Bryant v. U.S. Bank et al

Filing 3

Order dismissing 1 Complaint with leave to amend, signed by District Judge Anthony W. Ishii on 11/15/2016. Amended Complaint due by 12/7/2016. (Rosales, O)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARY J. BRYANT,

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CASE NO. 1:16-CV-1688 AWI SKO
Plaintiff
ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND

v.
U.S. BANK, et al.,
Defendants

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On November 7, 2016, Plaintiff Mary J. Bryant (“Bryant”) filed this lawsuit and a motion

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to proceed in forma pauperis. See Doc. Nos. 1, 2. Bryant brings a cause of action under 18

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U.S.C. § 1962 (civil RICO) and possibly a claim for “foreclosure fraud.” See Doc. No. 1. Bryant

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seeks inter alia exemplary damages, compensatory damages, and to reverse the foreclosure and

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trustee sale of a home located in Visalia, California.

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In Forma Pauperis & Dismissal

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District courts “may authorize the commencement . . . of any suit, action or proceeding,

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civil or criminal . . . without prepayment of fees or security therefor, by a person who submits an

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affidavit that includes a statement of all assets such [person] possess that the person is unable to

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pay such fees or give security therefor.” 28 U.S.C. § 1915(a)(1). A district court “shall dismiss

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the case at any time if the court determines” that the action is inter alia is frivolous or malicious,

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or fails to state a claim on which relief may be granted. 28 U.S.C. § 1915(e)(2)(B); O’Neal v.

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Price, 531 F.3d 1146, 1153 (9th Cir. 2008). An action is “frivolous” if it has no arguable basis in

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fact or law; the term embraces both inarguable legal conclusions and fanciful factual allegations.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); DeRock v. Sprint-Nextel, 584 Fed. Appx. 737 (9th

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Cir. 2014); see also Tripati v. First Nat’l Bank & Trust, 821 F.2d 1368, 1370 (9th Cir. 1987). “A

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district court may deny leave to proceed in forma pauperis at the outset if it appears from the face

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of the proposed complaint that the action is frivolous or without merit.” Minetti v. Port of Seattle,

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152 F.3d 1113, 1115 (9th Cir. 1998); Tripati, 821 F.2d at 1370. However, the “denial of leave to

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proceed in forma pauperis is an abuse of discretion unless the district court first provides a

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plaintiff leave to amend the complaint or finds that amendment would be futile.” Rodriguez v.

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Steck, 795 F.3d 1187, 1188 (9th Cir. 2015); see Tripati, 821 F.2d at 1370. If a court denies a

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motion to proceed in forma pauperis because the complaint is frivolous and cannot be cured by

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amendment, then the denial of the motion acts as a dismissal under 28 U.S.C. § 1915(e).

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Rodriguez, 795 F.3d at 1188.

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Discussion

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It is unclear what precisely Bryant is attempting to allege. The Complaint is six pages, on

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a pre-printed form, and contains handwritten allegations. See id. The handwritten allegations are

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extremely difficult to discern. It appears that Bryant is alleging that her parents purchased a home

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in Visalia, California over forty years ago. See id. In 2005, a loan on the house was refinanced.

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In 2008, Bryant’s parents passed away. See id. In 2014, the home changed ownership to a

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“Martha Jane [indecipherable] Trust.” See id. Someone refused to accept the Trust and payments.

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See id. Bryant attempted a loan modification, but the Defendants began foreclosure. See id.

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Bryant made numerous attempts to take over the loan on the home, but she was not officially

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responsible for the loan from 2013 to 2016. See id. On Christmas Eve 2015, a Defendant shut off

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the utilities to Bryant’s home, knowing that Bryant was in the home. See id. At some point,

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Defendants appear to have foreclosed on the home. See id. To the extent that this accurately

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describes Bryant’s allegations, no plausible claims are stated and there are significant problems.

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First, there are four Defendants who are named in the Complaint. However, Bryant does

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not specifically identify what each Defendant allegedly did that was improper and caused her

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harm. It is not sufficient for Bryant to use the term “Defendant” without any further identifying

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information. When multiple defendants are named, the plaintiff must allege the basis of her

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claims as to each defendant; it is improper to simply lump defendants together. See Sebastian

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Brown Prods., LLC v. Muzooka, Inc., 143 F.Supp.3d 1026, 1040 (N.D. Cal. 2015); Flores v. EMC
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Mortg. Co., 997 F.Supp.2d 1088, 1103 (E.D. Cal. 2014). In other words, Bryant must identify the

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specific wrongful acts that each Defendant performed and how each Defendant either caused

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Bryant harm or is responsible for Bryant’s harm. See id.

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Second, in order to properly allege a claim, Bryant’s Complaint must contain sufficient

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factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.

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Iqbal, 556 U.S. 662, 678 (2009). “A claim has facial plausibility when the plaintiff pleads factual

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content that allows the court draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Id. “Plausibility” means “more than a sheer possibility,” but less than a

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probability, and facts that are “merely consistent” with liability fall short of “plausibility.” Id.

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Here, the facts are uncertain and no plausible claims are stated.
To the extent that Bryant is attempting to allege a RICO claim, RICO provides that it is

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“unlawful for any person employed by or associated with any enterprise engaged in, or the

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activities of which affect, interstate or foreign commerce, to conduct or participate, directly or

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indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or

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collection of unlawful debt.” 18 U.S.C. § 1962(c). “To state a claim under § 1962(c), a plaintiff

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must allege (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.”

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Odom v. Microsoft Corp., 486 F.3d 541, 547 (9th Cir. 2007) (en banc). A “‘pattern’ . . . requires

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at least two acts of racketeering activity.” 18 U.S.C. § 1961(5). Bryant’s factual allegations do

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not establish any of these elements.

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To the extent that Bryant is attempting to allege wrongful foreclosure, such a claim is an

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equitable action to set aside a foreclosure sale, or an action for damages resulting from the sale, on

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the basis that the foreclosure was improper. Sciarratta v. U.S. Bank National Assn., 247 Cal. App.

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4th 552, 561 (2016); Miles v. Deutsche Bank Nat’l Trust Co., 236 Cal.App.4th 394, 408-09

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(2015). The elements of a wrongful foreclosure cause of action are: “(1) the trustee or mortgagee

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caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of

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sale in a mortgage or deed of trust; (2) the party attacking the sale (usually but not always the

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trustor or mortgagor) was prejudiced or harmed; and (3) in cases where the trustor or mortgagor

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challenges the sale, the trustor or mortgagor tendered the amount of the secured indebtedness or
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was excused from tendering.” Sciarratta, 247 Cal.App.4th at 561-62; Miles, 236 Cal.App.4th at

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408. “Mere technical violations of the foreclosure process will not give rise to a tort claim; the

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foreclosure must have been entirely unauthorized on the facts of the case.” Miles, 236

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Cal.App.4th at 408. Bryant’s factual allegations do not establish any of these elements.

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Finally, to the extent that any of Bryant’s claims rest on fraud, there is a separate pleading

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standard for fraud. Federal Rule of Civil Procedure 9(b) requires that all claims of fraud be

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alleged with particularity. To comply with Rule 9(b), allegations of fraud must “be specific

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enough to give defendants notice of the particular misconduct which is alleged to constitute the

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fraud charged so that they can defend against the charge and not just deny that they have done

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anything wrong.” Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009). “[A] plaintiff

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must set forth more than the neutral facts necessary to identify the transaction. The plaintiff must

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set forth what is false or misleading about a statement, and why it is false.” Vess v. Ciba-Geigy

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Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003). Thus, allegations of fraud should specifically

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include “an account of the time, place, and specific content of the false representations as well as

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the identities of the parties to the misrepresentations.” Swartz v. KPMG LLP, 476 F.3d 756, 764

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(9th Cir. 2007). Stated differently, the complaint must identify “the who, what, when, where, and

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how” of the fraud. United Sates v. United Healthcare Ins. Co., 832 F.3d 1084, 1101 (9th Cir.

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2016). None of Bryant’s allegations meet this criteria.

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In sum, the Complaint’s allegations are extremely difficult to discern. It is unclear what

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claims Bryant is attempting to pursue, and no plausible claims are stated. At this time, the Court

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will not grant Bryant’s motion to proceed in forma pauperis. Instead, the Court will permit Bryant

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to file an amended Complaint that follows the analysis of this order. Cf. Rodriguez, 795 F.3d at

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1188. An amended complaint must be legible, must identify what causes of action are being

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pursued, identify the improper actions or basis for liability of each defendant, and the factual

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allegations must demonstrate plausible claims. If Bryant files an amended complaint, it will be

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reviewed and a determination regarding in forma pauperis status will be made. If Bryant does not

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file a timely amended complaint, then in forma pauperis status will be denied and this case will be

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dismissed without further notice. See id.
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ORDER

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Accordingly, IT IS HEREBY ORDERED that;

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Plaintiff’s complaint (Doc. No. 1) is DISMISSED with leave to amend;

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2.

Plaintiff may file an amended complaint, consistent with this order, within twenty-one (21)

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days of service of this order; and
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If Plaintiff fails to file a timely amended complaint, Plaintiff’s in forma pauperis motion
will be denied and this case will be closed without further notice.

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IT IS SO ORDERED.
Dated: November 15, 2016
SENIOR DISTRICT JUDGE

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