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Irwin Law
Irwin Law, Lawyer
Category: Real Estate Law
Satisfied Customers: 4693
Experience:  Lawyer- Broker 30+years - foreclosure, short sale, liens, title attorney.
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if a motion to dismiss under Rule 19 in federal court is made

Customer Question

if a motion to dismiss under Rule 19 in federal court is made does the party objecting to it have to give notice to the absent party before the hearing date
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Attyadvisor replied 1 year ago.
Hello and thank you for your question. Are you asking if they can wait until the hearing date to object?
Customer: replied 1 year ago.

no before the hearing does notice have to be given to the absent party.


It is the US destrict court eastern district of calf. sacramento

Expert:  Attyadvisor replied 1 year ago.
Just to clarify you want to know when filing a motion to dismiss if you need to provide a copy of the motion to the opposing party prior to the date of the hearing?
Customer: replied 1 year ago.

I am the plaintiff and my case has been remove from state court to federal court and beside the defendant making a motion to remove he has also made a motion to dismiss. the hearing is june 21 and my question is under a motion to dismiss because of rule 19 (lack of necessary party) do I have to give that absent notice of the hearing on the 21st or notice of the action I have brought

Expert:  Attyadvisor replied 1 year ago.
do I have to give that absent notice of the hearing on the 21st or notice of the action I have brought Who was absent?

The defendant filed a motion to remove and dismiss. The motion to remove was granted and there will be a hearing on the motion to dismiss on June 21, 2013?
Customer: replied 1 year ago.

no both motions are heard in the same hearing no decision on removal or dismissal has been made

Expert:  Attyadvisor replied 1 year ago.
You plan on objecting to the defendants motion to dismiss?
Customer: replied 1 year ago.

yes I am objecting to both and ask for remand

Expert:  Attyadvisor replied 1 year ago.

I apologize for my confusion. Thank you for patience and clarification. You can address the matter on the scheduled hearing date. You can file your objection in court on that date.

Customer: replied 1 year ago.

I have an objective i am filing and i will give oral arguments but my question is does the absent party that the defendant is claiming under rule 19 have to be given notice

Expert:  Attyadvisor replied 1 year ago.
Yes! You do not want the motion to dismiss to be granted without filing your objections and noticing any necessary parties.
Customer: replied 1 year ago.

So you are saying that I should give notice to the absent party of the hearing the 21st and all papers that have been filed

Expert:  Attyadvisor replied 1 year ago.

You want to notify those that are parties to the suit. When you say absent party, this a person that is not yet a party to the action? Is that correct?

Customer: replied 1 year ago.

you need to look up federal civil procedure rule 19

Expert:  Attyadvisor replied 1 year ago.

The Defendant is asking that the matter be dismissed for failing to join a necessary party. Is that correct? http://www.law.cornell.edu/rules/frcp/rule_19

Customer: replied 1 year ago.

yes

Expert:  Attyadvisor replied 1 year ago.

When you initially stated absent I was under the impression that they were already a party and had been absent from prior hearings. However, that is not the case, correct?

Customer: replied 1 year ago.

no under rule 19

Expert:  Attyadvisor replied 1 year ago.
Let me opt out. I don't understand why a federal court motion to dismiss is being filed if the case is still in state court.
Customer: replied 1 year ago.

Not they was a motion to remove and a motion to dismiss. I am now in federal court trying to remand

Customer: replied 1 year ago.
RULE 19. REQUIRED JOINDER OF PARTIES




(a) Persons Required to Be Joined if Feasible.


(1) Required Party. A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if:


(A) in that person's absence, the court cannot accord complete relief among existing parties; or


(B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may:


(i) as a practical matter impair or impede the person's ability to protect the interest; or


(ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.


(2) Joinder by Court Order. If a person has not been joined as required, the court must order that the person be made a party. A person who refuses to join as a plaintiff may be made either a defendant or, in a proper case, an involuntary plaintiff.





Expert:  Irwin Law replied 1 year ago.

Hello. I'll try to assist. Notifying a non-party of a hearing in a lawsuit is never required. The non-party's interests cannot be affected by any judgment issued by the court, so notification of hearings would be superfluous. If you wish to avoid the dismissal issue entirely you will have to move to amend your complaint to join the necessary party. You can amend without leave of court. See Rule 15 and http://www.bowmanandbrooke.com/files/News/7f6d4d19-6c44-4742-912c-e3ee8b8bc8e0/Presentation/NewsAttachment/f5c86b72-ef72-4994-bcc4-48b4a1dfb582/Law360Rule15Jan2010.pdf

 

I hope this information is helpful and that you will enter a positive rating. I thank you for submitting your question to Pearl-Just Answer. We appreciate your business. If you need clarification or additional information, please send me a Reply and I will be happy to explain further. Please consult a local attorney to verify the accuracy of this information according to your state's laws.

Customer: replied 1 year ago.

did you receive my last email. I got a question for you. How is the amount in controversy determined under the California home owners bill of rights

Customer: replied 1 year ago.

yes, thank but I had already figure it out and came up with the answer you did. Who ever that was yesterday I would be surprised if they even had a law degree. I was also charge seventy dollars by him when it was a free trail and he could not even get the question right let alone begin to even form an answer If they is anything you can do about the charges I would appreciate it because as you can see right now is a very business time getting ready to file.

Expert:  Irwin Law replied 1 year ago.
The experts don't do the charging and have nothing to do the finances. We only get paid when you give us a positive rating for our Answer. At this point neither he nor I have been paid anything. If you have questions about charges, you can contact Just Answer customer service:(NNN) NNN-NNNN
Irwin Law, Lawyer
Category: Real Estate Law
Satisfied Customers: 4693
Experience: Lawyer- Broker 30+years - foreclosure, short sale, liens, title attorney.
Irwin Law and 13 other Real Estate Law Specialists are ready to help you
Customer: replied 1 year ago.

I got a question for you. How is the amount in controversy determined under the California home owners bill of rights in federal court

Expert:  Irwin Law replied 1 year ago.
Thanks for your rating. Have you read the Wikipedia section on Diversity? http://en.wikipedia.org/wiki/Diversity_jurisdiction I don't know what the CA statute would have to do with a federal diversity question, unless you sued under that statute and it limits the damages to less than $75k, or perhaps you can limit your case to less than $75k by amending your complaint.
Customer: replied 1 year ago.

yes the statute is limited to 50k and i have a preliminary injunction put federal law in declaratory suit looks at the property value but since the Home owners bill of rights is so new I have not found anything in this area

Expert:  Irwin Law replied 1 year ago.

See: http://4closurefraud.org/2013/05/10/singh-v-bank-of-america-documents/ There are articles about this case on line. What did you sue for under the CA HBOR.

Customer: replied 1 year ago.

yes there are case on line and thank for that one but I am looking for a case that a party is removed and how is diversity amount determined by the value of the property enjoined or amount on pleading. I am asking the court to decide if I am considered a borrower under the act.

Expert:  Irwin Law replied 1 year ago.

I don't know what your suit was filed for, but if you aren't trying to void a mortgage, or challenging the ownership of property I don't know how the court would arrive at an

"amount in controversy". Why would you not be a borrower?

Customer: replied 1 year ago.

On April 29, 2005 my then ex-wife signed a loan agreement with World Savings and Loan though it is dated April 28, 2005 (Exhibit A). Just prior to that we were instructed by the bank to move $80,000 from Plaintiff’s account to her account for the application process and put the house in her name. The Bank said we had to do this because the other house that World Savings loaned us money for was in Plaintiff’s. On May 2, 2005 a grant deed and deed of trust are recorded (in the name of Paula Mazzoni unmarried) and on May 12,XXXXXissued an order (Exhibit B) on property rights and both houses are award to Plaintiff (4320 Circuit Dr. was classified as separate property). I immediately contracted World Savings and faxed them a copy of the order. On the advice of the bank I was told to leave everything the way it was or it would cost $30,000 to change the names


On June 15, 2005 the seller records a Deed of Release on the property. Thirty three days after being given notice of the order and the Trust Transfer Deed sign the same day as the order, May 12, 2005 to Defendant. (Exhibit C)
However, a short time after giving the bank notice and the Deed of Release being recorded a demanded of $10,000 from Plaintiff was made by World


Saving.
My ex-wife never contributed a penny towards the house nor did she every live in it after or before it was remodeled.
In May 2008 after an operation I put the house in a trust and recorded in Placer county (Exhibit C). In 2009 I started having problems with the bank which was now Wells Fargo. I tried to get a modification and after talking with the bank I was told that if I stopped making payments they would do a modification. They said, the only draw back was it would be on Plaintiff’s credit history. After approximately fifty days I was told that I wasn’t going to get a modification and it was going into foreclosure. I then sent in payments for both houses, the next thing I now the money is return and I am told that it will not be accepted because they’re foreclosing. After many phone calls, I


was told if I sold the other house right away I could modify on the remaining one. Which I did. Then the bank again refused to modify saying Plaintiff is not the borrower.
I put $100,000 down another 30,000 to 50,000 in materials for remodeling, I have the receipts but have not added them up, not to mention labor and my time. Approximately $80,000 in mortgage payments which I can’t get a record of because Wells Fargo refuses to give me any information relating to the house.

Customer: replied 1 year ago.

I am trying to get declaratory relief to have the court determine my status as a borrower or not. I am now fighting removal under diversity. Even though my ex wife never lived or paid a penny she sign the note and deed of trust. The amount in federal court is usually the value of the thing enjoined because that is usually the subject matter but under HBOR the property is used to force the banks to comply .

Expert:  Irwin Law replied 1 year ago.

I wish I had this info in your first post. Neither non-party joinder, nor grounds for removal are the real legal problems that you face. When you took out the mortgage your wife was the only signer. Then you were divorced and you got the property, even with a quitclaim deed from your ex. PROBLEM: Now for whatever reason, you need to deal with the lender and they won't talk to you, citing privacy issues with your ex being the borrower. This happens all the time. Unless you can obtain a POA from your ex, you are SOL in trying to get the lender to deal with you and most courts recognize that they have no jurisdiction to deal with the problem. You case will probably be tossed out regardless of which court it's in. I don't like to think ill of other attorneys, but they wasted their client's money on a removal. A motion to dismiss for lack of standing and/or failure to state a claim for relief would IMO be granted in either court. Courts cannot add borrowers to a debt that was originally taken out by another. The necessary party who was left out is obviously your ex. Unless she prefers to be named in the suit and have to pay her lawyers to appear, she should be happy to give you a limited POA to deal with the lender, but Ex's are funny that way. You do hold the high card in that situation, because if it's a default and foreclosure you're concerned about, she is the only one who is liable. When the chips go down, you can walk, and the only one they'll pursue is her. I know this doesn't back up the position that you want to take in court, but I can't tell you how many times I've seen this happen to people. Personally, I think removal of this type of action to federal court was unnecessary and even a bit crazy. There can't be the necessary dollar amount in controversy. I think you will win on remand, but ultimately lose on the merits of your case anyway. I hope this long dissertation is of use to you ultimately and that you will enter a positive rating. I thank you for submitting your question to Pearl-Just Answer. We appreciate your business.

 

Customer: replied 1 year ago.

I think they are a lot more issues then that. She was my ex wife when she signed. The bank never received a penny from her and was on notice of the situation. Now I don't think Wells Fargo is a holder in due course. And if they don't recognize me I still have some property rights. And misrepresentation, fraud, deceit and what about the saving doctrines. Detrimental reliance, unjust enrichment, espstoppel and don't they still have to show me the note. I also received a letter from Wells Fargo giving me third party authorization.

Expert:  Irwin Law replied 1 year ago.

Your ex- wife signed up for a mortgage on a home and then deeded it to you immediately afterward. This has been called "mortgage fraud" under certain circumstances, so tread carefully. If you do have third party authorization, then what is the problem? You can assert all the legal theories you wish, but getting yourself placed on the note or substituted on the note for your ex as the borrower isn't going to happen and I say that from the perspective of nearly 50 years experience in mortgage law.

 

Customer: replied 1 year ago.

do you live here in Sacramento. There was no fraud on my part. I contact the bank 33 days before the seller had even signed the deed of lease and was told to leave it the way it was or pay 30k. They also said my x made 8k a month. She hardly spoke english and they had her sign because the other house was in my name. I never should have been put in that loan when I put down 100k. What about the contract says that who ever takes it over has all the rights of the borrower. I know that it was securitized in a RMEM and put in MERS. We followed the banks instructions to the letter and never did anything dishonest. She sign but the whole process besides that was through me. And when she came home with the papers and I saw that 8k was put down for her income I called them very upset and mad. But was told not to worry. I know I have an up hill battle but I smell a rat and I dont I wells fargo has the note or right to do what is happening.

Expert:  Irwin Law replied 1 year ago.
All I can say is I wish you luck getting where you wish to go, legally speaking. After all this back and forth, I'm not sure where that is, and I'm not sure you do either.

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