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Gjurovich v. GMAC Mortgage LLC

September 28, 2010

ALAN GJUROVICH PLAINTIFF,
v.
GMAC MORTGAGE LLC, UNITED STATES OF AMERICA, REAL PARTY IN INTEREST, DEFENDANTS.



The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge

FINDINGS AND RECOMMENDATION TO DENY MOTION TO PROCEED IN FORMA PAUPERIS, TO REMAND THE MATTER TO THE KERN COUNTY SUPERIOR COURT

(Docs. 1, 2)

Plaintiff, Alan Gjurovich, is seeking to remove an unlawful detainer action filed in the Kern County Superior Court based. (Doc. 1) Gjurovich seeks to challenge the unlawful detainer action and the underling determination that the plaintiff, GMAC, has good title to the subject real property, located at 3018 Linden Avenue, Bakersfield, California, 93307. (Doc. 1 at 3) Currently before the Court, is Plaintiff's motion to proceed in forma pauperis ("IFP"). (Doc 2)

I. The motion to proceed in forma pauperis is recommended to be denied because the matter is frivolous, is filed for purposes of harassment and fails to state a claim.

On September 20, 2010, Gjurovich filed an application to proceed in IFP pursuant to 28 U.S.C. § 1915. (Doc. 2) Under 28 USC § 1915(e)(2), the Court is obligated to deny the motion to proceed IFP if the allegation of poverty is untrue or the action is frivolous or malicious, it fails to state a claim upon which relief may be granted or seeks monetary relief against a defendant who is immune. For the reasons set forth below, the Court recommends that the motion to proceed IFP be DENIED and the action be REMANDED to the Kern County Superior Court.

A. Background

Gjurovich alleges that this Court has jurisdiction because there is a "related" Bankruptcy Court action. He reports that the case number for the "related" United States Bankruptcy Court proceedings is 10-12528.*fn1 *fn2 However, he provides no information about this proceeding. Instead, Plaintiff attaches numerous filing to his notice of removal from Bankruptcy Court case number 10-14535.

In case number 10-14535, Plaintiff filed this bankruptcy action on April 27, 2010. (Doc. 1) In that action, GMAC sought relief from the automatic stay related to the subject real property located in Bakersfield, California. Id. The basis for this motion was that Gjurovich was not a legal owner of the property, that GMAC had obtained title at a foreclosure sale on November 13, 2008 and had recorded the deed. Id. GMAC reported that it served Plaintiff a notice to quit and, when he failed to do so, initiated an unlawful detainer action. Id. GMAC reported to the Bankruptcy Court that it successfully obtained a writ of possession in December 2009. Id. In its moving papers, GMAC reported also to the Bankruptcy Court that Gjurovich's prior bankruptcy action, in case number 10-10190, was dismissed on June 30, 2010, "for abuse."*fn3 Id.

Review of the docket in Bankruptcy case number 10-14535 reveals that on September 24, 2010, Judge Whitney Rimel found that the automatic stay did not attach. This ruling reads,

In 2007, Star Hills ("Hills") borrowed some $222,000 from GMAC or its predecessor, and that loan was secured by a deed of trust on real property commonly described as 3018 Linden Avenue, Bakersfield, California (the "Property"). In November 2008, GMAC acquired title to the Property by a foreclosure sale. GMAC recorded the deed upon sale within the period provided by state law for perfection.

Various bankruptcy cases have been filed by Star Hills and by the debtor in this case in an effort to prevent GMAC from obtaining possession of the Property.

On May 12, 2009, Hills filed a chapter 11 bankruptcy case as 09-14472. That case was voluntarily converted to chapter 7 and was dismissed on September 28, 2009. On August 25, 2009, Hills filed a chapter 7 bankruptcy case as 09-18169. That case was dismissed October 1, 2009. The United States Trustee filed an adversary action against Hills as Adversary Proceeding 09-1235. On February 10, 2010, a judgment barring Hills from filing any bankruptcy case for two years was entered.

On October 6, 2009, the debtor caused to be recorded a quit claim deed allegedly giving him a 50% interest in the Property. Also on October 6, 2009, the debtor filed a chapter 7 bankruptcy case as 09-19629. That case was dismissed in January 2010.

GMAC caused a three day notice to quit to be served on the debtor on March 17, 2009, at the Property. Thereafter, GMAC commenced an unlawful detainer proceeding in state court. On November 19, 2009, a default judgment against the debtor was obtained in the unlawful ...


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