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Borowski v. Bnc Mortgage, Inc.

United States District Court, Ninth Circuit

October 24, 2013

EDWARD C. BOROWSKI, Plaintiff,
v.
BNC MORTGAGE, INC.; LEHMAN BROTHERS HOLDINGS, INC.; STRUCTURED ASSET SECURITIES CORPORATION; STRUCTURED ASSET INVESTMENT LOAN TRUST 2004-2; BANK OF AMERICA, NA; JPMORGAN CHASE BANK, NA; AND MORTGAGE ELECTRONIC REGISTRATION SYSTEMS (MERS); ALL PERSONS CLAIMING BY, THROUGH OR UNDER SUCH PERSON, ALL PERSONS UNKNOWN, CLAIMING ANY LEGAL OR EQUITABLE TITLE, ESTATE, LIEN OR INTEREST IN THE PROPERTY DESCRIBED IN THE COMPLAINT ADVERSE TO PLAINTIFF'S TITLE THERETO; AND DOES 1 TO 10, inclusive, Defendants.

ORDER DENYING PLAINTIFF'S MOTION FOR RELIEF UNDER RULE 60 AND DENYING REQUEST FOR STAY OF ORDER

ROBERT J. BRYAN, District Judge.

This matter comes before the Court on pro se Plaintiff's motion for relief pursuant to Fed.R.Civ.P. 60 and request for a stay from the Order, dated August 27, 2013.[1] Dkt. 48. The Court has considered the pleadings in support of the motion and the record herein.

INTRODUCTION AND BACKGROUND

On September 28, 2012, pro se Plaintiff Edward C. Borowski filed an action for declaratory judgment and quiet title. Dkt. 1 pp. 1-2. The Complaint seeks a declaration of interests in the subject property and for the cancellation of his mortgage. Id. Plaintiff's Complaint asserts the following causes of action (1) quiet title, (2) declaratory relief, (3) violation of the Real Estate and Settlement Procedures Act, 12 U.S.C. § 2601, et seq., and (4) violation of the Truth in Lending Act, 15 U.S.C. § 1641(g). Dkt. 1. On October 24, 2012, Defendants Mortgage Electronic Registration Systems Inc. (MERS) and JP Morgan Chase Bank NA. (Chase) filed an Answer to the Complaint. Dkt. 9. On July 2, 2013, Defendants MERS and Chase filed a motion for summary judgment. Dkt. 22. The motion was noted for August 2, 2013. Id. On July 11, 2013, the Court entered an Order Regarding Motion to Dismiss. Dkt. 24. This Order provided Plaintiff with notification of the appropriate procedures for responding to the motion ( Rand notification). Dkt. 24.

On July 24, 2013, Plaintiff filed a Notice of Filing Supporting Exhibits in Paper or Physical Form with the Clerk's Office. Dkt. 25. The "Supporting Exhibits" were filed with the Court on July 24, 2013. These exhibits were scanned and filed electronically in the Court's Docket C12-5867 on July 30, 2013. See Dkts. 28-40.

On July 30, 2013, Plaintiff filed a document captioned "Plaintiff's Opposing Motion to Defendant's Motion to Dismiss Motion for Summary Judgment and Memorandum." See Dkt. 26. The pleading also contains the following heading: "Plaintiff's Opposition to Defendants Chase and Mers Motion to Dismiss Pursuant to FRCP 12(b)(6) and Countermotion for summary Judgment" Dkt. 26 p. 1. The electronic docket entry text provided by Plaintiff is captioned "MOTION for Summary Judgment by Plaintiff Edward C Borowski." See Dkt. 26. On the same date, Plaintiff filed a pleading captioned "Affidavit of Edward C. Borowski In Supporting Opposing Motion." See Dkt. 27. Plaintiff's electronic docket entry text for this document provides: "AFFIDAVIT of Edward C Borowski filed by Plaintiff Edward C Borowski re 26 Proposed MOTION for Summary Judgment." Dkt. 27.

Pursuant to Local Rule 7(d)(3), Plaintiff's motion for summary judgment was noted for August 23, 2013. In light of the cross-motion for summary judgment filed by Plaintiff, the Court renoted Defendants' motion for summary judgment to August 23, 2013, to be considered with Plaintiff's opposing motion. Dkt. 41.

On August 2, 2013, Defendants filed a Reply in support of their motion for summary judgment. Dkt. 43. On August 19, 2013, Defendants filed a Response to Plaintiff's motion for summary judgment. Dkt. 44.

On August 22, 2013, Plaintiff filed a pleading captioned: "Plaintiff's Reply Brief to Defendant's Answer to Counter Motion for Summary Judgment." Dkt. 45. Plaintiff's electronic docket entry for this pleading provides as follows: "REPLY, filed by Plaintiff Edward C Borowski, TO RESPONSE to 22 MOTION for Summary Judgment by Defendant MERS and (Attachments: # 1 Supplement, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)" Dkt. 45.

On August 27, 2013, the Court entered an Order on Cross-Motions for Summary Judgment. Dkt. 46. The Order dismissed Plaintiff's Complaint and causes of action in their entirety as to Defendants JPMorgan Chase Bank, NA and Mortgage Electronic Registration Systems, Inc. Id. at 11. As stated in the Order, "[t]he Court considered the pleadings in support of and in opposition to the motions and the record herein." Id. p. 2.

On September 24, 2013, Plaintiff filed the instant "Motion for Relief Under Rule 60 and Stay of Order." Dkt. 48.

STANDARDS FOR RULE 60 RELIEF

Rule 60(a). Upon its own initiative or on the motion of any party, a court may correct clerical mistakes in judgments, orders, or other parts of the record arising from oversight or omission. Fed.R.Civ.P. 60(a). A district court has very wide latitude in correcting clerical mistakes in a judgment. In re Jee, 799 F.2d 532, 535 (9th Cir. 1986). However, such a correction may only conform the judgment to the court's original intent. See Harman v. Harper, 7 F.3d 1455, 1457 (9th Cir.1993). This limits the use of Rule 60(a) to correct errors in oversight and omission, which are "blunders in execution." Blanton v. Anzalone, 813 F.2d 1574, 1577 n. 2 (9th Cir. 1987). The error can be corrected whether it is made by a clerk or by the judge. Id. at 1577. Rule 60(a) "cannot be used to correct more substantial errors, such as errors of law." Waggoner v. R. McGray, Inc., 743 F.2d 643, 644 (9th Cir. 1984).

Initially, Plaintiff requests the Court correct Plaintiff's clerical errors in the docket text, specifically, Dkts. 26 & 27. The Court cannot alter the Plaintiff's entries into the docket. Plaintiff may, if he so chooses, file a praecipe that provides for the substituted docket entry language and link the praecipe to the appropriate docket. The original docket language ...


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