Opinion
Case No. 1:11-cv-1053
02-05-2013
PAUL M. HOWARD Plaintiff, v. FEDERAL HOME LOAN MORTGAGE CORPORATION aka Freddie Mac, U.S. BANK, N.A., as Trustee for TruCap Grantor Trust 2010-2, and ASSURED LENDER SERVICES, INC. Defendants.
BERGQUIST WOOD McINTOSH SETO LLP STEPHEN C. SETO Attorneys for Plaintiffs DAWE & CHRISTOPHERSON Dean Christopherson Attorneys for Defendant Freddie Mac
Stephen C. Seto, SBN 175458
BERGQUIST WOOD McINTOSH SETO LLP
1470 Maria Lane, Suite 300
Walnut Creek, CA 94596
Telephone: (925) 938-6100
Facsimile: (925) 938-4354
Attorneys for Plaintiff Paul Howard
STIPULATION AND ORDER FOR LEAVE
TO FILE VERIFIED FIRST AMENDED
COMPLAINT FOR QUIET
TITLE/DECLARATORY RELIEF
RECITALS
1. The subject matter of this litigation is a four-plex condominium located at 2108 Palisade Avenue, #1-4, Modesto, CA (the "Property").
2. In 2007, Defendant Geraldo Ramirez obtained four loans (the "Loans") from Wells Fargo secured by four deeds of trust (sometimes collectively referred to as the "Deeds of Trust"). In each of the Deeds of Trust, the common address describes a single unit of the four-plex Property, but the accompanying legal description attached to each describes all four units that comprise the Property. The Deeds of Trust are sometimes individually identified as follows:
+------------------------------------------------------+ ¦Instrument No.¦Identified Unit No.¦Described herein as¦ +--------------+-------------------+-------------------¦ ¦2007-0097290 ¦One ¦First Deed of Trust¦ +------------------------------------------------------+
+---------------------------------------+ ¦2007-0097296¦Two ¦Second Deed of Trust¦ +------------+-----+--------------------¦ ¦2007-0097290¦Three¦Third Deed of Trust ¦ +------------+-----+--------------------¦ ¦2007-0097292¦Four ¦Fourth Deed of Trust¦ +---------------------------------------+
3. In 2008, Ramirez defaulted on one or more of the Loans. A foreclosure sale on the Property followed, and on August 1, 2008, a Trustee's Deed Upon Sale (the "Trustee's Deed") was executed in favor of defendant Freddie Mac. The Trustee's Deed states that "Units 1 through 4 of Lot 33" are being transferred to Freddie Mac."
4. In the summer of 2009, Plaintiff and Freddie Mac entered into a purchase agreement (the "Purchase Agreement") for Plaintiff to purchase the Property from Freddie Mac for $220,000 (the "Sale"). The Sale closed, and on July 22, 2009, Freddie Mac executed a Grant Deed conveying the Property to Plaintiff.
5. Despite the Sale and corresponding Grant Deed, on December 3, 2010, Freddie Mac caused the trustee under the Fourth Deed of Trust to rescind the Trustee's Deed. In February 2011, Freddie Mac's beneficial interest in the Fourth Deed of Trust was assigned to U.S. Bank, N.A., as Trustee for TruCap Grantor Trust 2010-2.
6. In 2011, Howard initiated this action for quiet title regarding U.S. Bank's purported lien interest in the Property and for a determination that he is the sole fee simple owner of the Property. U.S. Bank has since assigned its beneficial interest in the Fourth Deed of Trust back to Wells Fargo and is being dismissed from this action. The Second Deed of Trust has not been foreclosed, and Wells Fargo continues to hold it as beneficiary. Wells Fargo foreclosed on the Third Deed of Trust in June 2011 and a trustee deed was delivered to Wells Fargo. Wells Fargo then signed a Grant Deed transferring its interest in the Property to Freddie.
7. Plaintiff now seeks leave to amend the Complaint to include the Property's former owner Geraldo Ramirez as a defendant to ensure that all persons/entities that potentially claim an interest in the Property are a party to Plaintiffs quiet title action.
STIPULATION
Based on the foregoing recitals, IT IS HEREBY STIPULATED AND AGREED, by and between the parties hereto, as follows:
a. Plaintiffs should be granted leave to file a First Amended Complaint, a copy of which is attached as Exhibit A and a redline version showing the changes from the First Amended Complaint is attached as Exhibit B;
b. Plaintiffs may proceed ex parte, if necessary, to request that the Court approve this stipulation;
c. This stipulation may be executed in counter-parts, and signatures by fax shall be considered original signatures.
IT IS SO STIPULATED
BERGQUIST WOOD McINTOSH SETO LLP
____________________________
STEPHEN C. SETO
Attorneys for Plaintiffs
DAWE & CHRISTOPHERSON
____________________________
Dean Christopherson
Attorneys for Defendant
Freddie Mac
ORDER
By stipulation of the parties and good cause appearing, it is HEREBY ORDERED THAT:
1. Plaintiff is granted leave to file a First Amended Complaint in the form substantially similar to the attached Exhibit A.IT IS SO ORDERED.
2. On or before February 12, 2013, Plaintiff shall file their first amended complaint as a separate docket entry.
Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE