Bank of New York Mellon v. Ribadeneira et al

Filing 37

ORDER Stoller's motions to proceed in forma pauperis are denied 20 and 21 . Stoller's motions for extensions of time to respond to the Plaintiff's motion to remand are denied as moot 34 and 36 . The parties' remaining motions are denied 1 , 9 , 14 , 16 , 19 , 28 . This action is remanded to the Maricopa County Superior Court for any further proceedings. Signed by Judge G Murray Snow on 1/3/12. (Attachments: # 1 Letter of Remand)(TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Bank of New York Mellon,
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Plaintiff,
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vs.
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Rae Ribadeneira, et al.,
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Defendants.
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No. CV 11-1765-PHX-GMS (JFM)
ORDER

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Plaintiff Bank of New York Mellon commenced this action for forcible detainer in

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Maricopa County Superior Court on July 30, 2010 against Defendants Rae Ribadeneira and

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Doe occupants I through X, case# CV2010-94820.1 On September 7, 2011, Christopher

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Stoller (Stoller), who was then an inmate in the Lake County Jail in Waukegan, Illinois,

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removed this case from Arizona state courts for the third time and filed an application to

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proceed in forma pauperis.2 (Doc. 1, 2.) Plaintiff filed a motion to remand the case to state

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The address of the real property at issue in this action is 10632 East Blue Sky Road,
Scottsdale, Arizona 85262 (the Property).
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The Court described the underlying facts concerning four properties, including the
one involved in this case, in a case filed by Leo Stoller, Christopher’s brother. See Stoller
v. Bank of New York Mellon Trust Co., No. CV11-0338-PHX-GMS, doc. 101. As described
therein, Rae Ribadeneira obtained a loan from Countrywide Finance to finance the purchase
of the Property on July 12, 2006, with Countrywide named as the beneficiary on the deed of
trust filed the same day. On October 20, 2008, Ribadeneira quit-claimed all her right title
and interest in the Property to the Christopher Stoller Pension and Profit Sharing Plan, Ltd.
Id., doc. 101 at 2-3. On February 9, 2010, a trustee’s sale of the Property occurred and Bank
of New York Mellon allegedly purchased the Property for $1,113,750. Id., doc. 101 at 3.

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court and sought an injunction to prevent Stoller from again removing the case. (Doc. 9.)

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Stoller filed a motion for an extension of time within which to respond to the motion for

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remand based on his transfer to the Dixon Correctional Center in Dixon, Illinois. (Doc. 10.)

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In an Order filed on October 28, 2011, the Court denied Stoller’s in forma pauperis

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application and granted him 30 days in which to file a properly completed Application to

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Proceed In Forma Pauperis (Non-Habeas) using this District’s form for use by incarcerated

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persons. (Doc. 13 at 2, 3-4.) The Court also granted Stoller’s motion for an extension of

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time in which to respond to the motion for remand. (Id. at 4.) On December 19, 2011,

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Stoller filed a response to the motion to remand.3 (Doc. 30.)

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Although Stoller has filed various other motions, notices, and supplements, Doc. 14,

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15, 16, 17, 19, 23, 24, 25, 34, and 36, he has failed to file an Application to Proceed In

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Forma Pauperis on the court-approved form to be used by prisoners, or to provide required

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information in order to proceed, as a prisoner, in forma pauperis. Instead, he has filed a

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document that partially mimics the court-approved form but fails to include all of the

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required information, including certification by a prison official of his inmate trust account

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balance and a certified copy of his inmate trust account statement. (Doc. 20, 21.)

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The Court will deny Stoller leave to proceed in forma pauperis for failure to comply

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with previous Court Orders, despite ample opportunity to do so. The Court will deny the

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other pending motions as moot and remand this action to the state court.

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I.

Payment of Filing Fee

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As Stoller has previously been informed, when bringing an action, a prisoner must

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either pay the $350.00 filing fee in a lump sum or, if granted the privilege of proceeding in

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forma pauperis, pay the fee incrementally as set forth in 28 U.S.C. § 1915(b)(1). An

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application to proceed in forma pauperis requires an affidavit of indigence and a certified

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The same day, Stoller filed a motion asking to file a response to the motion to
remand. (Doc. 34.) This motion will be denied as moot where Stoller filed a response to that
motion, see doc. 30. On December 20, 2011, Stoller filed a motion for a second extension
of time to respond. (Doc. 36.) That motion will also be denied as moot.
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copy of the inmate’s trust account statement for the six months preceding the filing of the

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Complaint. 28 U.S.C. § 1915(a)(2). An inmate must submit statements from each institution

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where he was confined during the six-month period. Id. To assist prisoners in meeting these

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requirements, the Court requires use of a form application. LRCiv 3.4(a).4

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II.

Stoller’s Applications Fail to Comply with Court Orders and the PLRA

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Stoller has failed to use the court-approved form, which requires the completion by

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a correctional officer of a “Certificate of Correctional Official as to Status of Applicant’s

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Trust Account.” He has also failed to submit a certified six-month trust account statement.

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Stoller has been afforded ample opportunity to comply with these requirements but has failed

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to do so. Accordingly, his current motions to proceed in forma pauperis will be denied.

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III.

Remand

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Stoller having failed to comply with Court orders by filing an Application to Proceed

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In Forma Pauperis (Non-Habeas) for use by prisoners or by paying the filing fee, the Court

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will sua sponte remand this matter to the Maricopa County Superior Court.

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Apart from Stoller’s failure to comply with prior Orders, remand to state court also

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appears appropriate for two additional reasons. First, the record before the Court reflects that

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Stoller is subject to an Illinois State guardianship and that he thus lacked the capacity to

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remove this action on his own behalf. Stoller has submitted a copy of an Order entered in

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late February 2011 by the Illinois Circuit Court for the Nineteenth Judicial Circuit (Illinois

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Probate Court) appointing the Illinois Office of the State Guardian as plenary guardian over

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Stoller’s estate and person, case# 09 P 957. (Doc. 3, attachment; doc. 21, attachment.)

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According to the judgment, the Illinois Probate Court determined Stoller to be “totally

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If a prisoner is granted leave to proceed in forma pauperis, the Court assesses an
initial partial filing fee of 20% of either the average monthly deposits or the average monthly
balance in Stoller’s account, whichever is greater. 28 U.S.C. § 1915(b)(1). An initial partial
filing fee will only be collected when funds exist. 28 U.S.C. § 1915(b)(4). The balance of
the fee will be collected in monthly payments of 20% of the preceding month’s income
credited to an inmate’s account, each time the amount in the account exceeds $10.00. 28
U.S.C. § 1915(b)(2).
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without understanding or capacity to make and communicate decisions regarding his person”

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and estate. (Id.) At least as late as August 4, 2011, Stoller appears to have remained subject

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to the guardianship. (Doc. 21, attachment.) Based on that judgment, Stoller could not act

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as a party in this or any other action on his behalf as it relates to his estate or financial affairs.

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Second, even if Stoller had the capacity to act as a party in this action, he is not and

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never has been a party to this action.5 This Court takes judicial notice of the Maricopa

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County Superior Court’s Order filed on September 7, 2011 stating as much. (Doc. 27, ex.

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1, 4.)

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For the reasons discussed, the Court will deny Stoller’s in forma pauperis applications

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for failure to comply with court orders. The Court will deny the pending motions and

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remand this action to the state court.

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IT IS ORDERED:

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(1)

Stoller’s motions to proceed in forma pauperis are denied. (Doc. 20-21.)

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(2)

Stoller’s motions for extensions of time to respond to the Plaintiff’s motion to

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remand are denied as moot. (Doc. 34, 36.)

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(3)

The parties’ remaining motions are denied. (Doc. 1, 9, 14, 16, 19, 28.)

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(4)

This action is remanded to the Maricopa County Superior Court for any

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further proceedings.
DATED this 3rd day of January, 2012.

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Plaintiff alleges that Stoller revested jurisdiction in the state court by filing
documents in the state case after it was removed.
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