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Anna of Georgner v. Brian T. Moyhihan

May 24, 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

FINDINGS AND RECOMMENDATION

REGARDING DISMISSAL OF ACTION

Plaintiff "Anna of Georgner, Freehold estate, Licensor," ("Plaintiff"), appearing pro se, filed the instant action on April 5, 2011. Pursuant to the Court's order, Plaintiff filed a First Amended Complaint ("FAC") on May 13, 2011. Plaintiff paid the filing fee and is therefore not proceeding in forma pauperis.

The FAC names the following Defendants: (1) "Brian T. Moyhihan and/or successors d/b/a CEO of Bank of America, N.A.," (2) "Sam Palmisano, successor CEO of IBM Short Sales & LBPS an ens legis to conceal fraud as a foreclosure mill;" (3) "James F. Taylor and/or successor(s), d/b/a Pres/CFO, Reconstruct Co., an ens legis to conceal fraud;" (4) "Kevin R. McCarthy, Pres/CFO Quality Loan Service;" (5) "Fannie Mae CFO David Hisey and/or successors;" (6) Peter Michno in esse, and S&P Associates, an ens legis;" and (7) "Mark Chu in esse d/b/a ActiveRain Corp., Big Realty et al., which are fictions used to conceal fraud."

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.

In addressing dismissal, 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

Despite the Court's prior instruction to provide a short and plain statement of her claims,Plaintiff continues to use archaic legal terms and write in a manner that makes it difficult to discern her facts and contentions. She also continues to reference irrelevant statutes and case law.

It appears that Plaintiff acquired two parcels of property in Fresno, California, on August 15, 2005, "in currency exchanges." FAC, at 3.

She contends that the parcels were "unlawfully transferred or conveyed by Defendants, and then sold or re-sold by Defendants through fraudulent non-judicial foreclosure procedures purporting to be alleged Trustees' Sales." Plaintiff alleges that the properties were sold despite Defendants' knowledge of court proceedings and "Notices to Cancel Default and cancel Trustees' Sales." She also argues that Defendants have failed to perfect the foreclosure by refusing to return the Genuine Original Promissory Note and Deeds of Trust. FAC, at 3.

Plaintiff further contends that Defendants did not have the right to sell the properties because they did not established their position "as the 'source or the loan' or as the True Creditor under the Mobius Nemsis Doctrine" and have not "adequately survived the 'Decker Test.'" FAC, at 4. Plaintiff alleges that she is "in fact the intended TRUE Title Holder of the real properties in question." FAC, at 4.

Plaintiff states that there "is no factual evidence" that she defaulted on the loan.

As to the individual Defendants, Plaintiff alleges the following: (1) Bank of America CEO Brian T. Moynihan refused to timely respond to her inquiries in October 2010, (2) Sam Palmisano of LBPS falsified public documents, entered a Notice of Default without due process or probable cause, and transferred the properties without due process, (3) James F. Taylor, through Recontrust Co., quickly re-sold or transferred one property to Fannie Mae, (4) Kevin R. McCarthy, through Quality Loan Services Corp., quickly re-sold or transferred one property to Fannie Mae despite knowledge of a prior lawsuit, (5) David Hisey, through Fannie Mae, split the properties to be re-sold by two different organizations; (6) Peter Michino of S&P Associates notified Fannie Mae of this action on April 6, 2011, (7) R.K. Arnold*fn1 of Mortgage Electronic Registration Systems, Inc., concealed fraud and (8) Mark Chu, through his fictitious companies, willfully harassed lawful tenants.

Plaintiff alleges that the Defendants have conspired in operating a foreclosure mill and falsifying public notary documents and records. She also references several sections of the Uniform Commercial Code States, the Racketeer ...


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