Shirley v. Wachovia Mortg. FSB

Full title: JOHN SHIRLEY, individually and as trustee of the JOHN F. SHIRLEY and JULIE…

Court: UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA - SAN FRANCISCO DIVISION

Date published: Oct 18, 2011

Case No. 3:10-cv-03870-SC (N.D. Cal. Oct. 18, 2011)

Opinion

Case No. 3:10-cv-03870-SC

10-18-2011

JOHN SHIRLEY, individually and as trustee of the JOHN F. SHIRLEY and JULIE E. SHIRLEY 2003 TRUST and JULIE SHIRLEY, Plaintiffs, v. WACHOVIA MORTGAGE FSB, WELLS FARGO BANK N.A. and DOES 1-10, Defendants. WACHOVIA MORTGAGE, a division of Wells Fargo Bank, N.A., formerly known as Wachovia Mortgage, FSB, Third Party Complainant, v. LSI TITLE COMPANY; LENDER PROCESSING SERVICES, INC.; FIDELITY NATIONAL INFORMATION SERVICES, INC.; and ROES 1 through 10, inclusive, Third Party Defendants.

Ryan Thomas (#230491) Roy N. Johnston (#185409) JOHNSTON THOMAS, Attorneys at Law Attorneys for Plaintiffs, John Shirley, individually and as trustee of the Mark T. Flewelling (#96465) Michael Rapkine (#222811) ANGLIN, FLEWELLING, RASMUSSEN CAMPBELL & TRYTTEN, LLP Attorneys for Defendant and Third Party Complainant, Wachovia Mortgage, a division of Wells Fargo Bank, N.A., f/k/a Wachovia Mortgage, FSB ("Wachovia") Daniel M. Livingston (#105981) Alisha M. Louie (#240863) PAYNE & FEARS LLP Attorneys for Third Party Defendants LSI Title Company, Lender Processing Services, Inc. and Fidelity National Information Services, Inc.

Samuel Conti

Ryan Thomas (#230491)

Roy N. Johnston (#185409)

JOHNSTON THOMAS, Attorneys at Law

Attorneys for Plaintiffs,

John Shirley, individually and as trustee of the

Mark T. Flewelling (#96465)

Michael Rapkine (#222811)

ANGLIN, FLEWELLING, RASMUSSEN

CAMPBELL & TRYTTEN, LLP

Attorneys for Defendant and Third Party Complainant,

Wachovia Mortgage, a division of Wells Fargo Bank,

N.A., f/k/a Wachovia Mortgage, FSB ("Wachovia")

Daniel M. Livingston (#105981)

Alisha M. Louie (#240863)

PAYNE & FEARS LLP

Attorneys for Third Party Defendants

LSI Title Company, Lender Processing Services, Inc.

and Fidelity National Information Services, Inc.

[Assigned to the Honorable Samuel Conti]

JOINT STIPULATION AND ORDER GRANTING CONTINUANCE OF TRIAL AND ASSOCIATED DEADLINES

TO THE HONORABLE COURT:

Pursuant to Local Rules 6-2, 7-12, and 40-1, plaintiffs John Shirley (individually and as trustee of the John F. Shirley and Julie E. Shirley 2003 Trust) and Julie Shirley, individually ("plaintiffs"), defendant and third party complainant Wachovia Mortgage, a division of Wells Fargo Bank, N.A., formerly known as Wachovia Mortgage, FSB ("Wachovia"), and third party defendants LSI Title Company, Lender Processing Services, Inc., and Fidelity National Information Services, Inc. (the "third party defendants") (collectively, the "parties") seek an order resetting existing case deadlines and the trial date. Grounds for the request are set forth in the following recitals.

RECITALS

A. On August 26, 2011, plaintiffs and Wachovia filed a joint stipulation that requested leave of court allowing Wachovia to file a third party complaint that would bring the third party defendants into this action. (Doc. 31). As noted in this stipulation, bringing the third party defendants into this suit served two critical functions. First, it served the interests of judicial economy, because the surviving claim in the First Amended Complaint and Wachovia's claims against the third party defendants (as Wachovia's closing agent) arise out of the same loan transaction and occurrence. A determination of all claims in one proceeding is necessary and appropriate to avoid the multiplicity of actions that would result if Wachovia were required to defend against plaintiffs' claims and then litigate a separate action against the third party defendants for indemnification. Second, inclusion of all necessary defendants in this action will help facilitate serious settlement discussions.

B. On August 31, 2011, the Court issued an order that granted Wachovia leave to file a third party complaint by September 10, 2011. (Doc. 32). Wachovia filed and served its third party complaint on the third party defendants on September 8, 2011. (Docs. 33 - 36).

C. On October 5, 2011, Wachovia and the third party defendants filed a stipulation pursuant to Local Rule 6-1(a), allowing the third party defendants to file their response to Wachovia's third party complaint by November 4, 2011. (Doc. 43). This will allow the response to be heard by the present cut-off for motion hearings in this case, which is set for December 9, 2011. (Doc. 30).

D. As set forth in the accompanying Declaration of Michael Rapkine ("Rapkine Decl."), counsel for the third party defendants has emphasized that given the fact that they were recently retained, it will not be possible to adequately prepare for trial should the present deadlines remain in place. (Rapkine Decl. ¶ 5). In addition, a continuance of the existing case schedule will allow the parties to engage in meaningful settlement discussions without the need for further motion practice.

STIPULATION

Subject to this Court's consent, the parties stipulate that the present trial date and associated deadlines be vacated, thereby allowing the parties sufficient time to conduct discovery, prepare for trial, and engage in settlement negotiations. Based on the fact that the third party defendants were recently joined in this action, the parties respectfully request that the currently scheduled dates be continued 120 days, as set forth in the proposed order that accompanies this stipulation. Or in the alternative, the parties request that the existing deadlines be continued to dates convenient to the Court.

Respectfully Submitted,

JOHNSTON THOMAS, Attorneys at Law

By: Ryan Thomas

Attorneys for Plaintiffs,

John Shirley, individually and as trustee of the

John F. Shirley and Julie E. Shirley 2003

Trust and Julie Shirley

ANGLIN, FLEWELLING, RASMUSSEN,

CAMPBELL & TRYTTEN LLP

By: Michael Rapkine

Attorneys for Defendant and Third Party Complainant,

Wachovia Mortgage, a division of Wells Fargo Bank,

N.A., f/k/a Wachovia Mortgage, FSB ("Wachovia")

PAYNE & FEARS LLP

By: Daniel M. Livingston

Attorneys for Third Party Defendants,

LSI Title Company, Lender Processing Services, Inc.

and Fidelity National Information Services, Inc.

CERTIFICATE OF SERVICE

I, the undersigned, declare that I am over the age of 18 and am not a party to this action. I am employed in the City of Pasadena, California; my business address is Anglin, Flewelling, Rasmussen, Campbell & Trytten LLP, 199 S. Los Robles Avenue, Suite 600, Pasadena, California 91101-2459.

On the date below, I served a copy of the following document entitled:

JOINT STIPULATION AND ORDER GRANTING CONTINUANCE OF TRIAL AND

ASSOCIATED DEADLINES

on all interested parties in said case addressed as follows:

Served Electronically Via the Court's CM/ECF System:

Attorneys for Plaintiff

Ryan Thomas, Esq.

Roy N. Johnston, Esq.

JOHNSTON | THOMAS

1400 N. Dutton Avenue, Suite 21

Santa Rosa, CA 95401

Tel.: 707.545.6542 | Fax: 707.545.1522

Email: rthomas@johnstonthomas.com

Served By Means Other Than Electronically Via the Court's CM/ECF System:

SEE ATTACHED SERVICE LIST

[×] (BY MAIL): I am readily familiar with the firm's practice of collection and processing correspondence by mailing. Under that same practice it would be deposited with U.S. Postal Service on that same day with postage fully prepaid at Pasadena, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit.

I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. I declare that I am employed in the office of a member of the Bar of this Court at whose direction the service was made. This declaration is executed in Pasadena, California, on October 21, 2011.

Barbara Cruz

(Type or Print Name)

Barbara Cruz

(Signature of Declarant)

SERVICE LIST

Attorneys for Third Party Defendants

LSI Title Company, Lender Processing Services, Inc.

and Fidelity National Information Services, Inc.

Daniel M. Livingston, Esq.

PAYNE & FEARS LLP

4 Park Plaza, Suite 1100

Irvine, CA 92614

Tel.: 949.851.1100 | Fax: 949.851.1212

Email: dml@paynefears.com

Alisha M. Louie, Esq.

PAYNE & FEARS LLP

One Embarcadero Center, Suite 2300

San Francisco, CA 94111

Tel.: 415.398.7860 | Fax: 415.398.7863

Email: aml@paynefears.com

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA - SAN FRANCISCO DIVISION

JOHN SHIRLEY, individually and as trustee of the JOHN F. SHIRLEY and JULIE E. SHIRLEY 2003 TRUST and JULIE SHIRLEY, Plaintiffs,

vs.

WACHOVIA MORTGAGE FSB, WELLS FARGO BANK N.A. and DOES 1-10, Defendants.

WACHOVIA MORTGAGE, a division of Wells Fargo Bank, N.A., formerly known as Wachovia Mortgage, FSB, Third Party Complainant,

vs.

LSI TITLE COMPANY; LENDER PROCESSING SERVICES, INC.; FIDELITY NATIONAL INFORMATION

SERVICES, INC.; and ROES 1 through 10, inclusive, Third Party Defendants.

Case No. 3:10-cv-03870-SC

[Assigned to the Honorable Samuel Conti]

ORDER GRANTING CONTINUANCE OF TRIAL AND ASSOCIATED DEADLINES

Having read and considered the foregoing stipulation signed by all parties, and good cause appearing:

IT IS HEREBY ORDERED:

1. That all current case deadlines are vacated and the Court adopts the following amended schedule:

Discovery Cutoff: April 6, 2012
Final Hearing Date For Motions: April 9, 2012 April 6, 2012 @ 10:00 a.m.
Pretrial Conference: May 28, 2012 May 25, 2012 @ 10:00 a.m.
Commencement of Jury Trial: June 6, 2012 June 4, 2012 @ 9:30 a.m.

Judge Samuel Conti

CERTIFICATE OF SERVICE

I, the undersigned, declare that I am over the age of 18 and am not a party to this action. I am employed in the City of Pasadena, California; my business address is Anglin, Flewelling, Rasmussen, Campbell & Trytten LLP, 199 S. Los Robles Avenue, Suite 600, Pasadena, California 91101-2459.

On the date below, I served a copy of the following document entitled:

ORDER GRANTING CONTINUANCE OF TRIAL AND ASSOCIATED DEADLINES

on all interested parties in said case addressed as follows:

Served Electronically Via the Court's CM/ECF System:

Attorneys for Plaintiff

Ryan Thomas, Esq.

Roy N. Johnston, Esq.

JOHNSTON | THOMAS

1400 N. Dutton Avenue, Suite 21

Santa Rosa, CA 95401

Tel.: 707.545.6542 | Fax: 707.545.1522

Email: rthomas@johnstonthomas.com

Served By Means Other Than Electronically Via the Court's CM/ECF System:

SEE ATTACHED SERVICE LIST

[×] (BY MAIL): I am readily familiar with the firm's practice of collection and processing correspondence by mailing. Under that same practice it would be deposited with U.S. Postal Service on that same day with postage fully prepaid at Pasadena, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit.

I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. I declare that I am employed in the office of a member of the Bar of this Court at whose direction the service was made. This declaration is executed in Pasadena, California, on October 21, 2011.

Barbara Cruz

(Type or Print Name)

Barbara Cruz

(Signature of Declarant)

SERVICE LIST

Attorneys for Third Party Defendants

LSI Title Company, Lender Processing Services, Inc.

and Fidelity National Information Services, Inc.

Daniel M. Livingston, Esq.

PAYNE & FEARS LLP

4 Park Plaza, Suite 1100

Irvine, CA 92614

Tel.: 949.851.1100 | Fax: 949.851.1212

Email: dml@paynefears.com

Alisha M. Louie, Esq.

PAYNE & FEARS LLP

One Embarcadero Center, Suite 2300

San Francisco, CA 94111

Tel.: 415.398.7860 | Fax: 415.398.7863

Email: aml@paynefears.com

Mark T. Flewelling (#96465)

Michael Rapkine (#222811)

ANGLIN, FLEWELLING, RASMUSSEN

CAMPBELL & TRYTTEN, LLP

Attorneys for Defendant and Third Party Complainant,

Wachovia Mortgage, a division of Wells Fargo Bank,

N.A., f/k/a Wachovia Mortgage, FSB ("Wachovia")

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA - SAN FRANCISCO DIVISION

JOHN SHIRLEY, individually and as trustee of the JOHN F. SHIRLEY and JULIE E. SHIRLEY 2003 TRUST

and JULIE SHIRLEY, Plaintiffs,

vs.

WACHOVIA MORTGAGE FSB, WELLS FARGO BANK N.A. and DOES 1-10, Defendants.

WACHOVIA MORTGAGE, a division of Wells Fargo Bank, N.A., formerly known as Wachovia Mortgage, FSB, Third Party Complainant,

vs.

LSI TITLE COMPANY; LENDER PROCESSING SERVICES, INC.; FIDELITY NATIONAL INFORMATION

SERVICES, INC.; and ROES 1 through 10, inclusive, Third Party Defendants.

Case No. 3:10-cv-03870-SC

[Assigned to the Honorable Samuel Conti]

DECLARATION OF MICHAEL RAPKINE IN SUPPORT OF JOINT STIPULATION AND ORDER

GRANTING CONTINUANCE OF TRIAL AND ASSOCIATED DEADLINES

I, Michael Rapkine, declare:

1. I am an attorney at law licensed before this Court and associated with the law firm of Anglin, Flewelling, Rasmussen, Campbell & Trytten LLP, counsel of record for defendant and third party complainant Wachovia Mortgage, a division of Wells Fargo Bank, N.A., formerly known as Wachovia Mortgage, FSB. ("Wachovia"). I make this declaration in support of the joint stipulation of all parties and proposed order granting a continuance of the trial date and associated deadlines.

2. Having exhausted non-judicial alternatives in the hope of obtaining full indemnification or partial indemnity towards a global settlement, Wachovia had no choice but to pursue its third party claims against the closing agent and affiliates (the "third party defendants"). On August 31, 2011, this Court issued an order that granted Wachovia leave to file a third party complaint by September 10, 2011. (Doc. 32). Wachovia filed and served its third party complaint on the third party defendants on September 8, 2011. (Docs. 33 - 36).

3. Pursuant to the current scheduling order in effect (Docs. 29 and 30), all discovery must be completed by December 6, 2011; all motions shall be heard by December 9, 2011; a pre-trial conference shall be held on January 27, 2012; and trial shall commence on February 6, 2012.

4. Given that the third party defendants just recently retained counsel, the undersigned respectfully requests that the existing case schedule be continued so that the third party defendants can assess their exposure, thereby allowing all parties to engage in meaningful settlement negotiations without the need for further motion practice.

5. More importantly, counsel for the third party defendants (Daniel M. Livingston of Payne & Fears, LLP) has emphasized that given the fact that they were recently retained, it will not be possible for his firm to adequately prepare for trial should the present case deadlines remain in place.

6. Pursuant to Local Rule 6-2(a)(2), this is the second request for a continuance in this action. Previously, plaintiff and Wachovia requested a one-month continuance of the hearing on Wachovia's initial 12(b)(6) motion, which was granted by this Court. (Docs. 7 and 9).

I declare under penalty of perjury under the laws of the United States and the State of California that the foregoing is true and correct. If called upon to testify, I would and could competently testify thereto.

Executed this 21st day of October 2011, at Pasadena, California.

Michael Rapkine

CERTIFICATE OF SERVICE

I, the undersigned, declare that I am over the age of 18 and am not a party to this action. I am employed in the City of Pasadena, California; my business address is Anglin, Flewelling, Rasmussen, Campbell & Trytten LLP, 199 S. Los Robles Avenue, Suite 600, Pasadena, California 91101-2459.

On the date below, I served a copy of the following document entitled:

DECLARATION OF MICHAEL RAPKINE IN SUPPORT OF

JOINT STIPULATION AND ORDER GRANTING CONTINUANCE

OF TRIAL AND ASSOCIATED DEADLINES

on all interested parties in said case addressed as follows:

Served Electronically Via the Court's CM/ECF System:

Attorneys for Plaintiff

Ryan Thomas, Esq.

Roy N. Johnston, Esq.

JOHNSTON | THOMAS

1400 N. Dutton Avenue, Suite 21

Santa Rosa, CA 95401

Tel.: 707.545.6542 | Fax: 707.545.1522

Email: rthomas@johnstonthomas.com

Served By Means Other Than Electronically Via the Court's CM/ECF System:

SEE ATTACHED SERVICE LIST

[×] (BY MAIL): I am readily familiar with the firm's practice of collection and processing correspondence by mailing. Under that same practice it would be deposited with U.S. Postal Service on that same day with postage fully prepaid at Pasadena, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit.

I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. I declare that I am employed in the office of a member of the Bar of this Court at whose direction the service was made. This declaration is executed in Pasadena, California, on October 21, 2011.

Barbara Cruz

(Type or Print Name)

Barbara Cruz

(Signature of Declarant)

SERVICE LIST

Attorneys for Third Party Defendants

LSI Title Company, Lender Processing Services, Inc.

and Fidelity National Information Services, Inc.

Daniel M. Livingston, Esq.

PAYNE & FEARS LLP

4 Park Plaza, Suite 1100

Irvine, CA 92614

Tel.: 949.851.1100 | Fax: 949.851.1212

Email: dml@paynefears.com

Alisha M. Louie, Esq.

PAYNE & FEARS LLP

One Embarcadero Center, Suite 2300

San Francisco, CA 94111

Tel.: 415.398.7860 | Fax: 415.398.7863

Email: aml@paynefears.com