Pantalion v. Resmae Mortgage Corporation et al

Filing 24

ORDER AND ORDER TO SHOW CAUSE signed by Magistrate Judge Gregory G. Hollows on 2/25/10 ORDERING that the hearing date of 3/4/10 11 is VACATED. Hearing on Defendants' MOTION 11 is CONTINUED to 3/25/2010. Plaintiff shall show cause, in writing , no later than 3/11/2010 why sanctions should not be imposed for failure timely to file opposition or a statement of non-opposition to the pending motion. Plaintiff is directed to file opposition, if any, to the Motion, or a statement of non-opposit ion thereto, no later than 3/11/2010. Failure to file opposition and appear at hearing, or to file a statement of non-opposition, will be deemed a statement of non-opposition, and shall result in a recommendation that this action be dismissed. Plaintiff's request for a stay based on her bankruptcy filing is denied.(Mena-Sanchez, L)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 vs. RESMAE MORTGAGE CORPORATION, et al., Defendants. / ORDER TO SHOW CAUSE Plaintiff is proceeding pro se in this action, referred to the undersigned pursuant to Local Rule 72-302(c)(21). A motion to dismiss by defendants Wilshire Credit Corporation, Mortgage Electronic Registration Systems, Inc., Merrill Lynch Mortgage Investors, Inc., and Merrill Lynch Investors Trust Series 2006 RM5 is presently noticed for hearing on the March 4, 2010, law and motion calendar of the undersigned. Opposition to motions, or a statement of nonopposition thereto, must be filed fourteen days preceding the noticed hearing date. E.D. Cal. L. R. 78-230(c). Court records reflect that plaintiff failed to file opposition or a statement of nonopposition to the motion. Failure to comply with the Local Rules "may be grounds for imposition by the Court of any and all sanctions authorized by statute or Rule or within the inherent power of the Court." E.D. Cal. L. R. 11-110; see Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). Additionally, "[n]o party will be entitled to be heard in opposition to a motion at oral arguments \\\\\ 1 ORDER AND IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA CHARITY MAE PANTALION, Plaintiff, CIV. NO. S-09-2262 MCE GGH PS

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if written opposition to the motion has not been timely filed." E.D. Cal. L. R. 78-230(c).1 Pro se litigants are bound by the rules of procedure, even though pleadings are liberally construed in their favor. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987); Jacobsen v. Filler, 790 F.2d 1362, 1364-65 (9th Cir.1986). The Local Rules specifically provide that cases of persons appearing in propria persona who fail to comply with the Federal and Local Rules are subject to dismissal, judgment by default, and other appropriate sanctions. E.D. Cal. L. R. 83-183. Plaintiff is informed that her notice of filing bankruptcy does not act to stay this action. Such a bankruptcy filing has no effect on this case; however, where the debtor is a plaintiff and there are no counterclaims against her in the case. In re Palmdale Hills Property, LLC, ___ B.R. ___, 2009 WL 5812119, *4 (9th Cir. BAP 2009) (policy considerations for imposing a stay non-existent where debtor initiated action); In re White, 186 B.R. 700, 704 (9th Cir. BAP 1995); In re Merrick, 175 B.R. 333, 337 (9th Cir. BAP1994); In re Mitchell, 206 B.R. 204, 212 (Bankr. C.D. Cal. 1997). The automatic stay of 11 U.S.C. § 362 has no application to suits brought by debtors, but only stays actions against debtors. Id. Therefore, the undersigned finds that a stay is not appropriate in this case. Good cause appearing, IT IS HEREBY ORDERED that: 1. The hearing date of March 4, 2010 is vacated. Hearing on defendants' motion is continued to March 25, 2010. 2. Plaintiff shall show cause, in writing, no later than March 11, 2010 why sanctions should not be imposed for failure timely to file opposition or a statement of nonopposition to the pending motion. 3. Plaintiff is directed to file opposition, if any, to the motion, or a statement of non-opposition thereto, no later than March 11, 2010. Failure to file opposition and appear at hearing, or to file a statement of non-opposition, will be deemed a statement of non-opposition, Moreover, failure to appear at hearing may be deemed withdrawal of opposition to a motion or may result in sanctions. E.D. Cal. L. R. 78-230(j). 2
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and shall result in a recommendation that this action be dismissed. 4. Plaintiff's request for a stay based on her bankruptcy filing is denied. DATED: February 25, 2010 /s/ Gregory G. Hollows GREGORY G. HOLLOWS U. S. MAGISTRATE JUDGE
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