Anderton v. Avery Financial Services et al

Filing 42

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 37 Report and Recommendations-granting 16 Motion to Dismiss, filed by Lance Olsen, Derrick O'Neill, Routh Crabtree Olsen, PS, Northwest Trustee Services, HSBC Bank USA, Ace Securities Corp, Home Equity Loan Trust Series 2004-FMI, C-Bass, granting 8 Motion to Dismiss, filed by Ronald Bush, Lynn Winmill, Randy Smith, granting 26 Motion for Joinder dft's motion to dismiss filed by Litton Loan Services, MERS. The claims against the rema ining Defendants who are named in the Complaint but for which there is no valid proof of service in compliance with Fed. R. Civ. P. 4 are DISMISSED WITHOUT PREJUDICE based on Plaintiffs failure to prosecute the claims against these parties; and Any lis pendens recorded by Plaintiff related to the real property commonly know as 2201 S. Fairway Drive, Pocatello, Idaho and legally described as Lot 10, in Block 1, of Fairway Estates Second Addition, Bannock County Idaho that has not previously been expunged is hereby QUASHED AND EXPUNGED. If Bonner County needs an additional order from the Court, Defendants shall provide a proposed order with the necessary language to effectuate expungement. Plaintiff is ordered ENJOINED from recording any fur ther lis pendens or other documents encumbering title to the aforementioned property without leave of a court of competent jurisdiction.. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

BARDELL J. ANDERTON,
Case No. 4:10-CV-00392-EJL-CWD
Plaintiff,
v.
AVERY FINANCIAL SERVICES, Jeff
Avery, Dan Hebdon, Debbie Criddle,
Dan C. Nye, Dale Hitch, Mitchell Brown,
FREMONT INVESTMENT & LOAN,
1ST AMERICAN TITLE CO., LITTON
LOAN SERVICE, MERS aka Mortgage
Electronic Registration Services, CBASS aka Credit Based Asset Servicing
& Securitization, NORTHWEST
TRUSTEE SERVICES, ROUTH
CRABTREE OLSEN P.S., Lance Olsen,
ACE SECURITIES CORP. HOME
EQUITY LOAN TRUST SERIES 2004FMI, Derrick O’Neill, HSBC, BANK,
USA, BANNOCK COUNTY (DEPUTY
SHERIFF, Barker), Randy Smith, Ronald
Bush, Peter McDermott, William
Woodland, and Lynn Winmill, and unnamed/unknown Defendants 1- 100,

ORDER ON REPORT AND
RECOMMENDATION

Defendants.

ORDER ON REPORT AND RECOMMENDATION - 1

On August 23, 2011, Chief United States Magistrate Judge Candy W. Dale issued
a Report and Recommendation (Dkt. 37) in this matter. Pursuant to 28 U.S.C. §
636(b)(1), the parties had fourteen days in which to file written objections to the Report
and Recommendation. On September 13, 2011, Plaintiff Bardell Anderton (“Anderton”)
filed a written response to the Report and Recommendation (Dkt. 39). The Court will
deem the response as an objection and consider it timely filed since the Report and
Recommendation was mailed to the Plaintiff and the Court cannot determine when the
Plaintiff received the Report and Recommendation. On September 28, 2011, Defendants
filed a Response to Plaintiff’s Objection (Dkt. 41). The matter is now ripe for the Court’s
review.
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court “may accept, reject, or modify, in
whole or in part, the findings and recommendations made by the magistrate judge.”
Moreover, this Court “shall make a de novo determination of those portions of the report
which objection is made.” Id. In United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th
Cir. 2003), the court interpreted the requirements of 28 U.S.C. 636(b)(1)(C):
The statute [28 U.S.C. § 636(b)(1)(C)] makes it clear that the district judge
must review the magistrate judge's findings and recommendations de novo
if objection is made, but not otherwise. As the Peretz Court instructed, “to
the extent de novo review is required to satisfy Article III concerns, it need
not be exercised unless requested by the parties.” Peretz, 501 U.S. at 939
(internal citation omitted). Neither the Constitution nor the statute requires a
district judge to review, de novo, findings and recommendations that the
parties themselves accept as correct. See Ciapponi, 77 F.3d at 1251
(“Absent an objection or request for review by the defendant, the district
ORDER ON REPORT AND RECOMMENDATION - 2

court was not required to engage in any more formal review of the plea
proceeding.”); see also Peretz, 501 U.S. at 937-39 (clarifying that de novo
review not required for Article III purposes unless requested by the parties)
....
See also Wang v. Masaitis, 416 F.3d 993, 1000 & n.13 (9th Cir. 2005). In this case,
Plaintiff objects to Judge Dale’s recommendations to dismiss the case.
The Court reviewed the Report and Recommendation and the record in this matter
and finds the Report and Recommendation to be well-founded in the law based on the
facts of this particular case. Anderton expresses great dissatisfaction with the judicial
system, the concept of absolute judicial immunity which prevents judges from being held
civilly liable to the parties for their rulings, and the decision to dismiss the claims against
the non-judicial defendants on technicalities.
The Court’s review of the pending motions to dismiss is undertaken with an eye on
Ninth Circuit standards regarding pro se litigants. Tucker v. Carlson, 925 F.2d 330 (9th
Cir. 1991). However, the Court reminds Anderton that pro se litigants are held to same
procedural rules as counseled litigants. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

Judge Dale properly summarized the case as follows:
Plaintiff Bardell Anderton, proceeding pro se, brings this civil rights action
under 42 U.S.C. §§ 1983 and 1985 against various financial institutions,
lawyers, and judges relating to the foreclosure of his home in Pocatello,
Idaho. The gist of Plaintiff’s complaint is that he was fraudulently induced
into taking out a home loan that he could not repay, which led to the
foreclosure sale of his home, and that the named financial institutions,
lawyers, and judges conspired against Plaintiff in an effort to deprive him
of his property.
Report and Recommendation at 1-2, Dkt. 37.
ORDER ON REPORT AND RECOMMENDATION - 3

The Court finds Plaintiff's claims are not supported by the law and Plaintiff has
failed to comply with the procedural rules for service of process set forth in Fed. R. Civ.
P. 4 and for setting forth with particularity claims of fraud or deceit as required by Fed. R.
Civ. P. 9(b). Plaintiff has also failed to state a claim upon which relief can be granted.

Fed. R. Civ. P. 12(b)(6). Congress has created a cause of action against private
individuals who, while acting under color of law, violate the constitutional rights of
private citizens. Section 1983 provides in pertinent part:
Every person who, under color of any statute, […] subjects, or causes to be
subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivations of any rights, privileges or immunities
secured by the Constitution and laws, shall be liable to the party injured.
Id. In order for a plaintiff to prevail on a § 1983 claim he or she must show that (1) the
actor that deprived them of their rights acted under color of law and (2) the action
actually deprived them of a constitutional right. Section 1983 and 1985 claims cannot be
brought against parties who are not "state actors" acting under the color of law. The
financial institutions Plaintiff is trying to sue are not "state actors" as defined by the
statute and case law.
As to the named Defendants who are judges (who would be considered "state
actors"), the judges are entitled to immunity. It is well-settled that “[j]udges are
absolutely immune from civil liability for damages for their judicial acts.” Mullis v. U.S.
Bankr. Court for Dist. Of Nevada, 828 F.2d 1385, 1388 (9th Cir. 1987). “A judge will
not be deprived of immunity because the action he took was in error, was done

ORDER ON REPORT AND RECOMMENDATION - 4

maliciously, or was in excess of his authority; rather, he will be subject to liability only
when he has acted in the ‘clear absence of all jurisdiction.’” Stump v. Sparkman, 435 U.S.
349, 356-57 (1978) (quoting Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 551 (1872)).
Regardless of whether Plaintiff agrees personally with the concept of judicial immunity, it
is this Court's duty to apply the applicable law and Plaintiff has not provided any valid
legal argument why judicial immunity should not apply to the judicial defendants named
in this action.
The Court is not unsympathetic to Anderton's situation of having his home
foreclosed upon. But Anderton does not deny that he entered into a loan secured by his
residence, took the proceeds from the loan and later defaulted on the loan. Anderton has
the ability to read, understand, and question legal documents before he voluntarily signs
such documents. Anderton has had numerous opportunities in state and federal court
cases to present his defenses and arguments regarding the lawfulness of the foreclosure.
Merely because Anderton objects to the outcomes in these cases does not give him the
right to continue to file lis pendens on the real property when his interests in such real
property have been rejected by the Courts.
The Court understands that Plaintiff believes all the judges working on his cases
have committed error in their actions or rulings, but that is the precise reason that judges
have immunity so that parties that disagree with rulings cannot sue the judges civilly for
their decisions. Instead, a party needs to seek an appeal through the proper channels to
determine if the rulings were or were not within the law.
ORDER ON REPORT AND RECOMMENDATION - 5

The rule of law and judicial independence are key principles set down by our
founding fathers. This Court takes seriously its oath to uphold the Constitution and the
laws of this country. The Court declines to discuss further the lack of legal merit in
Plaintiff's arguments contained in his Response to the Report and Recommendation. The
Court adopts as its own analysis, the comprehensive memorandum of Judge Dale and
commends Judge Dale for taking the time to fully articulate the Court's reasoning on the
motions to dismiss instead of summarily denying the same as Plaintiff appears to argue
would be the better course. If Plaintiff believes this Court is in err, he is free to seek
appellate review.
The Court also finds that because Plaintiff has failed to provide proof of valid
service of process of his Complaint on the other named Defendants who have not yet
appeared and the time for service pursuant to Rule 4 has expired. Therefore, the Court
will dismiss without prejudice the claims against those Defendants.
Finally, based on the dismissal of the pending actions against the certain financial
institution Defendants, the Court finds that any lis pendens recorded by Plaintiff related to
the real property commonly know as 2201 S. Fairway Drive, Pocatello, Idaho and legally
described as Lot 10, in Block 1, of Fairway Estates Second Addition, Bannock County
Idaho that has not previously been expunged should be expunged at this time. Plaintiff is
advised that he is enjoined from recording any further lis pendens or other documents
encumbering title to the aforementioned property without leave of a court of competent
jurisdiction and Plaintiff may be held in contempt if he fails to comply with this order of
ORDER ON REPORT AND RECOMMENDATION - 6

the Court.
THEREFORE, IT IS HEREBY ORDERED that:
1. the Report and Recommendation (Dkt. 37) shall be INCORPORATED by
reference and ADOPTED in its entirety;
2. the Motion to Dismiss filed by Defendants Smith, Bush and Winmill (Dkt. 8) is
GRANTED;
3. the Motion to Dismiss filed by Defendants HSBC Bank, USA, as Trustee of the
Ace Securities Corp. Home Equity Loan Trust, Series 2004-FM1, Credit Based Asset
Servicing and Securitization aka C-Bass, Northwest Trustee Services, Routh Crabtree
Olsen PS, Lance Olsen, and Derrick O’Neill (Dkt. 16) is GRANTED;
4. the Motion to Join Defendants’ Motion to Dismiss, (Dkt. 26), filed by
Defendants Mortgage Electronic Registration Systems, Inc., and Litton Loan Servicing
LP is GRANTED;
5. the claims against the remaining Defendants who are named in the Complaint
but for which there is no valid proof of service in compliance with Fed. R. Civ. P. 4 are
DISMISSED WITHOUT PREJUDICE based on Plaintiffs failure to prosecute the claims
against these parties; and
6. any lis pendens recorded by Plaintiff related to the real property commonly

know as 2201 S. Fairway Drive, Pocatello, Idaho and legally described as Lot 10, in
Block 1, of Fairway Estates Second Addition, Bannock County Idaho that has not
previously been expunged is hereby QUASHED AND EXPUNGED. If Bonner County
ORDER ON REPORT AND RECOMMENDATION - 7

needs an additional order from the Court, Defendants shall provide a proposed order with
the necessary language to effectuate expungement. Plaintiff is ordered ENJOINED from
recording any further lis pendens or other documents encumbering title to the
aforementioned property without leave of a court of competent jurisdiction.

DATED: September 29, 2011

Honorable Edward J. Lodge
U. S. District Judge

ORDER ON REPORT AND RECOMMENDATION - 8