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Hernandez v. Wells Fargo Home Mortgage

United States District Court, D. Nevada

January 5, 2015

PERLA A. HERNANDEZ, Plaintiff(s),
v.
WELLS FARGO HOME MORTGAGE, Defendant(s)

ORDER

JAMES C. MAHAN, District Judge.

Presently before the court is defendant Wells Fargo Home Mortgage's (hereinafter "defendant") motion to set aside clerk's entry of default. (Doc. # 11). Pro se plaintiff Perla A. Hernandez (hereinafter "plaintiff") filed a response, (doc. # 16), and defendant filed a reply, (doc. # 17). Also before the court is defendant's request for judicial notice. (Doc. # 12). Plaintiff filed a response, (doc. # 15), and defendant filed a reply, (doc. # 18).

Also before the court is plaintiff's motion for clerk's default [judgment]. (Doc. # 9). Defendant filed a response. (Doc. # 13). Plaintiff did not file a reply, and the deadline to reply has now passed

I. Background

On or around October 5, 2006, World Savings Bank, N.A. loaned plaintiff $249, 600, secured by a deed of trust on her property. (Doc. # 12-1). After plaintiff defaulted on her loan payments, the National Default Servicing Corporation filed a notice of default and election to sell under the deed of trust. (Doc. # 12-1). On or about August 30, 2013, a foreclosure mediation certificate was recorded, permitting foreclosure of the property. (Doc. # 12-1).

Defendant is the servicer of plaintiff's mortgage. (Doc. # 1). On or about February 15, 2014, defendant sent plaintiff a past due notice for failure to pay under the deed of trust. (Doc. # 1). Defendant also reported the debt to multiple credit reporting agencies. (Doc. # 1). Plaintiff claims to have no knowledge of the property or the relevant debt. (Doc. # 1).

On September 16, 2014, plaintiff filed a complaint against defendant alleging claims for invasion of privacy, negligent hiring and supervision, violations of the Fair Credit Reporting Act, and violations of the Fair Debt Collection Practices Act. (Doc. # 1).

On September 18, 2014, a summons was issued to defendant. (Doc. # 4). On October 16, 2014, the summons was returned executed. (Doc. # 5). Defendant's answer was due on October 20, 2014. (Doc. # 5). On November 6, 2014, plaintiff moved for entry of clerk's default. (Doc. # 6). On the same date, the clerk entered default as to defendant. (Doc. # 7).

On November 12, 2014, defendant's counsel filed a notice of appearance. (Doc. # 8). On the same date, plaintiff filed a motion for entry of clerk's default [judgment]. (Doc. # 9).

On November 14, 2014, defendant filed a motion to set aside the clerk's entry of default, (doc. # 11), request for judicial notice, (doc. # 12), and response to plaintiff's motion for entry of clerk's default [judgment], (doc. # 13).

II. Legal Standard

i. Judicial notice

Federal Rule of Evidence 201 provides for judicial notice of adjudicative facts. Under Rule 201(b)(2), the court may "judicially notice a fact that is not subject to reasonable dispute because it... can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. Fed.R.Evid. 201(b)(2).

Rule 201(c)(2) states that the court "must take judicial notice if a party requests it and the court is supplied with the necessary information." Fed.R.Evid. 201(c)(2). The court may take judicial notice of public records if the facts noticed are not subject to reasonable dispute. See United States v. Corinthian Colls., 655 F.3d 984, 998-99 (9th Cir. 2011); see also Intri-Plex Tech., ...


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