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Anna of Georgner v. Brian T. Moyhihan

April 11, 2011

ANNA OF GEORGNER,
PLAINTIFF,
v.
BRIAN T. MOYHIHAN, 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 "Anna of Georgner, Licensor by way of the Birthing Trust and Fide Commissary Trust" ("Plaintiff"), appearing pro se, filed the instant action on April 5, 2011. Plaintiff's complaint is entitled "Replevin in Detinet" and names the following Defendants in the caption:

(1) "Brian T. Moyhihan and/or successors, individually and in his official capacity(ies) as Pres/CEO of Bank of America," (2) Peter Michno, heirs, successors and assigns, individually and severally d/b/a S&P Associates, an ens legis to conceal fraud," (3) "James F. Taylor or successor(s), as Pres/CFO of "Reconstruct Co., an ens legis to conceal fraud;" (4) Kevin R. McCarthy Pres/CFO Quality Loan Ser. Corp. an ens legis to conceal fraud (QLS)," and (5) "David Hisey and/or successor CFO of Fannie Mae."

Plaintiff paid the filing fee and is therefore not proceeding 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 complaint is mainly comprised of archaic legal terms and nonsensical statements. Reading her complaint carefully, however, it appears that she is alleging an unlawful foreclosure. From the portions of her complaint that are understandable, it seems that Plaintiff purchased two parcels of property in Fresno, California, on August 15, 2005. She executed a Promissory Note secured by a Deed of Trust on the real property.

Plaintiff alleges that the property was recently "confiscated by fraudulent non-judicial foreclosure procedure 'employing Margaret Mimms, Fresno County Sheriff, and CPA Paul Dictos as Recorder..." Complaint, at 1. Though Plaintiff contends that the property was confiscated, she later alleges that she is in "peaceful possession" of the property. In conjunction with this foreclosure, she alleges that Defendants falsified public records.

Plaintiff states that there "is no factual evidence" that she defaulted on the loan and contends that "Defendants do not AND did not possess the Right to sell Plaintiff's real property as Defendants have not established their position as the 'source of the loan' or as the True CREDITOR under the Mobius Nemisis Doctrine..." Complaint, at 3. She contends that Defendants cannot foreclose on the property without first presenting the Genuine Original Deed of Trust and Genuine Original Promissory Note. She alleges that she is the true title holder.

Plaintiff now sues to recover these documents and correct allegedly false public filings. She also requests that the Court stay the foreclosure and related proceedings until this action is concluded.

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, which 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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