Moore, et al v. Bank of America, et al

Filing 17

ORDER signed by Magistrate Judge Edmund F. Brennan on 12/29/10: Defendant Schilling's motion to dismiss is denied as moot, and the January 12, 2011 hearing thereon is vacated 8 . Plaintiffs' ex parte application motion for the approval of the recordation of the notice of pending action is denied without prejudice 4 . Scheduling Conference continued to 4/13/2011 at 10:00 AM in Courtroom 24 (EFB) before Magistrate Judge Edmund F. Brennan. On or before March 30, 2011, the parties shall file status reports, as required by the order issued on September 13, 2010 3 . (Kaminski, H)

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-EFB (PS) Moore, et al v. Bank of America, et al Doc. 17 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 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA TERESA J. MOORE; GERTRUDE V. VIZMANOS, Plaintiffs, vs. BANK OF AMERICA; RECONTRUST COMPANY; US BANK NATIONAL ASSOCIATION; HARBORVIEW 2006-1 TRUST; AMIR ENTERPRISES LLC; MELVIN STRONG; JUDY SCHILLING; HADI R. SAYID-ALI; ED TURNER; and DOES 1-100, Defendants. / No. CIV S-10-2445 FCD EFB PS ORDER This case, in which plaintiffs are proceeding pro se, is before the undersigned pursuant to Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). On September 13, 2010, plaintiffs Teresa Moore and Gertrude Vizmanos filed a complaint alleging, among other things, wrongful foreclosure, quiet title, and violations of various federal and state law statutes. Dckt. No. 1. On September 28, 2010, plaintiffs filed an ex parte motion for the approval of the recordation of the notice of pending action. Dckt. No. 4. /// /// Dockets.Justia.com 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 On November 12, 2010, defendant Judy Schilling filed a motion to dismiss plaintiff Moore's complaint.1 Dckt. No. 8. That motion is noticed for hearing on January 12, 2011. Dckt. No. 11. However, on December 16, 2010, plaintiff Teresa Moore filed a notice of voluntary dismissal pursuant to Federal Rule of Civil Procedure ("Rule") 41(a)(1)(A)(1) stating that she was seeking to dismiss her claims against all defendants. Dckt. No. 15. Therefore, on December 22, 2010, the undersigned issued an order and findings and recommendations, (1) noting that upon the filing of her revised notice of voluntary dismissal, Moore's claims against all defendants except defendant Ed Turner were voluntarily dismissed; and (2) recommending that Moore's claims against defendant Turner be dismissed without prejudice pursuant to Rule 41(a)(2) and that Moore be permitted to withdraw as a plaintiff in this action. Dckt. No. 16. Since defendant Schilling's motion only seeks to dismiss plaintiff's Moore's complaint, and that complaint has already been dismissed as to defendant Schilling, Schilling's motion is denied as moot. Additionally, because plaintiffs' ex parte motion for the approval of the recordation of the notice of pending action, Dckt. No. 4, does not comply with Local Rule 230, that motion is denied without prejudice. If plaintiff Vizmanos seeks to re-file the motion, she shall do so in accordance with the Local Rules. /// Also, on October 19, 2010, defendants Bank of America, N.A., ReconTrust Company, N.A., and U.S. Bank National Association, as Trustee for Harborview 2006-1 Trust Fund, filed a motion to dismiss plaintiffs' complaint for failure to state a claim, and a motion to deny plaintiffs' ex parte motion for the approval of the recordation of the notice of pending action. Dckt. No. 5. The motion was noticed for hearing on December 3, 2010. Id. However, because the motion was improperly noticed for hearing before the assigned district judge, a minute order was issued vacating that hearing and directing those defendants to re-notice their motion before the undersigned. Dckt. No. 6. Defendants failed to do so; therefore, their motion is not currently scheduled to be heard. 2 1 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 Accordingly, good cause appearing, IT IS HEREBY ORDERED that: 1. Defendant Schilling's motion to dismiss, Dckt. No. 8, is denied as moot, and the January 12, 2011 hearing thereon is vacated; 2. Plaintiffs' ex parte application motion for the approval of the recordation of the notice of pending action, Dckt. No. 4, is denied without prejudice; 3. Within fourteen days from the date of this order, defendants Bank of America, N.A., ReconTrust Company, N.A., and U.S. Bank National Association, as Trustee for Harborview 2006-1 Trust Fund, shall re-notice their motion to dismiss, file a revised motion to dismiss, or file an answer to plaintiff Vizmanos's complaint; 4. The status (pretrial scheduling) conference currently set for January 19, 2011 is continued to April 13, 2011; and 5. On or before March 30, 2011, the parties shall file status reports, as required by the order issued on September 13, 2010, Dckt. No. 3. SO ORDERED. DATED: December 29, 2010 3

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