelim. Inj. [dkt. #46] ("May 12, 2010 Order"). The May 12, 2010 Order was based upon 15

SAC would not alter the determination of the instant motion." See id. at 3. 17

Application for Instructions [dkt. #48]. In a June 4, 2010 filing in the bankruptcy proceeding, 23

This case was reassigned to this Court on August 2, 2010. Since reassignment, this Court

Court exhaustively analyzed the fifteen federal and state claims in Plaintiff's then-Second 28 with Prejudice and In Part with Leave to Amend, and Denying Defendants' Motion to Strike as 2 Moot ("January 3, 2011 Order"). The Court's January 3, 2011 Order dismissed Plaintiff's state law 3 claims based on preemption under the Home Owners' Loan Act ("HOLA"), 12 U.S.C. § 1461, et 4 seq. See January 3, 2011 Order at 12. The January 3, 2011 Order dismissed Plaintiff's federal 5 claims, aside from a time-barred rescission claim under the Truth in Lending Act ("TILA"), 15 6 Court dismissed Plaintiff's Third Amended Complaint with prejudice. 8

9 defense of this action. Defendants do not seek an award for attorney fees incurred prior to 10 er prior to filing their motion; (2) Plaintiff's

contending that: (1) Defendants did not meet and conf 12 actions were in good faith; and (3) Defendants' motion is defective for lack of specificity and the 13

In support of their fees motion, Defendants filed a Request for Judicial Notice ("RJN") of:

(1) the November 17, 2006 ARM Note; (2) the November 17, 2006 Deed of Trust; (3) Plaintiff's 16

California (San Jose), Case No. 10-55305; (4) Summary of Schedules filed on June 4, 2010 by 18 55305. The Court may consider, under the incorporation by reference doctrine, documents that are 20 connected to the loan transaction at issue and may also take judicial notice of matters of public 21 record. See Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). Plaintiff having voiced 22 no objection, the Court takes judicial notice of these documents. 23

26 on the ground that Defendants failed to meet and confer. Although Plaintiff is correct that Civil 27

Local Rule 54-5 requires counsel for the parties to meet and confer prior to filing a motion for 28 award of attorney's fees, the Court finds no violation of Rule 54-5. Plaintiff's own declaration

U.S.C. §1601 et seq., with leave to amend. In the second opinion, the May 10, 2011 Order, the 7

Defendants now move for an award of post-petition attorney fees incurred in the successful

Plaintiff's filing for bankruptcy on May 21, 2010. Plaintiff has filed a three-page opposition, 11

"California Code of Civil Procedure strictly limits attorney's fees in foreclosure actions." 14

Bankruptcy Petition filed on May 21, 2010 with the U.S. Bankruptcy Court, ...

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