Gens v. Wachovia Mortgage Corporation et al

Filing 108

ORDER Setting Hearings. Signed by Judge Lucy H. Koh on 6/05/2013. (lhklc3, COURT STAFF) (Filed on 6/5/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
For the Northern District of California

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LAURA GENS,
Plaintiff,
v.
WACHOVIA MORTGAGE CORP., et al.,
Defendants.

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Case No.: 10-CV-01073-LHK
12-CV-05947-LHK
ORDER SETTING HEARINGS

On January 28, 2013, this Court related Gens v. Cal-Western Reconveyance et al., 12-CV-

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05947-EJD, to the earlier filed Gens v. Wachovia Mortgage Corp. et al., 10-CV-01073-LHK. ECF

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No. 39. At the time that Gens v. Cal-Western Reconveyance et al., 12-CV-05947-EJD, was

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reassigned to this Court, Defendants had a pending Motion to Dismiss, ECF No. 10, Motion for

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Joinder, ECF No. 13, and Motion for Remand, ECF No. 14.

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On February 1, 2013, the United States Bankruptcy Court imposed an automatic stay in the

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Chapter 11 bankruptcy case of Plaintiff Laura Gens (“Plaintiff”), in the matter entitled In re Laura

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Gens, United States Bankruptcy Court for the Northern District of California, Case No. 13-50106-

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ASW. See ECF NO. 103 (“Notice of Automatic Stay”). The “automatic stay” pursuant to 11

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U.S.C. § 362 operated as an automatic stay of the continuation of a “judicial, administrative, or

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other action or proceeding” against the debtor, 11 U.S.C. § 362(a)(1), as well as an automatic stay

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of acts to “collect, assess, or recover a claim” against the debtor arising prior to the application date

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Case No.: 10-CV-01073-LHK
12-CV-05947-LHK
ORDER SETTING HEARINGS

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for the automatic stay, 11 U.S.C. § 362(a)(6). The automatic stay was to remain in effect until

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April 15, 2013, pending a ruling on Plaintiff’s motion to impose the automatic stay. Notice of

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Automatic Stay at 2. In light of this stay, the Court ordered the parties to file a joint status report

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regarding the status of these federal court cases in light of Plaintiff’s Chapter 11 bankruptcy case,

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including whether any stay is currently in effect. See ECF No. 106.

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On June 3, 2013, the parties filed their Joint Status Report pursuant to the Court’s Order.
See ECF No. 107. In this Joint Status Report, the parties state that the Honorable Arthur

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Weissbrodt granted Plaintiff’s motion to impose the automatic stay and ordered the automatic stay

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to be imposed for 6 months against creditor Wells Fargo (until October 10, 2013) to give Plaintiff

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United States District Court
For the Northern District of California

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time to confirm or amend a Chapter 11 Plan in Plaintiff’s Bankruptcy. Id. at 2. Wells Fargo states

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that it intends to re-file its motion for pre-bankruptcy attorney’s fees within 30 days of termination

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of the automatic stay in Plaintiff’s Bankruptcy. Id. at 3. However, both parties agree that the

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automatic stay does not prevent the continued prosecution of an action initiated by the debtor. ECF

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No. 107 at 2 (citing In re Merrick, 175 B.R. 333, 337 (9th Cir. BAP 1994)); see also In re Mitchell,

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206 B.R. 204, 212 (Bankr. C.D. Cal. 1997) (“The 11 U.S.C. § 362 automatic stay only stays

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lawsuits against the debtor and the debtor’s bankruptcy estate.”). Accordingly, the Court hereby

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sets a hearing on Defendants’ pending Motion to Dismiss, Defendants’ Motion for Joinder, and

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Plaintiff’s Motion for Remand for July 11, 2013, at 1:30 p.m.

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IT IS SO ORDERED.

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Dated: June 5, 2013

_________________________________
LUCY H. KOH
United States District Judge

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Case No.: 10-CV-01073-LHK
12-CV-05947-LHK
ORDER SETTING HEARINGS