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Bever-Leigh B. Penney v. Ndex West LLC et al

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


January 31, 2013

BEVER-LEIGH B. PENNEY, PLAINTIFF,
v.
NDEX WEST LLC ET AL., DEFENDANT.

The opinion of the court was delivered by: Otis D. Wright, II United States District Judge

O

ORDER REQUESTING ADDITIONAL INFORMATION [127]

Upon review of the papers and hearing testimony regarding Defendant Wells Fargo's Motion for Summary Judgment (ECF No. 127), the Court has determined that it requires further information. The December 29, 2010 Notice of Default indicated that Penney was in default in the amount of $15,192.28. (Penney Decl. Ex. D.) But Penney has submitted receipts indicating that she made the following payments from July to November 2010:

July 13, 2010 $2,376.01 August 31, 2010 $700.00 September 7, 2010 $1,400.00 September 10, 2010 $2,000.00 October 5, 2010 $2,000.00 November 5, 2010 $550.00 Total $9,026.01 (Penney Decl. Ex. 3.)

Had Penney made all of her $1,884.38 monthly payments during this period, those payments would have totaled $9,421.90. Thus, Penney's shortfall from July to November 2010 is $395.89 ($9,421.90 -- 9,026.01). Even assuming no payment was made in December 2010, it is difficult to reconcile Wells Fargo's claim that Penney's default in late December 2010 was $15,192.28 with evidence suggesting her default may only have been $2,280.27 ($395.89 $1,884.38). That would amount to $12,912.01 in late fees-an astonishing sum, especially given that the Deed of Trust provides that late charge for overdue payments was to be "5.0% of [Penney's] overdue payment of principal and interest." (Wells Fargo's Request for Judicial Notice Ex. A, at ¶ 6(A).)

Accordingly the Court hereby ORDERS Wells Fargo to submit an explanation of its calculation-in any form it sees fit-of the amount of Penney's default contained in the Notice of Default. The explanation shall be filed no later than February 11, 2013.

IT IS SO ORDERED.

20130131

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