Panzarella vs rushmore3/30/2023 If applicable nonbankruptcy law, an order entered in a nonbankruptcy proceeding, or an agreement fixes a period within which the debtor may commence an action, and such period has not expired before the date of the filing of the petition, the trustee may commence such action only before the later of. Neither party discussed these intricacies. Stephenson contains analysis regarding the different chapters of the bankruptcy code, and the applicability of § 108(a) to a bankruptcy debtor. 131 at 2-3, because the protection of § 108(a) may apply to a debtor, not merely the bankruptcy trustee. Likewise, Chase's argument in support of its motion to dismiss on this point is incorrect, dkt. § 108(a) tolled her claims, this tolling does not make up for the fact that she sat on her rights. While Yadav-Ranjan is correct that 11 U.S.C. Yadav-Ranjan argues that her bankruptcy renders her claims timely. Per Yadav-Ranjan, "a release of claims was agreed to in June 2017." Id. In the second amended complaint, Yadav-Ranjan added allegations that she filed for Chapter 13 bankruptcy in December 2014, that the bankruptcy was converted into a Chapter 11 bankruptcy in May 2015, and that this bankruptcy was converted to a Chapter 7 bankruptcy on February 4, 2016. Allegations Regarding Yadav-Ranjan's Bankruptcy If a court grants a motion to dismiss, leave to amend should be granted unless the pleading could not possibly be cured by the allegation of other facts. A claim is facially plausible when it "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Although a complaint need not allege detailed factual allegations, it must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Bell Atl. The Court, however, need not accept as true "allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. On a motion to dismiss, all allegations of material fact are taken as true and construed in the light most favorable to the non-movant. LEGAL STANDARDĪ motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal sufficiency of a complaint. seq.Īll parties consented to the jurisdiction of a magistrate judge under 28 U.S.C. Code § 17200 and (7) the Rosenthal Fair Debt Collection Practices Act, Cal. §§ 1692f(6), 1692g (5) the RESPA claim against Chase (6) California Unfair Competition Law, Cal. Code § 2923.7 (3) bid rigging (4) the Fair Debt Collection Practices Act, 15 U.S.C. Based on the Court's findings below, the following claims remain live in this case: (1) breach of contract against Rushmore (2) California Homeowner Bill of Rights, Cal. These facts, in part, color the Court's decision in this motion to dismiss.įor the reasons stated below, the Court GRANTS IN PART and DENIES IN PART the motions to dismiss. No continuance will be granted absent truly extraordinary circumstances, and no motions for summary judgment will be entertained at this juncture. The Court does point out, however, that the pleading stage in this case has dragged on for an abnormally long time. The Court will not here rehash the facts of this case, and instead refers the reader to the Court's February 1, 2018, order on the motion to dismiss for a comprehensive review of the facts. The operative complaint is the Second Amended Complaint. Two motions are considered here, one filed by Chase, and the other by Rushmore and Wilmington jointly. Once again, defendants JP Morgan Chase Bank, N.A., Rushmore Loan Management Services, LLC, and Wilmington Fund Society, FSB move to dismiss plaintiff Rani Yadav-Ranjan's complaint. This is the third round of motions to dismiss in this mortgage foreclosure case. COUSINS United States Magistrate Judge ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO DISMISS
0 Comments
Leave a Reply.AuthorWrite something about yourself. No need to be fancy, just an overview. ArchivesCategories |