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NOT FOR PUBLICATION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.

HISTORY OF ADVERSARY PROCEEDING AND MACKLIN'S MULTI-COURT PARALLEL LITIGATION

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....