Biddle v. Bank Of New York Mellon
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)
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
Order Granting Motion to Dismiss
The Bank of New York Mellon,
ECF No. 4
Plaintiff Ebony Biddle brings this action against the Bank of New York Mellon in an
effort to stall foreclosure proceedings after she defaulted on her home mortgage obligation and
the Bank obtained a certificate from the State of Nevada’s Foreclosure Mediation Program to
proceed with the foreclosure process.1 The Bank moved to dismiss all of Biddle’s claims in
November 2016.2 Biddle filed for bankruptcy protection but has not opposed the motion to
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
authorities in response to any motion,” except one for summary judgment or attorneys’ fees,
“constitutes a consent to the granting of the motion.”3 Biddle’s failure to oppose the Bank’s
motion to dismiss constitutes her consent to the granting of this motion to dismiss, and I grant the
motion in its entirety on this basis.
Biddle’s bankruptcy filing does not prevent her claims from being dismissed. Although
the filing of a bankruptcy petition triggers an automatic stay under 11 U.S.C. § 362(a), that stay
ECF No. 4-11 at 2.
ECF No. 4.
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) 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
Although the automatic stay sweeps broadly, it “does not prevent a plaintiff/debtor from
continuing to prosecute its own claims nor does it prevent a defendant from protecting its
interests against claims brought by the debtor,”5 by—for example—procuring a dismissal of the
debtor’s affirmative claims.
Accordingly, IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss [ECF No.
4] is GRANTED. Biddle’s claims are dismissed, and the Clerk of Court is directed to CLOSE
DATED: February 7, 2017
Jennifer A. Dorsey
er A. Dorsey
United States District Judge
St t Di t i t J d
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)).
Id. (citing Gordon v. Whitmore, 175 B.R. 333, 337–38 (Bankr. App. 9th Cir. 1994)).
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