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Duran v. Aurora Loan Services

January 30, 2009

JOHN DURAN, PLAINTIFF,
v.
AURORA LOAN SERVICES; QUALITY LOAN SERVICE CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND

Plaintiff John Duran ("Plaintiff"), appearing pro se and proceeding in forma pauperis, filed the instant complaint on January 22, 2009. For the reasons stated below, Plaintiff's complaint is dismissed with leave to amend.

DISCUSSION

A. Screening Standard

Pursuant to 28 U.S.C. § 1915(e)(2), the court must conduct an initial review of the complaint for sufficiency to state a claim. The court must dismiss a complaint or portion thereof if the court determines that the action is legally "frivolous or malicious," fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). If the court determines that the complaint fails to state a claim, leave to amend may be granted to the extent that the deficiencies of the complaint can be cured by amendment.

In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

Fed. R. Civ. P. 8(a) provides:

A pleading that states a claim for relief must contain: (1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

A complaint must contain a short and plain statement as required by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of particularity overt acts which the defendants engaged in that support Plaintiff's claim. Id. Although a complaint need not outline all elements of a claim, it must be possible to infer from the allegations that all elements exist and that there is entitlement to relief under some viable legal theory. Walker v. South Cent. Bell Telephone Co., 904 F.2d 275, 277 (5th Cir. 1990); Lewis v. ACB Business Services, Inc., 135 F.3d 389, 405-06 (6th Cir. 1998).

C. Allegations

Plaintiff sues Aurora Loan Services ("Aurora") for breach of an agreement and Quality Loan Service Corporation ("Quality") for violation of the Fair Debt Collection Practices Act. Plaintiff alleges that Aurora and Quality have "proceeded to conduct the sale of property at auction denying borrower the fundamental rights of due process while conducting business." Complaint, p. 2.

Plaintiff further alleges that he entered into an agreement with Aurora on a promise that Aurora would strongly consider modification of an existing loan. Plaintiff contends that he made three consecutive payments and provided Aurora with the necessary information to commence the modification. After several attempts to negotiate, Aurora transferred the note for collections with a third-party collections service, Quality.

Plaintiff requests that the court hear this matter and "render a decission [sic] as to whether [Aurora and Quality] have a standing to foreclose on a property that has no equity and where the value of the property has greatly affected a 'loss' in its value due to the current realestate [sic] meltdown." Complaint, p. 2.

Plaintiff alleges two claims for relief. In his first claim, Plaintiff alleges breach of an oral and written agreement by Aurora. In his second claim, Plaintiff alleges deprivation of mandates under the ...


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