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Gjurovich v. GMAC Mortgage LLC

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


October 21, 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: Oliver W. Wanger United States District Judge

ORDER ADOPTING FINDINGS AND RECOMMENDATION DENYING MOTION TO PROCEED IN FORMA PAUPERIS AND REMANDING THE MATTER TO THE KERN COUNTY SUPERIOR COURT

(Doc. 4)

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 underlying determination that the GMAC has good title to the subject real property, located at 3018 Linden Avenue in Bakersfield, California. (Doc. 1 at 3) In this effort, Gjurovich sought to proceed in forma pauperis ("IFP").

On September 29, 2010, the Magistrate Judge recommended that Gjurovich's motion to proceed IFP be denied. (Doc. 4) The Magistrate Judge found that the complaint failed to state a claim for many reasons.

First, the notice of removal was not timely (28 U.S.C. § 1452(a)). Second, the Magistrate Judge found that equitable considerations weighed in favor of remand because remanding the matter would have no impact on Gjurovich's Bankruptcy proceeding, which was a basis for Gjurovich's action removing the matter to this Court, the Kern County Superior Court had determined already that GMAC has good title to the real property at issue, has issued judgment against Gjurovich and has issued a writ of possession requiring Gjurovich to vacate the property. Finally, the Magistrate Judge determined that Gjurovich inappropriately used the judicial process for the purpose of thwarting GMAC's lawful entitlement to possession of the real property for reasons that are harassing and taken with improper motives.

Although Gjurovich was granted 14 days from September 29, 2010, or until October 18 2010, to file objections to the Amended Findings and Recommendations, he did not.

In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C) and Britt v. Simi Valley United School Dist., 708 F.2d 452, 454 (9th Cir. 1983), this Court has conducted a de novo review of the case. Having carefully reviewed the entire file, the Court finds that the findings and recommendation are supported by the record and by proper analysis.

Accordingly, IT IS HEREBY ORDERED that:

1. The findings and recommendations filed September 29, 2010, are ADOPTED IN FULL;

2. The motion to proceed IFP is DENIED;

3. The matter is ORDERED to be REMANDED to the Kern County Superior Court;

4. The Clerk of Court IS DIRECTED to close this action because this order terminates the action in its entirety.

IT IS SO ORDERED.

20101021

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