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Lorri Harmon v. Federal Home Loan Mortgage Corporation

May 9, 2013

LORRI HARMON, PLAINTIFF,
v.
FEDERAL HOME LOAN MORTGAGE CORPORATION, DEFENDANTS.



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

FINDING S AND RECOMMENDATIONS

Plaintiff, proceeding pro se, brings this civil action. Pending before the court is plaintiff's complaint (Doc. 1) and two motions for injunctive relief (Docs. 5, 7).

The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). The court is also required to screen complaints brought by litigants who have been granted leave to proceed in forma pauperis. See 28 U.S.C. § 1915(e)(2). Under these screening provisions, the court must dismiss a complaint or portion thereof if it: (1) is frivolous or malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. §§ 1915(e)(2)(A), (B) and 1915A(b)(1), (2). Moreover, pursuant to Federal Rule of Civil Procedure 12(h)(3), this court must dismiss an action if the court determined that it lacks subject matter jurisdiction. Because plaintiff, who is not a prisoner, has been granted leave to proceed in forma pauperis, the court will screen the complaint pursuant to § 1915(e)(2). Pursuant to Rule 12(h), the court will also consider as a threshold matter whether it has subject-matter jurisdiction.

I. PLAINTIFF'S COMPLAINT

Plaintiff brings this action to quiet title, for breach of contract, and injunctive relief based on defendant's alleged violation of the Helping Families Save Their Homes Act of 2009, Pub. L. No. 111-22, §§ 701-704, 123 Stat. 1632 (2009) ("Act"). Plaintiff alleges that she had a valid rental agreement and option to purchase the home she resides in, dating back to 2008. The home and property at issue are located in the City of Magalia, County of Butte. Plaintiff states she received a notice of foreclosure sale of the property in 2009. She further alleges that she made proper payments to the former owners of the property pursuant to the terms of the lease, which were to be applied to the Sales Contract. After receiving the Notice of Default, plaintiff states she attempted to contact the mortgage holder, Wells Fargo Home Mortgage, who would not communicate with her until after the Trustee sale. After the Trustee sale, plaintiff states she provided a copy of the lease agreement to Wells Fargo. A few days thereafter, she states she received posted notice that defendant was now the owner of the property and informed her that if she was a bona fide tenant she was to provide a copy of her lease agreement pursuant to the Helping Family Save Their Homes Act of 2009. She then alleges the defendant violated Title VII of the Act by filing an unlawful detainer action against her in 2009. She also alleges the unlawful detainer action was dismissed with prejudice in the State court.

In addition, plaintiff claims the defendant has failed to properly maintain the property as directed by the Comptroller of the Currency Administrator of National Banks. She further claims that she has attempted to exercise her purchase option, but did not receive a response. In 2012, plaintiff states she was served with another unlawful detainer action. It is this second unlawful detainer action plaintiff is seeking injunctive relief from this court to stop.

Plaintiff states her first attempt to stop those proceedings was by removing the unlawful detainer action to the court, in case number 2:12-cv-1637-GEB-CMK. That action was remanded to the State court for lack of jurisdiction. Plaintiff filed this action thereafter.

II. DISCUSSION

In order for this case to proceed, this court must have subject-matter jurisdiction. Federal courts are courts of limited jurisdiction. This court only has jurisdiction to adjudicate those cases which involve either diversity of citizenship (citizens of different states) or a federal question (such as a constitutional claim). See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 380-81 (1994); 28 U.S.C. § 1330 et seq. The burden of establishing federal jurisdiction lies on the party asserting such jurisdiction. See Kokkonen, 511 U.S. at 377; see also Miguel v. Country Funding Corp., 309 F.3d 1161, 1164 (9th Cir. 2004).

Here, plaintiff claims she is proceeding on a federal question pursuant to 28 U.S.C. § 1330, claiming a violation of the Act and citing to 28 U.S.C. § 1402(d) to quite title on the property. General federal question jurisdiction under 28 U.S.C. § 1331 exists only "when the plaintiff sues under a federal statute that creates a right of action in federal court." Williams v. United Airlines, Inc., 500 F.3d 1019, 1022 (9th Cir. 2007). "[A] complaint alleging a violation of a federal statute as an element of a state cause of action, when Congress has determine that there should be no private, federal cause of action for the violation, does not state a claim 'arising under the Constitution, laws, or treaties of the United States.'" Merrell Dow Pharms. Inc. v. Thompson, 478 U.S. 804, 817 (1986) (quoting 28 U.S.C. § 1331). In order for a violation of a federal statute to give rise to a private cause of action, the statute must create such a right, either explicitly or implicitly. See Diaz v. Davis (In re Diqimarc Corp. Deriviative Litiq.), 549 F.2d 1223, 1229-30 (9th Cir. 2008).

28 U.S.C. § 1402 is inapplicable here, and cannot provide jurisdiction for this case. Section 1402 is only applicable where the United States is a party to the action. Here, the United States is not a party, so § 1402 is not applicable.

Second, plaintiff is claiming the defendant has violated the Act by filing an unlawful detainer action against her in State court. The applicable section of the Act is § 702, which provides, in part:

(a) IN GENERAL. - - In the case of any foreclosure on a federally-related mortgage loan or on any dwelling or residential real property after the date of enactment of this title, any immediate successor in interest in such property pursuant to the foreclosure shall assume such interest subject to -

(1) the provision, by such successor in interest of a notice to vacate to any bona fide tenant at least 90 days before the ...


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