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Anner Osbaldo Hernandez v. Homeq Servicing; Wells Fargo Bank

December 3, 2010


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


Plaintiff Anner Osbaldo Hernandez ("Plaintiff"), appearing pro se and proceeding in forma pauperis, filed the instant action on August 17, 2010. He names HomEq Servicing and Wells Fargo Bank as Defendants.

On September 19, 2010, the Court dismissed the complaint with leave to amend. In granting leave to amend, the Court cautioned Plaintiff that he must provide facts to support his claims. The Court also took notice of Plaintiff's prior unsuccessful effort to pursue identical claims against these defendants in Hernandez v. HomEq Servicing, 1:10-cv-00528 OWW DLB.

On October 12, 2010, Plaintiff filed a first amended complaint ("FAC").


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.

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. Indeed, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.

In reviewing a complaint under this standard, the Court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Trustees of Rex Hospital, 425 U.S. 738, 740 (1976), construe the pro se pleadings liberally in the light most favorable to the Plaintiff, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and resolve all doubts in the Plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

B. Plaintiff's Allegations

In the FAC, Plaintiff contends that the "lender" prevented "borrower" from refinancing the loan (Loan Number 325186427). Plaintiff asserts that the "lender" is not willing to modify loan documents entered in "02/2006" and it is his understanding that the lender must give the borrower an opportunity to modify the loan documents or reduce the interest rate before foreclosing on the property. FAC, p.1.

Plaintiff also alleges that "defendant" failed to make certain disclosures in connection with a consumer credit transaction in violation of the Truth in Lending Act ("TILA"), 15 U.S.C. § 1601 et seq ., its implementing regulations and the Home Ownership Protection Act ("HOEPA"), an amendment to TILA, 15 U.S.C. § 1639. He seeks damages, title to the property and litigation costs.

As an "ADDED COMPLAINT," Plaintiff alleges wrongful foreclosure, asserting that the "lender" has sent a letter of intent to foreclose. Plaintiff questions whether the lender possesses the original debt instrument. He ...

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