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Deutsche Bank National Trust Company, As Trustee v. Barry Halajian and Does 1 Through 10 Inclusive

March 29, 2012

DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE,
PLAINTIFF,
v.
BARRY HALAJIAN AND DOES 1 THROUGH 10 INCLUSIVE,
DEFENDANTS.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER CONSTRUING PLEADING FILED MARCH 23, 2012, TO BE A NOTICE OF REMOVAL FINDINGS AND RECOMMENDATIONS REGARDING REMOVAL OF UNLAWFUL DETAINER ACTION FROM STATE COURT

PROCEDURAL BACKGROUND

Pleadings Filed in This Court On March 23, 2012, Defendant*fn1 Barry Halajian filed a pleading entitled "Quo-Warrantor-Complaint" with this Court. (Doc. 1.) However, a careful review of the document and its attached exhibits, as well as the Fresno County Superior Court's electronic case information system, reveals Defendant is in fact attempting to remove an action from state court to federal court. As will be discussed more fully below, removal is improper.

Related Pleadings Filed in the Fresno County Superior Court*fn2

Case No. 12CECL01530

On February 27, 2012, Plaintiff Deutsche Bank National Trust Company, as Trustee, represented by attorneys Deborah Bass and Ellie Navid, filed a Complaint for Unlawful Detainer against Defendant Barry Halajian. (See Doc. 1 at 27-29.)*fn3

Case No. 11CECL01998

According to the electronic case information system employed by the Fresno County Superior Court, Plaintiff Deutsche Bank National Trust Company, represented by attorney Randall D. Naiman, filed an unlawful detainer complaint against Defendant Halajian on March 7, 2011. See, e.g., http://banweb.cofresno.ca.us (case no. 11CECL01998).

A motion for summary judgment was filed on behalf of Plaintiff on April 28, 2011. Defendant failed to oppose the motion. The motion was granted on May 5, 2011, and judgment was entered for Plaintiff on that date. See http://banweb.cofresno.ca.us (case no. 11CECL01998).

A writ of execution was issued for restitution of the premises on June 2, 2011. Shortly thereafter, on June 10, 2011, Defendant filed an Application for Ex Parte Order Setting Aside Judgment, or in the Alternative, Staying Execution of Judgment. On June 13, 2011, the state court denied the motion to set aside judgment, but stayed the writ of execution. See http://banweb.cofresno.ca.us (case no. 11CECL01998).

Subsequent electronic docket entries appear to indicate a second ex parte application to set aside judgment was filed by Defendant and opposed by Plaintiff. Nevertheless, on June 20, 2011, Defendant filed a Notice of Appeal. Two days later, on June 22, 2011, Defendant filed an Application for Ex Parte Order Staying Enforcement of Judgment Pending Appeal. See http://banweb.cofresno.ca.us (case no. 11CECL01998). On June 28, 2011, the motion to stay enforcement was granted.

On March 12, 2012, an entry on the electronic docket, unattributed to any particular party, indicates as follows: "Writ filed wholly unsatisfied." See http://banweb.cofresno.ca.us (case no. 11CECL01998).

As of today's date, Fresno County Superior Court case number 11CECL01998 remains "STAYED." See ...


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