Macklin v. Deutsche Bank Nat'l Trust Co. (In re Macklin), Case No. 10-44610-E-7
Decision Date | 08 April 2015 |
Docket Number | Adv. Proc. No. 11-2024,Case No. 10-44610-E-7,Docket Control No. JLM-1 |
Parties | In re JAMES L. MACKLIN, Debtor. JAMES L. MACKLIN, Plaintiff, v. DEUTSCHE BANK NATIONAL TRUST CO., Defendant. |
Court | United States Bankruptcy Courts. Ninth Circuit. U.S. Bankruptcy Court — Eastern District of California |
In re JAMES L. MACKLIN, Debtor.
JAMES L. MACKLIN, Plaintiff,
v.
DEUTSCHE BANK NATIONAL TRUST CO., Defendant.
Case No. 10-44610-E-7
Adv. Proc. No. 11-2024
Docket Control No. JLM-1
UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF CALIFORNIA
April 8, 2015
NOT FOR PUBLICATION
This memorandum decision is not approved for publication and may not be cited except when relevant under the doctrine of law of the case or the rules of claim preclusion or issue preclusion.
MEMORANDUM OPINION AND DECISION
James Macklin ("Macklin") is the Plaintiff in this adversary proceeding, naming Deutsche Bank National Trust Co., as Indenture Trustee for the Accredited Mortgage Loan Trust 2006-2 Certificate Holders ("DBNTC") as the only defendant. The Adversary Proceeding was commenced on January 13, 2011, and judgment was entered for DBNTC on July 2, 2013. Dckt. 349. On January 22, 2015, Macklin filed the present Motion for Relief Under Federal Rule of Civil
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Procedure 60(b),1 seeking to vacate orders and the judgment entered in this Adversary Proceeding. Dckt. 380.
The court begins with a review of what has transpired in this Adversary Proceeding (for which there are now 472 docket entries). Macklin has chosen to be represented by four different attorneys in this Adversary Proceeding (including having terminated an attorney and then rehiring her when Macklin terminated her replacement). A review of the representation of Macklin is summarized in the following chart:
Holly S. Burgess, Esq.2 |
January 13, 2011 - October 3, 2011 |
Filed Original Complaint |
January 13, 2011 |
Filed Motion for TRO (TRO Issued) |
February 7, 2011 |
Filed Motion for Preliminary Injunction (Preliminary Injunction Granted) |
February 24, 2011 |
Opposed Motion to Dismiss Original Complaint |
March 17, 2011 |
Filed Motion to Compel Chapter7 Trustee to Abandon Claims against DBNTC |
May 10, 2011 |
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Filed First Amended Complaint |
June 17, 2011 |
Opposed Motion to Dismiss First Amended Complaint |
September 2, 2011 |
Opposed Motion to Vacate Preliminary Injunction (Preliminary Injunction dissolved due to Macklin's failure to comply with conditions of injunction) |
September 1, 2011 |
Allan R. Frumkin, Esq. |
October 3, 2011 - April 23, 2012 |
Filed Motion For Re-Argument of Motion to Dismiss First Amended Complaint |
October 17, 2011 |
Prepared Draft Second Amended Complaint |
October 17, 2011 (Dckt. 201) |
Filed Status Conference Statement |
October 24, 2011 |
Filed Notice of Macklin Discharging Allan R. Frumkin as Attorney |
February 21, 2012 |
Filed Ex Parte Motion to Withdraw as Counsel to Leave Macklin In Propia Persona (Motion denied without prejudice) |
March 2, 2012 |
Filed Noticed Motion For Substitution of Attorney (With Holly S. Burgess, Esq. to be substituted to replace Mr. Frumkin) |
March 29, 2012 |
Holly S. Burgess, Esq. |
April 23, 2012 - October 2, 2012 |
Filed Status Conference Statement |
May 16, 2012 |
Represented Macklin For Court Setting Discovery Scheduling Order, Dispositive Motion Deadline, and Pre-Trial Conference. |
June 4, 2012 |
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Opposed DBNTC Motion to Have Reference Withdrawn (Motion denied by District Court) |
June 2012 |
Filed Pleadings Regarding Discovery Disputes |
July 30, 2012 |
Filed Ex Parte Substitution of Attorney (Daniel Hanecak, Esq. to be counsel for Macklin) |
August 23, 2012 |
Filed Noticed Motion to Withdraw as Counsel for Macklin |
September 13, 2012 |
Daniel J. Hanecak, Esq. |
October 2, 2012 - February 23, 2015 |
Filed Motion to Amend Complaint (Motion Denied After Noticed Hearing) |
October 4, 2012 |
Filed Motion For Summary Judgment |
February 21, 2013 |
Opposed DBNTC Request for Summary Judgment |
March 14, 2013 |
Filed Motion to Withdraw as Attorney (Motion Denied) |
June 6, 2013 |
Charles T. Marshall, Esq. |
January 22, 2015 - Current |
Motion to Reopen Adversary Proceeding |
January 22, 2015 |
Motion For Relief Pursuant to Rule 60(b) |
January 22, 2015 |
When Macklin commenced this Adversary Proceeding, he also filed a Motion for a Temporary Restraining Order and a Motion for Preliminary Injunction. Dckts. 6 and 26. The court granted both the Motion for Temporary Restraining Order and Motion for Preliminary Injunction. Orders, Dckts. 66 and 100. The
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preliminary injunction was subsequently dissolved when Macklin's failed to provide a self-funded Rule 65(c), Bankruptcy Rule 7065, bond. Order, Dckt. 187. No payment was being made by Macklin on the disputed secured claim of DBNTC. The court, in lieu of requiring a third-party bond, allowed Macklin to self-fund a bond, making $1,500.00 a month (which approximated the monthly payment asserted to be due on the claim by DBNTC) into a segregated account. Macklin failed to make the $1,500.00 a month payments into the segregated account. Civil Minutes, Dckt. 186.
On April 4, 2011, the court granted DBNTC's motion to dismiss the original Complaint. Dckt. 64. Macklin filed his First Amended Complaint on June 17, 2011. Dckt. 120. On February 16, 2012, the court entered its order granting the Motion to Dismiss the First Amended Complaint, dismissing the causes of action 1 through 8. Order, Dckt. 222. The court's Memorandum Opinion and Decision for the Motion contains a detailed review of the history of the Adversary Proceeding to that time. Dckt. 221.
While the Motion to Dismiss the First Amended Complaint was under submission, Macklin replaced his first counsel, Holly S. Burgess, with Allan Frumkin. Macklin, represented by Mr. Frumkin, filed a Motion to Allow Re-Argument of the Motion to Dismiss. Dckt. 198. In the Motion and Mr. Frumkin's declaration (Dckt. 199), the court was advised that Macklin and his new attorney recognized that the First Amended Complaint should be amended, asserted prior counsel had failed to adequately represent Macklin, and represented that Mr. Frumkin was ready, willing, and able to prosecute this Adversary Proceeding.
The court denied Macklin's request for re-argument of the
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Motion to Dismiss the First Amended Complaint. Order, Dckt. 220. In its ruling, the court noted that, if the court's ruling on the Motion to Dismiss the First Amended Complaint was adverse to Macklin, then Macklin could seek leave to file a further amended complaint at that time. Civil Minutes, Dckt....
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