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Madison vWashington Mutual, Argent, HomeEq Etc & Federal Rule 60(b)(6)

Madison vWashington Mutual, Argent, HomeEq Etc & Federal Rule 60(b)(6)

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Published by 83jjmack
Federal Rule of Civil Procedure 60(b)(6) is a catchall provision that allows the district court to grant relief from a judgment or order for "any other reason that justifies relief." Rule 60(b)(6) is "used sparingly as an equitable remedy to prevent manifest injustice" and "is to be utilized only where extraordinary circumstances prevented a party from taking timely action to prevent or correct an erroneous judgment." United States v. Alpine Land & Reservoir Co., 984 F.2d 1047, 1049 (9th Cir. 1993); see also Cmty. Dental Servs. v. Tani, 282 F.3d 1164, 1167 (9th Cir. 2002) (concluding that Rule 60(b)(6) is available in "extraordinary circumstances" where the movant is able to show "both injury and circumstances beyond his control that prevented him from proceeding with . . . the action in a proper fashion").
Plaintiff argues that she is entitled to relief under this subsection due to her counsel's gross negligence. She claims that her counsel's "neglect to file [a second amended complaint] as directed by the court's March 19, 2009 order deprived [her] of her rights to adequate and effective representation and risks her opportunity to present the facts of the case."[1] (Dkt. # 145 at 3.)
In Tani, a defense attorney was found to have committed gross negligence when he "abandoned his duties as an attorney" by failing to file papers, failing to oppose a motion to strike his answer, and failing to attend hearings. Tani, 282 F.3d at 1171. These actions were so egregious that they could not "be characterized as simple attorney error or mere neglect." Id. (internal quotation marks omitted). The Court granted relief from a default judgment entered against the defendant, holding that "where the client has demonstrated gross negligence on the part of his counsel, a default judgment against the client may be set aside pursuant to Rule 60(b)(6)." Id. at 1169. The court noted that "judgment by default is an extreme measure and a case should, whenever possible, be decided on the merits" and therefore Rule 60(b), as applied to default judgments, is "remedial in nature and must be liberally applied." Id. at 1169-70 (quotation and citations omitted).
Federal Rule of Civil Procedure 60(b)(6) is a catchall provision that allows the district court to grant relief from a judgment or order for "any other reason that justifies relief." Rule 60(b)(6) is "used sparingly as an equitable remedy to prevent manifest injustice" and "is to be utilized only where extraordinary circumstances prevented a party from taking timely action to prevent or correct an erroneous judgment." United States v. Alpine Land & Reservoir Co., 984 F.2d 1047, 1049 (9th Cir. 1993); see also Cmty. Dental Servs. v. Tani, 282 F.3d 1164, 1167 (9th Cir. 2002) (concluding that Rule 60(b)(6) is available in "extraordinary circumstances" where the movant is able to show "both injury and circumstances beyond his control that prevented him from proceeding with . . . the action in a proper fashion").
Plaintiff argues that she is entitled to relief under this subsection due to her counsel's gross negligence. She claims that her counsel's "neglect to file [a second amended complaint] as directed by the court's March 19, 2009 order deprived [her] of her rights to adequate and effective representation and risks her opportunity to present the facts of the case."[1] (Dkt. # 145 at 3.)
In Tani, a defense attorney was found to have committed gross negligence when he "abandoned his duties as an attorney" by failing to file papers, failing to oppose a motion to strike his answer, and failing to attend hearings. Tani, 282 F.3d at 1171. These actions were so egregious that they could not "be characterized as simple attorney error or mere neglect." Id. (internal quotation marks omitted). The Court granted relief from a default judgment entered against the defendant, holding that "where the client has demonstrated gross negligence on the part of his counsel, a default judgment against the client may be set aside pursuant to Rule 60(b)(6)." Id. at 1169. The court noted that "judgment by default is an extreme measure and a case should, whenever possible, be decided on the merits" and therefore Rule 60(b), as applied to default judgments, is "remedial in nature and must be liberally applied." Id. at 1169-70 (quotation and citations omitted).

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Published by: 83jjmack on Aug 15, 2010
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04/06/2011

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SHERRYL L. MADISON, Plaintiff,v.FIRST MANGUS FINANCIALCORPORATION; LEHMANBROTHERS HOLDINGS, INC.;MORTGAGE ELECTRONICREGISTRATION SYSTEMS, INC.;GMAC MORTGAGE, LLC;TRANSNATIONAL FINANCIALNETWORK, INC.; FREMONTINVESTMENT & LOAN COMPANY;HOMECOMINGS FINANCIALNETWORK, LLC; INDYMAC BANK,FSB; US BANK NATIONALASSOCIATION; FIDELITYNATIONAL FORECLOSURESOLUTIONS, AMC MORTGAGESERVICES, INC.; UNIFIED CAPITALGROUP, INC.; COMMUNITYLENDING SERVICE, INC.; ARGENTMORTGAGE COMPANY, LLC;WASHINGTON MUTUAL BANK;LITTON LOANS & HOMEEQSERVICING, INC., Defendants.
 No. CV-08-1562-PHX-GMS.
United States District Court, D. Arizona.
April 27, 2009.
ORDER 
G. MURRAY SNOW, District Judge.Pending before the Court are the Motion for Relief of Plaintiff Sherryl L. Madison (Dkt. # 145) and theMotion to Withdraw of Attorney Robert R. Jung (Dkt.# 166). For the reasons set forth below, the Court grantsPlaintiff's motion and conditionally grants Mr. Jung's
 
Motion to Withdraw. BACKGROUNDPlaintiff Sherryl Madison is an Arizona resident whoallegedly owns real property in Arizona at thefollowing addresses: (1) 24220 N. 53rd Avenue,Glendale, Arizona 85310; (2) 522 E. Glendale Avenue,Phoenix, Arizona 85020; (3) 2302 E. Lincoln Drive,Phoenix, Arizona 85016; (4) 16083 West MorningGlory Street, Goodyear, Arizona 85338; (5) 18607 N.45th Drive, Glendale, Arizona, 85308; and (6) 7384 W.Utopia Road, Glendale, Arizona 85308. In her FirstAmended Complaint ("FAC"), Plaintiff alleged that,"[b]etween December 15, 2003 and July 2006, [she]refinanced and/or purchased [those properties]." (Dkt. #81 ¶ 14.) Plaintiff allegedly obtained financing relatedto the various properties in the amounts of $428,000,$176,000, $440,800, $750,000, $261,250, $492,000,$637,000, and $975,000 from various financialinstitutions. The financing was obtained pursuant to promissory notes secured by deeds of trust on each property. Apparently, non-judicial trustee sales have or are being pursued in respect to all six of Plaintiff's properties due to Plaintiff's default on her promissorynotes. Defendants consist of the various financial/realestate institutions that were or are involved in somemanner with either the purchase, refinance, and/or thetrustee sales of one or more of Plaintiff's properties.Plaintiff filed her FAC on November 20, 2008, seekingrecision of the promissory notes executed in connectionwith the six properties and seeking damages from allDefendants jointly and severally. (Dkt. # 81 at 62.) Inthe FAC, Plaintiff attempted to assert twenty-twocauses of action, nine claims for relief, and a claimentitled "Compelling Partition"
against
all entities
 
named as defendants. (
See id.
¶¶ 36-205.) Among theclaims in the FAC were allegations that Defendantsviolated various provisions of the Truth in Lending Act,15 U.S.C. § 1601
et seq.,
the Real Estate SettlementProcedures Act, 12 U.S.C. § 2601
et seq.,
the Fair Credit Reporting Act, 15 U.S.C. § 1681
et seq.
On March 19, 2009, pursuant to Federal Rule of CivilProcedure 12(b)(6), the Court dismissed the FAC for Plaintiff's failure to comply with Federal Rules of CivilProcedure 8, 9, and 10. (Dkt. # 143.) Plaintiff wasgiven the option to replead by March 31, 2009, in theform of a second amended complaint. In the Order, theCourt warned Plaintiff that should she elect not to file asecond amended complaint, the matter would beterminated. (
 Id.
at 12-13.) Plaintiff failed to file asecond amended complaint by the March 31 deadlineand the matter was consequently terminated. On April8, 2009, Plaintiff, despite being represented by counsel,filed a pro se Motion for Relief from the March 19Order pursuant to Federal Rule of Civil Procedure60(b)(6), claiming that she had been abandoned by her attorney. (Dkt. # 145.) On April 21, 2009, pursuant toLocal Rule of Civil Procedure 83.3(c)(2), the Court, inits discretion, conducted a hearing to allow Ms.Madison to be heard, notwithstanding that fact that shewas still represented by counsel. At the hearing, Ms.Madison reasserted her motion for relief and arguedthat the failure to file a second amended complaint wasa direct result of her attorney's conduct. (
See
Dkt. #157.)After the hearing was concluded, Ms. Madison filed anotice with the Court indicating that she had previouslyfiled a complaint
against
Mr. Jung with the Arizona

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