KSB

Judge Karlin

11-07017 Heath et al v. US Bank NA (Doc. # 8)

Heath et al v. US Bank NA, 11-07017 (Bankr. D. Kan. Apr. 20, 2011) Doc. # 8

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SO ORDERED.
SIGNED this 20 day of April, 2011.


________________________________________
JANICE MILLER KARLIN
UNITED STATES BANKRUPTCY JUDGE
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF KANSAS


IN RE:
HEATH, GARY CHARLES
and HEATH, DEBRA ANN Case No. 11-40067-13

Debtors.

HEATH, GARY CHARLES
and HEATH, DEBRA ANN,

Plaintiffs,
vs. Adv. No. 11-07017

US BANK, NA,

Defendant.

ORDER DENYING PLAINTIFFS’ MOTION FOR
CONSOLIDATION OF ADVERSARY PROCEEDINGS
FOR PURPOSE OF DETERMINING LEGAL ISSUE


The matter before the Court is Plaintiffs’ Motion for Consolidation of Adversary

1

Proceedings for Purpose of Determining Legal Issue, seeking consolidation of this adversary

1Doc. 7.

Case 11-07017 Doc# 8 Filed 04/20/11 Page 1 of 3


proceeding with another pending adversary proceeding, Martinez v. MERS and Countrywide

Home Loan, Inc., Case No. 10-7027, for the purpose of considering a similar legal issue

contained in both proceedings. The motion was filed April 15, 2011 and served only on the

attorney for the Defendant, US Bank NA, in the Heath case. It was neither filed, nor served on

the attorneys, in the Martinez case.

The Heath adversary proceeding was filed March 23, 2011, less than one month ago, and

discovery has just commenced.2 No party in the Heath case is a party in the Martinez matter.

Conversely, the Martinez case has been on file almost a full year, since May 5, 2010. Lengthy

discovery has been completed, a final pretrial order entered, and a decision rendered on joint

motions for summary judgment. All that remained to be done in Martinez at the time this motion

was filed was for this Court to rule on Plaintiff Graham’s pending Motion to Reconsider. That

decision has now been entered.

As the Court noted in footnote 33 of the Martinez decision:

The Court is aware that other cases presenting similar issues are currently pending before
this Court, and that the attorneys in those cases may raise additional arguments on the
issues presented in this case. In fact, the Court is advised that as this opinion was being
finalized, plaintiffs in another case against a different defendant (Heath v. US Bank, NA,
AP No. 11-7017) filed a motion to consolidate this case with that case “for purpose of
determining legal issue.” See Doc. 7, filed April 15, 2011 in the Heath case, only.
Likewise, Plaintiff now suggests, on reconsideration, that this Court join this case with In
re Campoverde, Case No. 10-41685, where the case trustee was making similar
arguments to those Plaintiff now belatedly raises. At a recent hearing, the movant who
sought a Motion for Relief in the Campoverde case has indicated it intends to withdraw
that motion. Even if that was a live motion, it would not be appropriate at this stage of
the proceedings to delay this decision because Plaintiff’s counsel has recently become
educated that new arguments exists that might have led to discovery that might today
prove fruitful (but may not—counsel admits he is guessing at this point). In addition, in
the Heath case, the answer was filed only days ago, and discovery will not be concluded
for at least five months.

2Doc. 6.

Case 11-07017 Doc# 8 Filed 04/20/11 Page 2 of 3


The Court will obviously be willing, as it is in any situation, to revisit these issues based
on different facts or new arguments raised in those cases. The Court is required,
however, to decide this case between these parties, and based on the facts and arguments
timely raised by the parties in this case, alone. It declines to delay ruling merely because
some issues may overlap with other cases.

Accordingly, for those reasons, the Court denies Plaintiffs’ Motion to Consolidate.

IT IS SO ORDERED.3

# # #

3The Court directs the Clerk to serve a copy of this order on counsel in the Martinez case,
and note it has done so in its docketing, although it need not be docketed there since the motion
was not docketed there.

Case 11-07017 Doc# 8 Filed 04/20/11 Page 3 of 3

 

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