Opinion
NO. CIV. S-09-3486 LKK/EFB.
February 25, 2010
ORDER
Plaintiffs in this suit, Mr. and Ms. McDaniel, bring various claims regarding their home loan. A scheduling conference in the above-captioned matter is currently set for March 1, 2010 at 10:30 a.m. On February 24, 2010, counsel for plaintiffs emailed the court stating that "Mr. McDaniel has filed a Chapter 7 Bankruptcy," and indicating counsel's belief that the bankruptcy filing stayed proceedings in this case.
Under the Bankruptcy Code, the filing of a bankruptcy petition automatically stays many actions, including "the commencement or continuation . . . of a judicial . . . proceeding against the debtor." 11 U.S.C. § 362(a)(1). As the statutory text makes clear, the automatic stay provision does not apply to proceedings initiated by a debtor.Parker v. Bain (In re Parker), 68 F.3d 1131, 1137 (9th Cir. 1995). At least eight other circuits have joined in this conclusion. Crosby v. Monroe County, 394 F.3d 1328, 1331 n. 2 (11th Cir. 2004), Aiello v. Providian Fin. Corp., 239 F.3d 876, 880 (7th Cir. 2001), Checkers Drive-In Restaurants v. Commissioner of Patents Trademarks, 51 F.3d 1078, 1082 (D.C. Cir. 1995), Koolik v. Markowitz, 40 F.3d 567, 568 (2d Cir. 1994), McMillan v. MBank Fort Worth, N.A., 4 F.3d 362, 366 (5th Cir. 1993), Brown v. Armstrong, 949 F.2d 1007, 1009 (8th Cir. 1991),Cathey v. Johns-Manville Sales Corporation, 711 F.2d 60, 61 (6th Cir. 1983), Assoc. of St. Croix Condominium Owners v. St. Croix Hotel Corp., 682 F.2d 446, 448 (3d Cir. 1982).
Accordingly, plaintiffs have not provided any basis for concluding that this case has been automatically stayed.
IT IS SO ORDERED.