Martin v. Zoota et al

Filing 8

ORDER by Judge Ronald M. Whyte granting 5 Motion to Dismiss and ORDER TO SHOW CAUSE. (rmwlc1, COURT STAFF) (Filed on 3/10/2009)

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ORDER GRANTING MOTION TO DISMISS AND ORDER TO SHOW CAUSE No. C-09-00315 RMW TSF

E-filed on:

3/10/2009

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION CATHERINE G. MARTIN, Plaintiff, v. MURRAY ZOOTA, President and CEO of Fremont Investment & Loan; FREMONT HOME LOAN TRUST 2006-1; RICHARD KOVACEVICH, CEO of Wells Fargo Home Mortgage, Inc. dba America's Servicing Company; WELLS FARGO HOME MORTGAGE, INC, dba America's Servicing Company; SUSAN BRENNER, CEO, Deutsch Bank National Trust Company; DEUTSCH BANK NATIONAL TRUST COMPANY, as Trustee for Fremont Home Loan Trust 2006-1; MICHAEL BARRETT, President and CEO, NDEX West, LLC as Trustee; NDEX WEST, LLC, as Trustee; GAIL L. PELLERIN, Clerk for Santa Cruz County; GARY HAZELTON, Recorder for Santa Cruz County; STEVEN D ROBBINS, Sheriff/Coroner for Santa Cruz County; HENRY M. PAULSON, JR., Secretary of the Treasury, United States; MICHAEL B. MUKASY, U.S. Attorney General, as Alien Property Custodian, And any all persons unknown, claiming any legal or equitable right, title, estate, lien or interest in the property described in the complaint adverse to plaintiffs title or any cloud on title, Defendants. No. C-09-00315 RMW ORDER GRANTING MOTION TO DISMISS AND ORDER TO SHOW CAUSE [Re Docket No. 5]

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BACKGROUND Plaintiff Catherine G. Martin appears to have lost her home in Santa Cruz, California to foreclosure following multiple efforts to renegotiate her mortgage and a bankruptcy proceeding. See Docket No. 1, Exhibit 1 (hereinafter "Compl.") ¶ 11. She filed suit in Santa Cruz County Superior Court on October 3, 2008, but has never served any defendant. Docket No. 1 ¶ 2. Three defendants discovered they had been sued and removed the case to this court on January 23, 2009. Martin requests that the court void the original promissory note giving rise to the default. Id. ¶ 14a. She alleges that in negotiating the mortgage, the defendants engaged in fraud, and she further alleges that this pattern of fraud gives rise to a civil RICO claim. See id. ¶¶ 14b-f. The alleged "fraud" arises from Martin's theory that "the United States is and has been in bankruptcy since at least 1933," calling into question the value of the "federal reserve notes" she received in exchange for the promissory note to buy her home. Id. ¶¶ 16-19. The defendants purportedly engaged in fraud by failing to disclose the worthless status of the money they gave to Martin. See id. Richard Kovacevich, Wells Fargo and Deutsche Bank move to dismiss all of the claims against them. Martin has failed to file an opposition to the motion, nor has she filed a statement of non-opposition. Having reviewed Martin's complaint, the court can divine no merit to her claims and grants the unopposed motion to dismiss without prejudice. Accordingly, the court vacates the hearing scheduled for March 13. Civil L.R. 7-1(b). "Sua sponte 12(b)(6) dismissals are permitted, provided that a sufficient basis for the court's action is evident from the plaintiff's pleading." Ledford v. Sullivan, 105 F.3d 354, 356 (7th Cir. 1997); Wachtler v. County of Herkimer, 35 F.3d 77, 82 (2d Cir. 1994) (suggesting that notice and an opportunity to be heard are required before a sua sponte dismissal). As discussed, Martin's complaint appears to lack any merit. ORDER TO SHOW CAUSE The court therefore orders Martin to show cause, i.e., explain, why her complaint should not be dismissed as to all defendants for (a) failure to state a claim and (b) failure to timely serve the defendants. Martin must submit any written materials by March 20, 2009. She may appear for a
ORDER GRANTING MOTION TO DISMISS AND ORDER TO SHOW CAUSE No. C-09-00315 RMW TSF 2

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hearing on March 27, 2009 at 9:00 a.m. A failure by Martin to file papers showing cause as to why her case should not be dismissed will result in dismissal of her case.

DATED:

3/9/2009

RONALD M. WHYTE United States District Judge

ORDER GRANTING MOTION TO DISMISS AND ORDER TO SHOW CAUSE No. C-09-00315 RMW TSF 3

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Notice of this document has been electronically sent to: Counsel for defendants: Sung-Min Christopher Yoo [e-mail] John M. Sorich [e-mail] Notice of this document has been mailed to: Catherine G. Martin 435 Bellevue Street Santa Cruz, CA 95060 Counsel are responsible for distributing copies of this document to co-counsel that have not registered for e-filing under the court's CM/ECF program.

Dated:

3/10/2009

TSF Chambers of Judge Whyte

ORDER GRANTING MOTION TO DISMISS AND ORDER TO SHOW CAUSE No. C-09-00315 RMW TSF 4