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Federal Home Loan Mortgage Corporation v. Julian Gallardo

June 15, 2011

FEDERAL HOME LOAN MORTGAGE CORPORATION,
PLAINTIFF,
v.
JULIAN GALLARDO,
DEFENDANT.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

Date: 7/18/11 10:00 Ctrm. 3

Deadline: 6/17/11 Motion to Remand Filing Motion to Remand Hearing

SCHEDULING CONFERENCE ORDER

I. Date of Scheduling Conference.

June 15, 2011.

III. Summary of Pleadings.

1. Plaintiff purchased the real property located at 2409 Park Brae Way, Modesto, CA 95358 (hereinafter the "Subject Property") at trustee's sale on June 8, 2010. Plaintiff's title was duly perfected by the recording of the Trustee's Deed Upon Sale. Defendant was served with Written Notice to Vacate on July 15, 2010. Defendant failed to comply with the Notice to Vacate and Plaintiff filed the instant action for unlawful detainer on or about August 10, 2010. At trial on November 15, 2010, the parties stipulated to Judgment whereby Defendant admitted that Plaintiff was entitled to possession, but Plaintiff would not seek to enforce the Writ of Possession Prior to December 5, 2010.

2. Defendant failed to vacate the Subject Property by December 5, 2010. Instead, Defendant filed a Notice of Removal of the unlawful detainer case to Federal Court on December 15, 2010 and filed a Chapter 13 Bankruptcy Petition on December 17, 2010 in the Eastern District of California, designated as case number 10-94880. Plaintiff sought, and was granted, relief from the Automatic Stay on February 25, 2011. On March 2, 2011, the Stanislaus County Sheriff's Department executed Plaintiff's Writ of Possession and placed Plaintiff in peaceful possession of the Subject Property.

3. Plaintiff contends that the removal of the instant case to Federal Court was improper because removal cannot be accomplished after the Court, having jurisdiction over the claims to be removed, has made its findings of fact and conclusions of law. (1 Norton Bankr. L. & Prac. 3d § 7:1). Defendants may not remove a case from a state court to a federal court after the state court has entered a final judgment that terminates the litigation. (14B Fed. Prac. & Proc. Juris. § 3721 (4th ed.)). Moreover, this case was not properly removed as neither federal question nor diversity jurisdiction exists.

IV. Orders Re Amendments To Pleadings.

1. Plaintiff does not propose any further amendments to any pleadings.

V. Factual Summary.

A. Admitted Facts Which Are Deemed Proven Without ...


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