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Horne v. Wells Fargo Bank, N.A.

United States District Court, C.D. California

September 6, 2013

Andrew Horne et al
v.
Wells Fargo Bank, N.A. et al

Attorneys Present for Plaintiffs: None.

Attorneys Present for Defendants: None.

Page 1204

CIVIL MINUTES - GENERAL

MARGARET M. MORROW, J.

Proceedings: Order Remanding Action to State Court

I. PROCEDURAL BACKGROUND

On April 17, 2013, Andrew and Karen Horne (collectively " plaintiffs" ) filed a complaint in state court against Wells Fargo Bank, N.A. (" Wells Fargo" ) alleging various state law violations arising from the foreclosure of residential property located in Woodland Hills, California (" property" ). [1]

Page 1205

On July 2, 2013, plaintiffs filed a first amended complaint, adding a claim for violation of the Real Estate Settlement Procedures Act (" RESPA" ), 12 U.S.C. § 2605 et seq. [2] On July 9, 2013, Wells Fargo filed a notice of removal, invoking the court's federal question jurisdiction under 28 U.S.C. § § 1441 and 1331. [3] On July 24, 2013, plaintiffs filed a second amended complaint (" SAC" ), which deleted the RESPA claim and did not plead any other claim arising under federal law. [4] On August 7, 2013, plaintiffs filed an ex parte application for an order remanding the action to state court. [5] Wells Fargo opposes the motion. [6]

II. DISCUSSION

A. Legal Standard Governing Ex Parte Applications

The " opportunities for legitimate ex parte applications are extremely limited." In re Intermagnetics America, Inc., 101 B.R. 191, 193 (C.D. Cal. 1989). See also Mission Power Engineering Co. v. Continental Casualty Co., 883 F.Supp. 488, 489 (C.D. Cal. 1995) (stating that to be proper, an ex parte application must demonstrate that there is good cause to allow the moving party to " go to the head of the line in front of all other litigants and receive special treatment" ). As the court in Intermagnetics stated:

" . . . [E]x parte applications contravene the structure and spirit of the Federal Rules of Civil Procedure and the Local Rules of this court. Both contemplate that noticed motions should be the rule and not the exception. Timetables for the submission of responding papers and for the setting of hearings are intended to provide a framework for the fair, orderly, and efficient resolution of disputes. Ex parte applications throw the system out of whack. They impose an unnecessary administrative burden on the court and an unnecessary adversarial burden on opposing counsel who are required to make a hurried response under pressure, usually for no good reason. They demand priority consideration, where such consideration is seldom deserved. In effect, they put the applicant 'ahead of the pack,' without cause or justification." Intermagnetics, 101 B.R. at 193 (footnote omitted).

The use of such a procedure is justified only when (1) there is a threat of immediate or irreparable injury; (2) there is danger that notice to the other party may result in the destruction of evidence or the party's flight; or (3) the party seeks a routine procedural order that cannot be obtained through a regularly noticed motion (i.e., ...


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