Schaertel v. Wachovia Mortgage, FSB

Full title: ARTHUR T. SCHAERTEL, et al., v. WACHOVIA MORTGAGE, FSB, et al.

Court: United States District Court, Ninth Circuit, California, C.D. California

Date published: Jul 11, 2011

EDCV 11-0543 PSG (RZx) (C.D. Cal. Jul. 11, 2011)

Opinion

ARTHUR T. SCHAERTEL, et al., v. WACHOVIA MORTGAGE, FSB, et al. No. EDCV 11-0543 PSG (RZx) United States District Court, C.D. California. July 11, 2011

          CIVIL MINUTES - GENERAL

          PHILIP S. GUTIERREZ, District Judge.

         Proceedings: (In Chambers) Order GRANTING Defendants' Motion to Dismiss

         Before the Court is Defendant Gushue Family Relators, Inc. ("Gushue") and Defendant Electric Capital's ("Electric") motion to dismiss Plaintiffs Arthur T. Schaertel and Maxine Schaertel's ("Plaintiffs") Complaint. The Court finds the matter appropriate for decision without oral argument. See Fed.R.Civ.P. 78; L.R. 7-15. Having considered the papers submitted in support of the motion, the Court GRANTS the motion.

         On March 28, 2011, Plaintiffs filed an action in state court against Defendants Wachovia Mortgage, FSB, a Savings Association, f/k/a World Savings Bank F.S.B.; Union Bank of California, N.A.; Richard G. Stack; Clarisa M. Rockwell, Christina Yu; Gushue Family Relators; and Electric Capital LLC (collectively, "Defendants") alleging causes of action for (1) quiet title; (2) negligent misrepresentation; (3) intentional misrepresentation; (4) fraud; and (5) injunctive relief. See Dkt. # 1 (Apr. 6, 2011) ( Notice of Removal ). The only cause of action alleged against Gushue and Electric, the parties currently moving to dismiss Plaintiffs' Complaint, is the first claim for quiet title. According to the Complaint, Defendants Gushue and Electric were the top bidders at the sale of Plaintiffs' residence on March 15, 2011. Compl. ¶ 31. Plaintiffs allege that they "advised [Gushue and Electric] that there may be a problem with the Deed of Trust[, ]" and that the bid "should have been denied by the USA and defendant Stack on the basis that it was insufficient to cover any portion of the Plaintiffs' tax liabilities." Id.

         On June 2, 2011, Defendants Gushue and Electric moved to dismiss all of Plaintiffs' claims under Federal Rules of Civil Procedure 12(b)(6). See Dkt. #5. Plaintiffs were required to file and serve an opposition to the motion by June 20, 2011. See L.R. 7-12. Plaintiffs, however, have yet to file an opposition. Thus, pursuant to Local Rule 7-12, the Court deems Plaintiffs' failure to file a timely opposition to be consent to the granting of Defendants Gushe and Electric's motion. See id.

         Accordingly, the Court GRANTS Defendants Gushe and Electic's motion to dismiss Plaintiff's Complaint with prejudice.

         IT IS SO ORDERED.