United States District Court, S.D. California
PAUL M. LUCORE, Plaintiff,
WELLS FARGO BANK, N.A., et al. Defendant.
ORDER DENYING PLAINTIFF'S MOTION FOR
RECONSIDERATION [ECF NO. 28]
M. James Lorenz, United States District Judge
before this Court is Plaintiff Paul M. Lucore's
(“Plaintiff”) motion to vacate order pursuant to
Federal Rule of Civil Procedure 60(b). The Court decides the
matter on the papers submitted and without oral argument.
See Civ. L. R. 7.1(d)(1). For the reasons stated
below, the Court DENIES Plaintiff's
case arises out of Wells Fargo's attempted foreclosure on
Plaintiff's property for defaulting on a mortgage loan
secured by the property. On August 31, 2006, Plaintiff
obtained a loan for $376, 000 [ECF No. 22-2 at 4-7], secured
by a deed of trust against his property located at 10657
Felix Drive, Santee, CA 92071 [ECF No. 19-3 at 2-15].
Following this initial loan, Plaintiff executed a
modification of the loan on March 2, 2010. ECF No. 22-2 at
9-15. On July 21, 2010, Plaintiff exercised his right to
rescind the loan pursuant to 15 U.S.C. section 1635,
subdivision (f) because he was not provided copies of
required disclosures when modifying the loan under the
Truth-in-Lending-Act (hereinafter “TILA”). ECF
No. 16 at 3.
Plaintiff sent a rescission notice to his lenders to rescind
the loan, on November 5, 2010, a Notice of Default [ECF No.
19-3 at 17] was recorded against Plaintiff's home, for
arrearages of $16, 704.03. Wells Fargo subsequently asserted
a beneficial interest in the note and deed of trust connected
to the loan pursuant to an assignment recorded against
Plaintiff's property on November 21, 2013. ECF No. 16 at
4. In June 2018, a second Notice of Default was recorded
against Plaintiff's property [ECF No. 19-3 at 145], and
in October 2018, a Notice of Trustee's Sale was recorded
against the property [ECF No. 19-3 at 150].
Plaintiff filed his initial complaint against Wells Fargo,
Bank of America, and Barrett Daffin Frappier Treder &
Weiss, LLP (hereinafter “Barrett”) on October 18,
2018. ECF No. 1. In his complaint, Plaintiff asserted claims
for (1) a violation of the Fair Debt Collections Practices
Act (hereinafter “FDCPA”), 15 U.S.C. section
1692f, subdivision (6), and (2) cancellation of instruments.
Two motions to dismiss were filed, one by Wells Fargo [ECF
No. 8] and another by Bank of America [ECF No. 5]. Wells
Fargo filed a partial joinder to Bank of America's motion
to dismiss [ECF No. 7]. Plaintiff did not file an opposition,
instead voluntarily dismissed his claims against Bank of
America and filed a first amended complaint (hereinafter
“FAC”), asserting his original two claims against
the remaining defendants. See ECF Nos. 15, 16. This
Court denied Bank of America's and Wells Fargo's
initial motions to dismiss as moot. ECF No. 18. Wells Fargo
filed a motion to dismiss Plaintiff's first amended
complaint. ECF No. 19. The Court granted the motion to
dismiss and dismissed this action with prejudice. ECF No. 25.
Subsequently, Plaintiff's attorney withdrew as counsel,
and Plaintiff proceeded pro se to file this Rule
60(b) motion. See ECF No. 28.
Rule of Civil Procedure 60(b)(2) allows district courts to
grant relief from judgment on the basis of new evidence. Rule
60(b)(2) relief is only granted if the party seeking relief
demonstrates the newly discovered evidence of facts: (1)
existed at the time of trial; (2) could not have been
discovered through due diligence; and (3) was of such
magnitude that production of it earlier would have been
likely to change the disposition of the case. Jones v.
AeroChem Corp., 921 F.2d 875, 878 (9th Cir. 1990). If
the party seeking Rule 60(b)(2) relief fails to establish one
of the prongs, then the party is not entitled to relief.
See Hawaii Mgmt. Alliance Ass 'n v. Meek, 155
Fed.Appx. 978, 979 (9th Cir. 2005). Here, Plaintiff fails to
establish that the new information he submits to support his
motion for relief could not have been discovered through due
diligence. Specifically, Plaintiff reveals that he believes
that his attorney was negligent in not submitting all the
documentary evidence needed for a comprehensive assessment of
the evidence in this case. ECF No. 28 at 5. Although he did
not demonstrate how, Plaintiff also believes that the facts
would have made a difference in the Court's earlier
disposition. Ibid. However, Plaintiff fails to
mention any reason why this newly-submitted evidence could
not have been discovered through due diligence earlier in the
litigation. Moreover, upon review of Plaintiffs motion, he
fails to establish how this evidence was of such magnitude
that it would have changed the Court's disposition. As
such, the Court finds that Plaintiff is not entitled to Rule
60(b) relief as Plaintiff has not satisfied the three-part
Conclusion and Order
foregoing reasons, the Court DENIES
Plaintiffs motion for reconsideration.