Mack et al v. PNC Mortgage et al

Filing 7

ORDER DENYING WITHOUT PREJUDICE PLAINTIFF SOBAYOS 2 APPLICATION TO PROCEED IN FORMA PAUPERIS, GRANTING PLAINTIFF MACKS 3 APPLICATION TO PROCEED IN FORMA PAUPERIS AND DISMISSING COMPLAINT WITH LEAVE TO AMEND. Signed by Judge Claudia Wilken on 10/20/2011. (ndr, COURT STAFF) (Filed on 10/20/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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DWAYNE WILLIAM MACK and NATHANIEL
BASOLA SOBAYO, dba KINGSWAY CAPITAL
PARTNERS,

No. 11-03850 CW

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Plaintiffs,
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v.
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PNC MORTGAGE, et al.,
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Defendants.
United States District Court
For the Northern District of California

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/

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ORDER DENYING
WITHOUT PREJUDICE
PLAINTIFF SOBAYO’S
APPLICATION TO
PROCEED IN FORMA
PAUPERIS, GRANTING
PLAINTIFF MACK’S
APPLICATION TO
PROCEED IN FORMA
PAUPERIS AND
DISMISSING COMPLAINT
WITH LEAVE TO AMEND

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Plaintiffs Dwayne William Mack and Nathaniel Basola Sobayo,
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dba Kingsway Capital Partners, file applications for leave to
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proceed in forma pauperis (IFP).

The matter was decided on the

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papers.

Having considered the papers filed by Plaintiffs, the

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Court denies Plaintiff Sobayo’s application to proceed IFP, grants
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Plaintiff Mack’s application to proceed IFP and dismisses the
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complaint with leave to amend.
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A court may authorize a plaintiff to prosecute an action in
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federal court without prepayment of fees or security if the
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plaintiff submits an affidavit showing that he or she is unable to
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pay such fees or provide such security.

See 28 U.S.C. § 1915(a).

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A review of Plaintiff Sobayo’s application to proceed IFP
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shows that it is incomplete.

Mr. Sobayo’s application indicates

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that he has no income, no assets and one monthly expense consisting
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of a $295.00 car payment.

Clearly, Mr. Sobayo has other expenses

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that he has not listed and income from some source that he has not
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listed.
Therefore, Plaintiff Sobayo’s application to proceed IFP is

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denied.

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application.

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do so within fourteen days from the date of this order.

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not file a supplemental application within this time, his claims

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will be dismissed for failure to prosecute.

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However, he is granted leave to supplement his
If he chooses to supplement his application, he must
If he does

Furthermore, Plaintiffs’ complaint alleges state law claims,
over which the Court does not have jurisdiction.

However, within

United States District Court
For the Northern District of California

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the first cause of action to set aside the trustee’s sale,

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Plaintiffs appear to allege a claim under the Fair Debt Collections

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Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., over which this

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Court would have federal question jurisdiction.

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Plaintiffs wish to bring a cause of action for violation of the

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FDCPA, they must submit an amended complaint alleging, as a

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separate cause of action, the FDCPA claim.

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amended complaint within fourteen days of the date of this order.

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If they do not submit an amended complaint within this time period,

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their case will be dismissed without prejudice to refiling in state

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court.

Therefore, if

They must file the

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IT IS SO ORDERED.

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Dated: 10/20/2011
CLAUDIA WILKEN
United States District Judge

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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DWAYNE WILLIAM MACK et al,
Case Number: CV11-03850 CW

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Plaintiff,
CERTIFICATE OF SERVICE
v.
PNC MORTGAGE et al,
Defendant.

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United States District Court
For the Northern District of California

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/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court,
Northern District of California.
That on October 20, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said
envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located
in the Clerk's office.

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Dwayne William Mack
2148 University Avenue
East Palo Alto, CA 94303

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Nathaniel Basola Sobayo
2148 University Avenue
East Palo Alto, CA 94303

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Dated: October 20, 2011

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Richard W. Wieking, Clerk
By: Nikki Riley, Deputy Clerk

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