Opinion
1:11-cv-01053-AWI-BAM
06-19-2012
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.
ORDER DISCHARGING O.S.C.
RE: DISMISSAL OF ACTION
The Court refers the parties to the orders issued February 24, 2012, May 11, 2012, June 12, 2012 and June 15, 2012 for a chronology of the proceedings. On June 24, 2011, plaintiff Paul M. Howard ("Plaintiff") filed his complaint against defendants Federal Home Loan Mortgage Corporation aka Freddie Mac, U.S. Bank, N.A., as Trustee for TruCap Grantor Trust 2010-2 ("US Bank") and Assured Lender Services, Inc. ("ALS"), asserting causes of action for quiet title/declaratory relief (against all defendants), injunctive relief (against US Bank and ALS), breach of contract (against Freddie Mac) and breach of the implied covenant to convey title free of liens (against Freddie Mac).
On June 24, 2011, Plaintiff filed a motion for a temporary restraining order enjoining US Bank and ALS from proceeding with a foreclosure sale of Unit 4 of real property located at 2108 Palisade Avenue, #1-4, Modesto, California 95350. Plaintiff further moved for issuance of an order to show cause re: preliminary injunction enjoining US Bank, ALS and their representatives from proceeding with the foreclosure sale during the pendency of the litigation.
On June 24, 2011, the Court granted Plaintiff's motion for a temporary restraining order and further directed US Bank and ALS to appear before the Court on July 11, 2011 and show cause why a preliminary injunction should not be granted "enjoining Defendants and their officers, employees, agents, servants, contractors, and representatives, and all persons and entities acting by or through them from proceeding with a Trustee Sale . . . on Unit 4" of the Palisade Avenue property.
After a series of continuances, the Court issued a preliminary injunction on February 24, 2012 enjoining and restraining US Bank, ALS and their officers, employees, agents, servants, contractors and representatives and all persons and entities acting by and through them from proceeding with a trustee's sale of Unit 4 of the Palisade Avenue property. Howard v. Federal Home Loan Mortgage Corporation, slip copy, 2012 WL 639458 (E.D.Cal. February 24, 2012).
On May 9, 2012, the case settled pursuant to a settlement conference held before the Magistrate Judge. By minute order issued May 9, 2012, the Magistrate Judge set a further status conference/continued settlement conference (if needed) for July 17, 2012.
By minute order issued May 11, 2012, the Magistrate Judge directed the parties to file a joint request to dissolve the preliminary injunction for this Court's consideration so that the necessary conveyances of the Palisade Avenue property could be accomplished. The joint request was due no later than May 30, 2012. No request was filed within the time allotted.
On June 1, 2012, the Court, in light of the settlement, extended the time to file by two weeks, giving the parties through June 13, 2012 to file their joint request to dissolve the preliminary injunction. The Court cautioned that if the parties failed to file a joint request by the foregoing date, an order to show cause re: monetary and/or terminating sanctions would be issued forthwith. The Court further directed the parties to file a joint status report concurrently with the request to dissolve. No status report or request to dissolve was filed by the parties as of June 14, 2012.
On June 15, 2012, the Court ordered the parties to show cause in writing by 4:00 p.m. on Thursday, June 21, 2012, why a joint request to dissolve the preliminary injunction and status report had not been filed and why the action should not be dismissed for failure to comply with the May 11, 2012 and June 1, 2012 orders. The Court cautioned failure to show cause or otherwise respond to the order would result in a lifting of the preliminary injunction previously entered pursuant to the Court's February 24, 2012 order and a dismissal of the action with prejudice as to all defendants.
On June 18, 2012, the parties filed a joint response to the June 15, 2012 order to show cause, explaining that although they had agreed to settle following the May 9, 2012 settlement conference, no final settlement had been reached. The parties further explained that since the settlement conference, they have been documenting a settlement with US Bank and further negotiating a settlement between Plaintiff and Freddie Mac with the intent of achieving a global settlement. According to the parties, the global settlement contemplates a payment to US Bank and a dismissal with prejudice in exchange for an assignment of US Bank's deed of trust on Unit 4 of the Palisade Avenue property, with Plaintiff and Freddie Mac resolving the property's remaining title issues. Concurrently with the response the parties filed a joint request to maintain the preliminary injunction to ensure the status quo is maintained until the global settlement is complete.
Based on the parties' representations, the request to maintain preliminary injunction is GRANTED. The injunction shall be preserved pending further order of the Court or trial of the action. The order to show cause re: dismissal issued June 15, 2012 is hereby DISCHARGED. IT IS SO ORDERED.
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CHIEF UNITED STATES DISTRICT JUDGE