Lucore v. Wells Fargo Bank, N.A. ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PAUL M. LUCORE, Case No.: 3:18-cv-02382-L-MDD 12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. MOTION FOR RECONSIDERATION [ECF No. 28] 14 WELLS FARGO BANK, N.A., et al. 15 Defendant. 16 17 Pending before this Court is Plaintiff Paul M. Lucore’s (“Plaintiff”) motion to vacate 18 order pursuant to Federal Rule of Civil Procedure 60(b). The Court decides the matter on 19 the papers submitted and without oral argument. See Civ. L. R. 7.1(d)(1). For the reasons 20 stated below, the Court DENIES Plaintiff’s motion. 21 I. BACKGROUND 22 This case arises out of Wells Fargo’s attempted foreclosure on Plaintiff’s property 23 for defaulting on a mortgage loan secured by the property. On August 31, 2006, Plaintiff 24 obtained a loan for $376,000 [ECF No. 22-2 at 4-7], secured by a deed of trust against his 25 property located at 10657 Felix Drive, Santee, CA 92071 [ECF No. 19-3 at 2-15]. 26 Following this initial loan, Plaintiff executed a modification of the loan on March 2, 2010. 27 ECF No. 22-2 at 9-15. On July 21, 2010, Plaintiff exercised his right to rescind the loan 28 pursuant to 15 U.S.C. section 1635, subdivision (f) because he was not provided copies of 1 required disclosures when modifying the loan under the Truth-in-Lending-Act (hereinafter 2 “TILA”). ECF No. 16 at 3. 3 Although Plaintiff sent a rescission notice to his lenders to rescind the loan, on 4 November 5, 2010, a Notice of Default [ECF No. 19-3 at 17] was recorded against 5 Plaintiff’s home, for arrearages of $16,704.03. Wells Fargo subsequently asserted a 6 beneficial interest in the note and deed of trust connected to the loan pursuant to an 7 assignment recorded against Plaintiff’s property on November 21, 2013. ECF No. 16 at 4. 8 In June 2018, a second Notice of Default was recorded against Plaintiff’s property [ECF 9 No. 19-3 at 145], and in October 2018, a Notice of Trustee’s Sale was recorded against the 10 property [ECF No. 19-3 at 150]. 11 Accordingly, Plaintiff filed his initial complaint against Wells Fargo, Bank of 12 America, and Barrett Daffin Frappier Treder & Weiss, LLP (hereinafter “Barrett”) on 13 October 18, 2018. ECF No. 1. In his complaint, Plaintiff asserted claims for (1) a violation 14 of the Fair Debt Collections Practices Act (hereinafter “FDCPA”), 15 U.S.C. section 1692f, 15 subdivision (6), and (2) cancellation of instruments. Two motions to dismiss were filed, 16 one by Wells Fargo [ECF No. 8] and another by Bank of America [ECF No. 5]. Wells 17 Fargo filed a partial joinder to Bank of America’s motion to dismiss [ECF No. 7]. Plaintiff 18 did not file an opposition, instead voluntarily dismissed his claims against Bank of America 19 and filed a first amended complaint (hereinafter “FAC”), asserting his original two claims 20 against the remaining defendants. See ECF Nos. 15, 16. This Court denied Bank of 21 America’s and Wells Fargo’s initial motions to dismiss as moot. ECF No. 18. Wells Fargo 22 filed a motion to dismiss Plaintiff’s first amended complaint. ECF No. 19. The Court 23 granted the motion to dismiss and dismissed this action with prejudice. ECF No. 25. 24 Subsequently, Plaintiff’s attorney withdrew as counsel, and Plaintiff proceeded pro se to 25 file this Rule 60(b) motion. See ECF No. 28. 26 II. DISCUSSION 27 Federal Rule of Civil Procedure 60(b)(2) allows district courts to grant relief from 28 judgment on the basis of new evidence. Rule 60(b)(2) relief is only granted if the party 1 || seeking relief demonstrates the newly discovered evidence of facts: (1) existed at the time 2 || of trial; (2) could not have been discovered through due diligence; and (3) was of such 3 ||magnitude that production of it earlier would have been likely to change the disposition of 4 || the case. Jones v. AeroChem Corp., 921 F.2d 875, 878 (9th Cir. 1990). If the party seeking 5 ||Rule 60(b)(2) relief fails to establish one of the prongs, then the party is not entitled to 6 relief. See Hawaii Memt. Alliance Ass’n v. Meek, 155 Fed.Appx. 978, 979 (9th Cir. 2005). 7 Here, Plaintiff fails to establish that the new information he submits to support his 8 ||motion for relief could not have been discovered through due diligence. Specifically, 9 || Plaintiff reveals that he believes that his attorney was negligent in not submitting all the 10 documentary evidence needed for a comprehensive assessment of the evidence in this case. 11 ||}ECF No. 28 at 5. Although he did not demonstrate how, Plaintiff also believes that the 12 ||facts would have made a difference in the Court’s earlier disposition. Ibid. However, 13 || Plaintiff fails to mention any reason why this newly-submitted evidence could not have 14 || been discovered through due diligence earlier in the litigation. Moreover, upon review of 15 || Plaintiff's motion, he fails to establish how this evidence was of such magnitude that it 16 || would have changed the Court’s disposition. As such, the Court finds that Plaintiff is not 17 || entitled to Rule 60(b) relief as Plaintiff has not satisfied the three-part test. 18 ||TII. CONCLUSION AND ORDER 19 For the foregoing reasons, the Court DENIES Plaintiff’s motion for reconsideration. 20 IT IS SO ORDERED. 21 22 ||Dated: December 19, 2019 1 owe plete 73 H . James Lorenz, United States District Judge 24 25 26 27 28