Derheim et al v. Homecomings Financial et al

Filing 3

ORDER denying 1 Motion for Leave to Proceed in forma pauperis; plaintiffs have 15 days from the date of this Order to pay the filing fee or the case will be dismissed, signed by Judge Ronald B. Leighton.(DN) Modified on 3/13/2013 (DN). (cc to pltfs)

HONORABLE RONALD B. LEIGHTON

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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ORDER

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No. 13-cv-5147-RBL

STEVEN DERHEIM and CHERISE E.
DERHEIM,
Plaintiffs,

(Dkt. #1)
v.
HOMECOMINGS FINANCIAL, et al.,

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Defendants.

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Plaintiffs have applied to proceed in forma pauperis in this action arising from the
foreclosure of their property. A district court may permit indigent litigants to proceed in forma
pauperis upon completion of a proper affidavit of indigency. See 28 U.S.C. § 1915(a). The
court has broad discretion in resolving the application, but “the privilege of proceeding in forma
pauperis in civil actions for damages should be sparingly granted.” Weller v. Dickson, 314 F.2d
598, 600 (9th Cir. 1963), cert. denied 375 U.S. 845 (1963). Moreover, a court should “deny
leave to proceed in forma pauperis at the outset if it appears from the face of the proposed
complaint that the action is frivolous or without merit.” Tripati v. First Nat’l Bank & Trust, 821
F.2d 1368, 1369 (9th Cir. 1987) (citations omitted); see also 28 U.S.C. § 1915(e)(2)(B)(i). An in
forma pauperis complaint is frivolous if “it ha[s] no arguable substance in law or fact.” Id.
(citing Rizzo v. Dawson, 778 F.2d 527, 529 (9th Cir. 1985); Franklin v. Murphy, 745 F.2d 1221,
1228 (9th Cir. 1984).

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Order - 1

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The Court does not deny in forma pauperis status lightly, especially where a homeowner

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challenges the impending foreclosure of their property. But the Court must conclude that the

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proposed Complaint is frivolous on its face. First, much of Plaintiffs’ contentions are based on

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the incorrect belief that their lender must produce their original promissory note. This is

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incorrect and has been rejected by every court to address it. See, e.g., Mikhay v. Bank of Am.,

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NA., 2011 WL 167064, *2–*3 (W.D. Wash. 2011); Wright v. Accredited Home Lenders, 2011

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WL 39027 (W.D. Wash. 2011); Pelzel v. First Saving Bank Northwest, 2010 WL 3814285, at *2

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(W.D. Wash. 2010); Wallis v. IndyMac Fed. Bank, 717 F. Supp. 2d 1195, 1200 (W.D. Wash.

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2010); Freeston v. Bishop, White & Marshall, P.S., 2010 WL 1186276, at *6 (W.D. Wash.

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2010). Indeed, the Washington Deed of Trust Act requires that a foreclosing lender demonstrate

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its ownership of the underlying note to the trustee, not the borrower. RCW 61.24.030(7).

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Second, the remaining allegations fail to support a legal claim. The Complaint contains a

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lengthy discussion of the mortgage system, allegations of fraud and conspiracy, and a number of

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statutory causes of action. None are supported by factual allegations.

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For the reasons stated above, the Application to Proceed In Forma Pauperis (Dkt. #1) is

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DENIED. Plaintiffs have 15 days from the date of this order to pay the filing fees or the case

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will be dismissed.

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Dated this 13th day of March 2013.

A
RONALD B. LEIGHTON
UNITED STATES DISTRICT JUDGE

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Order - 2