Kante v. McCurdy & Candler L.L.C. et al

RESPONSE re MOTION to Strike 92 Response in Opposition to Motion

N.D. Ga.February 10, 2012

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION BOSCO A. KANTE, pro se, Plaintiff, v. MCCURDY & CANDLER L. L. C., U.S. BANK NATIONAL ASSOCIATION as Trustee for the Certificate Holders of Banc of America Funding Trust 2007-7, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC. and BANK OF AMERICA HOME LOANS SERVICING, L.P. formerly known as Countrywide Home Loans Servicing, L.P., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO. 1:10-CV-1972-JEC DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION TO STRIKE Defendants U.S. Bank National Association, Mortgage Electronic Registration Systems, Inc., and Bank of America, N.A., as successor by merger to BAC Home Loans Servicing, LP (collectively, “Defendants”) respond to Plaintiff’s Motion to Strike Defendants’ Opposition to Plaintiff’s Motion to Set Aside Foreclosure (the “Motion to Strike”) [Doc. 95] as follows: Case 1:10-cv-01972-JEC Document 96 Filed 02/10/12 Page 1 of 5 2 1. On January 11, 2012, Plaintiff filed a Motion to Set Aside [the January 3, 2012] Foreclosure (the “Motion to Set Aside”). See Doc. 90. 2. Plaintiff served the Motion to Set Aside to Defendants by United States Mail on January 9, 2012. See Doc. 90 at 6-7 (Certificate of Service). 3. Pursuant to this Court’s Civil Local Rules, “[a]ny party opposing a motion shall serve the party’s response, responsive memorandum, affidavits, and any other responsive material not later than fourteen (14) days after service of the motion. . . .” Local Rule 7.1(B). “For time periods greater than eleven (11) days, the three (3) day mail extension of Rule 6[d] is added to the stated response time to create a lengthened time period.” Local Rule 6.1(B) (emphasis added); see also Fed. R. Civ. P. 6(d) (“When a party may or must act within a specified time after service and service is made under Rule 5(b)(2)(C), (D), (E), or (F), 3 days are added after the period would otherwise expire under Rule 6(a)”); Fed. R. Civ. P. 5(b)(2)(C) (noting that an approved method of service of a written motion is by “mailing it to the person’s last known address - in which event service is complete upon mailing”). 4. Because Plaintiff served the Motion to Set Aside to Defendants on January 9, 2012 by United States Mail, the deadline for Defendants to file and serve a response to the Motion to Set Aside was January 26, 2012, not January 23, Case 1:10-cv-01972-JEC Document 96 Filed 02/10/12 Page 2 of 5 3 2012 as Plaintiff erroneously contends. See Fed. R. Civ. P. 6(d), 5(b)(2)(C); Local Rules 6.1(B) and 7.1(B). 5. Defendants timely filed and served their Response in Opposition to Plaintiff’s Motion to Set Aside on January 26, 2012. See Doc. 92. 6. Accordingly, Plaintiff’s Motion to Strike, filed on February 1, 2012, has no legal or factual basis and must be denied.1 Respectfully submitted, this 10th day of February 2012. /s/ Brooke F. Voelzke Lawrence J. Bracken II Georgia Bar No. 073750 lbracken@hunton.com Brooke F. Voelzke Georgia Bar No. 728727 bvoelzke@hunton.com HUNTON & WILLIAMS LLP Bank of America Plaza, Suite 4100 600 Peachtree Street, N.E. Atlanta, Georgia 30308-2216 Telephone: (404) 888-4000 Facsimile: (404) 888-4190 Counsel for Defendants U.S. Bank National Association, Mortgage Electronic Registration Systems, Inc. and Bank of America, N.A. 1 Moreover, Plaintiff’s Motion to Strike should be denied as moot. On January 31, 2012, Magistrate Judge Scofield issued a Final Report and Recommendation, which recommended (among other things) that Defendants’ Motions to Dismiss [Docs. 39, 41] be granted and Plaintiff’s Motion to Set Aside [Doc. 90] be denied as moot. See Doc. 94 at 3-4. Case 1:10-cv-01972-JEC Document 96 Filed 02/10/12 Page 3 of 5 CERTIFICATE OF COMPLIANCE PURSUANT TO LR 7.1D, NDGa. The undersigned counsel hereby certifies that the foregoing has been prepared using one of the font and point selections approved in LR 5.1(C), NDGa. This 10th day of February 2012. /s/ Brooke F. Voelzke Brooke F. Voelzke Case 1:10-cv-01972-JEC Document 96 Filed 02/10/12 Page 4 of 5 CERTIFICATE OF SERVICE I hereby certify that I have served a true and correct copy of the foregoing DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION TO STRIKE on Plaintiff, who is proceeding pro se, by causing a copy of the same to be deposited in the United States mail, first class postage prepaid and properly addressed to Plaintiff as follows: Mr. Bosco A. Kante 2281069 Metavante Way Sioux Falls, South Dakota 57186 Counsel for McCurdy & Candler, L.L.C. has been served via electronic notification by the CM/ECF system. This 10th day of February 2012. /s/ Brooke F. Voelzke Brooke F. Voelzke Case 1:10-cv-01972-JEC Document 96 Filed 02/10/12 Page 5 of 5