Fabionar v. First Federal Bank of California et al

Filing 26

ORDER, Set/Reset Deadlines as to 3 MOTION to Dismiss ; Memorandum of Points and Authorities, 13 MOTION to Dismiss Plaintiff's Complaint. Responses due by 7/23/2012.. Signed by Judge ARMSTRONG on 7/10/12. (lrc, COURT STAFF) (Filed on 7/12/2012)

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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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JOSELITO FABIONAR, individuals, on

Case No: C 12-0991 SBA

8 behalf of themselves and all others similarly

situated,

ORDER

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Plaintiffs,
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vs.
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FIRST FEDERAL BANK OF CALIFORNIA,
12 as the Original Lender; SEASIDE

FINANCIAL CORPORATION, as
13 the Original Trustee; COMMONWEALTH

LAND TITLE, Title Company; ONE WEST
14 BANK, as Sub Servicer; AURORA LOAN

SERVICES LLC, as the PSA Master
15 Servicer; LEHMAN BROTHERS

HOLDINGS INC. PSA Sponsor and Seller;
16 STRUCTURED ASSET SECURITIES

CORPORATION, as PSA Depositor;
17 CITIBANK, N.A., as PSA Trustee;

LASALLE BANK, N.A. U.S. BANK, N.A.
18 WELLS FARGO BANK, N.A. PSA

Custodian; LEHMAN XS TRUST, SERIES
19 2005-3, as the PSA Trust Issuing Entity; TD

SERVICE COMPANY, as the Foreclosing
20 Trustee; and DOES 1 THROUGH 100,

INCLUSIVE
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Defendants.
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On February 27, 2012, Plaintiff Joselito Fabionar ("Plaintiff"), proceeding pro se,
brought the instant action against Defendants alleging various claims arising out of a home
loan and the initiation of foreclosure proceedings. See Compl., Dkt. 1. The parties are
presently before the Court on Defendant Wells Fargo Bank, N.A.'s ("Wells Fargo") motion
to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, which was filed on

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April 17, 2012. Dkt. 3. Also before the Court is Defendant Aurora Loan Service, LLC's

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("Aurora") motion to dismiss under Rule 12(b)(6), which was filed on May 7, 2012. Dkt.

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13. Under Local Rule 7-3, a party must file an opposition or statement of non-opposition to

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a motion no later than fourteen days (14) after the motion is filed. See N.D. Cal. Civ. L.R.

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7-3(a), (b).1 This Court's Standing Orders specifically warn that "failure of the opposing

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party to file a memorandum of points and authorities in opposition to any motion shall

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constitute a consent to the granting of the motion." Civil Standing Orders at 5, Dkt. 21. To

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date, Plaintiff has not filed a response to Wells Fargo's or Aurora's motion to dismiss in

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violation of Civil Local Rule 7-3.

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The failure to file an opposition to a motion to dismiss in the manner prescribed by

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the Court's Local Rules is a ground for dismissal. Ghazali v. Moran, 46 F.3d 52, 53 (9th

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Cir. 1995) (per curiam) (failure to file an opposition to a motion to dismiss in violation of a

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local rule is a proper ground to grant the motion). Here, although Plaintiff's failure to file

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an opposition to either of the motions to dismiss is a proper ground to grant the motions, the

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Court will afford Plaintiff the opportunity to respond to the motions by no later than ten

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(10) days from the date this Order is filed. The Court, however, warns Plaintiff that the

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failure to comply with this deadline will result in dismissal of this action with prejudice

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under Rule 41(b) of the Federal Rules of Civil Procedure. Ferdik v. Bonzelet, 963 F.2d

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1258, 1260 (9th Cir. 1992) (pursuant to Rule 41(b), a district court may dismiss an action

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for failure to comply with any order of the court).

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Accordingly, IT IS HEREBY ORDERED THAT:

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1.

Plaintiff shall file a response to Wells Fargo's and Aurora's motion to dismiss

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by no later than ten (10) days from the date this Order is filed. In the event Plaintiff fails to

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timely comply with this Order, this action will be dismissed with prejudice under Rule

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The deadline to file an opposition is extended by 3 days if the motion was not filed
and served through the Court's Electronic Case Filing ("ECF") system and was served
28 pursuant to Federal Rule of Civil Procedure 5(b)(2)(C), (D), (E) or (F). Civ. L.R. 7-3(a).
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41(b). Wells Fargo and Aurora shall notify the Court if Plaintiff fails to comply with this

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Order.

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IT IS SO ORDERED
Dated: 7/10/12

_______________________________
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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JOSELITO FABIONAR,

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Plaintiff,
v.
FIRST FEDERAL BANK OF CALIFORNIA et
al,
Defendant.
/

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Case Number: CV12-00991 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.
That on July 12, 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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Joselito Fabionar
27624 Baldwin Street
Hayward, CA 94544

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Dated: July 12, 2012
Richard W. Wieking, Clerk

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By: Lisa Clark, Deputy Clerk

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