Irigoyen v. First Guarantee Financial Corporation et al
ORDER signed by Chief Judge Anthony W. Ishii on 10/12/2011 acknowledging 21 Notice of Bankruptcy and ordering additional briefing. Plaintiff's reply due by 10/17/2011; Defendants sur-reply due by 10/19/2011. The hearing set for 10/24/2011 at 01:30 PM in Courtroom 2 (AWI) before Chief Judge Anthony W. Ishii shall remain on calendar. (Lundstrom, T)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF CALIFORNIA
BERNADETTE IRIGOYEN, personally )
and on behalf of all similarly situated,
FIRST GUARANTY FINANCIAL
CORPORATION, et al.,
1:11-CV-1096 AWI MJS
NOTICE OF BANKRUPTCY
AND ORDER FOR
This case involves the attempted foreclosure by Defendants against real property owned
by Plaintiff. On July 6, 2011, the Court granted Plaintiff’s motion for temporary restraining
order. The order prevented Defendants from foreclosing on Plaintiff’s real property, and set a
briefing schedule and hearing date for Plaintiff’s motion for preliminary injunction. Following
the issuance of the temporary restraining order, the parties on several occasions stipulated to
continue the deadlines and effectiveness of the temporary restraining order. Currently, hearing
on Plaintiff’s motion for preliminary injunction is set for October 24, 2011, and Plaintiff’s reply
memoranda is due on October 17, 2011. See Court’s Docket Doc. No. 19. Defendants have filed
an opposition, but have filed no motions or answers.
On October 11, 2011, Plaintiff filed a notice of Chapter 7 bankruptcy. The automatic
bankruptcy stay applies to actions “brought against the debtor.” 11 U.S.C. § 362(a). The
automatic stay provisions do not apply to lawsuits brought by the debtor. See In re Palmdale
Hills Props., LLC, - - - F.3d - - -, 2011 U.S. App. LEXIS 15907, *13 (9th Cir. 2011); Snavely v.
Miller, 397 F.3d 726, 729 (9th Cir. 2005); Martin-Trigona v. Champion Fed. Sav. & Loan Ass’n,
892 F.2d 575, 577 (7th Cir. 1989); Cobb v. Aurora Loan Servs., 408 B.R. 351, 355 (E.D. Cal.
2009). Since Plaintiff initiated this lawsuit prior to filing bankruptcy, this case is not subject to
the automatic stay. See id.
However, once a person files for bankruptcy, a bankruptcy estate is created and that estate
includes causes of action that accrued prior to the filing of bankruptcy. See De Pomar v.
Equifirst Corp., 2010 U.S. Dist. LEXIS 143216 (C.D. Cal. Feb. 2, 2010); Basilio v. TDR
Servicing, 2009 U.S. Dist. LEXIS 120583 (E.D. Cal. Dec. 29, 2009); Cobb, 408 B.R. at 354;
Hernandez v. Downey Sav. & Loan Ass’n, 2009 U.S. Dist. LEXIS 21495 (S.D. Cal. Mar. 17,
2009). The bankruptcy trustee becomes the real party in interest with respect to the bankruptcy
estate assets. See id. Since the claims in this case accrued prior to Plaintiff filing for bankruptcy,
it appears that she is no longer the real party in interest and lacks standing to pursue this lawsuit.
See id. In light of Plaintiff’s filing bankruptcy, the parties will be directed to file briefing
regarding Plaintiff’s standing to pursue this lawsuit, including the preliminary injunction.
Accordingly, IT IS HEREBY ORDERED that:
On or by October 17, 2011, as part of her reply memoranda, Plaintiff shall address her
standing to pursue this lawsuit (including the preliminary injunction) in light of her filing
On or by October 19, 2011, Defendants shall file a sur-reply that addresses the issue of
standing and responds to any arguments that Plaintiff makes regarding her standing in
light of the filing of bankruptcy; and
The October 24, 2011, hearing at this point shall remain on calendar.
IT IS SO ORDERED.
October 12, 2011
CHIEF UNITED STATES DISTRICT JUDGE
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