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Marshall-Edward: Mikels, et al v. Ing Bank

March 25, 2013

MARSHALL-EDWARD: MIKELS, ET AL.,
PLAINTIFF,
v.
ING BANK, FSB, ET AL., DEFENDANTS.



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

FINDINGS AND RECOMMENDATIONS

Plaintiffs, proceeding pro se, bring this civil action against several defendants. Pending before the court are the defendants' various motions to dismiss (Docs. 18, 47, 48, 50). Plaintiff requested and received one continuance, but failed to file an opposition to any of the motions. Due to plaintiff's failure to file an opposition, the hearing on the motions was taken off calendar, and the motions were submitted on the moving papers.

I. Background

This is a pro se civil case involving plaintiffs' mortgage. Plaintiffs' complaint is difficult to understand, but reading the complaint liberally as the court must given plaintiffs' pro se status, plaintiffs appear to claim the defendants perpetuated a fraudulent loan scheme where no actual loan was made, acted beyond their authority in foreclosing on plaintiffs' property, and violated their constitutional rights. According to the exhibits attached to plaintiffs' complaint, plaintiffs executed a Promissory Note and Deed of Trust, which was recorded with the County on September 20, 2007, with Ing Bank. On March 30, 2010, a Notice of Default was recorded with the County, indicating the plaintiffs had defaulted on the Deed of Trust, in the amount of $13,076.28. Then on March 28, 2011, a Notice of Trustee's Sale was recorded with the County, setting the property secured by the Deed of Trust for public auction on April 20, 2011. Thus, this action is in essence plaintiffs' attempt to set aside the foreclosure sale of their home, claiming the agreements were entered into on a fraudulent basis.

The defendants to this action include those involved in the mortgage of plaintiffs' home as well as those involved in the foreclosure of the home. The defendants include the lending bank, title companies, and the attorney who filed the unlawful detainer action against the plaintiffs on behalf of Ing Bank.

II. Motion to Dismiss

A. Motion

Defendants bring these motions to dismiss the complaint on the ground, among other things, that it fails to state a claim. The defendants argue the only understandable claim made in the complaint is fraud, which plaintiffs fail to plead with sufficient particularity, and the remainder of the claims are incomprehensible or barred. Specifically, the defendants all contend that although it appears that plaintiffs contemplated eleven to thirteen claims, the complaint only actually sets forth four claims of fraud, and one claim of violation of their Constitutional rights, citing 18 U.S.C. §§ 241, 242. The defendants argue that no other claim set forth in the complaint is comprehensible.

B. 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 Hosp. Bldg. Co. v. Rex Hosp. 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). "Although a pro se litigant ... may be entitled to great leeway when the court construes his pleadings, those pleadings nonetheless must meet some minimum threshold in providing a defendant with notice of what it is that it allegedly did wrong." Brazil v. United States Dept of Navy, 66 F.3d 193, 199 (9th Cir. 1995).

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 Twombly, 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 Twombly, 550 U.S. at 557).

In deciding a Rule 12(b)(6) motion, 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. ...


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