Prasad v. Owen Loan Servicing, LLC et al

Filing 5

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 4/30/2015. Plaintiff's 3 Motion to Proceed In Forma Pauperis is GRANTED. The Court is RECOMMENDING plaintiff's 1 Complaint be dismissed without leave to amend. These Findings and Recommendations are SUBMITTED to District Judge Kimberly J. Mueller. Within 20 days after being served with these F/Rs, any party may file written Objections with Court and serve a copy on all parties. (Marciel, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BAHARI PRASAD,

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Plaintiff,

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No. 2:15-cv-0555 KJM GGH PS

v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

OCWEN LOAN SERVICING, LLC, et
al.,1
Defendants.

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Plaintiff is proceeding in this action pro se and has requested leave to proceed in forma

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pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule

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302(21), pursuant to 28 U.S.C. § 636(b)(1).
Plaintiff has submitted an affidavit making the showing required by 28 U.S.C. §

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1915(a)(1). Accordingly, the request to proceed in forma pauperis will be granted.
The determination that plaintiff may proceed in forma pauperis does not complete the

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required inquiry. Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss the case at

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any time if it determines the allegation of poverty is untrue, or if the action is frivolous or

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Plaintiff refers to defendant as both Ocwen and Owen in the body of the complaint. The court
presumes that the reference to Owen is a typographical error and that plaintiff intends to name
Ocwen Loan Servicing as a defendant.
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malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against

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an immune defendant.

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

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Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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Cir. 1989); Franklin, 745 F.2d at 1227.

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A complaint must contain more than a “formulaic recitation of the elements of a cause of

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action;” it must contain factual allegations sufficient to “raise a right to relief above the

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speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007).

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“The pleading must contain something more...than...a statement of facts that merely creates a

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suspicion [of] a legally cognizable right of action.” Id., quoting 5 C. Wright & A. Miller, Federal

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Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). “[A] 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

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v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127

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S.Ct. 1955). “A claim has facial plausibility when the plaintiff pleads factual content that allows

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the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

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Id.

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Pro se pleadings are liberally construed. See Haines v. Kerner, 404 U.S. 519, 520-21, 92

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S. Ct. 594, 595-96 (1972); Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1988).

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Unless it is clear that no amendment can cure the defects of a complaint, a pro se plaintiff

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proceeding in forma pauperis is entitled to notice and an opportunity to amend before dismissal.

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See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987); Franklin, 745 F.2d at 1230.

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The factual allegations of the complaint are difficult to decipher, but plaintiff alleges that

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on December 14, 2012, he “lawfully revoked” the Deed of Trust between himself and

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Countrywide Bank in regard to real property. (ECF No. 1 at 5.) He alleges that defendant Ocwen
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Loan Servicing LLC (“Ocwen”) transmitted correspondence to plaintiff which contained defects,

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which it did not cure. Plaintiff also demanded that Ocwen provide him “with authenticated

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documents evidencing the representative agency claimed to be granted to Ocwen.” (Id.) In

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response, Ocwen sent him a document entitled “assignment of deed of trust,” which contained the

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same defects, and to which plaintiff responded with the same demands he made earlier. (Id.)

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Plaintiff apparently did not believe that the deed was reassigned to Ocwen, complaining that the

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assignment documents failed to name Ocwen. The allegations are vague, but plaintiff claims that

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after multiple communications between the parties, Ocwen continued to make “various

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unsupported claims” which perpetrated an “intentional fraud” on plaintiff. (Id. at 6.)

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Plaintiff’s main problem appears to be that Ocwen has committed fraud by failing to

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provide evidence of its authority to act as in regard to the deed of trust presumably reassigned to

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it, and in particular that it has authority to foreclose on the property. (Id. at 8.) Instead, plaintiff

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claims that defendants have apparently represented that “the entity that currently owns the loan

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and holds the note is Christiana Trust, a division of Wilmington Savings Fund Society, FSB…,”

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yet defendants have refused to provide a “lawfully executed Assignment of Deed bearing the

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name of Christiana Trust, Wilmington Savings Fund Society; or ARLP Trust.” (Id. at 8.) Claims

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are for “declaratory judgement regarding standing of defendants,” “declaratory judgement

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regarding fraudulent scheme,” and violations of the Due Process clause of the Fifth Amendment.

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Aside from the fact that the allegations are vague, the only conceivable federal claim is for

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violation of the due process clause of the Fifth Amendment. A claim for due process violations

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based on the Fifth Amendment requires unlawful action by the federal government. Such a claim

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may not be maintained against private parties. Lee v. City of Los Angeles, 250 F.3d 668, 687

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(9th Cir. 2001); Gilkey v. Wells Fargo Bank, N.A., 2013 WL 4432163, *7 (W.D. Tenn. Aug. 16,

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2013) (citing Public Utilities Comm’n of District of Columbia v. Pollak, 343 U.S. 451, 461

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(1952); Roberts v. Cameron-Brown Co., 556 F.2d 356, 358-60 (5th Cir. 1997). See also Shelley

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v. Kramer, 334 U.S. 1, 12, 68 S.Ct. 836 (1948) (Fourteenth Amendment). As both Ocwen and

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Scott Anderson are private parties and not governmental entities, plaintiff cannot state a claim for

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due process violation against this defendant.
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Ordinarily, the court would grant leave to file an amended complaint; however, because

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the only federal claim alleged cannot be maintained against these defendants, leave to amend

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would be futile.

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As there are no federal claims remaining, this court declines to exercise supplemental

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jurisdiction over plaintiff's possible state law claims. See 28 U.S.C. § 1367(c)(3) (The district

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courts may decline to exercise supplemental jurisdiction over a claim ... if—the district court has

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dismissed all claims over which it has original jurisdiction”); see also, Acri v. Varian Associates,

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Inc., 114 F.3d 999, 1000–1001 (9th Cir.1997) (“‘in the usual case in which all federal-law claims

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are eliminated before trial, the balance of factors ... will point toward declining to exercise

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jurisdiction over the remaining state-law claims’”), quoting Carnegie–Mellon University. v.

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Cohill, 484 U.S. 343, 350, n. 7, 108 S.Ct. 614, 619, n. 7, 98 L.Ed.2d 720 (1988).

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Accordingly, IT IS ORDERED that: Plaintiff’s request for leave to proceed in forma
pauperis is granted.
IT IS HEREBY RECOMMENDED that: the complaint be dismissed without leave to
amend, for the reasons discussed above.
These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

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shall be served and filed within ten days after service of the objections. The parties are advised

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that failure to file objections within the specified time may waive the right to appeal the District

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Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: April 30, 2015

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/s/ Gregory G. Hollows

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UNITED STATES MAGISTRATE JUDGE

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GGH:076/Prasad0555.fr

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