Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Sameth Chim v. Wachovia

January 19, 2011

SAMETH CHIM,
PLAINTIFF,
v.
WACHOVIA, 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 Sameth Chim ("Plaintiff"), appearing pro se, filed the instant action on January 13, 2011. She names Wachovia, Does I through X and ROE Corporations I through V, 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 appear to challenge a pending foreclosure by Defendant Wachovia.

According to the complaint, Plaintiff executed a Short Form Deed of Trust and Assignment of Rents to David Alan-Tikal, Trustee of the KATN Revocable Living Trust. Complaint, ¶ 3 and Exhibit C. On or about October 18, 2010, David Alan-Tikal attempted to substitute himself as trustee in place of Golden West Savings Association. Complaint, ¶ 2 and Exhibit B.

Although never stated in the complaint, it appears from attached exhibits that a deed of trust may have been executed in September 29, 2005, and recorded on October 10, 2005, naming Plaintiff as the trustor, Golden West Savings Association Co. as the original trustee and World Savings Bank, FSB, Its Successors and/or Assigns as the original beneficiary. Apparently, David Alan-Tikal attempted to substitute the KATN Trust as the trustee in place of Golden West Savings Association.

Thereafter, David Alan-Tikal allegedly sent the Short Form Deed of Trust and Assignment of Rents, along with the purported substitution, to Defendant Wachovia. Plaintiff alleges that Defendant Wachovia did not "honor the filings with a cease and desist" and served Plaintiff with a Notice of Trustee Sale and Election to Sell Under Deed of Trust. Complaint, ¶ 5 and Exhibit D.

Plaintiff further alleges that Defendant Wachovia failed to provide full disclosure pursuant to Federal Truth In Lending Act, 15 U.S.C. § 1601 et seq. Plaintiff also is challenging the validity of foreclosure by Defendant Wachovia. Plaintiff seeks declaratory and injunctive 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 caption references multiple causes of action, the complaint 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).

A pleading may not simply allege a wrong has been committed and demand relief. The underlying requirement is that a pleading give "fair notice" of the claim being asserted and the "grounds upon which it rests." Yamaguchi v. United States Dep't of Air Force, 109 F.3d 1475, 1481 (9th Cir. 1997). Despite the flexible pleading policy of the Federal Rules of Civil Procedure, 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). A plaintiff must allege with at least some degree of particularity overt facts which defendant engaged in to support plaintiff's claim. Id. at 649. A complaint does not suffice "if it tenders 'naked assertion[s]' ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.