Perez v. Quicken Loans Mortgage Services

Filing 3

ORDER GRANTING Plaintiff's 2 Motion to Proceed In Forma Pauperis; ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND, signed by Magistrate Judge Jennifer L. Thurston on 4/9/2018. Amended complaint due within 30 days. (Hall, S)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

CARMEN DOLORES PEREZ,

12

Plaintiff,

13
14

v.
QUICKEN LOANS MORTGAGE
SERVICES,

15
Defendant.

)
)
)
)
)
)
)
)
)
)

Case No.: 1:17-cv-1765- AWI- JLT
ORDER GRANTING PLAINTIFF’S MOTION
TO PROCEED IN FORMA PAUPERIS (Doc. 2)
ORDER DISMISSING PLAINTIFF’S
COMPLAINT WITH LEAVE TO AMEND

16
Cory Joe Pearson seeks to proceed pro se and in forma pauperis with an action against

17
18

Quicken Loans Mortgage Services. (Docs. 1, 2) For the following reasons, Plaintiff’s motion to

19

proceed in forma pauperis is granted. However, as explained below, Plaintiff fails state facts sufficient

20

to support a claim. Therefore, the complaint is dismissed with leave to amend.

21

I.

Proceeding in forma pauperis
The Court may authorize the commencement of an action without prepayment of fees “by a

22
23

person who submits an affidavit that includes a statement of all assets such person . . . possesses [and]

24

that the person is unable to pay such fees or give security therefor.” 28 U.S.C. § 1915(a). The Court

25

reviewed the financial status affidavit filed by Plaintiff (Doc. 2), and finds he satisfies the

26

requirements of 28 U.S.C. § 1915(a). Therefore, Plaintiff’s request to proceed in forma pauperis is

27

GRANTED.

28

///
1

1

II.

2

Screening Requirement
When an individual seeks to proceed in forma pauperis, the Court is required to review the

3

complaint and shall dismiss a complaint, or portion of the complaint, if it is “frivolous, malicious or

4

fails to state a claim upon which relief may be granted; or . . . seeks monetary relief from a defendant

5

who is immune from such relief.” 28 U.S.C. § 1915A(b); 28 U.S.C. § 1915(e)(2). A plaintiff’s claim

6

is frivolous “when the facts alleged rise to the level of the irrational or the wholly incredible, whether or

7

not there are judicially noticeable facts available to contradict them.” Denton v. Hernandez, 504 U.S.

8

25, 32-33 (1992).

9

III.

Pleading Standards

10

General rules for pleading complaints are governed by the Federal Rules of Civil Procedure. A

11

pleading must include a statement affirming the court’s jurisdiction, “a short and plain statement of the

12

claim showing the pleader is entitled to relief; and . . . a demand for the relief sought, which may

13

include relief in the alternative or different types of relief.” Fed. R. Civ. P. 8(a).

14

A complaint must give fair notice and state the elements of the plaintiff’s claim in a plain and

15

succinct manner. Jones v. Cmty. Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984). The

16

purpose of the complaint is to inform the defendant of the grounds upon which the complaint stands.

17

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). The Supreme Court noted,

20

Rule 8 does not require detailed factual allegations, but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers
labels and conclusions or a formulaic recitation of the elements of a cause of action will
not do. Nor does a complaint suffice if it tenders naked assertions devoid of further
factual enhancement.

21

Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (internal quotation marks and citations omitted). Vague

22

and conclusory allegations do not support a cause of action. Ivey v. Board of Regents, 673 F.2d 266,

23

268 (9th Cir. 1982). The Court clarified further,

18
19

24
25
26
27

[A] complaint must contain sufficient factual matter, accepted as true, to “state a claim
to relief that is plausible on its face.” [Citation]. A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged. [Citation]. The
plausibility standard is not akin to a “probability requirement,” but it asks for more than
a sheer possibility that a defendant has acted unlawfully. [Citation]. Where a complaint
pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of
the line between possibility and plausibility of ‘entitlement to relief.’

28
2

1

Iqbal, 556 U.S. at 679 (citations omitted). When factual allegations are well-pled, a court should

2

assume their truth and determine whether the facts would make the plaintiff entitled to relief; legal

3

conclusions are not entitled to the same assumption of truth. Id. The Court may grant leave to amend a

4

complaint to the extent deficiencies of the complaint can be cured by an amendment. Lopez v. Smith,

5

203 F.3d 1122, 1127-28 (9th Cir. 2000) (en banc).

6

IV.

Allegations
Plaintiff asserts Quicken Loans Mortgage Services “is a provider of home loans receiving

7
8

federal funding.” (Doc. 1 at 1) According to Plaintiff, “[a] proper appraisal of the property was never

9

conducted as evidenced by the appraisal report,” and she contends resulted in a failure to identify a

10

defective condition, where there was not “positive drainage (away from the dwelling).” (Id. at 1-2)

11

She contends now “significant flooding event has caused financial, emotional, and physical hardship.”

12

(Id. at 2)
Plaintiff contends the defendant “scheduled a trustee sale date without properly informing

13
14

petitioner and while petitioner was made to think that a Deed in Lieu of foreclosure was still possible.”

15

(Doc. 1 at 2) In addition, she asserts the defendant “was dual tracking petitioner by offering

16

modification designed to fail while still posting the property as a foreclosure, which resulted in

17

unwanted visitors to the home.” (Id. at 2)

18

V.

Discussion and Analysis

19

As an initial matter, the complaint does not make clear the basis for federal court jurisdiction.

20

If Plaintiff is claiming diversity jurisdiction, she must allege facts to support this claim including the

21

state of her residency and that of the defendant and the amount of monetary damages she believes she

22

suffered as a consequence of the defendant’s action.

23

In addition, the Court is not quite certain of the legal basis for the claims the Plaintiff seeks to

24

raise against Quicken Loan Mortgage Services. It appears Plaintiff may be asserting that the

25

defendant is liable for a violation of Cal. Civ. Code § 2923.6, which prohibits “dual tracking” by

26

financial institutions that “continue to pursue foreclosure even while evaluating a borrower’s loan

27

modification application.” See Rockridge Trust v. Wells Fargo, N.A., 985 F. Supp.2d 1110, 1149 (N.D.

28

Cal. 2013). Specifically, Section 2923.6 provides in relevant part:
3

If a borrower submits a complete application for a first lien loan modification offered
by, or through, the borrower's mortgage servicer, a mortgage servicer, mortgagee,
trustee, beneficiary, or authorized agent shall not record a notice of default or notice
of sale, or conduct a trustee’s sale, while the complete first lien loan modification
application is pending. A mortgage servicer, mortgagee, trustee, beneficiary, or
authorized agent shall not record a notice of default or notice of sale or conduct a
trustee’s sale until any of the following occurs:

1
2
3
4

(1) The mortgage servicer makes a written determination that the borrower is
not eligible for a first lien loan modification, and any appeal period pursuant to
subdivision (d) has expired.

5
6

(2) The borrower does not accept an offered first lien loan modification within
14 days of the offer.

7
8

(3) The borrower accepts a written first lien loan modification, but defaults on,
or otherwise breaches the borrower’s obligations under, the first lien loan
modification.

9
10
11

Cal. Civ. Code §2923.6(c). Notably, the anti-dual tracking provision is triggered by the borrower

12

submitting a completed application for loan modification. Pursuant to Cal. Civ. Code § 2924.12, a

13

plaintiff may seek injunctive relief for a material violation of Section 2923.6.

14

The facts alleged are insufficient for the Court to determine whether the provision has been

15

violated. Plaintiff fails to allege if or when she submitted a completed lien loan modification

16

application and does not provide any information regarding the response by Defendant. Further, there

17

is no information regarding when a notice of default or notice of sale was recorded by the mortgage

18

servicer. Without additional facts, the Court is unable to find Plaintiff has alleged a violation of

19

Section 2923.6.

20

VI.

21

Conclusion and Order
For the reasons set forth above, the Court is unable to find Plaintiff states a cognizable claim.

22

However, the factual deficiencies may be able to be cured by amendment. See Noll v. Carlson, 809

23

F.2d 1446, 1448-49 (9th Cir. 1987); see also Lopez, 203 F.3d at 1128 (dismissal of a pro se complaint

24

without leave to amend for failure to state a claim is proper only where it is obvious that an

25

opportunity to amend would be futile). Thus, Plaintiff may file a new complaint that alleges sufficient

26

factual allegations to demonstrate the wrongful conduct of the defendant and how she believes this

27

conduct caused her harm.

28

Plaintiff is advised that an amended complaint supersedes the original complaint. Forsyth v.
4

1

Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

2

In addition, the amended complaint must be “complete in itself without reference to the prior or

3

superseded pleading.” Local Rule 220. Once Plaintiff files an amended complaint, the original

4

pleading no longer serves any function in the case. The amended complaint must bear the docket

5

number assigned this case and must be labeled “First Amended Complaint.” Finally, Plaintiff is

6

warned that “[a]ll causes of action alleged in an original complaint which are not alleged in an

7

amended complaint are waived.” King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1986) (citing London v.

8

Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981). Based upon the foregoing, the Court

9

ORDERS:

10

1.

Plaintiff’s motion to proceed in forma pauperis (Doc. 2) is GRANTED;

11

2.

Plaintiff is granted thirty days from the date of service of this order to file an amended

12

complaint that states a cognizable claim and which cures the deficiencies discussed in this order.

13

If Plaintiff fails to comply with this order to file an amended complaint, the action may be

14

dismissed for failure to prosecute and failure to obey the Court’s order.

15
16
17
18

IT IS SO ORDERED.
Dated:

April 9, 2018

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

19
20
21
22
23
24
25
26
27
28
5