Bencivenga v. US Bank, National Association et al

Filing 37

ORDER GRANTING PLAINTIFF'S EX PARTE APPLICATION TO ENLARGE TIME TO FILE FIRST AMENDED COMPLAINT (Illston, Susan) (Filed on 1/12/2012)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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MARC ANTHONY BENCIVENGA,

United States District Court
For the Northern District of California

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ORDER GRANTING PLAINTIFF’S EX
PARTE APPLICATION TO ENLARGE
TIME TO FILE FIRST AMENDED
COMPLAINT

Plaintiff,

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No. C 11-04128 SI

v.
US BANK, NATIONAL ASSOCIATION, as
Trustee of GSAA HOME EQUITY TRUST,
Series 2005-11, BARRETT DAFFIN FRAPPIER
TREDER & WEISS LLP, GRACE EVERITT,
DOES 1-10
Defendant.

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On December 7, 2011, the Court granted defendants’ motion to dismiss plaintiff’s complaint,
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but granted plaintiff leave to amend. Plaintiff was given until January 7, 2012 to file an amended
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complaint. On January 9, 2012, plaintiff filed an ex parte application to enlarge time to file the amended
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complaint by twenty days. Defendant U.S. Bank thereafter filed an opposition on January 10, 2012.
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Defendant argues that plaintiff is judicially estopped from raising the underlying claims in this
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action because plaintiff failed to list them in his March 2011 bankruptcy petition. In an attached
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declaration, plaintiff’s counsel states that he has recently petitioned the bankruptcy court to reopen the
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now-closed bankruptcy case and amend plaintiff’s bankruptcy petition to add the instant claim against
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defendants. Plaintiff argues that once the petition is amended, “the Chapter 7 Trustee can determine
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whether he will prosecute the claim or abandon the claim to allow plaintiff to continue the prosecution
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of his civil case.” See Ex Parte App., Doc. 34 at 2. Plaintiff represents that the complaint will be
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“prepared and ready for filing” upon receipt of ruling on the motion to amend in the Bankruptcy Court.
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The Court GRANTS plaintiff’s application, and enlarges the time to file the amended complaint

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to February 1, 2012. The Court cautions plaintiff’s counsel to act expeditiously, as the Court does not

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anticipate granting any further requests to extend time.

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IT IS SO ORDERED.

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Dated: January 12, 2012
SUSAN ILLSTON
United States District Judge

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United States District Court
For the Northern District of California

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