Biddle v. Bank Of New York Mellon

Filing 11

ORDER Granting Defendant's 4 Motion to Dismiss with prejudice. Biddle's claims are dismissed and the Clerk of Court is directed to close this case. Signed by Judge Jennifer A. Dorsey on 2/7/2017. (Copies have been distributed pursuant to the NEF - SLD)

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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 Ebony Biddle, 5 2:16-cv-02609-JAD-PAL Plaintiff Order Granting Motion to Dismiss 6 v. 7 The Bank of New York Mellon, ECF No. 4 8 Defendant 9 Plaintiff Ebony Biddle brings this action against the Bank of New York Mellon in an 10 11 effort to stall foreclosure proceedings after she defaulted on her home mortgage obligation and 12 the Bank obtained a certificate from the State of Nevada’s Foreclosure Mediation Program to 13 proceed with the foreclosure process.1 The Bank moved to dismiss all of Biddle’s claims in 14 November 2016.2 Biddle filed for bankruptcy protection but has not opposed the motion to 15 dismiss. The deadline for her opposition has long since passed. Local Rule 7-2(d) states that “The failure of an opposing party to file points and 16 17 authorities in response to any motion,” except one for summary judgment or attorneys’ fees, 18 “constitutes a consent to the granting of the motion.”3 Biddle’s failure to oppose the Bank’s 19 motion to dismiss constitutes her consent to the granting of this motion to dismiss, and I grant the 20 motion in its entirety on this basis. 21 Biddle’s bankruptcy filing does not prevent her claims from being dismissed. Although 22 the filing of a bankruptcy petition triggers an automatic stay under 11 U.S.C. § 362(a), that stay 23 24 1 ECF No. 4-11 at 2. 2 ECF No. 4. 25 26 3 27 28 Nev. L.R. 7-2(d). Biddle was timely provided with the notice required under Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc), Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988). ECF No. 5. 1 only prohibits: 2 (1) commencing or continuing actions against the debtor that began or could have begun before the bankruptcy was filed, or to recover a pre-petition claim against the debtor; and (2) “any act to obtain possession of property of the estate or of property from the estate or to exercise control over the property of the estate.”4 3 4 5 Although the automatic stay sweeps broadly, it “does not prevent a plaintiff/debtor from 6 continuing to prosecute its own claims nor does it prevent a defendant from protecting its 7 interests against claims brought by the debtor,”5 by—for example—procuring a dismissal of the 8 debtor’s affirmative claims. 9 Accordingly, IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss [ECF No. 10 4] is GRANTED. Biddle’s claims are dismissed, and the Clerk of Court is directed to CLOSE 11 THIS CASE. 12 DATED: February 7, 2017 13 _______________________________ _________________ _ __ __ _ _ Jennifer A. Dorsey er A. Dorsey o United States District Judge St t Di t i t J d 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 In re Palmdale Hills Prop., LLC, 654 F.3d 868, 875 (9th Cir. 2011) (emphasis added) (quoting 11 U.S.C. § 362(a)(1) & (3)). 5 Id. (citing Gordon v. Whitmore, 175 B.R. 333, 337–38 (Bankr. App. 9th Cir. 1994)). 2

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