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U.S. Bank National Association v. Friedrichs

United States District Court, Ninth Circuit

December 17, 2013

U.S. BANK NATIONAL ASSOCIATION, a national banking association, as successor-in-interest to the FEDERAL DEPOSIT INSURANCE CORPORATION, Receiver for Park National Bank, Plaintiff,
v.
SANDY K. FRIEDRICHS, an individual; and DOES 1 through 50, inclusive, Defendant; AND RELATED COUNTERCLAIMS

ORDER GRANTING COUNTERDEFENDANTS' MOTION TO DISMISS ALBERT ZAPPIA'S SECOND AMENDED COUNTERCLAIM WITH PREJUDICE; GRANTING COUNTERCLAIMANT SANDY ZAPPIA'S MOTION FOR LEAVE TO FILE A THIRD AMENDED COUNTERCLAIM; DENYING ALBERT ZAPPIA'S MOTION FOR LEAVE TO FILE A THIRD AMENDED COUNTERCLAIM; AND DENYING COUNTERDEFEDANTS' MOTIONS TO DISMISS SANDY ZAPPIA'S SECOND AMENDED COUNTERCLAIM AS MOOT Nos. 134, 136, 153, 157.].

GONZALO P. CURIEL, District Judge.

On September 6, 2013, Counterclaimants Sandy Zappia[1] and Albert Zappia filed a second amended counterclaim against Counterdefendants U.S. Bank, as successor to the Federal Deposit Insurance Corporation, as Receiver for Park National; Nicholas Ocepek; Jocelyn Bigall; Robin Tharpe; Jacqueline Barlow; Patrick Nygard; and Joshua Wayser. (Dkt. No. 130.) On September 23, 2013, Counterdefendants U.S. Bank National Association, Bank, ("U.S. Bank") and Joshua Wayser filed a motion to dismiss the second amended counterclaim. (Dkt. No. 134.) On September 23, 2013, Counderdefendant Nicholas Ocepek filed a joinder to the motion to dismiss. (Dkt. No. 135.) Counterdefendants Jocelyn Bigall and Patrick Nygard also filed a motion to dismiss the second amended counterclaim. (Dkt. No. 136.)

On September 30, 2013, Counterclaimant Sandy Zappia, filed a notice of substitution of attorney. (Dkt. No. 146.) The substitution of attorney applies only to Sandy Zappia, not Albert Zappia.

Counterclaimant Sandy Zappia, with counsel, filed an opposition on October 22, 2013.[2] (Dkt. No. 148.) Counterclaimant Albert Zappia, still proceeding pro se, filed an opposition on October 22, 2013. (Dkt. No. 150.) On November 14, 2013, Counterdefendants filed their replies. (Dkt. Nos. 159, 160, 162.)

On November 4, 2013, Counterclaimant Sandy Zappia filed a motion for leave to file a third amended counterclaim. (Dkt. No. 153.) On November 12, 2013, Albert Zappia also filed a motion for leave to file a third amended counterclaim. (Dkt. No. 157.) Counterdefendants U.S. Bank, Ocepek, Bigall and Nygard filed their oppositions on November 22 and 24, 2013. (Dkt. Nos. 163, 165, 167.) On December 3, 2013, Counterclaimants filed their replies. (Dkt. Nos. 169, 170.)

The motions are submitted on the papers without oral argument, pursuant to Civil Local Rule 7.1(d)(1). After a review of the briefs, supporting documentation, and the applicable law, the Court GRANTS Counterdefendants' motion to dismiss Albert Zappia's second amended counterclaim with prejudice; and DENIES Albert Zappia's motion for leave to file a third amended counterclaim. The Court also GRANTS Counterclaimant Sandy Zappia's motion for leave to file a third amended counterclaim; and DENIES Counterdefendants' motions to dismiss Sandy Zappia's second amended counterclaims as MOOT.

Procedural Background

On July 13, 2012, Plaintiff U.S. Bank filed a complaint in the Superior Court of San Diego against Defendant Sandy Friedrichs, also known as Sandy Zappia, for appointment of receiver and judicial foreclosure. On September 28, 2012, Defendant Sandy Zappia and non-party Albert Zappia, Defendant's husband, proceeding pro se, removed the case to this Court. (Dkt. No. 1.) On October 12, 2012, the case was transferred to the undersigned judge. (Dkt. No. 2.) On October 15, 2012, Defendant filed an ex parte motion for temporary restraining order and preliminary injunction seeking to restrain Plaintiff from foreclosing Defendant's business property located at 1340 La Mirada Drive, San Marcos, California 92078. (Dkt. No. 3.) On October 18, 2012, the Court denied Defendant's ex parte motion for a temporary restraining order because the Court concluded that Defendant had not shown irreparable harm since Plaintiff had moved the sale of the property to November 15, 2012. (Dkt. No. 6.) After further briefing and hearing oral argument on the motion for preliminary injunction, on November 9, 2012, the Court granted Defendant's motion for preliminary injunction pending further briefing. (Dkt. Nos. 30, 33.)

On November 1, 2012, Counterclaimants Sandy Zappia and Albert Zappia filed a counterclaim against Counterdefendants U.S. Bank, Nicholas Ocepek, Erica Itskovich, Jocelyn Bigall and Patrick Nygard. (Dkt. No. 19-1.) On February 13, 2013, the Court granted Albert Zappia's motion to intervene; denied Defendants' motion to disqualify Plaintiff's attorney Wayser and Tanada; denied Defendants' motion to dismiss; granted Counterdefendants U.S. Bank, Nygard and Bigall's motions to dismiss the counterclaim; granted Counterdefendant Ocepek's motion to dismiss and dismissed Counterdefendant Itskovich with prejudice. (Dkt. No. 102.) The Court granted Counterclaimant Sandy Zappia leave to file an amended counterclaim. (Id.) On February 13, 2013, the Court issued an order dissolving the preliminary injunction for failure to satisfy the factors to support a preliminary injunction and failure to comply with bond requirements under the Civil Local Rules. (Dkt. No. 104.)

An amended counterclaim was filed on March 14, 2013. (Dkt. No. 106.) On August 30, 2013, the Court granted Counterclaimants' motion for leave to file a second amended counterclaim and denied Coutnerdefendants' motions to dismiss as moot. (Dkt. No. 129.)

On September 6, 2013, Counterclaimants filed an second amended counterclaim. (Dkt. No. 130.) On September 23, 2013, Counterdefendants U.S. Bank, Ocepek, Wayser and Bigall filed motions to dismiss the second amended counterclaim. (Dkt. Nos. 134, 135, 136.)

On November 4, 2013, Counterclaimant Sandy Zappia filed a motion for leave to file a third amended counterclaim against Counterdefendant U.S. Bank only. (Dkt. No. 153.) The proposed second amended counterclaim alleges causes of action for cancellation of instruments; violation of the Fair Debt Collection Practices Act, 15 U.S.C. ยง 1692; unfair business practices under California Business & Professions Code section 17200 et seq.; declaratory relief; accounting; unjust enrichment; and quiet title. (Id.) On November 12, 2013, Counterclaimant Albert Zappia filed a motion for leave to file a third amended counterclaim against Counterdefendants U.S. Bank, Robin Tharpe; Jacqueline Barlow; Jocelyn Bigall; and Patrick Nygard. (Dkt. No. 157.) He alleges causes of action that U.S. Bank is not the real party in interest; cancellation of instruments; ...


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