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.

Dennly R. Becker, et al v. Wells Fargo Bank

September 19, 2012

DENNLY R. BECKER, ET AL., PLAINTIFFS,
v.
WELLS FARGO BANK, NA, INC. ET AL., DEFENDANTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Presently before the court is plaintiff's*fn1 motion ("Motion") filed pursuant to 28 U.S.C. § 1292(b) ("Section 1292(b)"), seeking certification that plaintiff may file an interlocutory appeal as to orders dismissing two of plaintiff's claims.*fn2 (Motion, Dkt. No. 104.) Defendants filed a written opposition ("Opposition"). (Opp'n, Dkt. No. 117.) The court took this matter under submission on the briefs and without oral argument. The undersigned has fully considered the parties' briefs, oral arguments, and appropriate portions of the record and, for the reasons that follow, denies the Motion.

I. BACKGROUND

Plaintiff's pending Motion comes on the heels of his previous motion pursuant to Federal Rule of Civil Procedure 54(b) ("Rule 54 Motion"). Plaintiff's Rule 54 Motion sought the entry of final judgment as to two of plaintiff's now-dismissed claims so that plaintiff could file an interlocutory appeal as to those claims, essentially the same relief that the pending Motion seeks. (Rule 54 Motion, Dkt. No. 91.) The undersigned denied the Rule 54 Motion through a written Order issued on July 2, 2012. (Order, Dkt. No. 102.) Three days later, on July 5, 2012, plaintiff filed the pending Motion seeking certification for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). (Dkt. No. 104.)

Generally, this case involves plaintiff's loans and attempted loan modifications relating to several of plaintiff's pieces of real property, and plaintiff's default on some of those loans. Plaintiff sued the banks or other entities that made, acquired, serviced, or refused to modify the loans, and which ultimately attempted to foreclose on some of the properties. Plaintiff's 113-page First Amended Complaint alleged the following claims for relief against defendants: (1) fraud; (2) violation of the Consumer Legal Remedies Act, Cal. Civ. Code §§ 1750 et seq.; (3) violation of the Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200 et seq.; (4) false advertising, Cal. Bus. & Prof. Code §§ 17500 et seq.; (5) violation of California Civil Code § 2943; (6) wrongful foreclosure proceedings; (7) quiet title; (8) unfair debt collection practices under state and federal law; (9) Racketeer Influenced and Corrupt Organizations ("RICO") violations, 18 U.S.C. §§ 1961 et seq.; and (10) negligent misrepresentation and negligence. (See First Am. Compl. ¶¶ 181-at pp. 56-103, Dkt. No. 19.)

On August 1, 2011, the court adopted findings and recommendations filed by the undersigned and dismissed some of plaintiff's claims with leave to amend and others with prejudice. (See Order, Aug. 1, 2011, Dkt. No. 58.) Relevant here, the court dismissed plaintiff's wrongful foreclosure and quiet title claims with prejudice on the grounds that those claims were preempted by the Home Owners Loan Act ("HOLA"), 12 U.S.C. §§ 1461 et seq. (See Order and Findings and Recommendations, Mar. 22, 2011, at 27-32, Dkt. No. 49, adopted by Order, Aug. 1, 2011, at 2, 7.) The court also construed plaintiff's objections to the undersigned's findings and recommendations as a motion for reconsideration, and denied that motion in all respects relevant to the presently pending motion. (See Order, Aug. 1, 2011, at 2.) In its August 12, 2011 order, the court further explained the relevant HOLA preemption analysis. (Id. at 2-4.)

Remaining unsatisfied with the court's ruling, plaintiff sought reconsideration of the order addressing plaintiff's first motion for reconsideration, arguing that the court committed "clear error" in its analysis of HOLA preemption (Dkt. No. 59). After considering supplemental briefing, the court denied plaintiff's motion for reconsideration of the denial of plaintiff's first motion for reconsideration. (Order, Mar. 29, 2012, Dkt. No. 87.)

Meanwhile, plaintiff filed a Second Amended Complaint and later filed a motion for leave to file a Third Amended Complaint (Dkt. No. 89) before the court could resolve defendants' motion to dismiss the Second Amended Complaint. The undersigned denied plaintiff's motion for leave to amend without prejudice based on the deficiencies in the proposed Third Amended Complaint. The undersigned granted plaintiff leave to file another motion for leave to amend no later than June 28, 2012, and held the motion to dismiss the Second Amended Complaint in abeyance pending resolution of plaintiff's motion for leave to amend. (Order, May 14, 2012, Dkt. No. 92; see also Order, Oct. 17, 2011, Dkt. No. 80.)*fn3 On June 19, 2012, plaintiff filed another motion for leave to file a Third Amended Complaint and a revised, proposed Third Amended Complaint (Dkt. Nos. 97-98). Plaintiff's proposed Third Amended Complaint includes claims for "Preempted/Unlawful Foreclosure" and "Improper Foreclosure Process" that challenge defendants' right to foreclose on plaintiff's properties. (See Proposed Third Am. Compl. ¶¶ 73-89, Dkt. No. 98.)

The undersigned issued Findings and Recommendations recommending that plaintiff's motion for leave to amend (Dkt. No. 97) be granted in part and denied in part, and that plaintiff be granted leave to pursue some of his amended claims but not others. (Order, Aug. 22, 2012, Dkt. No. 115 at 15-17.) Plaintiff's "wrongful foreclosure" and "quiet title" claims are not among those the undersigned recommended that plaintiff be given leave to pursue. (Id.) The Findings and Recommendations were adopted by the District Judge on September 19, 2012 (Dkt. No. 123).

II. LEGAL STANDARDS

Generally, parties may only appeal from, and appellate courts only have jurisdiction over, "final decisions of the district courts." See 28 U.S.C. § 1291. However, a non-final order may be certified for interlocutory appeal where it "involves a controlling question of law as to which there is substantial ground for difference of opinion" and where "an immediate appeal from the order may materially advance the ultimate termination of the litigation." Reese v. BP Exploration (Alaska) Inc., 643 F.3d 681, 687-88 (9th Cir. 2011) (citing 28 U.S.C. § 1292(b)).*fn4 Section 1292(b) certification is a "narrow exception to the final judgment rule." Couch v. Telescope Inc., 611 F.3d 629, 633 (9th Cir. 2010). The certification "serves the dual purpose of ensuring that [appellate] review will be confined to appropriate cases and avoiding time-consuming jurisdictional determinations in the court of appeals." U.S. v. W.R. Grace, 526 F.3d 499, 522 (9th Cir. 2008) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978)).

"A substantial ground for difference of opinion exists where reasonable jurists might disagree on an issue's resolution, not merely where they have already disagreed." Reese, 643 F.3d at 688. "Stated another way, when novel legal issues are presented, on which fair-minded jurists might reach contradictory conclusions, a novel issue may be certified for interlocutory appeal without first awaiting development of contradictory precedent." Id. However, a party's "strong disagreement with the Court's ruling is not sufficient for there to be a 'substantial ground for difference.' That settled law might be applied differently does not establish a substantial ground for difference of opinion." Couch, 611 F.3d at 633 (citing cases). Where the party seeking certification has "not provided a single case that conflicts with the district court's construction or application of" the statute at issue, this weighs in favor of denying the motion. Id.

The Ninth Circuit Court of Appeals has held that an interlocutory appeal may "materially advance" the ultimate termination of litigation where reversal could eliminate parties from the case and might eliminate an entire class of claims against the remaining defendants. Reese, 643 F.3d at 688. However, an interlocutory appeal under Section 1292(b) does not "materially advance" the ultimate termination of litigation if it "might well have the effect of delaying the resolution" of the litigation. Shurance v. Planning Control Intern., Inc., 839 F.2d 1347, ...


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.