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Kelly T. Palmer v. Wells Fargo

November 21, 2011

KELLY T. PALMER,
PLAINTIFF,
v.
WELLS FARGO, NA., DEFENDANT.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Plaintiff, proceeding in this action in propria persona, brings this civil action related to the foreclosure of his property. Pending before the court is defendants' unopposed motion to dismiss (Doc. 4). As no opposition was filed, the hearing on this motion was taken off calendar pursuant to Local Rule 230.

I. Background

Defendant removed this foreclosure action from state court to this court on January 24, 2011. The complaint alleges the defendant acted in violation of 11 U.S.C. § 524 in pursuing a foreclosure of his property following a Chapter 7 Bankruptcy discharge. Plaintiff alleges that he filed for Bankruptcy in June 2008, and received his discharge in October 2008.

He states his bankruptcy case was reopened in May 2010, and closed again in June 2010. Following the end of his bankruptcy proceedings, he received a notice of default dated July 28, 2010. Then in October 2010, he received a notice of trustee's sale. On January 14, 2011, he states he received a notice to quit. He alleges he notified the defendant of the bankruptcy proceedings, and asked that the notice to quit be immediately rescinded. Following that notice, he filed this action in the Shasta County Superior Court on February 22, 2011.

II. Motion to Dismiss

Defendant filed the motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(6). Defendant argues plaintiff fails to state a claim upon which relief may be granted, and any attempt at amendment would be futile.

A. Legal Standards

In considering a motion to dismiss, the court must accept all allegations of material fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The court must also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). However, legally conclusory statements, not supported by actual factual allegations, need not be accepted. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009). In addition, pro se pleadings are held to a less stringent standard than those drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972).

Rule 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief" in order to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order to survive dismissal for failure to state a claim under Rule 12(b)(6), a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Id. at 555-56. The complaint must contain "enough facts to state a claim to relief that is plausible on its face." Id. at 570. "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." Iqbal, 129 S. Ct. at 1949. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Bell Atl. Corp., 550 U.S. at 556). "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility for entitlement to relief." Id. (quoting Bell Atl. Corp., 550 U.S. at 557).

To determine whether a complaint states a claim upon which relief can be granted, the court generally may not consider materials outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The court may, however, consider: (1) documents whose contents are alleged in or attached to the complaint and whose authenticity no party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question, and upon which the complaint necessarily relies, but which are not attached to the complaint, see Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994).

Finally, leave to amend must be granted "[u]nless it is absolutely clear that no amendment can cure the defects." Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam); see also Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc).

B. Discussion

Plaintiff alleges the defendant violated 11 U.S.C. § 524 by proceeding with a foreclosure on his property following his bankruptcy discharge. Reading the complaint as liberally as possible, it appears that plaintiff believes and alleges that all of his debts were discharged in his bankruptcy proceeding regardless of the nature of those debts, and he should not have been contacted by any creditor for any reason. Unfortunately, a bankruptcy discharge does not offer such blanket discharge without regard for the type of debts involved. In a Chapter 7 Bankruptcy, generally the debts that are discharged are the unsecured debts of the debtor. See In re Henry, 266 B.R. 457, 471-72 (Bkrtcy. C.D. Cal. 2001) (setting forth variations in the ways debts are discharged). There are certain types of debts which are not dischargable at all in a bankruptcy proceeding. See 11 U.S.C. § 523 (setting forth non-dischargable debts). In addition, secured debts, such as a mortgage, are not simply discharged in bankruptcy proceedings without regards to the secured property. Rather, a debtor has to make a choice as to how to deal with the secured property. He can surrender the property to the secured creditor, he can redeem the ...


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