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Zinnel v. Citimortgage

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


November 4, 2010

STEVEN K. ZINNEL, PLAINTIFF,
v.
CITIMORTGAGE, INC. AND CR TITLE SERVICES, INC. DEFENDANTS.

ORDER

Plaintiff's pending motions for leave to file documents electronically in this case (Doc. No. 16*fn1 ) and for an order allowing plaintiff to record a notice of lis pendens (Doc. No. 17) were recently re-set for hearing on November 12, 2010. By this order, the court rules on both of plaintiff's motions and drops them from the court's November 12, 2010 calendar.

In support of his motion for leave to electronically file documents, plaintiff declares under penalty of perjury that he has had a PACER account for many years, is familiar with the procedures for accessing court files on PACER, has an e-mail account and all computer equipment, including a scanner, required for electronic filing, agrees to take the Electronic Case Filing (ECF) Tutorial on the court's website, consents to receive service electronically, waives his right as a pro se litigant to receive service of documents by first class mail, understands that the procedures that govern electronic filing can be found on the court's website in the Local Rules*fn2 and the CM/ECF User's Manual, agrees to follows those procedures, and acknowledges that failure to abide by the procedures may result in termination of electronic filing privileges.

Although the Eastern District of California is an electronic management/filing district, parties proceeding pro se are required to file and serve paper documents unless the assigned Judge or Magistrate Judge grants leave to utilize electronic filing. Local Rule 133(a) & (b)(2). Requests to use electronic filing as an exception to the rule shall be submitted as stipulations as provided in L.R. 143 or, if a stipulation cannot be had, as written motions setting out an explanation of reasons for the exception. Points and authorities are not required, and no argument or hearing will be held.

Local Rule 133(b)(3). Here, plaintiff's written motion was filed prior to the filing of any document by defendants. The court finds it appropriate to grant the unopposed motion without hearing argument.

Plaintiff's motion for an order allowing him to record a notice of lis pendens in Sacramento County was also filed before defendants filed any document in the case. In findings and recommendations filed October 14, 2010, the undersigned found that plaintiff's motion for a temporary restraining order had been rendered moot by facts set forth in a declaration filed by defendants' counsel on September 28, 2010. Plaintiff's mortgage loan had been reinstated, and a Notice of Rescission of Notice of Default had been executed by defendant CR Title Services, Inc. and recorded in the records of Sacramento County on September 27, 2010. A copy of the recorded Notice of Rescission revealed that the previously recorded Declaration of Default and Demand for Sale and the Notice of Breach and Election to Cause Sale were rescinded, cancelled and withdrawn. Neither party filed objections to the findings and recommendations, which have been forwarded to the assigned district judge for consideration. In light of the changed circumstances described in the findings and recommendations, and upon consideration of the arguments asserted by defendants in opposition to plaintiff's motion, the undersigned takes the motion under submission on the record and the briefs on file. See Local Rule 230(g). On the present record, the undersigned finds it inappropriate to issue an order allowing plaintiff to record a notice of lis pendens.

For the reasons set forth in this order, IT IS ORDERED that:

1. Plaintiff's September 23, 2010 motion for leave to file documents electronically in this case (Doc. No. 16) is granted, and plaintiff shall register to file documents electronically as soon as possible;

2. Plaintiff's September 23, 2010 motion for an order allowing him to record a notice of lis pendens (Doc. No. 17) is denied without prejudice; and

3. Plaintiff's motions (Doc. Nos. 16 & 17) are dropped from the court's November 12, 2010 law and motion calendar.


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