Rivera, et al. v. Bank of America, et al.

Filing 4

ORDER Denying 2 3 Application to Proceed without Prepayment of Fees; ORDER Requiring Submission of Filing Fee within Thirty Days, or no Later than March 15, 2012, signed by Chief Judge Anthony W. Ishii on 02/10/2012. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOSE RIVERA AND NORMA RIVERA,
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Plaintiffs,
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v.
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BANK OF AMERICA; OWN IT
MORTGAGE SOLUTIONS; OLD
REPUBLIC TITLE COMPANY,

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Defendants.

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1:12-cv-138 AWI GSA
ORDER DENYING APPLICATION TO
PROCEED WITHOUT PREPAYMENT
OF FEES
(Documents 2 and 3)
ORDER REQUIRING SUBMISSION OF
FILING FEE WITHIN THIRTY DAYS,
OR NO LATER THAN MARCH 15, 2012

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_____________________________________
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Plaintiffs Jose Rivera and Norma Rivera are proceeding pro se in this civil action, having

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filed a complaint on January 30, 2012. (Doc. 1.) That same date, they each submitted an

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application to proceed in forma pauperis pursuant to Title 28 of the United States Code section

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1915. (Docs. 2 & 3.) A review of the applications reveals that Jose Rivera is the sole wage

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earner of the household. He is employed as a janitor and his wife, Norma Rivera, does not work.

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They provide support to one son. They currently have $180.00 in savings and own two vehicles.

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The family’s monthly expenses total $952.00 which includes $165.00 for transportation, $107.00

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for insurance, $380.00 for utilities, and $300.00 for food.1 (Docs. 2 and 3 at pg. 2)

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Plaintiff Jose Rivera earns $1,700.00 per month before taxes which is $20,400.00

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annually ($1,700.00 x 12). (Doc. 2 at 1.) The federal poverty guidelines provide that an annual

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salary greater than $19,090.00 for a family of three does not fall below the poverty line. (See

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http://aspe.hhs.gov/poverty/12poverty.shtml.) The calculation is made based upon gross income.

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(See http://www.census.gov/hhes/www/poverty/about/overview/measure.html.). Therefore, this

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Court finds Plaintiff is not entitled to proceed without prepayment of the $350.00 filing fee.

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As an aside, a review of the complaint indicates that this Court may not have jurisdiction.
Plaintiffs are advised that federal courts can adjudicate only those cases in which the United

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States Constitution and Congress authorize them to adjudicate which are essentially those cases

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involving diversity of citizenship (in which the matter in controversy exceeds the sum or value of

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$75,000 and is between citizens of different states), or a federal question, or to which the United

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States is a party. 28 U.S.C. §§ 1331 and 1332; See also, Kokkonen v. Guardian Life Ins. Co.,

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511 U.S. 375, 114 S.Ct. 1673, 1677 (1994); Finley v. United States, 490 U.S. 545, 109 S.Ct.

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2003, 2008 (1989).

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In this case, Plaintiffs are only alleging state law claims. Therefore, all of the Defendants

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would need to be citizens of other states in order for jurisdiction to be proper. It appears that at

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least one of the Defendants, Ownit Mortgage Solutions, may have its corporate headquarters in

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California.2 This destroys diversity jurisdiction. Furthermore, Plaintiffs’ complaint alleges that

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all Defendants are California residents which may not be correct. Plaintiffs are advised that they

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should consult an attorney to evaluate their claims and determine whether jurisdiction in this

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Court is proper before paying the filing fee.

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Plaintiff indicate that they have a mortgage payment of $1,860.00 which they are not paying. The Court
notes that Plaintiffs’ complaint is alleging an illegal foreclosure.

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ORDER
For the foregoing reasons, Plaintiff’s Application to Proceed Without Prepayment of Fees

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is DENIED. As a result, Plaintiff shall pay the filing fee of $350.00 no later than March 15,

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2012, in order to proceed with this action. Failure to comply with this Order will result in the

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dismissal of this action.

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IT IS SO ORDERED.

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Dated:
0m8i78

February 10, 2012
CHIEF UNITED STATES DISTRICT JUDGE

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