784 F.2d 910 (9th Cir. 1986), 83-6427, King v. State of Cal.

Docket Nº:83-6427.
Citation:784 F.2d 910
Party Name:Gwendolyn L. KING, for herself and on Behalf of all others similarly situated, Plaintiff-Appellant, v. STATE OF CALIFORNIA, George Deukmejian, Governor; March Fong Eu, Sec'y of State; John Van De Camp, Attorney-General; Integrity Home Loan, Inc., Patrick D. McCarron, President of Integrity Home Loan, John M. Plummer, Vice-President of Integrity Hom
Case Date:March 07, 1986
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 910

784 F.2d 910 (9th Cir. 1986)

Gwendolyn L. KING, for herself and on Behalf of all others

similarly situated, Plaintiff-Appellant,

v.

STATE OF CALIFORNIA, George Deukmejian, Governor; March

Fong Eu, Sec'y of State; John Van De Camp,

Attorney-General; Integrity Home Loan, Inc., Patrick D.

McCarron, President of Integrity Home Loan, John M. Plummer,

Vice-President of Integrity Home Loan, et al., Defendants-Appellees.

No. 83-6427.

United States Court of Appeals, Ninth Circuit

March 7, 1986

Argued and Submitted Jan. 7, 1986.

Page 911

Gwendolyn L. King, Phoenix, Ariz., for plaintiff-appellant.

Henry Ullerich, James H. Karp, Volk, Newman, Gralla & Karp, Los Angeles, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before FARRIS, PREGERSON and NORRIS, Circuit Judges.

FARRIS, Circuit Judge:

Gwendolyn King appeals from the district court's dismissal of her complaint with prejudice. Her action under the Truth-In-Lending Act and the Civil Rights Act alleged that Integrity Home Loan had failed to disclose the identity of the third party lenders who had loaned money to her secured by deeds of trust on her home. She also alleged that the trust deeds were void because the trustee, R & T Financial Servicing Co., Inc., lacked corporate status, and that the power of sale provisions of the California Civil Code are unconstitutional. She further alleged violations of 42 U.S.C. Sections 1981, 1982, 1983, and 1985 and slander of title by Integrity.

King's action against the State of California and its Attorney-General sought declaratory and injunctive relief that would render the actions of R & T null on the ground that R & T's corporate powers were suspended for non-payment of tax.

The district court dismissed on three alternative grounds: King failed to file an opposition to the motions to dismiss; King failed to appear at the hearing on the motions to dismiss; and King's complaint failed to state a claim. King contends that the district court erred by not granting her a continuance to respond to the motions to dismiss and by holding that she failed to state a claim.

I. Statement of the Case

Integrity served as a loan broker on behalf of third party lenders in a series of three loans to Gwendolyn King. Each loan was secured by a deed of trust on King's home: a second trust deed, dated January 1, 1979, secured the first loan; a third trust deed, dated March 27, 1981, secured the second loan; and a third trust deed, dated November 17, 1981 and superseding the March 27, 1981 trust deed, secured the refinancing of the March 27, 1981 obligation. R & T was designated trustee under each trust deed. The identity of the third party lenders was not disclosed.

On December 1, 1981, the corporate franchise of R & T was suspended, pursuant to California Revenue and Taxation Code Section 23301. On June 4, 1982, Integrity recorded a Substitution of Trustee, substituting P.D. McCarron for R & T as the trustee under the trust deed. Integrity thereafter executed a reconveyance deed signed by McCarron, to eliminate the refinanced March 1981 obligation.

Page 912

King filed a Chapter 7 bankruptcy petition and on July 7, 1983, obtained a discharge of her debts in bankruptcy. Title to King's home remains vested in the bankruptcy trustee.

On May 23, 1983, Integrity disclosed to King the identity of the lenders in each of the disputed transactions. On May 26, 1983, King attempted to rescind under 15 U.S.C. Secs. 1635(a) and (b), and 12 C.F.R. Pt. 226. Integrity then sought to foreclose on the security interest in King's home in a trustee's sale set for September 14, 1983. King filed with the State of California a request for quo warranto proceedings under the California Code of Civil Procedure section 803 to prevent the foreclosure sale.

On September 14, 1983, King, on behalf of herself and a class of borrowers who had dealt with Integrity, filed suit in federal court against Integrity, the State, various State officials, and the third party lenders.

In October 1983, both Integrity and the State filed a motion to dismiss King's complaint for failure to state a claim. On October 18, 1983, King filed the first of two ex parte applications to continue the hearing on the motions to dismiss and to extend the time for filing a response to the motions. The court granted King an extension to October 24, 1983 to file her response. King failed to file her response by that date. On November 4, 1983, she filed a second ex parte application for a continuance. On November 7, 1983, the court held a hearing on the motion to dismiss. King did not appear. The court denied King's untimely motion for a continuance and dismissed the complaint with prejudice. King timely appeals.

II. Discussion

A. The Motion for Continuance

King argues that the district judge abused his discretion by denying her unopposed second ex parte application for a continuance. She argues that although she did not physically appear for the motion, her filed papers constitute an "appearance." She then failed to appear for the scheduled hearing of the motion to dismiss on November 7.

We cannot conclude on this record that the district judge abused his discretion in denying the motion for continuance. For the first of these motions, the judge extended the deadline for filing papers to October 24, 1983. That deadline expired without any action by King. Faced with an ex parte motion not attended by a movant who had failed to file her response even within an extended filing schedule, the district judge denied the motion for further continuance. Under the circumstances, we can find no abuse of discretion.

B. The Motion to Dismiss

Since the district...

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