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Maria Ayda Cordoba v. Bank of America

March 15, 2011

MARIA AYDA CORDOBA,
PLAINTIFF,
v.
BANK OF AMERICA, 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 Maria Ayda Cordoba ("Plaintiff"), appearing pro se and proceeding in forma pauperis, filed the instant action on March 3, 2011. She names Bank of America, Recontrust Company, Does I through X and ROE Corporations I through V, as Defendants.

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 Bank of America. According to the complaint, on or about December 6, 2010, Plaintiff executed a Substitution of Trustee and Full Reconveyance, attempting to substitute "Alan-David: Tikal" as trustee in place of Defendant Recontrust Company. Complaint, ¶ 2 and Exhibit B. On or about December 9, 2010, Plaintiff executed a Short Form Deed of Trust and Assignment of Rents to "Alan-David: Tikal, Trustee of the KATN Revocable Living Trust." Complaint, ¶ 3 and Exhibit C.

Although never stated in the complaint, it appears from attached exhibits that a Deed of Trust may have been executed on February 27, 2009, and recorded on March 5, 2009, naming Plaintiff as the trustor, Recontrust Company as the original trustee and Mortgage Electronic Registration Systems, Inc., ("MERS") Acting Solely as Nominee for Countrywide KB Home Loans, LLC, as the original beneficiary. Apparently, "Alan-David: Tikal" attempted to substitute the KATN Trust as the trustee in place of Recontrust Company.

Thereafter, "Alan-David: Tikal" allegedly sent the Short Form Deed of Trust and Assignment of Rents, along with the purported substitution, to Defendants Bank of America and Recontrust Company. Plaintiff alleges that Defendants did not "honor the filings with a cease and desist" and "went forward with calling, sending letters and otherwise harassing" Plaintiff. Complaint, ¶ 5.

Plaintiff further alleges that Defendant Bank of America 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 Bank of America and seeks declaratory and injunctive relief.*fn1

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]' devoid of 'further factual enhancement.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557 (2007). The United States Supreme Court has explained:

While, for most types of cases, the Federal Rules eliminated the cumbersome requirement that a claimant "set out in detail the facts upon which he bases his claim," Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (emphasis added), Rule 8(a)(2) still requires a "showing," rather than a blanket assertion, of entitlement to relief. Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the ...


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