ORDER GRANTING MOTION TO DISMISS

WILLIAM ALSUP, District Judge.

In this wrongful foreclosure action, defendants move to dismiss plaintiffs' complaint pursuant to FRCP 12(b)(6) and 41(b). In 2005, pro se plaintiffs Violette Susu and Jerries Sousou took out a $1,612,500 home loan from America's Wholesale Lender, evidenced by a promissory note and secured by a deed of trust on real property located in Dublin California. At oral argument for the instant motion to dismiss, defendants' counsel represented that plaintiffs had not made any payments on their mortgage loan since June 2008 and that their current balance is approximately $2.7 million. In May 2017, a notice of default was executed and subsequently recorded in the Official Records of Alameda County. In August 2017 a notice of trustee's sale was executed and thereafter recorded (Compl. ¶ 14, Exh. 1; RJN, Exhs. B-C).

Plaintiffs subsequently brought a wrongful foreclosure action against five defendants, including the defendants to this action in October 2017. Defendants moved to dismiss the complaint in the October 2017 action under FRCP 12(b)(6). After plaintiffs failed to meet the deadline to respond, they received two extensions to file a response. Rather than responding, plaintiffs voluntarily dismissed their case (Case No. 17-05879, Dkt. Nos. 1, 10-11, 18, 20-21, 24).

In January 2018, plaintiffs commenced this second pro se action for wrongful foreclosure based on the same loan, again naming Bayview and BNY Mellon as defendants. Plaintiffs then filed an emergency application for a restraining order to prevent the impending foreclosure sale on their property, but an order denied that application on the ground that plaintiffs were unlikely to succeed on the merits of their claims. During the course of this action, plaintiff Violette Susu twice initiated proceedings in bankruptcy court and this Court twice issued stays of this action. Each time the bankruptcy court dismissed plaintiffs' action for failure to comply with court orders. In May 2018, following the lifting of the second stay, defendants filed a motion to dismiss this action in its entirety. Plaintiff Jerries Sousou then again filed for bankruptcy, and a third stay of this action was issued. That stay subsequently lifted when defendants gave notice that plaintiffs had failed to comply with the bankruptcy court's order. After the third stay of this action lifted, defendants re-filed and served their motion to dismiss plaintiffs' complaint on July 31 (Dkt. Nos. 1, 16, 19-20, 22, 24-25, 31-34).

Plaintiffs' response to defendants' motion to dismiss was due on August 14, but plaintiffs still have not filed a response. An order to show cause was served on plaintiffs on August 21. The order instructed plaintiffs to file a response by August 27 and stated that failure to do so would result in dismissal. That date has long passed and no response has been filed. At the hearing on defendants' motion to dismiss well into the Court's motion calendar, the Deputy Clerk called the case, but plaintiffs were not present. At oral argument, defendants' counsel represented that plaintiffs had called her the day before and told her that they would not appear at the hearing and wanted to dismiss their action against defendants (Dkt. No. 37).

After considering the briefs filed herein and the oral argument submitted at the hearing for this motion, defendants' motion to dismiss is GRANTED. Because plaintiffs have failed to respond to deadlines governing this action, defendants' motion to dismiss for failure to prosecute is also GRANTED. Plaintiffs' complaint is hereby DISMISSED WITH PREJUDICE.

IT IS SO ORDERED.