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Tracy D. Lawson v. Citicorp Trust Bank

August 5, 2011

TRACY D. LAWSON, PLAINTIFF,
v.
CITICORP TRUST BANK, FSB, A MEMBER OF CITIGROUP; CR TITLE SERVICES, INC.; PRIMERA FINANCIAL SERVICES HOME MORTGAGES, INC.; TIMOTHY GEITHNER, SECRETARY OF THE TREASURY, UNITED STATES; ERIC HOLDER, U.S. ATTORNEY GENERAL, AS ALIEN PROPERTY CUSTODIAN, DEFENDANTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Presently before the court is a motion to dismiss plaintiff's claims pursuant to Federal Rules of Civil Procedure 12(b)(6) filed by defendants CitiCorp Trust Bank ("CitiCorp Trust") and C.R. Title Services, Inc. ("C.R. Title"), in which defendant Primerica Financial Services, Inc. ("Primerica") joins (collectively, "Mortgage Defendants").*fn1 The court heard the Mortgage Defendants' motion on its law and motion calendar on July 28, 2011. Attorney Claudia L. Williams appeared on behalf of the Mortgage Defendants. Plaintiff, who is proceeding without counsel, appeared on her own behalf.

The undersigned has considered the briefs, oral arguments, and appropriate portions of the record in this case and, for the reasons stated below, recommends that the Mortgage Defendants' motion to dismiss be granted, that all of plaintiff's claims alleged against the Mortgage Defendants be dismissed with prejudice, and that the Mortgage Defendants be dismissed from this action. The undersigned further recommends sua sponte*fn2 that plaintiff's claim or claims against the two remaining named defendants-Timothy Geithner, the Secretary of the U.S. Department of the Treasury, and Eric Holder, Jr., the Attorney General of the United States-be dismissed with prejudice.

I. BACKGROUND

The operative pleading in this action is plaintiff's "Petition to Set Aside and Void Foreclosure Claim, Cancel Note and Mortgage, Claim in Recoupment, Quiet Title, and for Declaratory and Injunctive Relief," which is referred to herein as the "complaint." (Dkt. No. 1.) Plaintiff alleges that on October 17, 2006, she obtained a loan in the amount of $94,180.24 from CitiCorp Trust, which is secured by the property located at 7400 Franklin Boulevard #2, in Sacramento, California. (See Compl. ¶¶ 8-9.) Although plaintiff does not allege any facts about the status of the foreclosure proceedings, a Notice of Trustee's Sale attached to plaintiff's second application for a temporary restraining order indicates that a trustee's sale was scheduled for July 11, 2011. (Lawson Decl. In Supp. of Appl. for TRO, Ex. A, Dkt. No. 10, Doc. No. 10-1.) Plaintiff represented at the July 28, 2011 hearing that she believed the trustee's sale actually occurred on July 11, 2011. Plaintiff alleges that she has made several tenders of the "purported debt," which were conditioned on a demand of "validation of the debt."*fn3 (Compl. ¶ 9e.)

Plaintiff alleges very few facts about the loan she acquired and the foreclosure proceedings that followed. Additionally, plaintiff does not allege how C.R. Title or Primerica are involved in this case.*fn4 Instead, plaintiff offers several theories in support of her allegations, including that she never received consideration for her monthly payments, that she was fraudulently induced into entering the loan agreement, and that the foreclosing parties had no standing to foreclose on her property. (See, e.g., Compl. ¶¶ 11, 15-17, 19, 25-26.) Plaintiff's commonly offered (and commonly rejected) theories include that the Mortgage Defendants did not produce the "original note" and is thus not the "original note holder" or "holder in due course," that she never received "real dollars" in the loan transaction including funds in the form of "US Silver Coin," and that the United States of America has been bankrupt since 1933 when it took its currency off of the gold standard.

Plaintiff alleges eleven un-numbered claims for relief against the Mortgage Defendants, which consist of claims: (1) to set aside the foreclosure (Compl. ¶¶ 22-34); (2) of "failure of consideration" (id. ¶¶ 35-37); (3) of usury (id. ¶¶ 38-40); (4) of breach of contract (id.¶¶ 41-45); (5) of "ultra vires" actions (id. ¶¶ 46-47); (6) of "indefiniteness of contract" (id. ¶¶ 48-49); (7) of "unconscionability" (id. ¶¶ 50-52); (8) of fraud (id. ¶¶ 53-57); (9) of cancellation of the promissory note (id. ¶¶ 58-59); (10) of "following trust property into its product," which appears to be a claim for imposition of a constructive trust (id. ¶¶ 60-62); and (11) for violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962. (id. ¶¶ 63-69). Plaintiff seeks myriad forms of relief, including compensatory damages, punitive damages, declaratory relief, and injunctive relief. (See id. ¶¶ 77-98.)

On May 2, 2011, plaintiff filed her complaint along with an application for a temporary restraining order. Plaintiff filed a total of three unsuccessful applications for a temporary restraining order, two of which were denied or otherwise rejected on procedural grounds. (See Order, May 12, 2011, Dkt. No. 7; Findings & Recommendations, June 27, 2011, Dkt. No. 13; Order, July 11, 2011, Dkt. No. 22.) The district judge assigned to this matter, United States District Judge Kimberly J. Mueller, denied plaintiff's third application for emergency relief on the merits of that application despite the fact that the application was once again procedurally defective. (See Order, July 11, 2011, at 2 n.2.) In rejecting plaintiff's third application, Judge Mueller analyzed plaintiff's arguments contained in an accompanying memorandum of points and authorities, which were "not tethered to the allegations of [plaintiff's] complaint." (See id. at 3 n.3.) Judge Mueller's order also stated: "Suffice it to note that plaintiff is unlikely to succeed on the merits of the allegations in the complaint insofar as they are based on her assertion that the loan she received is not of real value due to the fact that President Franklin Delano Roosevelt took the country's currency off the gold standard in 1933." (Id. (citations omitted).)

Meanwhile, and prior to the filing of plaintiff's third application for emergency relief, CitiCorp Trust and C.R. Title filed the motion to dismiss that is presently before the court. (Mot. to Dismiss, Dkt. No. 9.) Primerica filed a notice of joinder in CitiCorp Trust's and C.R. Title's motion. (Notice of Joinder, Dkt. No. 16.) Plaintiff filed a timely written opposition to the motion. (Pl.'s Opp'n, Dkt. No. 11.)

II. LEGAL STANDARDS

A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the sufficiency of the pleadings set forth in the complaint. Vega v. JPMorgan Chase Bank, N.A., 654 F. Supp. 2d 1104, 1109 (E.D. Cal. 2009). Under the "notice pleading" standard of the Federal Rules of Civil Procedure, a plaintiff's complaint must provide, in part, a "short and plain statement" of plaintiff's claims showing entitlement to relief. Fed. R. Civ. P. 8(a)(2); see also Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). "A complaint may survive a motion to dismiss if, taking all well-pleaded factual allegations as true, it contains 'enough facts to state a claim to relief that is plausible on its face.'" Coto Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)). "'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.'" Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010) (quoting Iqbal, 129 S. Ct. at 1949). The court accepts all of the facts alleged in the complaint as true and construes them in the light most favorable to the plaintiff. Corrie v. Caterpillar, 503 F.3d 974, 977 (9th Cir. 2007). The court is "not, however, required to accept as true conclusory allegations that are contradicted by documents referred to in the complaint, and [the court does] not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Paulsen, 559 F.3d at 1071 (citations and quotation marks omitted).

A motion to dismiss pursuant to Rule 12(b)(6) may also challenge a complaint's compliance with Federal Rule of Civil Procedure 9(b) where fraud is an essential element of a claim. See Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1107 (9th Cir. 2003). Rule 9(b), which provides a heightened pleading standard, states: "In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally." Fed. R. Civ. P. 9(b). These circumstances include the "time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentations." Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007) (per curiam) (citation and quotation marks omitted); see also Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009) ("Averments of fraud must be accompanied by 'the who, what, when, where, and how' of the misconduct charged.") (citation and quotation marks omitted). "Rule 9(b) demands that the circumstances constituting the alleged fraud be specific enough to give defendants notice of the particular misconduct . . . so that they can defend against the charge and not just deny that they have done anything wrong." Kearns, 567 F.3d at 1124 (citing Bly-Magee v. California, 236 F.3d 1014, 1019 (9th Cir. 2001) (internal quotation marks omitted and modification in original).

The court must construe a pro se pleading liberally to determine if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an opportunity to cure them if it appears at all possible that the plaintiff can correct the defect. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc); accord Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the court "may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters ...


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