Bank of New York Mellon v. Levine

Filing 12

ORDER SETTING BRIEFING SCHEDULE FOR MOTION TO REMAND. Signed by Judge Richard Seeborg on 7/11/12. (cl, COURT STAFF) (Filed on 7/11/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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For the Northern District of California

United States District Court

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THE BANK OF NEW YORK MELLON
FKA THE BANK OF NEW YORK, AS
TRUSTEE FOR THE
CERTIFICATEHOLDERS OF CWABS,
INC., ASSET-BACKED CERTIFICATES,
SERIES 2007-8,

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ORDER SETTING BRIEFING
SCHEDULE FOR MOTION TO
REMAND

Plaintiff,

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No. C 12-2780 RS

v.
ARTHUR D BORDESSA JR, DONNA
LEVINE,
Defendants.
____________________________________/

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This matter was filed as an unlawful detainer action in Sonoma County Superior Court.

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Contending that it actually is an action for “ejectment” arising under federal law, and governed by

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the Protecting Tenants at Foreclosure Act of 2009, 12 U.S.C. § 5201, defendant Donna Levine

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removed it to this Court. Prior to reassignment to the undersigned, plaintiff filed what it labeled as

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an “ex parte” application to have its motion to remand heard on shortened time, arguing that the

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removal is improper and interferes with what is designed to be an expeditious procedure in state

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court to obtain possession.1

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Under Civil Local Rule 7-10, an ex parte motion is one filed without notice to opposing party, and
is only permitted where specifically authorized by statute, Federal Rule, local rule, or Standing
Order. There was no basis to proceed ex parte in these circumstances, and plaintiff should have
brought its motion to shorten time pursuant to Rule 6-3. Plaintiff in fact, however, did provide

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Although plaintiff submitted no separate motion to remand with its application to shorten

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time, it included substantive argument as to why it contends the removal was improper.

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Accordingly, its application will be deemed to include its motion to remand. Good cause appearing,

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defendant shall file written opposition to the motion to remand no later than July 25, 2012. Plaintiff

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shall file any reply within three court days after opposition is filed. The matter will then be

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submitted without oral argument.

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IT IS SO ORDERED.

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Dated: 7/11/12
RICHARD SEEBORG
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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notice of its application to defendant, despite mischaracterizing it as “ex parte.” Accordingly, it will
be deemed to have been properly brought under Rule 6-3.

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THIS IS TO CERTIFY THAT A COPY OF THIS ORDER WAS MAILED TO:

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Donna A. Levine
6095 Bodega Avenue
Petaluma, CA 94952
DATED: 7/11/12

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/s/ Chambers Staff
Chambers of Magistrate Judge Richard Seeborg

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For the Northern District of California

United States District Court

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