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Russell Mcneely v. Wells Fargo Bank

November 1, 2011

RUSSELL MCNEELY
v.
WELLS FARGO BANK, N.A., ET AL.



The opinion of the court was delivered by: The Honorable David O. Carter, Judge

CIVIL MINUTES - GENERAL

Title:

DOCKET ENTRY

[I hereby certify that this document was served by first class mail or Government messenger service, postage prepaid, to all counsel (or parties) at their respective most recent address of record in this action on this date.]

Date:____________ Deputy Clerk:

Julie Barrera Not Present Courtroom Clerk Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFFS: ATTORNEYS PRESENT FOR DEFENDANTS:

NONE PRESENT NONE PRESENT

PROCEEDING (IN CHAMBERS): DENYING PLAINTIFF'S MOTION TO REMAND

Before the Court is Plaintiff's Motion to Remand Case to Superior Court of California, County of Orange ("Motion to Remand") (Docket 9). The Court finds this matter appropriate for decision without oral argument. Fed.R.Civ. P. 78; Local Rule 7-15. After considering the moving, opposing, and replying papers, the Court hereby DENIES the Motion to Remand.

I. BACKGROUND

Plaintiff Russell McNeely ("Plaintiff") instituted the present action against Defendants Wells Fargo Bank, N.A. ("Wells Fargo") and NDeX West, LLC ("NDeX") (collectively "Defendants") alleging violations of California Civil Code Section 2923.5 ("Section 2923.5") and Business and Professions Code § 17200 ("Section 17200"). Plaintiff alleges that on or about March 30, 2004, Plaintiff, as borrower, made, executed, and delivered a note for $371,000.00 to World Savings; this note has since been transferred to or acquired by Wells Fargo. Complaint, ¶ 4. To secure payment of the principal and interest as provided in the note, Plaintiff executed and delivered to Defendants a deed of trust to the real property at 26652 Lira Circle, Mission Viejo, CA 92691 ("Subject Property").Id. at ¶ 1, 5. Plaintiff avers that he always made timely payments on the mortgage and lived at the Subject Property for almost nine years but that the economic downturn left him with insufficient income to timely make his mortgage payments. Id. at ¶ 6. Due to Plaintiff's failure to make timely payments, Wells Fargo initiated non-judicial foreclosure proceedings on the Subject Property by causing NDeX to record a Notice of Default and Election to Sell Under Deed of Trust. Id. at ¶ 7.

Plaintiff argues that Defendants violated Section 2923.5(a)(1)(2) in four ways. First, Defendants allegedly failed to contact Plaintiff in person or by telephone to assess Plaintiff's financial position and explore options to avoid foreclosure. Id. at ¶ 8.Defendants also allegedly failed to advise Plaintiff of his right to request a subsequent meeting or to provide Plaintiff with a telephone number to the United States Department of Housing and Urban Development to find a HUD-certified housing counseling agency. Id. Finally, Plaintiff avers that Defendants failed to wait the requisite thirty days after contacting Plaintiff (which also allegedly did not occur) before instituting the foreclosure

Id. Plaintiff also alleges that Defendants violated the due diligence requirements of Section 2923.5(b) and (g) by failing to conduct mandatory due diligence efforts prior to recording the Notice of Default. Id. at ¶ 10. Plaintiff finally avers that Defendants have violated Section 2924 "by virtue of Defendants' failure to meet the requirements of California Civil Code § 2923.5 prior to their filing of the Notice of Default pursuant to Civil Code § 2924." Id. at ¶ 18. Generally, Plaintiff argues that these alleged failures resulted in the denial of an opportunity for Plaintiff to avoid foreclosure and in Plaintiff not being properly notified of the ...


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