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Yusico v. Federal National Mortgage Association

United States District Court, D. Nevada

July 14, 2015

RUDY H. YUSICO, et al., Plaintiffs,
v.
FEDERAL NATIONAL MORTGAGE ASSOCIATION, et al., Defendants.

ORDER

Presently before the court is defendants Green Tree Servicing, LLC and Federal National Mortgage Association’s (collectively “defendants”) motion to dismiss. (Doc. # 9). Pro se plaintiffs Rudy H. Yusico and Corazon D. Yusico (collectively “plaintiffs”) did not file a response, and the deadline to respond has now passed.

Also before the court is defendants’ first request for judicial notice. (Doc. # 10).

Also before the court is defendants’ motion to expunge lis pendens. (Doc. # 12). Plaintiffs did not file a response, and the deadline to respond has now passed.

Also before the court is defendants’ second request for judicial notice. (Doc. # 13).

I. Background

On or about May 2, 2006, plaintiffs obtained a mortgage with a principal balance of $394, 500.00, secured by a deed of trust. The loan was transferred through multiple assignments, and defendants eventually foreclosed on plaintiffs’ property. Plaintiffs allege that the assignments were improper and void, making the foreclosure on the property invalid. (Doc. # 1).

On April 27, 2015, plaintiffs filed a complaint in Nevada state court, asserting claims for civil conspiracy, wrongful foreclosure, and quiet title. On June 2, 2015, defendants removed the case to this court. (Doc. # 1). Defendants then filed the instant motions.

II. Legal Standard

Pursuant to District of Nevada Local Rule 7-2(d), “the failure of an opposing party to file points and authorities in response to any motion shall constitute a consent to the granting of the motion.” LR 7-2(d). However, the court will not automatically grant every unopposed motion.

Instead, the court must weigh the following factors before dismissing the action: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases of their merits; and (5) the availability of less drastic sanctions. Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995).

III. Discussion

a. Applicability of automatic stay

On June 15, 2015, plaintiffs filed a “notice of bankruptcy filing and automatic stay” in this case. In that document, plaintiffs note that they filed a voluntary petition for bankruptcy protection on June 15, 2015. Based on that petition, plaintiffs suggest that an automatic stay applies in this case. (Doc. # 14).

Pursuant to 11 U.S.C. § 362(a), a bankruptcy petition triggers an automatic stay on proceedings “against the debtor.” 11 U.S.C. § 362(a); Hillis Motors, Inc., v. Hawaii Auto Dealers’ Ass’n, 997 F.2d 581, 585 (9th Cir. 1993) (citing 11 U.S.C. § 362(a)). However, “the automatic stay is inapplicable to suits by the bankrupt . . . .” In re Merrick, 175 B.R. 333, 337 (9th Cir. B.A.P. 1994) (emphasis in original); see also In re White, 186 B.R. 700, 704 (9th ...


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