Franklin v. GMAC Mortgage et al

Filing 4

ORDER DISMISSING COMPLAINT; ORDER DENYING AS MOOT APPLICATION TO PROCEED IN FORMA PAUPERIS re 3 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 9/30/13. "No later than October 24, 2013, Franklin may file an Amended Complaint that contains sufficient factual allegations to support the relief requested." "Failure to timely file an Amended Complaint alongwith payment of the applicable filing fee or submission of a new Application will result in the auto matic dismissal of this action." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Tom Franklin served by first class mail at the address of record on September 30, 2013. A copy of the court's application to proceed in forma pauperis has been included in the mailing to Mr. Franklin.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
TOM FRANKLIN,

)
)
Plaintiff,
)
)
vs.
)
)
GMAC MORTGAGE; US NATIONAL
)
BANK ASSOCIATION; OCWEN LOAN )
SERVICE,
)
)
Defendants.
)
_____________________________ )

CIVIL NO. 13-00457 SOM/KSC
ORDER DISMISSING COMPLAINT;
ORDER DENYING AS MOOT
APPLICATION TO PROCEED IN
FORMA PAUPERIS

ORDER DISMISSING COMPLAINT;
ORDER DENYING AS MOOT APPLICATION TO PROCEED IN FORMA PAUPERIS
On September 9, 2013, Plaintiff Tom Franklin,
proceeding pro se, filed the present Complaint.

Concurrent with

the filing of the Complaint, Franklin filed an Application to
Proceed in District Court Without Prepaying Fees or Costs
(“Application”).

Because the Complaint fails to allege a viable

claim, the Complaint is dismissed, rendering the Application
moot.
Any court of the United States may authorize the
commencement of a suit, without payment of fees or security
therefor, by a person who submits an affidavit demonstrating he
or she is unable to pay such costs or give such security.
28 U.S.C. § 1915(a).

Although the Application demonstrates that

Franklin cannot afford to prepay the costs of initiating this
action, this court may deny leave to proceed in forma pauperis at

the outset if it appears from the facts of the Complaint that the
action is frivolous, that the action fails to state a claim upon
which relief can be granted, or seeks monetary relief against a
defendant who is immune from such relief.

28 U.S.C.

§ 1915(e)(2); see also Tripati v. First Nat. Bank & Trust, 821
F.2d 1368, 1370 (9th Cir. 1987).

Franklin’s Complaint fails to

state a claim on which the court can grant relief.
The Complaint’s allegations are insufficient to survive
a Rule 12(b)(6) motion to dismiss, as they are nothing more than
conclusory allegations unsupported by factual detail.
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

See Bell

Accord Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (Rule 8 “does not require
‘detailed factual allegations,’ but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation”).
Although the Complaint contains legal conclusions that certain
United States Code provisions and Georgia statutes have been
violated, the Complaint lacks any factual allegations supporting
those legal conclusions.

For example, Franklin claims that GMAC

Mortgage is a debt collector that has violated the Fair Debt
Collections Practices Act and also violated certain Georgia laws
by failing to cease collection efforts until the underlying debt
was verified.

However, other than a reference to a letter

allegedly sent by GMAC Mortgage to Franklin, the Complaint is
devoid of factual allegations supporting those claims.

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The

Complaint does not identify the basis or bases of the alleged
debt such that it establishes that GMAC Mortgage is indeed a debt
collector (as opposed to a mortgagor attempting to collect its
own debt).

Nor does it allege sufficient factual detail

concerning GMAC Mortgage’s failure to validate the debt or cease
collection efforts.

In short, the Complaint simply recites the

elements of the causes of action and concludes that various
violations occurred without providing any factual support.

That

is not sufficient.
Having screened the Complaint under § 1915, the court
dismisses the Complaint for failure to state a claim on which
relief can be granted.

No later than October 24, 2013, Franklin

may file an Amended Complaint that contains sufficient factual
allegations to support the relief requested.
Complaint must be complete in itself.

Any Amended

That is, it may not

incorporate by reference the original Complaint.
If Franklin chooses to file an Amended Complaint, he must
pay the applicable filing fee or submit another Application.

The

court cautions Franklin that the doctrine of res judicata may bar
any action filed in this court and that venue may be improper
here.

See, e.g., Franklin v. GMAC Mortgage, 2013 WL 3188728 (3d

Cir. June 21, 2013) (affirming dismissal of a complaint that
appears to have alleged the same claims for failure to state a
claim); Franklin v. GMAC Mortgage, 2013 WL 2367791 (N.D. Tex. May

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30, 2013) (transferring what appear to be the same claims to the
Fort Worth Division of the Northern District of Texas; noting
that other claims filed by Franklin involving the same defendants
in federal district courts in the District of Columbia and New
York were transferred to the Fort Worth Division and later
dismissed).

Failure to timely file an Amended Complaint along

with payment of the applicable filing fee or submission of a new
Application will result in the automatic dismissal of this
action.
IT IS SO ORDERED
DATED:

Honolulu, Hawaii, September 30, 2013.

/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge

Franklin v. GMAC Mortgage, et al., Civil No. 13-00457 SOM-KSC; ORDER DISMISSING
COMPLAINT; ORDER DENYING AS MOOT APPLICATION TO PROCEED IN FORMA PAUPERIS

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