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Jose Jesus Gomez v. Jay W. Cervenka

January 29, 2013

JOSE JESUS GOMEZ,
PLAINTIFF,
v.
JAY W. CERVENKA, ET AL.
DEFENDANT.



The opinion of the court was delivered by: Justin L. Quackenbush Senior United States District Judge

O

ORDER RE: SUFFICIENCY OF COMPLAINT

BEFORE THE COURT is Plaintiff's Complaint (ECF No. 2). Plaintiff has been granted leave to proceed in forma pauperis by Order of Magistrate Judge Prada. (ECF No. 4). When a pro se litigant is proceeding in forma pauperis ("IFP") this court must review the complaint to determine if it is legally sufficient. The court must dismiss the case if Plaintiff has raised claims that are "frivolous or malicious", that fail to state a claim upon which relief can be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2).

The court has concerns with the sufficiency of Plaintiff's Complaint. It appears that Plaintiff has filed a "form" or "fill-in-the-blank" Complaint. The Complaint contains some blanks that Plaintiff apparently forgot to complete. See for example Complaint at ¶ 45, referencing [SALE DATE] and [EVICTING ENTITY]. The Complaint also contains references to Plaintiff as "her" and "she", although Plaintiff Jose Jesus Gomez is a "single man". The court also has concerns that the Complaint fails to state a claim in that the claims are time-barred, as discussed further infra. The apparent use by Plaintiff of a 'cut and paste' Complaint also raises issue with whether the claims are being brought in good faith. Pursuant to Fed.R.Civ.P. 11, Plaintiff has an obligation to assert only claims that are warranted by existing law and factual contentions that have evidentiary support.

DISCUSSION

I. The Complaint

First, Federal Rule of Civil Procedure 8(a) requires that a Complaint contain: 1) a short and plain statement of the grounds for the court's jurisdiction; 2) a short and plain statement of the claim showing that the pleader is entitled to relief; and 3) a demand for relief. Plaintiff's Complaint does not set forth a short and plain statement establishing that he is entitled to relief. Plaintiff's allegations are unclear, and lack specificity. Despite naming four corporate and individual Defendants as well as the "Unknown Defendants", the allegations of wrongful conduct are often alleged in conclusory fashion against all Defendants. Further, Fed.R.Civ.P. 10(b) requires that claims be set forth in numbered paragraphs. The first ten pages of the Complaint contain paragraphs numbered 1 to 35. However, then on page eleven, the numbering begins again at paragraph 2, and sets forth a recitation of the parties - - duplicating the section on "parties" contained on page three.

The Supreme Court has stated that: "A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Plaintiff's Complaint is sufficiently unclear and convoluted that a Defendant could not reasonably prepare a response. Plaintiff's Complaint has approximately 70 pages of documents attached to it, some pages described as exhibits, but none of them referenced or incorporated into the Complaint. For example, at Exhibit A (ECF No. 2, p. 30 of 113), there is a narrative description which may be intended to be an affidavit, or a continuation of the Complaint. If intended to be an affidavit, it is not signed under penalty of perjury or notarized.

A. Plaintiff's Claims Appear to be Time-Barred

Plaintiff alleges that he entered into a loan agreement on January 21, 2004, and December 4, 2006. (ECF No. 2, p. 3). Plaintiff bases his allegations of federal jurisdiction on the Truth In Lending Act ("TILA") and the Real Estate Settlement Procedures Act ("RESPA"). The TILA contains a one-year statute of limitations. See 15 U.S.C. § 1640(e)(providing in part that action must be brought "within one year from the date of the occurrence of the violation"). The Ninth Circuit has stated that the "limitations period beg[ins] to run when the plaintiffs execute[] their loan documents, because they could have discovered the alleged disclosure violations and discrepancies at that time." Cervantes v. Countrywide Home Loans, 656 F.3d 1034, 1045 (9th Cir. 2011).

In this case, the loan agreement was entered into and documents executed at the latest on December 4, 2006. This action was not filed until over six years later, on December 21, 2012. It is apparent from the face of the FAC that the claims are time barred. See Cervantes, 656 F.3d at 1045 ("The running of the limitations periods of both claims is apparent on the face of the complaint because the plaintiffs obtained their loans in 2006, but commenced the action in 2009."). Therefore, it appears that Plaintiff fails to state a claim upon which relief can be granted.

Plaintiff additionally asserts a claim for rescission in Count 10 of his Complaint. Claims for rescission under TILA are subject to a three-year statute of limitations. See McOmie-Gray v. Bank of America, 667 F.3d 1325, 1326 (9th Cir. 2012)("15 U.S.C. § 1635(f) is a three-year statute of repose, requiring dismissal of a claim for rescission brought more than three years after the consummation of the loan secured by the first trust deed, regardless of when the borrower sends notice of rescission.") That claim is time-barred, as the Complaint was not filed until more than six years after the origination of the loan.

The RESPA contains a one to three year statute of limitations depending on what section is allegedly violated. See 12 U.S.C. § 2614 (providing a three-year period for claims brought under § 2605, and "1 year in the case of a violation of section 2607 or 2608 of this title from the date of the occurrence of the violation"). Again, as this action was not ...


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