Mark Sohmer et al v. Ocwen Loan Servicing et al

Filing 37

MINUTES (IN CHAMBERS) ORDER GRANTING MOTIONS TO DISMISS (DOC. NOS. 16 & 28) by Judge Virginia A. Phillips re: 16 Motion to Dismiss ; 28 Motion to Dismiss Case. The Court GRANTS the Motions and GRANTS leave to file an amended complaint by March 30, 2015. (See document for specifics). (iva)

PRIORITY SEND
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES -- GENERAL
Case No. EDCV 14-01880-VAP (SPx)

Date: February 26, 2015

Title:
MARK SOHMER, ETC., ET AL -v- OCWEN LOAN SERVICING, ET AL
===============================================================
PRESENT:
HONORABLE VIRGINIA A. PHILLIPS, U.S. DISTRICT JUDGE
Marva Dillard
Courtroom Deputy
ATTORNEYS PRESENT FOR
PLAINTIFFS:

None Present
Court Reporter
ATTORNEYS PRESENT FOR
DEFENDANTS:

None
PROCEEDINGS:

None
MINUTE ORDER GRANTING MOTIONS TO DISMISS
(DOC. NOS. 16 & 28) (IN CHAMBERS)

Defendant JP Morgan Chase Bank, N.A. ("Chase") filed a Motion to Dismiss
First Amended Complaint on January 12, 2015 (Doc. No. 16 ("Chase Motion")), and
the remaining Defendants -- Ocwen Loan Servicing, LLC; Western Progressive
Trustee, LLC; U.S. Bank National Association; and Mortgage Electronic Registration
Systems, Inc. (collectively "Ocwen") -- filed a Motion to Dismiss on January 26, 2015
(Doc. No. 28 ("Ocwen Motion")). The Court finds both Motions appropriate for
resolution without a hearing, and accordingly, VACATES the March 2, 2015 hearing.
See Fed. R. Civ. P. 78; L.R. 7-15. After considering the papers filed in support of,
and in opposition to, the Motions, the Court GRANTS both Motions, and GRANTS
leave to amend.

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EDCV 14-01880-VAP (SPx)
MARK SOHMER, ETC., ET AL v. OCWEN LOAN SERVICING, ET AL
MINUTE ORDER of February 26, 2015

I. BACKGROUND
A.

Procedural History
Plaintiffs Mark Sohmer and Carnetta McGhee, appearing in pro se, filed this
lawsuit on September 9, 2014. (Doc. No. 1.) On December 23, 2014, they filed a
First Amended Complaint. (Doc. No. 14 ("FAC").) In general, Plaintiffs allege the
nonjudicial foreclosure of the property located at 232 Zolder Street, Hemet,
California 92544 was wrongful. (Id. ¶¶ 13, 17.)
Both Plaintiffs filed an Opposition on January 12, 2015. (See Doc. No. 24 (“112 Opp.”).) It argued the Court should not grant a motion to dismiss because trial
has not occurred. (Id.) Mr. Sohmer alone filed another Opposition on February 9,
2015. (See Doc. No. 30 (“2-9 Opp.”).) Mr. Sohmer alone filed a final Opposition on
February 19, 2015. (Doc. No. 36 (“2-19 Opp.”).) The February Oppositions fail to
address the arguments in the Motions.
B.

Request for Judicial Notice
Along with its Motion, Chase filed a Request for Judicial Notice of six
documents. (Doc. No. 17 (“RJN”).) These documents all pertain to the relevant
property and were all recorded in the Official Records of Riverside County. Plaintiffs
have not opposed or otherwise contested Chase’s request, and have not questioned
the documents’ authenticity. Accordingly, the Court GRANTS the RJN. See
Velasquez v. GMAC Mortg. Corp., 605 F. Supp. 2d 1049, 1057 (C.D. Cal. 2008)
(taking judicial notice of similar documents). One of the documents in the RJN is the
Deed of Trust for the property located at 232 Zolder Street, Hemet, CA 92544,
recorded on January 26, 2007, in the Riverside County Recorder’s Office as
Document Number 2007-0062480. (RJN, Exh. 1 (“DOT”).) The DOT lists only
Carnetta McGhee as a borrower -- Mr. Sohmer's name does not appear. (Id.)
II. DISCUSSION
A.
The Court DISMISSES Mr. Sohmer
Mr. Sohmer is not identified on the DOT as one having an interesting in the
property. The FAC contains no allegations explaining his relationship to Ms.
McGhee, who is alone listed on the DOT as the borrower.

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EDCV 14-01880-VAP (SPx)
MARK SOHMER, ETC., ET AL v. OCWEN LOAN SERVICING, ET AL
MINUTE ORDER of February 26, 2015

Mr. Sohmer's only connection to this action seems to be his desire to
represent Ms. McGhee. (See FAC at 5 (“Mrs. Carnetta McGhee is an 82 year old
woman . . . [and] I am not going to burden her with any of the added pressures of
this case. Mrs. McGhee fully agrees with/to this.”). Both Mr. Sohmer and Ms.
McGhee, however, are appearing in pro se.
First, Mr. Sohmer lacks standing to bring this suit because he is not alleged to
have suffered any injury in fact by the alleged wrongful foreclosure: he does not
allege any relationship to either the property or to Ms. McGhee. See Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Furthermore, "[i]t is well
established that the privilege to represent oneself pro se provided by [28 U.S.C.] §
1654 is personal to the litigant and does not extend to other parties or entities."
Simon v. Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir. 2008) (citing McShane v.
United States, 366 F.2d 286, 288 (9th Cir. 1996)). The Central District of California's
Local Rules further clarify that only an attorney may represent another person in
court: "an appearance before the Court on behalf of another person . . . may be
made only by members of the Bar of this Court." L.R. 83-2.1.1.1. Mr. Sohmer is not
a member of the Bar of this Court, and he may not represent Ms. McGhee in this
suit. Accordingly, the Court GRANTS the Motions and DISMISSES Mr. Sohmer.
B.

The Court GRANTS Both Motions Because They Are Unopposed
Plaintiffs have filed three Oppositions to the two Motions, but two are signed
only by Mr. Sohmer (who does not have standing to bring this suit), and none of the
Oppositions address the arguments raised in the Motions. They consist of various
asides, rambling, and incoherent thoughts. The Opposition signed by Ms. McGhee
simply argues the Court should deny the Motion because trial has not yet
commenced. (See 1-12 Opp.) The Court therefore deems Plaintiff Carnetta
McGhee to have consented to the granting of the Motions. See, e.g. Tollette v.
JPMorgan Chase Bank NA, No. 13-4272, 2014 WL 222030, at *3 & 4 (C.D. Cal. Jan.
21, 2014) (dismissing claims because plaintiff failed to oppose defendants’
arguments in the motion). The Court therefore GRANTS both Motions.

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EDCV 14-01880-VAP (SPx)
MARK SOHMER, ETC., ET AL v. OCWEN LOAN SERVICING, ET AL
MINUTE ORDER of February 26, 2015

C.

Leave to Amend
If the Court determines that a complaint or certain claims should be dismissed,
it must then decide whether to grant leave to amend. Under Rule 15(a) of the
Federal Rules of Civil Procedure, leave to amend "shall be freely given when justice
so requires," bearing in mind "the underlying purpose of Rule 15 to facilitate
decisions on the merits, rather than on the pleadings or technicalities." Lopez v.
Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (internal quotation marks and
alterations omitted). When dismissing a complaint for failure to state a claim, "a
district court should grant leave to amend even if no request to amend the pleading
was made, unless it determines that the pleading could not possibly be cured by the
allegation of other facts." Id. at 1130 (quoting Doe v. United States, 58 F.3d 494,
497 (9th Cir. 1995) (internal quotation marks omitted)). Accordingly, leave to amend
generally shall be denied only if allowing amendment would unduly prejudice the
opposing party, cause undue delay, or be futile, or if the moving party has acted in
bad faith. Leadsinger, Inc. v. BMG Music Publ'g, 512 F.3d 522, 532 (9th Cir. 2008).
Because the Court does not reach the merits of the Motions at this stage, it
GRANTS Ms. McGhee leave to file an amended complaint. Mr. Sohmer may only
join as a plaintiff in the amended complaint in his own capacity if he alleges facts to
show he has standing, i.e., he has suffered an injury in fact due to the alleged
wrongful foreclosure. He may not, however, represent Ms. McGhee. Any amended
complaint must be filed by March 30, 2015.
III. CONCLUSION
The Court GRANTS the Motions and GRANTS leave to file an amended
complaint by March 30, 2015.
IT IS SO ORDERED.

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