Espinoza v. HSBC Bank USA, National Association et al

Filing 5

ORDER dismissing 1 Complaint with leave to amend. ORDER denying 2 Motion for Leave to Proceed in forma pauperis filed by Marlen Espinoza. Plaintiff may submit another fully completed IFP application. Plaintiff must file a first amended complaint no later than 7/25/2014. Signed by Judge Kandis A. Westmore on 7/11/2014. (kawlc1, COURT STAFF) (Filed on 7/11/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MARLEN ESPINOZA,

Case No. 14-cv-03057-KAW

Plaintiff,
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v.
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HSBC BANK USA, NATIONAL
ASSOCIATION, et al.,

Dkt. Nos. 1 & 2

Defendants.

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United States District Court
Northern District of California

ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND AND
DENYING MOTION TO PROCEED IN
FORMA PAUPERIS

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The Court has received Plaintiff Marlen Espinoza's complaint and application to proceed in

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forma pauperis (IFP), both filed in this Court on July 3, 2014. The Court may authorize a plaintiff

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to file an action in federal court without prepayment of fees or security if the plaintiff submits an

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affidavit showing that he or she is unable to pay such fees or give security therefor. 28 U.S.C. §

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1915(a). The IFP statute also provides that the Court shall dismiss the case if at any time the

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Court determines that the allegation of poverty is untrue, or that the action (1) is frivolous or

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malicious, (2) fails to state a claim on which relief may be granted; or (3) seeks monetary relief

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against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2).
Plaintiff’s IFP application, however, is incomplete as filed, as she has not fully answered

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question number 2. If she has not received any income from those additional sources, she must

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check “no.” She has also not answered question number 4b. In addition, this application is signed

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under penalty of perjury, so her response to question number 5, where she says that she does not

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own a home, contradicts some of the facts set forth in her complaint, which states that she is in

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possession of the Subject Property. Plaintiff may resubmit an amended IFP application that is

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completed in full.

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Additionally, it is impossible to discern from Plaintiff's complaint any of the essential

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details of the events that triggered her lawsuit, or the legal theories under which she seeks relief.

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Plaintiff has failed to set forth "a short and plain statement of the claim showing that the pleader is

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entitled to relief" as required by Rule 8 of the Federal Rules of Civil Procedure. In particular, the

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complaint is replete with factual inconsistencies, including where the Subject Property is located,

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as there are at least two different addresses, and the complaint asserts that it is located in San

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Mateo and Marin Counties, as wells as in Union City, which is in Alameda County. There are

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also conflicting dates regarding the date of loan origination. Further, the complaint also mentions

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Defendants Deutsche and PDS, but neither is a named defendant. It is also unclear as to whether
Plaintiff is still in possession of the Subject Property or has an ownership interest, based on the

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United States District Court
Northern District of California

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facts and the relief requested. Lastly, it appears that Mr. Espinoza (whose first name is also

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currently and impermissibly unknown), who is deceased according to Plaintiff’s IFP application,

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is the individual who entered into the residential mortgage loan. Therefore, it is unclear whether

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Plaintiff has standing to proceed with this lawsuit.

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Accordingly, pursuant to its authority under 28 U.S.C. § 1915(e)(2), the Court hereby

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dismisses plaintiff's complaint with leave to amend. Plaintiff shall file an amended complaint no

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later than July 25, 2014 or the case may be dismissed.

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IT IS SO ORDERED.
Dated: July 11, 2014
______________________________________
KANDIS A. WESTMORE
United States Magistrate Judge

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