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Spence v. Lehman Brothers Bank

July 19, 2010

MICHELLE SPENCE, PLAINTIFF,
v.
LEHMAN BROTHERS BANK, ET AL., DEFENDANTS.



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

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND

Plaintiff Michele Spence ("Plaintiff"), appearing pro se, filed the instant action on July 8, 2010. She names Lehman Brothers Bank, FSB, and Aurora Loan Services, LLC, as Defendants. Plaintiff paid the filing fee and is therefore not appearing in forma pauperis.

DISCUSSION

A. Screening Standard

A trial court may dismiss a claim sua sponte under Fed. R. Civ. P. 12(b)(6) where the claimant cannot possibly win relief. Omar v.Sea-Land Service, Inc., 813 F.2d 986, 991 (9th Cir. 1987); Wong v. Bell, 642 F.2d 359, 361-62 (9th Cir. 1981). A claim is legally frivolous when it lacks an arguable basis either in law or fact. Neitzke v. Wiliams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). A federal court may dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Nietzke, 490 U.S. at 327.

B. Plaintiff's Allegations

Plaintiff's allegations are based on an alleged deprivation of due process in the foreclosure of her home. According to the complaint, Plaintiff executed an Adjustable Rate Note (the "Note") on September 23, 2005, for Plaza Home Mortgage's home loan in the amount of $267,800.00. The Note is secured by a Deed of Trust recorded with the Madera County Recorder against Plaintiff's property, located at 45865 Strawberry Road, Coarsegold, California, 93614.

Plaintiff alleges that the Note was transferred and assigned to Defendant Lehman Brothers Bank, FSB.

Plaintiff subsequently received a series of notices and documents in the mail regarding the planned foreclosure on her property. She also received a Notice of Default, which was recorded in the Madera County Recorder's Office on February 1, 2010. The Notice of Default states that if the property is in foreclosure, it may be sold without court action. Exh. B, attached to Complaint. Defendant Aurora Loan Services, Inc., is listed as the holder of the Note.

Plaintiff alleges that Defendants did not have standing to foreclose on the property or file an unlawful detainer action against her because they have not produced the original Note or identified the actual Note holder. She contends that these actions deprived her of property without due process of law in violation of the Fifth and Fourteenth Amendments. She also contends that these actions violated various federal and state statutes.

Based on these facts, Plaintiff alleges causes of action for (1) quiet title; (2) slander of title; (3) fraudulent concealment; and (4) negligent misrepresentation. Plaintiff requests monetary and declaratory relief.

C. Failure to Satisfy Federal Rule of Civil Procedure 8

As a threshold issue, Plaintiff's complaint fails to satisfy Federal Rule of Civil Procedure 8. Although the complaint references four causes of action, each cause of action fails to allege facts sufficient to state a claim. Rule 8 requires a plaintiff to "plead a short and plain statement of the elements of his or her claim, identifying the transaction or occurrence giving rise to the claim and the elements of the prima facie case." Bautista v. Los Angeles County, 216 F.3d 837, 840 (9th Cir. 2000).

Rule 8(d)(1) requires each allegation to be "simple, concise, and direct." This requirement "applies to good claims as well as bad, and is the basis for dismissal independent of Rule 12(b)(6)." McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996). "Something labeled a complaint but written more as a press release, prolix in evidentiary detail, yet without simplicity, conciseness and clarity as to whom plaintiffs are suing for what wrongs, fails to perform the essential functions of ...


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