United States District Court, S.D. California
U.S. BANK, NATIONAL ASSOCIATION, As Trustee Under The Pooling And Servicing Agreement Dated As Of February 1, 2007, Gsamp Trust 2007-NC1, Mortgage Pass-Through Certificates, Series 2007-NC1, Plaintiff,
TERI AVAKIAN-HUGHES, TIMOTHY WILLIAM HUGHES, And Does 1 Through 5, inclusive, Defendants.
ORDER DISMISSING DEFENDANTS' COMPLAINT PURSUANT
TO 28 U.S.C. § 1915 AND DENYING MOTION TO PROCEED IN
FORMA PAUPERIS AS MOOT
ANTHONY J. BATTAGLIA UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendants Teri Avakian-Hughes
and Timothy Williams Hughes' (“Defendants”)
motion for leave to proceed in forma pauperis
(“IFP”) pursuant to 28 U.S.C. §
1915. (Doc. No. 2.) For the following reasons,
the Court sua sponte DISMISSES Defendants' complaint for
failure to state a claim upon which relief may be granted. As
such, the Court DENIES Defendants' IFP motion AS MOOT.
U.S.C. § 1915(a) allows a court to authorize a
lawsuit's commencement without payment of the filing fee
if the plaintiff submits an affidavit demonstrating his or
her inability to pay the filing fee. Such affidavit must
include a complete statement of the plaintiff's personal
assets. (Id.) An IFP action is subject to dismissal,
however, if the Court determines that the complaint is
frivolous or malicious, fails to state a claim upon which
relief may be granted, or seeks monetary damages against a
defendant who is immune from liability for such damages.
Id. § 1915(e)(2). The Ninth Circuit has
indicated that leave to proceed IFP pursuant to 28 U.S.C.
§ 1915(a) is properly granted only when the plaintiff
has demonstrated poverty and presented a claim that is not
factually or legally frivolous. See Tripati v. First
Nat'l Bank & Trust, 821 F.2d 1368, 1370 (9th
Cir. 1987). Thus, a court “may deny leave to proceed in
forma pauperis at the outset if it appears from the fact of
the proposed complaint that the action is frivolous or
without merit.” Id. (citing Reece v.
Washington, 310 F.2d 139, 140 (9th Cir. 1962); Smart
v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965)). “It
is the duty of the District Court to determine whether the
proceeding has merit[, ] and if it appears that the
proceeding is without merit, the court is bound to deny a
motion seeking leave to proceed in forma pauperis.”
Smart, 347 F.2d at 116 (citations omitted).
Plaintiffs are proceeding pro se, the Court
construes Plaintiffs' pleadings liberally, see Zichko
v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001), though
Plaintiffs are still required to plead enough facts to
provide notice of what they think Defendant did wrong,
see Brazil v. U.S. Dep't of Navy, 66 F.3d 193,
199 (9th Cir. 1995). Accordingly, construing the complaint
liberally does not entail adding “essential elements of
the claim that were not initially pled.” Ivey v.
Bd. Of Regents of the Univ. of Alaska, 673 F.2d 266, 268
(9th Cir. 1982). Upon review of Plaintiffs' complaint,
the Court concludes that it does not survive the mandatory
screening under § 1915.
complaint alludes to U.S. Bank's “disregard”
of “the purchase of a property that was wrongfully
foreclosed, ” a “tainted trustee sale, ”
and an “unjust eviction.” (Doc. No. 1
¶¶ 6-7.) Plaintiffs contend that certain enumerated
requirements of RESPA were never met and cite to sections
2605(a), (b)(1), and (b)(3)(A)-(D). (Id. ¶ 8.)
Plaintiffs further allege that they “never received a
notice, no correspondence and no response to [their]
‘status' as a) resident, b) homeowner or c)
occupier in the property” and that this conduct is
violative of U.S. Bank's duty as a lender and dealer
pursuant to RESPA “to disclose their relationship to
[them].” (Id. ¶ 9.)
enacted RESPA in part to “insure that consumers
throughout the Nation are provided with greater and more
timely information on the nature and costs of the settlement
process and are protected from unnecessarily high settlement
charges by certain abusive practices.” 12 U.S.C. §
2601(a). RESPA creates a private right of action for three
types of wrongful acts: “(1) payment of a kickback and
unearned fees for real estate settlement services, 12 U.S.C.
§ 2607(a), (b); (2) requiring a buyer to use a title
insurer selected by the seller, 12 U.S.C. § 2608(b); and
(3) the failure by a loan servicer to give proper notice of a
transfer of servicing rights or to respond to a qualified
written request for information about a loan, 12 U.S.C.
§ 2605(f).” Choudhuri v. Wells Fargo Bank,
N.A., No. C 11-00518 SBA, 2011 WL 5079480, at *8 (N.D.
Cal. Oct. 25, 2011) (citing Patague v. Wells
Fargo Bank, N.A., No. C 10-03460 SBA, 2010 WL 4695480,
at *3 (N.D. Cal. Nov. 8, 2010)).
when liberally construed, Plaintiffs' complaint falls far
short of pleading sufficient facts to give Defendant notice
of their claim. Plaintiffs do not allege any facts regarding
their status in relation to the subject property, their
relationship to U.S. Bank, or any detail regarding the
circumstances of their grievance, including relevant dates
and locations. Even though Plaintiffs cite to the specific
provision in RESPA regarding the nondisclosure of loan
transfers and allege Defendant is a lender, (Doc. No. 1
¶¶ 2, 8), it remains difficult for the Court to
construe exactly what alleged wrong occurred in light of such
vague factual allegations. See Grant v. Shapiro &
Burson, LLP, et al., 871 F.Supp.2d 462, 471 (D. Md.
2012) (“beyond [plaintiff's] legal conclusion that
Defendants . . . failed to inform [her] of the actual
transfer, she sets forth no information at all about this
issue.”) (emphasis in original) (internal quotations
Plaintiffs' claim must be dismissed for failure to state
a claim upon which relief may be granted. See e.g.,
Delino v. Platinum Comm. Bank, 628 F.Supp.2d 1226,
1231-32 (S.D. Cal. 2009) (dismissing a RESPA claim brought
pursuant to section 2605(b)(1) for failure to state a claim);
Gutierrez v. PNC Mortg., No. 10cv01770-AJB-RBB, 2012
WL 1033063, at *7 (S.D. Cal. Mar. 26, 2012) (finding that a
plaintiff alleging only that “Defendants failed to
notify him when his loan was transferred for servicing”
had failed to state a claim under section 2605(b)(1)).
on the above, the Court DISMISSES WITHOUT PREJUDICE
Plaintiffs' complaint, (Doc. No. 1), and DENIES AS MOOT
Plaintiffs' motion to proceed in forma pauperis, (Doc.
No. 2). See Lopez v. Smith, 203 F.3d 1122, 1127 (9th
Cir. 2000) (en banc) (“It is also clear that [§]
1915(e) not only permits but requires a district court to
dismiss an in forma pauperis complaint that fails to state a
claim.”). Plaintiffs have sixty days from the
date of this order's issuance to submit a first amended
complaint correcting the deficiencies noted herein. At that
time, Plaintiffs may resubmit their IFP motion. Failure to
amend the complaint will result in the Court's dismissal
of this case.