Tuita et al v. Wells Fargo Bank NA et al

Filing 12

ORDER as to 9 MOTION to Dismiss for Failure to State a Claim: IT IS ORDERED that by March 20, 2013, Plaintiffs shall respond to the Motion to Dismiss, or the Court will grant the motion for failing to comply with a Court order and failing to prosecute (see Fed. R. Civ. Pro. 41(b)). Signed by Senior Judge James A Teilborg on 2/20/13. (LAD)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Soane Tuita; Tupou Tuita, 10 11 Plaintiffs, vs. 12 Wells Fargo Bank, N.A.; et al., 13 Defendants. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV 12-1721-PHX-JAT ORDER 15 16 On October 17, 2012, Defendant MTC Financial filed a motion to dismiss this case. 17 Plaintiffs did not file a response. Instead, on October 24, 2012, Plaintiff Soane Tuita filed 18 a notice of removal and a notice that she had filed bankruptcy. It is unclear to the Court what 19 Plaintiff is seeking to remove. Therefore, that request that the, “District Court Action be 20 removed to this Court and the District Court Action be placed upon the docket of this Court 21 as an adversary proceeding” is denied. 22 Generally, the automatic stay provisions of the bankruptcy code do not apply to 23 proceedings initiated by the debtor, as is the case here. See Martin-Trigona v. Champion 24 Federal Savings & Loan, 1988 WL 46596, *2 (N.D. Ill. 1988); In re Hill, 39 B.R. 894, 897 25 (Bkrtcy. Or., 1984).1 Accordingly, Plaintiffs must respond to the motion to dismiss or the 26 27 1 28 However, the cause of action is the property of the estate. Turner v. Cooke, 362 F.3d 1219, 1225-26 (9th Cir. 2004); Cusano v. Klien, 264 F.3d 936, 945 (9th Cir. 2001). 1 Court will deem their failure to respond to be consent to the motion being granted. See Local 2 Rule Civil 7.2(i); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). 3 Based on the foregoing, 4 IT IS ORDERED that by March 20, 2013, Plaintiffs shall respond to the Motion to 5 Dismiss, or the Court will grant the motion for failing to comply with a Court order and 6 failing to prosecute (see Fed. R. Civ. Pro. 41(b)). 7 DATED this 20th day of February, 2013. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2-

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