Garibay v. American Home Mortgage Corp. et al

Filing 11

ORDER: The action in this Court is stayed as to Defendant American Home Mortgage Corp. only. This action is not stayed as to Plaintiff's claims against all other Defendants. Any opposition to the pending Motion to Dismiss (Doc. 5 ) must be file d no later than 12/4/2009. Any reply must be filed no later than 12/11/2009. There will be no oral argument on the Motion to Dismiss. Defendant American Home Mortgage Corp. is ordered to notify the Court in writing of any changes in the bankruptcy case relevant to this action. Signed by Judge William Q. Hayes on 11/13/2009. (Per Order, mailed a copy of Order to Deft American Home Mortgage Corp.'s atty.) (mdc)(jrl).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 HAYES, Judge: 17 On July 7, 2009, Plaintiffs initiated this action by filing the Complaint in this Court. 18 (Doc. # 1). 19 21 # 5). 22 On October 29, 2009, Defendant American Home Mortgage Corp. filed a "Suggestion 23 of Bankruptcy" with this Court. (Doc. # 8). The Suggestion of Bankruptcy notified the Court 24 that on August 6, 2007, American Home Mortgage Corp. filed a voluntary petition with the 25 United States Bankruptcy Court of the District of Delaware, Bankruptcy case number 0726 11051. 27 Section 362(a) of the Bankruptcy Code, 11 U.S.C. § 362(a), operates as an automatic 28 stay of the commencement or continuation of a judicial proceeding against the debtor,
-109cv1460-WQH-CAB

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
CYNTHIA GARIBAY, an individual, Plaintiff, vs. AMERICAN HOME MORTGAGE CORP., a New York Corporation, WELLS FARGO HOME MORTGAGE, INC., a California Corporation & DOES 1 through 20, Defendants. CASE NO. 09cv1460-WQH-CAB ORDER

On October 29, 2009, Defendant Wells Fargo Home Mortgage, Inc. filed a Motion to

20 Dismiss Or Alternatively Motion for a More Definite Statement ("Motion to Dismiss"). (Doc.

1 commenced prior to the filing of bankruptcy. However, "[i]n the absence of special 2 circumstances, stays pursuant to section 362(a) are limited to debtors and do not include 3 non-bankrupt co-defendants." Ingersoll-Rand Fin. Corp. v. Miller Mining Co., Inc., 817 F.2d 4 1424, 1427 (9th Cir. 1987) (citations omitted). The Ninth Circuit explained that under "special 5 circumstances," the bankruptcy court may extend to stay to other entities pursuant to 11 U.S.C. 6 § 105(a) ("The court may issue any order, process, or judgment that is necessary or appropriate 7 to carry out the provisions of this title."). Ingersoll-Rand Fin. Corp., 817 F.2d at 1427. The 8 Ninth Circuit held that in "the absence of any order from the bankruptcy court staying 9 proceedings as to the [non-bankrupt co-defendants]," a plaintiff's action may proceed against 10 the non-bankrupt co-defendants. Id. 11 No filing in this Court has indicated that the bankruptcy stay which applies to

12 Defendant American Home Mortgage Corp. has been extended to co-Defendant Wells Fargo 13 Home Mortgage, Inc. 14 IT IS HEREBY ORDERED that the action in this Court is STAYED as to Defendant

15 American Home Mortgage Corp. only. This action is NOT STAYED as to Plaintiff's 16 claims against all other Defendants. 17 Any opposition to the pending Motion to Dismiss (Doc. # 5) must be filed no later than

18 December 4, 2009. Any reply must be filed no later than December 11, 2009. There will be 19 no oral argument on the Motion to Dismiss. 20 Defendant American Home Mortgage Corp. is ORDERED to notify the Court in

21 writing of any changes in the bankruptcy case relevant to this action, including but not limited 22 to a discharge or dismissal of the bankruptcy case. The Clerk of the Court shall mail a copy 23 of this Order to counsel for Defendant American Home Mortgage Corp., as listed in the 24 Suggestion of Bankruptcy. (Doc. # 8 at 2). 25 DATED: November 13, 2009 26 27 28
-209cv1460-WQH-CAB

WILLIAM Q. HAYES United States District Judge