-GGH (PS) Kolodrivskiy v. Wachovia Bank, Mortgage, FSB et al, No. 2:2011cv00371 - Document 22 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 9/6/2011 RECOMMENDING that dft ETS be dismissed without prejudice. Referred to Judge Garland E. Burrell Jr.. Objections to F&R due within 14 days. (Zignago, K.)

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-GGH (PS) Kolodrivskiy v. Wachovia Bank, Mortgage, FSB et al Doc. 22 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 VALENTINA KOLODRIVSKIY, 11 12 13 Plaintiff, CIV. NO. S-11-0371 GEB GGH PS vs. WACHOVIA BANK, MORTGAGE, et al., 14 15 Defendants. 16 17 FINDINGS AND RECOMMENDATION / This action was referred to the undersigned pursuant to Local Rule 302(c)(21). It 18 was removed from state court on February 9, 2011. On July 11, 2011, defendant Wachovia Bank 19 Mortgage was dismissed from the case. The only remaining defendant is ETS Services, LLC 20 (“ETS”). On July 25, 2011, plaintiff was ordered to move for default against defaulting 21 defendant ETS or the court would recommend that this defendant be dismissed. Plaintiff has not 22 complied with that order. 23 Defendant ETS filed a “declaration of non-monetary status” pursuant to Cal. Civ. 24 Code § 2924l, prior to the removal of this action from state court on diversity grounds. Section 25 2924l relieves a trustee from having to participate in an action where it is named as a defendant 26 solely in its capacity as trustee and not because of any acts or omissions, as long as the 1 Dockets.Justia.com 1 declaration is not disputed. District courts have acknowledged applicability of this state statute 2 without analysis. See Smith v. Bank of America, 2011 WL 1332035 (E.D. Cal. April 6, 2011); 3 Ortiz v. Indymac Bank, 2011 WL 2035791 (C.D. Cal. May 20, 2010); Carnero v. EMC Mortgage 4 Corp., 2010 WL 4916418 (N.D. Cal. Nov. 22, 2010); Carnero v. Washington Mutual, 2010 WL 5 4916419 (N.D. Cal. Nov. 22, 2010). 6 The undersigned does not question these cases but notes only that they do not 7 contain analysis. Here, no party has disputed ETS’ declaration of non-monetary status. Plaintiff 8 has not moved for default against this defendant. 9 10 11 Accordingly, IT IS HEREBY RECOMMENDED that: defendant ETS be dismissed without prejudice. These findings and recommendations are submitted to the United States District 12 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 13 fourteen (14) days after being served with these findings and recommendations, any party may 14 file written objections with the court and serve a copy on all parties. Such a document should be 15 captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the 16 objections shall be served and filed within fourteen (14) days after service of the objections. The 17 parties are advised that failure to file objections within the specified time may waive the right to 18 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 19 DATED: September 6, 2011 /s/ Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE 20 21 GGH:076/Kolodrivskiy0371.ETS.wpd 22 23 24 25 26 2

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