United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE
who proceed pro se, commenced this action on May 22, 2017,
alleging various claims related to two mortgages obtained in
2004 and subsequent foreclosure proceedings. (ECF No. 1.)
Defendants have filed numerous motions to dismiss and motions
for more definite statement. (ECF Nos. 17, 19, 22, 23, 30,
32.) Plaintiffs have since filed numerous other motions. (ECF
Nos. 43, 44, 47, 79.) These motions came on regularly for
hearing on August 23, 2017 at 10:00 am. (ECF No 80.) Present
at the hearing were pro se plaintiffs Jung Hyun Cho, Kyu
Hwang Cho, and Eun Sook Cho; plaintiff Eui Hyun Cho did not
appear. Present for defendants were Raymond Bangle for Solano
County Tax Assessor (“Solano County”) and Joe
Aguilar for Select Portfolio Servicing, Inc.
(“SPS”) and Deutsche Bank National Trust Company
(“Deutsche”). Appearing telephonically for
defendants were Joel Spann for Bank of America
(“BOA”), Jamie Ackerman for WMC Mortgage LLC
(“WMC”), and Christine Howson for The Wolf Firm.
Upon review of the documents in support and opposition, upon
hearing the arguments of counsel, and good cause appearing
therefor, THE COURT FINDS AS FOLLOWS:
September 14, 2004, plaintiff Jung Hyun Cho obtained two
loans from WMC for $472, 000 and $118, 000, to acquire the
property located at 681 Tuscany Court, Fairfield, California
94534. (ECF No. 33 at 5-21, 23-33.) Notices of
Default were recorded on September 11, 2009 (ECF No. 24 at
23-25), March 21, 2012 (ECF No. 24 at 29-32), and August 28,
2014 (ECF Nos. 24 at 36-39). On October 31, 2016, Deutsche
purchased the property at 681 Tuscany Court through a
trustee's sale. (See ECF Nos. 24 at 41-42; 33 at
subsequently filed an action for unlawful detainer against
the Chos on April 6, 2017 in state court, based upon their
failure to vacate the property after allegedly receiving a 90
day Notice to Quit. (Solano Cty. Super. Ct. FCM154163,
Complaint.) On July 5, 2017, the Chos attempted to remove the
case to federal court. (E.D. Cal.) 2:17-cv-01357-MCE-DB,
Notice of Removal. However, United States District Judge
Morrison C. England, Jr. remanded the matter to Solano County
Superior Court for lack of federal subject matter
jurisdiction. Id., Order dated July 11, 2017. After
remand, on August 3, 2017, the Solano County Superior Court
granted summary judgment in favor of Deutsche and against the
Chos. (ECF No. 56-1.)
filed the complaint before this court on May 22, 2017. (ECF
No. 1.) Liberally construed, plaintiffs' complaint
appears to raise the following claims against defendants: (1)
violation of plaintiffs' civil rights against
discrimination in housing and unreasonable searches and
seizures; (2) violation of the Racketeering Influenced and
Corruption Organizations Act (“RICO”); (3)
violation of the Home Affordable Modification Program
(“HAMP”); (4) violations of the False Claims Act
(FCA); (5) violation of California Civil Code § 2923.7;
(6) wrongful foreclosure; (7) improperly assessing property
tax; (8) unfair business practices; (9) breach of contract;
(10) breach of fiduciary duty; (11) fraud; (12) undue
influence; (13) negligence; (14) negligent infliction of
emotional distress; (15) intentional infliction of emotional
distress; (16) invasion of privacy; (17) vandalism/theft; and
(18) trespass. (See Id. at 4-20.)
23, 2017, each defendant, except for Ronald Lee, had filed a
motion to dismiss. (See ECF Nos. 17, 19, 23, 30,
32.) BOA had also filed a separate motion for a more definite
statement. (ECF No. 22.) Plaintiffs subsequently filed a
motion for judgment on the pleadings (ECF No. 43), a motion
to strike (ECF No. 44), and a motion for preliminary
injunction (ECF No. 47). Defendants filed various
oppositions. (See ECF Nos. 52, 53, 54, 55, 57, 58,
59, 60.) Each of these motions was set for hearing on August
23, 2017 at 10:00 am.
on August 11, 2017, plaintiffs filed a motion for emergency
temporary restraining order and preliminary injunction, to
prevent defendants from enforcing the August 3, 2017 state
court order granting summary judgment against the Chos.
(See ECF No. 61.) On August 15, 2017, the court
denied plaintiffs' motion without prejudice, as
procedurally defective. (See ECF No. 70.) The court
also ordered plaintiffs to show cause why this case should
not be dismissed due to lack of subject matter jurisdiction.
(Id. at 5.) On August 22, 2017, plaintiffs moved for
reconsideration of the order and order to show cause. (ECF
August 23, 2017, all of the pending motions were heard before
the undersigned. (ECF No. 80.) During the hearing, plaintiffs
admitted that they have vacated the property at 681 Tuscany
Court, as a result of the state court unlawful detainer
judgment. (Solano Cty. Super. Ct. FCM154163.) Speaking on
behalf of plaintiffs, Kyu Hwang Cho asserted that, if granted
leave to amend their complaint, plaintiffs can state claims
under federal question subject matter jurisdiction.
foregoing reasons, the undersigned recommends defendants'
motions to dismiss be GRANTED; plaintiffs' complaint be
DISMISSED WITHOUT LEAVE TO AMEND; and plaintiffs'
remaining motions be DENIED AS MOOT.
Rule of Civil Procedure 12(b)(1) allows a defendant to raise
the defense, by motion, that the court lacks jurisdiction
over the subject matter of an entire action or of specific
claims alleged in the action. A federal court has an
independent duty to assess whether federal subject matter
jurisdiction exists, whether or not the parties raise the
issue. See United Investors Life Ins. Co. v. Waddell
& Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004)
(stating that “the district court had a duty to
establish subject matter jurisdiction over the removed action
sua sponte, whether the parties raised the issue or
not”); accord Rains v. Criterion Sys., Inc.,
80 F.3d 339, 342 (9th Cir. 1996). The court must sua
sponte dismiss the case if, at any time, it determines
that it lacks subject matter jurisdiction. Fed.R.Civ.P.
motion to dismiss brought pursuant to Federal Rule of Civil
Procedure 12(b)(6) challenges the sufficiency of the
pleadings set forth in the complaint. Vega v. JPMorgan
Chase Bank, N.A., 654 F.Supp.2d 1104, 1109 (E.D. Cal.
2009). Under the “notice pleading” standard of
the Federal Rules of Civil Procedure, a plaintiff's
complaint must provide, in part, a “short and plain
statement” of plaintiff's claims showing
entitlement to relief. Fed.R.Civ.P. 8(a)(2); see also
Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir.
2009). “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “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.” Id.
considering a motion to dismiss for failure to state a claim,
the court accepts all of the well-pled factual allegations in
the complaint as true and construes them in the light most
favorable to the plaintiff. Corrie v. Caterpillar,
Inc., 503 F.3d 974, 977 (9th Cir. 2007). The court is
“not, however, required to accept as true conclusory
allegations that are contradicted by documents referred to in
the complaint, and [the court does] not necessarily assume
the truth of legal conclusions merely because they are cast
in the form of factual allegations.” Paulsen,
559 F.3d at 1071.
federal courts are courts of limited jurisdiction.
See U.S. Const. art. III, § 2, cl. 1. In the
absence of a basis for federal jurisdiction, plaintiffs'
claims cannot proceed in this venue.
of standing deprives this court of Article III
jurisdiction.” Ctr. for Biological Diversity v.
Mattis, No. 15-15695, 2017 WL 3585638, at *6 (9th Cir.
Aug. 21, 2017) (citing Steel Co. v. Citizens for a Better
Env't, 523 U.S. 83, 103-04 (1998)). Because the
question of standing is a threshold jurisdictional issue,
federal courts have a duty to examine it. D'Lil v.
Best Western Encina Lodge & Suites, 538 F.3d 1031,
1035 (9th Cir. 2008).
have the burden of establishing Article III standing.
Colwell v. Dep't of Health and Human Servs., 558
F.3d 1112, 1121 (9th Cir.2009). To meet that burden, they
“must establish ‘the irreducible constitutional
minimum of standing, ' consisting of three elements:
injury in fact, causation, and a likelihood that a favorable
decision will redress the plaintiff's alleged
injury.” Lopez v. Candaele, 630 F.3d 775, 785
(9th Cir. 2010) (quoting Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992)). To establish an
injury in fact, they must show that they have suffered
“an invasion of a legally protected interest which is
(a) concrete and particularized, and (b) actual or imminent,
not conjectural or hypothetical.” Lujan, 504
U.S. at 560.
“[a] person who is not a party to a contract does not
have standing either to seek its enforcement or to bring tort
claims based on the contractual relationship.”
Ambers v. Wells Fargo Bank, N.A., 2014 WL 883752, at
*4 (N.D. Cal. Mar. 3, 2014) (citing Mega Life &
Health Ins. Co. v.Super. Ct., 172 Cal.App.4th 1522,
1528-32 (Cal.Ct.App. 2009)). As a result, courts have found
that persons who are not parties to mortgage loans lack
standing to bring foreclosure related claims such as: civil
RICO claims, negligent misrepresentation, fraud, wrongful
foreclosures, quiet title, and injunctive relief. See
Green v. Central Mortgage Co., 2015 WL 5157479, at *4
(N.D. Cal. Sept. 2, 2015) (collecting case authorities).
Jung Hyun Cho is the only plaintiff listed as a borrower on
the mortgages at the heart of plaintiffs' complaint.
(See ECF No. 33 at 5-21, 23-33.) Plaintiffs Kyu
Hwang Cho, Eun Sook Cho, and Eui Hyun Cho are not parties to
these mortgages. (Id.) Therefore, at a minimum, Kyu
Hwang Cho, Eun Sook Cho, and Eui Hyun Cho lack standing to
bring claims two through six, and eight through thirteen-RICO
violations; HAMP violations; FCA violations; violation of
California Civil Code § 2923.7; wrongful foreclosure;
unfair business practices; breach of contract; breach of