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Miller v. Suntrust Mortgage

March 2, 2010

HERBERT E. MILLER, PLAINTIFF,
v.
SUNTRUST MORTGAGE, ET AL., DEFENDANTS.



ORDER AND FINDINGS AND RECOMMENDATIONS

This case came before the court on May 29, 2009, for hearing of defendants' motion to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc. No. 4). Harold Jones, Esq. appeared telephonically for defendants SunTrust Mortgage, Inc. and Sterling Edmunds, Jr. Plaintiff, who is proceeding pro se in this action, made no appearance at the hearing.

Upon consideration of all written materials filed in connection with defendants' motion, the arguments at the hearing, and the entire file, the undersigned recommends that defendants' motion to dismiss be granted and this action be dismissed with prejudice.

BACKGROUND

Plaintiff filed his pro se complaint in Shasta County Superior Court on February 23, 2009. (Def'ts' Notice of Removal (Doc. 1), Ex. A.) Defendants SunTrust Mortgage, Inc. and Sterling Edmunds, Jr., sued as SunTrust Mortgage and SunTrust Mortgage, CEO as Sterling Edmunds, Jr., removed the case to federal court on April 3, 2009, based on federal question jurisdiction. Defendants filed their motion to dismiss on April 10, 2009. Plaintiff did not file written opposition to defendants' motion and, as noted above, did not appear at the hearing. The court's docket reflects that plaintiff has filed nothing with this court since the action was removed from state court on April 3, 2009.

Plaintiff's failure to appear at the hearing on defendants' motion may, in the discretion of the court, be deemed a statement of no opposition to the granting of the motion. See Local Rule 230 (i). An inference of non-opposition in the present case is supported by plaintiff's failure to file written opposition to the motion. See Local Rule 230(c) ("No party will be entitled to be heard in opposition to a motion at oral arguments if opposition to the motion has not been timely filed by that party.").

PLAINTIFF'S CLAIMS

Plaintiff's complaint is titled "Petition to Cancel Note and Mortgage, Claim in Recoupment, Quiet Title, and for [D]eclaratory and Injunctive Relief." (Def'ts' Notice of Removal (Doc. No. 1), Ex. A. at 1.) Plaintiff alleges that on October 8, 2006, he executed two promissory notes for real property in Shasta County, in the amounts of $240,000.00 and $59,533.28. Plaintiff further alleges that he made 30 payments on the notes and then ceased to pay. (Id., Ex. A at 4.)

Plaintiff's first cause of action seeks to set aside foreclosure sale of the property. (Id., Ex. A at 7.) Other causes of action are for alleged "failure of consideration," usury, breach of contract, "indefiniteness of contract," unconscionability, fraud, return of promissory note for cancellation, wrongful disposition by trustee, and "Civil RICO Illegality by Monopoly, Conspiracy, & Racketeering: Against Trustee and Mortgage Defendants." (Id., Ex. A at 8-16.) Plaintiff's prayer for relief requests an order quieting title in plaintiff's favor, cancellation of plaintiff's original promissory notes, damages, and an accounting.

Plaintiff's causes of action are predicated in part on his theories about federal reserve notes, negotiable instruments, and "a fractional reserves banking system." (Id., Ex. A. at 5-6.) In this regard, plaintiff's complaint begins by asserting that the United States is and has been "in a bankruptcy" since at least 1933, that "a new form of currency entered into circulation in the system of commerce" as part of the New Deal, and that federal reserve notes have no intrinsic value. (Id., Ex. A at 5.) The remainder of plaintiff's monetary arguments are incomprehensible.

LEGAL STANDARDS APPLICABLE TO DEFENDANTS' MOTION TO DISMISS

The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Thus, a defendant's Rule 12(b)(6) motion challenges the court's ability to grant any relief on the plaintiff's claims, even if the plaintiff's allegations are true.

In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In general, pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, the court need not assume the truth of legal conclusions cast in the form of factual allegations. W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). The court is permitted to consider material which is properly submitted as part of the complaint, documents not physically attached to the complaint if their authenticity is not contested and the plaintiff's complaint necessarily relies on them, and matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001).

With regard to claims of fraud, "the circumstances constituting fraud . . . shall be stated with particularity." Fed. R. Civ. P. 9(b). "Rule 9(b) serves not only to give notice to defendants of the specific fraudulent conduct against which they must defend, but also 'to deter the filing of complaints as a pretext for the discovery of unknown wrongs, to protect [defendants] from the harm that comes from being subject to fraud charges, and to prohibit plaintiffs from unilaterally imposing upon the court, the parties and society enormous social and economic costs absent some factual basis.'" Bly-Magee v. California, 236 F.3d 1014, 1018 (9th Cir. 2001) (quoting In re Stac Elec. Sec. Litig., 89 F.3d 1399, 1405 (9th Cir. 1996)). Thus, pursuant to Rule 9(b), a plaintiff at a minimum must plead evidentiary facts such as the time, place, persons, statements and explanations of why allegedly misleading ...


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