(PS) Taft v. Mr. Cooper Group, Inc.

Filing 4

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 10/10/19 GRANTING #2 plaintiff's request to proceed in forma pauperis; and RECOMMENDING that #1 the complaint be DISMISSED without leave to amend because it fails to state a claim upon which relief can be granted. Matter REFERRED to District Judge John A. Mendez. Within 21 days after being served with these findings and recommendations, plaintiff may file written objections with the court and serve a copy on all parties. (Kastilahn, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DONNAMARIE TAFT, 12 13 14 15 No. 2:19-cv-01875 JAM AC (PS) Plaintiff, v. ORDER AND FINDINGS AND RECOMMENDATIONS MR. COOPER GROUP, Defendant. 16 17 Plaintiff is proceeding in this action pro se. This matter was accordingly referred to the 18 undersigned by E.D. Cal. 302(c)(21). Plaintiff has filed a request for leave to proceed in forma 19 pauperis (“IFP”), and has submitted the affidavit required by that statute. See 28 U.S.C. 20 § 1915(a)(1). The motion to proceed IFP (ECF No. 2) will therefore be granted. 21 22 I. Screening The federal IFP statute requires federal courts to dismiss a case if the action is legally 23 “frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks 24 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). A 25 claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. 26 Williams, 490 U.S. 319, 325 (1989). In reviewing a complaint under this standard, the court will 27 (1) accept as true all of the factual allegations contained in the complaint, unless they are clearly 28 baseless or fanciful, (2) construe those allegations in the light most favorable to the plaintiff, and 1 1 (3) resolve all doubts in the plaintiff’s favor. See Neitzke, 490 U.S. at 327; Von Saher v. Norton 2 Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010), cert. denied, 564 U.S. 3 1037 (2011). 4 The court applies the same rules of construction in determining whether the complaint 5 states a claim on which relief can be granted. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (court 6 must accept the allegations as true); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (court must 7 construe the complaint in the light most favorable to the plaintiff). Pro se pleadings are held to a 8 less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 9 (1972). However, the court need not accept as true conclusory allegations, unreasonable 10 inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 618, 11 624 (9th Cir. 1981). A formulaic recitation of the elements of a cause of action does not suffice 12 to state a claim. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007); Ashcroft v. Iqbal, 13 556 U.S. 662, 678 (2009). 14 To state a claim on which relief may be granted, the plaintiff must allege enough facts “to 15 state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has 16 facial plausibility when the plaintiff pleads factual content that allows the court to draw the 17 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 18 678.  A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity 19 to amend, unless the complaint’s deficiencies could not be cured by amendment. See Noll v. 20 Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded on other grounds by statute as stated in 21 Lopez v. Smith, 203 F.3d 1122 (9th Cir.2000)) (en banc). 22 A. The Complaint 23 Plaintiff, a California citizen, brings suit against Texas corporation Mr. Cooper Group, 24 Inc. ECF No. 1 at 2. Plaintiff alleges the basis for federal jurisdiction is diversity, pursuant to 28 25 U.S.C. § 1332, but also lists 42 U.S.C. §5411 and 28 U.S.C. § 2713 as the basis for federal 26 question jurisdiction (28 U.S.C. § 1331). Id. at 3. Plaintiff alleges the amount in controversy is 27 approximately $100,000, based on the value of the property at issue in this case (2445 Del Rio 28 Drive located in Stockton, California) minus loan encumbrances. Id. 2 1 In her statement of facts, plaintiff says that on August 23, 2019, her daughter (who resides 2 on the property at issue) called her and said there was a Notice posted on the door, announcing a 3 Trustee’s Sale scheduled for September 19, 2019. Id. at 4. On September 6, 2019, plaintiff filed 4 a petition to gain legal rights to the property. Id. On September 16, 2019, plaintiff contacted 5 Affinia Default Services to request postponement of the Trustee’s Sale. Id. Plaintiff was directed 6 to the foreclosure department and told to submit a letter explaining the reason for the request with 7 supporting documents. Id. That same day, plaintiff submitted a letter and called, but 8 postponement was declined. Id. Plaintiff also contacted the defendant that day to attempt to 9 postpone the sale, at which point she informed the defendant that the owners/borrowers on the 10 property are deceased and if the sale was postponed, plaintiff would be able to gain legal right to 11 sell the property and pay the full defaulted amount and note on the Deed of Trust. Id. Defendant 12 declined to postpone the sale. Id. Plaintiff indicates that the latest property owner was her 13 mother, who died intestate. Id. 14 Plaintiff signed her complaint on September 17, 2019 and filed it on September 18, 2019, 15 one day before the sale of the property was scheduled to take place. ECF No. 1 at 6. On 16 September 18, 2019, the District Judge assigned to this case entered a minute order noting that the 17 complaint appeared to request a temporary restraining order to enjoin the alleged Trustee’s Sale, 18 but because plaintiff failed to comply with the filing requirements of Fed. R. Civ. P. 65 and Local 19 Rule 231, the request was denied. ECF No. 3. 20 B. Analysis 21 This complaint must be dismissed because the facts alleged demonstrate that plaintiff 22 cannot state a claim for relief that can be granted. First, plaintiff lacks standing to challenge the 23 sale because her complaint makes clear that she was not the property owner or a borrower on the 24 mortgage for the property at issue. Although plaintiff indicates that she initiated an action in an 25 unnamed forum to establish an interest in the property, it is clear that as of the time of the sale at 26 issue and at the time of filing, she had no such interest. Because she had no legal interest in the 27 subject property or the related loan, plaintiff may not pursue claims alleging malfeasance in 28 foreclosure on or sale of the property. Only the injured party has standing to bring suit of any 3 1 kind. See, generally, Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (injury sufficient 2 to confer standing must be an invasion of a legally protected interest). 3 Second, the Federal Rules of Civil Procedure require that a complaint be brought and 4 signed by the “real party in interest,” meaning the person who actually holds the claims in 5 question. Fed. R. Civ. P. 17(a)(1). Even if plaintiff were somehow authorized by the deceased 6 homeowner to bring suit on her behalf, or even if plaintiff were the duly authorized representative 7 of the decedent’s estate, she cannot do so as a pro se litigant. Although a non-attorney may 8 appear in pro se on her own behalf, that privilege is personal to her and she has no authority to 9 appear as the attorney for anyone other than herself. C.E. Pope Equity Trust v. United States, 818 10 F.2d 696 (9th Cir. 1987). Accordingly, to the extent plaintiff holds herself out as having the 11 ability to sue on behalf of the deceased owner/borrower or the estate, she may not seek to 12 vindicate their interests in pro se. “[A] trustee or representative of various entities may not 13 represent these entities in any capacity in this District Court” as a pro se litigant. United States v. 14 Stepard, 876 F. Supp. 214, 215 (D. Ariz. 1994). 15 Because the complaint clearly establishes that plaintiff lacks standing and is not the “real 16 party in interest” regarding the sale of the subject property, and because she cannot pursue the 17 claims of others in pro se, leave to amend would be futile. C.E. Pope Equity Tr., 818 F.2d at 697; 18 Noll, 809 F.2d at 1448. Accordingly, this case should be dismissed without leave to amend. 19 20 21 22 23 24 II. Conclusion For the reasons explained above, plaintiff’s request to proceed in forma pauperis (ECF No. 2) is GRANTED. It is further RECOMMENDED that the complaint (ECF No. 1) be DISMISSED without leave to amend because it fails to state a claim upon which relief can be granted. These findings and recommendations are submitted to the United States District Judge 25 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty one days 26 after being served with these findings and recommendations, plaintiff may file written objections 27 with the court and serve a copy on all parties. Id.; see also Local Rule 304(b). Such a document 28 should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Failure 4 1 to file objections within the specified time may waive the right to appeal the District Court’s 2 order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 3 1156-57 (9th Cir. 1991). 4 DATED: October 10, 2019 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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