Smith v. US Bank National Association et al

Filing 70

ORDER RULING ON REPORT AND RECOMMENDATION adopting 60 Report and Recommendations and dismissing the complaint with prejudice for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. Signed by Chief Judge Margaret B Seymour on 1/15/2013. (asni, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
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Plaintiff,
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v.
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US Bank National Association
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as Trustee successor in interest to Bank
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of America NA as successor by merger
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to LaSalle Bank NA as Trustee for
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Certificate Holders of EMC Mortgage
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Corporation Loan Trust 2005-A
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Mortgage Loan Pass-Through
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Certificates Series 2005-A,
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EMC Mortgage Corporation, and Parent
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Companies, The Bear Stearnes
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Companies, LLC and JP Morgan Chase
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& Companies,
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Guardian Fidelity Mortgage, Inc.,
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Guardian President and CEO Howard
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H. Wright, Jr., Guardian Assistant
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Manager Stacey Youngblood, Guardian
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Chairman of the Board John Good,
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Guardian Member
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Owners/Shareholder[s]/
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Stockholders,
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Defendants.
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_____________________________________)
Charlotte Ann Smith,

Civil Action No.: 0:11-3251-MBS

ORDER AND OPINION

This matter is before the court pursuant to the joint motion to dismiss, for judgment on the
pleadings and for summary judgment by Defendants, Bank of America, N.A. as Successor by
Merger to LaSalle Bank, National Association as Trustee for Certificate Holders of EMC Mortgage
Loan Trust 2005-A Mortgage Loan Pass-Through Certificates, Series 2005-A, EMC Mortgage

Corporation, The Bear Stearns Companies, LLC, and JPMorgan Chase & Co. (collectively
“Defendants”). (See ECF No. 40. ) After Charlotte Ann Smith (“Plaintiff”) failed to respond to
Defendants’ motion, the Magistrate Judge filed a Report and Recommendation, wherein she
recommended that Plaintiff’s action be dismissed with prejudice for failure to prosecute pursuant
to Fed. R. Civ. P. 41(b). (ECF No. 60.) On July 31, 2012, the court entered an order (the “July
Order”) dismissing Plaintiff’s action with prejudice for failure to prosecute pursuant to Fed. R. Civ.
P. 41(b). (ECF No. 63.)
On August 12, 2012, the court was advised by Defendants that Plaintiff filed for Chapter 13
bankruptcy protection on July 31, 2012. (ECF No. 66, p. 2.) As a result, the automatic stay imposed
by 11 U.S.C. § 362(a) was in effect on the day the court entered the July Order. In re Singleton, 358
B.R. 253, 256 (D.S.C. 2006) (“Generally, filing a petition under Chapter 13 of the Bankruptcy Code
triggers an automatic stay of creditor proceedings against a debtor’s property.”) (citing 11 U.S.C.
§ 362(a)). Therefore, because Plaintiff’s case was subject to the automatic stay on the day the July
Order was entered, the court VACATES the July Order. (ECF No. 63.)
The court is now advised that Plaintiff’s bankruptcy case was dismissed by the the United
States Bankruptcy Court for the District of South Carolina on August 20, 2012. (ECF No. 66-1.)
When the petition giving rise to the automatic stay is dismissed, the automatic stay terminates
immediately. See In re Singleton, 358 B.R. at 256. Accordingly, Plaintiff’s action in this court is
dismissed with prejudice for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil
Procedure. The court adopts the Magistrate Judge’s Report and Recommendation and incorporates
it herein by reference.

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IT IS SO ORDERED.

/s/Margaret B. Seymour_________________
MARGARET B. SEYMOUR
CHIEF UNITED STATES DISTRICT JUDGE
January 15, 2013
Columbia, South Carolina

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