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Riojas v. Wells Fargo Bank, N.A.

United States District Court, S.D. Texas, Corpus Christi Division

July 5, 2017

ALICE M. RIOJAS, et al. Plaintiffs,
v.
WELLS FARGO BANK, N.A., Defendant.

          ORDER

          Hilda Tagle Senior United States District Judge

         BE IT REMEMBERED that on July 5, 2017, this Court DISMISSED the above-captioned case for failure to prosecute under Federal Rules of Civil Procedure 16(f), 37(b)(2)(A)(v), and 41(b). See Fed. R. Civ. P. 16(f); Fed.R.Civ.P. 37(b)(2)(A)(v); Fed.R.Civ.P. 41(b).

         I. Background

         Plaintiffs are Alice M. Riojas (“A. Riojas”) and Hector G. Riojas (“H. Riojas”). On March 19, 2014, Plaintiffs filed their Original Petition for Declaratory Judgment and Application for Temporary Restraining Order and Temporary Injunction against Wells Fargo Bank N.A., as Trustee for Securitized Asset Backed Receivables LLC Trust 2006-OP1, Mortgage Pass-Through Certificates, Series 2006-OP1 (“Wells Fargo”). See Dkt. No. 1 at 1; Dkt. No. 1 Ex. 4. They sought a restraining order and injunctive relief to enjoin an eviction of themselves and any other occupants from the property located at 115 County Road 434 (County Road 434 & 72 West), Three Rivers, Texas 78072. Id. at 1-2.

         On September 3, 2014, Plaintiffs' state court case was removed to this Court. Dkt. No. 1. On August 6, 2015, Plaintiffs filed their first amended complaint with the Court. First Am. Compl., Dkt. No. 19. On October 30, 2015, Plaintiffs filed a notice of intent to settle, in which they indicated that they were in the process of resolving the matter with Wells Fargo and requested thirty days to finalize the settlement and dismissal documents. Dkt. No. 29. On November 3, 2015, this Court ordered the parties to file either closing papers or a status report by November 30, 2015. Dkt. No. 30. On November 30, 2015, Plaintiffs filed a Joint Status Report indicating that the parties were continuing to finalize settlement and requested forty-five days to finalize the settlement. Dkt. No. 31. This Court then ordered closing papers to be due on January 14, 2016. Dkt. No. 32. On December 11, 2015, Plaintiffs' attorney Reynaldo Martinez, Jr. (“Martinez”) filed a motion to withdraw as attorney. Dkt. No. 33; see also Dkt. No. 35. Martinez represented that the parties entered into settlement negotiations but that the Plaintiffs “failed to communicate with counsel since negotiations.” Dkt. No. 35 at 1. Martinez represented that a modification packet was e-mailed to the Plaintiff, without response, and that he telephoned, mailed letters, and email Plaintiffs, and attached an affidavit averring as such. Id.; see also Dkt. No. 36. After two additional orders delineating to ensure that Plaintiffs have reasonable notice of Martinez's intent to withdraw and Martinez's filings meeting those requirements, on June 9, 2016, this Court granted Martinez's motion to withdraw as attorney-in-charge for Plaintiffs. Dkt. No. 44 (granting motion, Dkt. No. 35). That order further stated:

The parties announced their intent to settle this action before a scheduling order was entered. Given the passage of time and the fact that Plaintiffs are no longer represented by counsel, the Court ORDERS the parties to conduct a supplemental conference under Federal Rule of Civil Procedure 26(f) and file an amended joint discovery/case management plan by and including July 7, 2016.
The Court cautions Plaintiffs that failure to participate in the supplemental conference required by this order may result in the imposition of sanctions allowed by Federal Rule of Civil Procedure 16(f) and 37(a)(2)(B)(ii)-(vii) [sic] [37(b)(2)(A)(ii)-(vii)]. Sanctions may include dismissal of this action. See Fed.R.Civ.P. 41(b) (authorizing dismissal for failure to prosecute) . . . .

Dkt. No. 44 at 4; Dkt. No. 56 at 1 (repeating the contents of the June 9, 2016, order).

         At the Court's direction, the Clerk sent Plaintiffs a copy of the order entered June 9, 2016, via regular and certified mail, return receipt requested, to the following last-known addresses for Plaintiffs: P.O. Box 73, Three Rivers TX 78071 and 101 CR 434, Three Rivers TX 78071. Dkt. No. 44 at 4. The record reflects, however, that the certified mail sent to Plaintiffs was returned undeliverable. Dkt. Nos. 48-54.

         On July 8, 2016, Wells Fargo filed an Advisory representing that defense counsel was unable to contact Plaintiffs to arrange a time for the supplemental Rule 26(f) conferenced ordered by the Court. Advisory to Ct., Dkt. No. 55 at 1. Wells Fargo represented that, per a Court Order, defense counsel attempted to conduct a Joint Discovery/Case Management conference with Plaintiffs, but was unable to reach the Plaintiffs by phone, e-mail or regular mail. Id. at 1-2. Wells Fargo also attached as exhibits letters from defense counsel to Plaintiffs providing evidence in support of these representations. Id. Exs. A-C. Wells Fargo's attorney-in-charge represented that he took the following actions:

After receipt of the Court's Order, on June 10, 2016, undersigned counsel for Defendant called the number provided on the Amended Motion to Withdraw. The recording stated that it was “not accepting calls at this time.” Undersigned counsel sent an email to withdrawn counsel for Plaintiffs (Mr. Martinez) asking for any other last known contact information due to that recording as well as the belief that Plaintiffs had been evicted from the property via an executed writ of possession. Undersigned counsel has not heard back from such counsel.
On June 13, 2016, undersigned counsel advised the Court's Case Manager regarding the difficulty contacting pro se Plaintiffs. Counsel for Defendant also called Alice Riojas and Hector Riojas at phone numbers provided in a Motion to Withdraw as Counsel filed by Thomas Forehand of Schneider & McWilliams, PC on or about January 25, 2016 in the Court of Appeals for the Thirteenth District of Texas at Corpus Christi, Cause No. 13-15-00279-CV (attached hereto as Exhibit A). When the number provided for Alice Riojas ((361) 449-6865) was called, a recording said the voicemail had not yet been set up. When the number provided in Mr. Martinez's Amended Motion to Withdraw was called again, the same recording stated “not accepting calls at this time.” Undersigned counsel also called the number provided for Hector G. Riojas in the abovereferenced Motion to Withdraw filed by Thomas Forehand-(361) 318-5233. Mr. Riojas immediately called back undersigned counsel and stated that he and Alice Riojas were divorced four (4) years ago, that she received the property in the divorce, and that he “wants nothing to do with all of this.” Undersigned counsel confirmed Mr. Riojas's P.O. Box address (P.O. Box 973, Three Rivers, Texas 78071) and told Mr. Riojas that we would send him a copy of the Court's Order and it was up to him to consult with Mr. Martinez, Mr. Forehand or other counsel regarding same or this lawsuit. Mr. Riojas also advised that he believed that the correct P.O. Box address for Alice Riojas was P.O. Box 73, Three Rivers, Texas 78071 (which was the same one shown by counsel for Mr. Martinez in Dkt. 43 Ex. B at 1).
Further, on June 13, 2016, undersigned counsel then sent the Court's Order-along with a cover letter attached hereto as Exhibit B requesting to be contacted as soon as possible to conduct the supplemental conference as ordered by the Court and then file an amended joint discovery/case management plan-to pro se Plaintiffs via certified and regular mail at both the last-known physical address provided in the Amended Motion to Withdraw-101 CR 434, Three Rivers, Texas 78701 as well as the last-known P.O. Box addresses above. As shown by the returned mail attached as Exhibit C, both the certified and regular mail to the physical address (101 CR 434) were returned. The certified mail to Alice Riojas at P.O. Box 73 was also returned. The regular mail to that address has not been returned. Also, neither the regular nor certified mail to the P.O. Box above provided by Hector Riojas (P.O. Box 973) has been returned.
Undersigned counsel has since followed up such correspondence with additional calls to Alice Riojas at the above phone numbers on June 28, 2016 and July 6, 2016, but only reached the same recordings as on June 10 and June 13, 2016. Undersigned counsel also called Hector Riojas on July 6, 2016 at the number ...

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