Abalos et al v. Bank of America Home Loan Servicing, L.P. et al

Filing 19

ORDER re 8 MOTION to Dismiss Complaint filed by Mortgage Electronic Systems, Inc., Bank of New York, Mellon, Bank of America Home Loan Servicing, L.P., Bank of America, N.A., Recontrust Company, N.A. Case Management Conference set for 3/29/2012 03:00 PM. VIA TELEPHONE. Signed by Judge ARMSTRONG on 1/9/12. (lrc, COURT STAFF) (Filed on 1/9/2012)

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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6 ESTRELLA G. ABALOS,

JOSE C. ABALOS and
7 DAVID-WYN MILLER: PlenipotentiaryJudge (Witnessing),
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Plaintiff,

Case No: C 11-03150 SBA
ORDER DIRECTING PLAINTIFFS
TO FILE RESPONSE TO
DEFENDANTS’ MOTION TO
DISMISS

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vs.

Docket 8

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BANK OF AMERICA HOME LOAN
11 SERVICING, L.P., AMERICAN

WHOLESALE LENDER; RECONTRUST
12 COMPANY, N.A.; BANK OF NEW YORK,

MELLON, AS TRUSTEE FOR THE
13 HOLDER OF THE SAMI II-2006-ARI, MTG

PASS-THROUGH CERTIFICATE;
14 MORTGAGE ELECTRONIC

REGISTRATION SYSTEMS, INC.,
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Defendants.
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Plaintiffs, acting pro se, filed the instant mortgage fraud action in this Court on June

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24, 2011. Dkt. 1. On August 8, 2011, Defendants filed a motion to dismiss under Federal

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Rule of Civil Procedure 12(b)(6). Dkt. 15. Under Civil Local Rule 7-3(a), an opposition to

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a motion must be filed within fourteen days of the date the motion was filed, and the reply

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is due seven days thereafter. As such, Plaintiffs’ response to the motion should have been

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filed by no later than August 22, 2011. To date, Plaintiffs have not filed any response to

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Defendants’ motion.

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This Court’s Standing Orders warn that the failure to file a response to a motion may

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be deemed to be a consent to the granting of the unopposed motion. Dkt. 12 at 5. As such,

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it is well within the discretion of the Court to grant Defendants’ motion as unopposed and

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dismiss the action. See Fed. R. Civ. P. 41(b); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir.

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1995). Nevertheless, mindful of its obligation to first consider to less drastic alternatives,

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the Court will afford Plaintiffs one further opportunity to respond to the pending motion.

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Accordingly,

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IT IS HEREBY ORDERED THAT:

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1.

Plaintiffs shall have until January 31, 2012 to file and serve their response

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(i.e., either an opposition or a statement of non-opposition) to Defendants’ Rule 12(b)(6)

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motion to dismiss.

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2.

Plaintiffs’ response shall comply in all respects with the Federal Rules of

Civil Procedure and the Court’s Civil Local Rules including, without limitation, Civil Local
Rules 7-3 through 7-5.
3.

PLAINTIFFS ARE WARNED THAT THE FAILURE TO FILE A

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RESPONSE BY THIS DEADLINE AND/OR TO COMPLY WITH THIS ORDER

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OR ANY OTHER APPLICABLE PROCEDURAL RULES WILL RESULT IN THE

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GRANTING OF THE PENDING MOTION AND THE DISMISSAL OF THIS

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ACTION.

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4.

In the event Plaintiffs timely file a response, Defendants may file a reply

seven days after the deadline for Plaintiffs’ response.

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5.

The motion hearing scheduled for January 24, 2012 is VACATED.

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6.

The Case Management Conference currently scheduled January 24, 2012 is

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CONTINUED to March 29, 2012 at 3:00 p.m. Prior to the date scheduled for the

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conference, the parties shall meet and confer and prepare a joint Case Management

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Conference Statement which complies with the Standing Order for All Judges of the

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Northern District of California and the Standing Orders of this Court. The Case

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Management Conference will be conducted by telephone. Plaintiffs shall assume

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responsibility for filing the joint statement no less than seven (7) days prior to the

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conference date. Plaintiffs shall set up the conference call with all the parties on the line

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and call chambers at [phone]. NO PARTY SHALL CONTACT CHAMBERS

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DIRECTLY WITHOUT PRIOR AUTHORIZATION OF THE COURT.
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IT IS SO ORDERED.
Dated: January 9, 2012

______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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ESTRELLA G ABALOS et al,
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Plaintiff,
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v.
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BANK OF AMERICA et al,
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Defendant.
/

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Case Number: CV11-03150 SBA
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CERTIFICATE OF SERVICE
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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.

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That on January 9, 2012, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing
said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle
located in the Clerk's office.

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Estrella G. Abalos
136 Saint Francis Boulevard
San Francisco, CA 94127
Jose C. Abalos
136 Saint Francis Boulevard
San Francisco, CA 94127

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Dated: January 9, 2012
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Richard W. Wieking, Clerk

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By: LISA R CLARK, Deputy Clerk

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