Opinion
Case No: CV110433
10-10-2011
CHRISTOPHER GENE LYMAN; JESSICA HELEN O'DANIEL, Plaintiffs, v. SAXON MORTGAGE SERVICES, INC.; OCWEN LOAN SERVICING, LLC; FIRST NLC FINANCIAL SERVICES, LLC; and DOES 1 through 100, inclusive Defendants.
CHRISTOPHER J. NEARY (SBN: 69220) Attorneys for Plaintiffs CHRISTOPHER GENE LYMAN and JESSICA HELEN O'DANIEL ERIC D. HOUSER (SBN 130079) JASON K. BOSS (SBN 228147) HOUSER & ALLISON, APC Attorneys for Defendants OCWEN LOAN SERVICING, LLC, DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR IXIS REAL ESTATE CAPITAL TRUST 2005-HE3 MORTGAGE PASS THROUGH CERTIFICATES, SERIES 2005-HE3, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AND WESTERN PROGRESSIVE, LLC
CHRISTOPHER J. NEARY (SBN: 69220)
Attorneys for Plaintiffs CHRISTOPHER
GENE LYMAN and JESSICA HELEN
O'DANIEL
ERIC D. HOUSER (SBN 130079)
JASON K. BOSS (SBN 228147)
HOUSER & ALLISON, APC
Attorneys for Defendants OCWEN LOAN
SERVICING, LLC, DEUTSCHE BANK NATIONAL
TRUST COMPANY, AS TRUSTEE FOR IXIS REAL
ESTATE CAPITAL TRUST 2005-HE3 MORTGAGE PASS THROUGH
CERTIFICATES, SERIES 2005-HE3, MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC., AND WESTERN PROGRESSIVE, LLC
STIPULATION TO WITHDRAW CURRENTLY FILED EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, TO SCHEDULED MOTION FOR PRELIMINARY INJUNCTION, AND TO ALLOW DEFENDANTS TO FILE RESPONSIVE PLEADINGS TO SECOND AMENDED COMPLAINT
TO THIS HONORABLE COURT AND TO ALL PARTIES HEREIN:
COMES NOW Plaintiffs CHRISTOPHER GENE LYMAN and JESSICA HELEN O'DANIEL ("Plaintiffs") and Defendants OCWEN LOAN SERVICING, LLC, DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR IXIS REAL ESTATE CAPITAL TRUST 2005-HE3 MORTGAGE PASS THROUGH CERTIFICATES, SERIES 2005-HE3 (erroneously sued as DEUTSCHE BANK NATIONAL TRUST COMPANY), DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR IXIS REAL ESTATE CAPITAL TRUST 2005-HE3 MORTGAGE PASS THROUGH CERTIFICATES, SERIES 2005-HE3 (erroneously sued as IXIS REAL ESTATE CAPITAL TRUST 2004-HE3), MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC, AND WESTERN PROGRESSIVE, LLC ("Defendants") (Defendants and Plaintiffs shall hereinafter collectively be referenced as the "Parties"), through their respective counsel of record herein, hereby agree and stipulate to the following.
1. In light of Defendants' representation that the noticed and scheduled trustee sale of real property located at 1956 Clover Drive, Willits, California ("Property") has been postponed to December 9, 2011, Plaintiffs, through their undersigned counsel, hereby WITHDRAW their current ex parte application for a temporary restraining order.
2. The Parties, through their respective counsel, stipulate and agree that Plaintiffs' motion for a temporary restraining order, and an order to show cause re. issuance of a preliminary injunction, or in the alternative, motion for preliminary injunction, shall be scheduled for hearing, pending this Court's availability, on November 22, 2011 at 10:00 a.m. in Courtroom 205A (2nd Floor) of the above entitled Court.
3. The Parties, through their respective counsel, stipulate and agree that Defendants' responsive papers and/or a Motion to Dismiss the Second Complaint, if any, shall be filed and served by no later than October 21, 2011.
4. The Parties agree that if Defendants file a Motion to Dismiss the Second Complaint, the hearing of said Motion to Dismiss shall be scheduled, pending this Court's availability, for hearing on November 22, 2011; any opposition to said Motion to Dismiss shall be due to be filed and served by Plaintiffs by no later than November 2, 2011; and any reply papers shall be due to be filed and served by no later than November 9, 2011.
As a matter of convenience to the Court and the parties, Defendant Saxon Mortgage Services, Inc. has its Motion to Dismiss Plaintiffs' Second Amended Complaint scheduled for the same date, time, and location.
IT SO AGREED AND STIPULATED.
CHRISTOPHER J. NEARY
Christopher J. Neary
Attorneys for Plaintiffs
CHRISTOPHER GENE LYMAN and
JESSICA HELEN O'DANIEL
HOUSER & ALLISON
A Professional Corporation
Eric D. Houser
Jason K. Boss
Attorneys for Defendants OCWEN
LOAN SERVICING, LLC, DEUTSCHE
BANK NATIONAL TRUST
COMPANY, AS TRUSTEE FOR IXIS
REAL ESTATE CAPITAL TRUST
2005-HE3 MORTGAGE PASS
THROUGH CERTIFICATES, SERIES
2005-HE3 (erroneously sued as
DEUTSCHE BANK NATIONAL
TRUST COMPANY), DEUTSCHE
BANK NATIONAL TRUST
COMPANY, AS TRUSTEE FOR IXIS
REAL ESTATE CAPITAL TRUST
2005-HE3 MORTGAGE PASS
THROUGH CERTIFICATES, SERIES
2005-HE3 (erroneously sued as IXIS
REAL ESTATE CAPITAL TRUST
2004-HE3), MORTGAGE
ELECTRONIC REGISTRATION
SYSTEMS, INC., AND WESTERN
PROGRESSIVE, LLC
ORDER
Based on the foregoing stipulation of the parties hereto, the above listed dates are hereby accepted by this Court.
Plaintiffs' ex parte application is hereby ordered WITHDRAWN.
Plaintiffs' motion for a temporary restraining order and an order to show cause hearing regarding issuance of a preliminary injunction, or in the alternative, motion for preliminary injunction shall be heard on November 22, 2011 at 10:00 a.m. in Courtroom 205A of the above entitled Court.
Defendants shall have until October 21, 2011 in which to file and serve responsive pleadings and/or a Motion to Dismiss Plaintiffs' Second Amended Complaint. If a Motion to Dismiss is filed by Defendants, it shall be heard on November 22, 2011 at 10:00 a.m. in Courtroom 205A of the above entitled Court. Any opposition to Defendants' Motion to Dismiss shall be filed and served by Plaintiffs by no later than November 1, 2011, and any Reply papers shall be filed and served by no later than November 9, 2011.
IT IS HEREBY ORDERED AND ADJUDGED.
HONORABLE NADOR J. VADAS ,
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF
CALIFORNIA, JUDGE
PROOF OF SERVICE
I am employed in the County of Orange, State of California. I am over the age of eighteen and not a party to the within action. My business address is 9970 Research Drive, Irvine, California 92618.
On October 11, 2011, I served the following document described as:
STIPULATION TO WITHDRAW CURRENTLY FILED EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, TO SCHEDULED MOTION FOR PRELIMINARY INJUNCTION, AND TO ALLOW DEFENDANTS TO FILE RESPONSIVE PLEADINGS TO SECOND AMENDED COMPLAINT
On the following interested parties in this action:
Christopher James Neary[X] BY ELECTRONIC MAIL: I transmitted the document(s) listed above electronically either by e-mail or by electronic filing through the CM/ECF System to the e-mail addresses listed above. I am readily familiar with Microsoft Outlook's e-mail system and the United States District Court's CM/ECF System, and the transmission was reported as complete without error.
Attorney at Law
110 So. Main St., #C
Willits, CA 95490
E-Mail: cjneary@pacific.net
Attorney for Plaintiffs
Christopher Lee Peterson
Pite Duncan, LLP
4375 Jutland Drive, Suite 200
P.O. Box 17935
San Diego, CA 92177-0935
E-Mail: cpeterson@piteduncan.com
Attorneys for Saxon Mortgage Services, Inc.
I declare under penalty of perjury under the laws of the United States of America, that the foregoing is true and correct.
Executed on October 11, 2011, at Irvine, California.
Kokie Nguyen