United States District Court, E.D. California
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND
K. OBERTO UNITED STATES MAGISTRATE JUDGE.
Heriberto Avila, Jr., proceeding pro se, alleges
multiple claims against Defendants Wells Fargo Home Mortgage
and Fay Servicing LLC. This matter has been referred to a
magistrate judge pursuant to 28 U.S.C. § 636(b) and
Local Rules 302 and 304.
has inherent power to control its docket and the disposition
of its cases with economy of time and effort for both the
court and the parties. Landis v. North American Co.,
299 U.S. 248, 254-55 (1936); Ferdik v. Bonzelet, 963
F.2d 1258, 1260 (9th Cir. 1992). Accordingly, the
Court screens all complaints filed by plaintiffs proceeding
in propria persona to ensure that the complaint is
not frivolous or malicious, states a claim upon which relief
may be granted, and does not seek monetary relief from a
defendant who is immune from such relief.
any filing fee, or any portion thereof, that may have been
paid, the court shall dismiss the case at any time if the
court determines that . . . the action or appeal . . . fails
to state a claim upon which relief may be granted.” 28
U.S.C. § 1915(e)(2)(B)(ii).
8(a)'s simplified pleading standard applies to all civil
actions, with limited exceptions, ” none of which
applies here. Swierkiewicz v. Sorema N.A., 534 U.S.
506, 512 (2002). Pursuant to Rule 8(a), a complaint must
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a). “Such a statement must simply give
the defendant fair notice of what the plaintiff's claim
is and the grounds upon which it rests.”
Swierkiewicz, 534 U.S. at 512. Detailed factual
allegations are not required, but “[t]headbare recitals
of the elements of the cause of action, supported by mere
conclusory statements, do not suffice.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Ball
Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007).
“Plaintiff must set forth sufficient factual matter
accepted as true, to ‘state a claim that is plausible
on its face.'” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 555). While factual
allegations are accepted as true, legal conclusions are not.
Twombly, 550 U.S. at 555.
accepted as true, “[f]actual allegations must be
[sufficient] to raise a right to relief above the speculative
level.” Id. (citations omitted). A plaintiff
must set forth “the grounds of his entitlement to
relief, ” which “requires more than labels and
conclusions, and a formulaic recital of the elements of a
cause of action.” Id. at 555-56 (internal
quotation marks and citations omitted). To adequately state a
claim against a defendant, a plaintiff must set forth fully
the legal and factual basis for his claim.
Federal Question Jurisdiction
complaint alleges mortgage fraud and violations of the
Uniform Commercial Code (UCC), the Fair Debt Collections
Practices Act, MERS, and federal bankruptcy law. The
complaint does not identify the specific federal statute upon
which each of these claims is based. In the absence of such
identification, the Court is unable to evaluate whether the
underlying facts support each alleged statutory claim.
Sufficiency of the Statement of Claim
complaint alleges only that “Wells Fargo violated
several banking laws and sold my note to Faye Servicing
without my knowledge.” This conclusory statement is
inadequate. As discussed above, the complaint must set forth
specific facts sufficient to support each of Plaintiff's
claims under the federal statute on which that claim
factual allegations must also explain the underlying
transaction giving rise to Plaintiff's claims. The
complaint does not identify the property secured by the
mortgage or provide details concerning the underlying note
and mortgage, such as the parties, the mortgage date, or the
amount of the loan obligation, nor does it provide specifics
of the alleged improper sale of the mortgage to Fay
Servicing. Plaintiff may wish to attach copies of the note
and mortgage as clearly labeled exhibits to the complaint and
incorporate the exhibits by reference.
request for relief, the complaint states that Defendants sold
Plaintiff's home while Plaintiff was protected by a
bankruptcy stay. The factual allegations should also address
the bankruptcy case and foreclosure sale in sufficient detail
to allow the Court to determine whether Plaintiff's
claims are properly brought in an action in the district
court or must be brought (or should have been brought) in the
bankruptcy action. If the complaint is intended to be an
appeal of a bankruptcy court decision, the complaint should
disclose that and attach the Bankruptcy Court's
underlying decision as an exhibit to the ...