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Hensley v. Bank of New York

August 3, 2010

ARLENE HENSLEY, PLAINTIFF,
v.
THE BANK OF NEW YORK F/K/A/ THE BANK OF NEW YORK AS SUCCESSOR TO J.P. MORGAN CHASE BANK, N.A., AS TRUSTEE FOR PASS-THROUGH CERTIFICATES, SERIES 2006-ARI; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; RECONSTRUCT COMPANY, N.A.; BANK OF AMERICA HOME LOANS, DEFENDANTS.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER DISMISSING COMPLAINT FOR FAILURE TO STATE A CLAIM WITH LEAVE TO AMEND WITHIN THIRTY DAYS

(Doc. 1)

On July 22, 2010, Plaintiff Arlene Hensley, proceeding pro se, filed a complaint seeking a permanent injunction and other equitable relief. This matter has been referred to the magistrate judge pursuant to 28 U.S.C. § 636(b) and Local Rules 72-302 and 72-304.

I. Screening Requirement

A court has inherent power to control its docket and the disposition of its cases with economy of time and effort for both the court and the parties. Landis v. North American Co., 299 U.S. 248, 254-55 (1936); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.), cert. denied, 506 U.S. 915 (1992). Accordingly, this Court screens all complaints filed by plaintiffs in propria persona to ensure that the action is not frivolous or malicious, that the action states a claim upon which relief may be granted, and that the complaint does not seek monetary relief from a defendant who is immune from such relief.

II. Allegations in the Complaint

On November 8, 2005, Plaintiff secured a $270,000 mortgage loan, secured by property at 2404 Buckley Way, Modesto, California, from lender First Bank d/b/a First Bank Mortgage. Although Plaintiff signed a waiver of borrower's rights form, her attorney failed to sign his or her affidavit indicating that the attorney had explained to Plaintiff the rights she was waiving and believed that Plaintiff understood her rights. Because the attorney affidavit was not signed, Plaintiff contends that the waiver is invalid. Accordingly, Plaintiff alleges that she is entitled to jury trial in any foreclosure action.

Plaintiff alleges that an unidentified lender or lenders engaged in a predatory lending scheme, violated the truth in Lending Act, and failed to record appropriate mortgage assignments under California law. She also contends that, in the absence of legal assignments, Defendant Reconstruct Co. lacks standing to sell the property in a foreclosure sale on July 28, 2010.

III. Pleading Standards

"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions." Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002). Pursuant to Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief...." Fed. R. Civ. P. 8(a). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of the cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Plaintiff must set forth sufficient factual matter accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949, quoting Twombly, 550 U.S. at 555. While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S.Ct. at 1949.

Although accepted as true, "[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555 (citations omitted). A plaintiff must set forth "the grounds of his entitlement to relief," which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action." Id. at 555-56 (internal quotation marks and citations omitted). To adequately state a claim against a defendant, a plaintiff must set forth the legal and factual basis for his or her claim.

"A short and plain statement of the claim showing that the pleader is entitled to relief" contemplates a simple and straightforward, but complete, account of the relevant occurrences, actors, and resulting damages. As presently written, the complaint is incomplete, failing to set forth, in logical, detailed, and numbered paragraphs the identities and roles of the Plaintiff and Defendants, or the elements of Plaintiff's multiple claims. The complaint is also replete with Plaintiff's legal conclusions regarding an unidentified "Lender's" violations of federal and state law.

IV. Specific Pleading Deficiencies ...


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