McDaniel v. IndyMac Federal Bank, et al.,

Filing 26

ORDER signed by Senior Judge Lawrence K. Karlton on 2/25/10. plaintiffs have not provided any basis for concluding that this case has been automatically stayed.(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 v. ORDER INDYMAC FEDERAL BANK; THE LINCOLN GROUP OF FINANCIAL SERVICE; ROBERT SEAN ALLEN; JAIMEE LEE and DOES 1-20, inclusive, Defendants. / Plaintiffs in this suit, Mr. and Ms. McDaniel, bring various claims regarding their home loan. A scheduling conference in the SUZANNE MCDANIEL and ROBERT MCDANIEL, NO. CIV. S-09-3486 LKK/EFB Plaintiffs, UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

above-captioned matter is currently set for March 1, 2010 at 10:30 a.m. On February 24, 2010, counsel for plaintiffs emailed the

court stating that "Mr. McDaniel has filed a Chapter 7 Bankruptcy," and indicating counsel's belief that the bankruptcy filing stayed proceedings in this case. Under the Bankruptcy Code, the filing of a bankruptcy petition automatically stays many actions, including "the commencement or 1

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continuation . . . of a judicial . . . proceeding against the debtor." 11 U.S.C. § 362(a)(1). As the statutory text makes

clear, the automatic stay provision does not apply to proceedings initiated by a debtor. Parker v. Bain (In re Parker), 68 F.3d At least eight other circuits have

1131, 1137 (9th Cir. 1995).

joined in this conclusion. Crosby v. Monroe County, 394 F.3d 1328, 1331 n.2 (11th Cir. 2004), Aiello v. Providian Fin. Corp., 239 F.3d 876, 880 (7th Cir. 2001), Checkers Drive-In Restaurants v.

Commissioner of Patents & Trademarks, 51 F.3d 1078, 1082 (D.C. Cir. 1995), Koolik v. Markowitz, 40 F.3d 567, 568 (2d Cir. 1994), McMillan v. MBank Fort Worth, N.A., 4 F.3d 362, 366 (5th Cir. 1993), Brown v. Armstrong, 949 F.2d 1007, 1009 (8th Cir. 1991), Cathey v. Johns-Manville Sales Corporation, 711 F.2d 60, 61 (6th Cir. 1983), Assoc. of St. Croix Condominium Owners v. St. Croix Hotel Corp., 682 F.2d 446, 448 (3d Cir. 1982). Accordingly, plaintiffs have not provided any basis for concluding that this case has been automatically stayed. IT IS SO ORDERED. DATED: February 25, 2010.

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