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STONE v. R.E.F.S. INC.

September 8, 2005.

NEWORALEAN STONE, STARR MONNEY STONE, Plaintiffs,
v.
R.E.F.S. INC., R.E.F.S. OF TEXAS INC., JOYFUL HOUSE LLC, CARLTON SUE, FRANCISCO HO, FIDELITY NATIONAL AGENCY SALES & POSTING, ALAMEDA COUNTY SHERIFF DEPARTMENT, COMMUNITY COMMERCE BANK, FIDELITY NATIONAL TITLE COMPANY, ROSIE M. PARKS, THOMAS EASTRIDGE, JED SOMIT, JESSIE SMITH, CLARA MAE SIMPSON, CITY OF OAKLAND, Defendants.



The opinion of the court was delivered by: MAXINE CHESNEY, District Judge

ORDER DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS; DISMISSING ACTION
Before the Court is the complaint filed August 15, 2005 by plaintiffs NewOralean Stone ("NewOralean") and Starr Monney Stone ("Starr") (jointly, "plaintiffs") against defendants R.E.F.S. Inc., R.E.F.S. of Texas Inc., Joyful House LLC, Carlton Sue, Francisco Ho, Fidelity National Agency Sales & Posting, Alameda County Sheriff Department, Community Commerce Bank, Fidelity National Title Company, Rosie M. Parks, Thomas Eastridge, Jed Somit, Jessie Smith, Clara Mae Simpson, and City of Oakland ("defendants"), by which plaintiffs seek to set aside a foreclosure sale and also seek an award of unspecified damages. Also before the Court is plaintiffs' motion to proceed in forma pauperis, filed concurrently therewith. Having read and considered the papers filed by plaintiffs, the Court will DENY the application to proceed in forma pauperis, and DISMISS the action, pursuant to 28 U.S.C. § 1915(e)(2).

BACKGROUND

  Plaintiffs allege that NewOralean is a resident of San Francisco, California, and that Starr is NewOralean's daughter and a resident of Alameda County, California. (See Compl. ¶¶ 4 and 6.) NewOralean and Starr, plaintiffs allege, are co-owners of real property located at 8717-8719 International Boulevard, in Oakland, California ("the property"). (See id. ¶¶ 5 and 6.) According to plaintiffs, defendants wrongfully sold the property on July 7, 2004 at a foreclosure sale. (See id. ¶ 35.)

  Plaintiffs allege that NewOralean filed a voluntary petition for Chapter 13 bankruptcy protection on March 18, 2004, (see id. ¶ 27), and that on June 26, 2004, the bankruptcy court dismissed the petition, with "a bar to refiling." (See id. ¶ 29.) According to plaintiffs, NewOralean filed a timely appeal six days later, on July 2, 2004, and requested that the appeal be heard by the district court.*fn1 (See id. ¶ 30.)

  Plaintiffs contend that the July 7, 2004 foreclosure sale was in violation of the automatic stay triggered by NewOralean's bankruptcy petition, and that the sale violated state law in numerous ways. (See id. ¶¶ 35-40.) Plaintiffs further allege that the sale occurred in an area inaccessible to persons in wheelchairs, in violation of federal law. (See id. ¶ 39.)

  Finally, plaintiffs allege that, in June 2002, defendant Community Commerce Bank engaged in unspecified acts of "predatory lending" and that said defendant included duplicate charges in a "settlement statement." (See id. ¶ 62.)

  Plaintiffs seek both equitable relief and damages. In particular, with respect to the former, plaintiffs seek an order setting aside the foreclosure sale and an order quieting title. (See id. at 15.)

  LEGAL STANDARD

  Pursuant to 28 U.S.C. § 1915, "any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees or security therefor, by a person who submits an affidavit that includes a statement of all assets such person possesses that the person is unable to pay such fees or give security therefor." See 28 U.S.C. § 1915(a)(1). Where such an affidavit is filed, however, § 1915 requires the court to dismiss the case "at any time" if the court determines that "the allegation of poverty is untrue," the action "fails to state a claim upon which relief may be granted," the action is "frivolous or malicious," or the action "seeks monetary relief against a defendant who is immune from such relief." See 28 U.S.C. § 1915(e)(2).

  DISCUSSION

  A. Jurisdiction

  1. Diversity Jurisdiction

  Although plaintiffs allege that the Court has diversity jurisdiction over the instant action, (see Compl. ¶ 1), the allegations demonstrate that plaintiffs lack the requisite diversity of citizenship with defendants. The district courts have original jurisdiction for civil actions where the matter in controversy exceeds $75,000 and is between citizens of different states. See 28 U.S.C. § 1332(a). Congress has established the basic rule that diversity of citizenship exists under 28 U.S.C. § 1332 only when each plaintiff is a citizen of a different state from each defendant. See Owen Equip. & Erection Co. v. Kroger, 437 U.S. ...


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