Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Maria A. Garvin; et al v. Linda Tran

November 16, 2011

MARIA A. GARVIN; ET AL, PLAINTIFFS,
v.
LINDA TRAN, AN INDIVIDUAL; ABSOLUTE INVESTMENT GROUP, A CALIFORNIA CORPORATIOB DBA PALACIO MORTGAGE; ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Howard R. Lloyd United States Magistrate Judge

** E-filed November 16, 2011 **

NOT FOR CITATION

ORDER GRANTING PLAINTIFF MARIA GARVIN'S APPLICATION FOR DEFAULT JUDGMENT AND JUDGMENT [Re: Docket Nos. 279, 289]

United States District Court For the Northern District of California

In this predatory home loan action, numerous plaintiffs have alleged fraud, breach of 18 fiduciary duty, negligence, conspiracy to defraud, and violations of Cal. Bus. & Prof. Code § 17200 19 et seq against a variety of defendants involved in home sales and loans. See generally, Docket No. 50 ("Second Amended Complaint" or "SAC"). Plaintiffs allege that defendants preyed upon them 21 through predatory and abusive lending practices, which included making misrepresentations about 22 essential terms of loans, using bait-and-switch tactics and duress, charging unreasonable and 23 unearned fees, falsifying information on loan applications, failing to translate important loan 24 documents from English to Spanish, and including unexpected terms allowing for balloon payments, 25 prepayment penalties, and negative amortization. Id. 26

Defendant Tara Home Financial Services, Inc. ("Tara") was served with the First Amended Complaint ("FAC") and summons by mail on June 19, 2007. Docket No. 20. Tara filed an Answer 28 to the FAC on July 18, 2007. Docket No. 28. Plaintiffs filed a Second Amended Complaint ("SAC") on October 22, 2007. Docket No. 50. Tara failed to answer or otherwise respond to the SAC in the 2 time allowed, so, upon plaintiffs' request, the Clerk of Court entered default against Tara on May 9, 3

Entering Default Judgment against Tara. Docket No. 279. Tara has not filed an opposition to this 5 application and has not otherwise appeared in this action since 2007. 6

Defendant Golden Hills Associates dba Century 21 Golden Hills ("Golden Hills") was 7 served with the original Complaint and summons on April 11, 2007, but filed no answer. Docket 8 2011. Docket No. 270. Plaintiff Maria Garvin then filed the instant Application for an Order 4 No. 8. Golden Hills filed an Answer to the FAC on August 3, 2007. Docket No. 35. Golden Hills 9 also filed an Answer to the SAC on December 17, 2007. Docket No. 74. Plaintiffs then propounded 10 written discovery requests on Golden Hills, to which Golden Hills failed to respond. Plaintiffs filed a Motion to Compel Responses to Interrogatories they had served on Golden Hills. Docket No. 186.

The court granted the Motion to Compel, and then granted plaintiffs' subsequent Motion for 13 Plaintiffs then requested the Clerk of Court to enter default against Golden Hills, which the Clerk 15 did enter on May 10, 2011. Docket No. 275. Plaintiff Maria Garvin then filed the instant 16 Hills has not filed an opposition or otherwise appeared since filing its Answer to the SAC. 18 2011, the Court GRANTS plaintiff Maria Garvin's motions as to both defendants. 20

After entry of default by the Clerk, courts are authorized to grant default judgment in their 22 discretion. See FED. R. CIV. P. 55; Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). A court 23 may consider the following factors in deciding whether to enter default judgment: (1) the possibility 24 of prejudice to the plaintiff; (2) the merits of the plaintiff's substantive claim; (3) the sufficiency of 25 the complaint; (4) the sum of money at stake in the action; (5) the possibility of a dispute concerning 26 material facts; (6) whether the default was due to excusable neglect; and (7) the strong policy 27 underlying the Federal Rules of Civil Procedure favoring decisions on the merits. Eitel v. McCool, 28 782 F.2d 1470, 1471-72 (9th Cir. 1986). In considering these factors, all factual allegations in the Sanctions and struck Golden Hills's Answer when it failed to respond. Docket Nos. 193, 203, 218. 14

LEGAL STANDARD

Application for an Order Entering Default Judgment against Golden Hills. Docket No. 289. Golden 17 Based on the moving papers and arguments presented by plaintiff at hearing on October 25, plaintiff's complaint are taken as true, except those relating to damages. TeleVideo Sys., Inc. v. 2 Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987). When the damages claimed are not readily 3 ascertainable from the pleadings and the record, the court may conduct a hearing to conduct an 4 accounting, determine the amount of damages, establish the truth of any allegation by evidence, or 5 investigate any other matter. FED. R. CIV. P. 55(b)(2).

DISCUSSION

A. Entry of Default ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.