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Sepehry-Fard v. U.S. Bank National Association

United States District Court, N.D. California

February 23, 2018

FAREED SEPEHRY-FARD, et al., Plaintiffs,
v.
U.S. BANK NATIONAL ASSOCIATION, et al., Defendants.

         REFERRAL FOR RELATEDNESS DETERMINATION; ORDER DENYING MOTION TO SEAL AND MOTION FOR PERMISSION FOR ELECTRONIC CASE FILING AND GRANTING IFP APPLICATION; REQUEST FOR REASSIGNMENT; REPORT & RECOMMENDATION TO DISMISS WITHOUT LEAVE TO AMEND, Re: ECF 1, 3, 4, 7

          NATHANAEL M. COUSINS United States Magistrate Judge

         Pro se plaintiff Fareed Sepehry-Fard concurrently filed an administrative sealing motion, a motion for permission for electronic case filing, a motion for leave to proceed in forma pauperis (“IFP”), and a complaint that purports to be qui tam on behalf of the United States of America and the Internal Revenue Service. See ECF 1, 3, 4, 7. Based on similar facts and legal claims, the undersigned REFERS this matter to District Judge Edward J. Davila under Civil Local Rule 3-12(c), to determine whether it is related to Sepehry-Fard v. Aurora Bank FSB, No. 12-cv-00871-EJD.

         The docket is currently under seal. While qui tam False Claims Act claims must be filed under seal, Sepehry-Fard is not authorized to bring such an action and does not offer other compelling reasons to seal the case filings, so the pending sealing motion is DENIED. Authorizing Sepehry-Fard to file documents through ECF is not warranted in this case, so the motion for permission for electronic case filing is DENIED. Sepehry-Fard's application to proceed IFP establishes inability to pay court filing fees, so the motion to proceed IFP is GRANTED.

         Screening the IFP complaint under 28 U.S.C. § 1915(e)(2)(B), the undersigned FINDS that the complaint fails as a matter of law, because a pro se plaintiff may not bring a qui tam False Claims Act action. The parties have not consented to magistrate judge jurisdiction under 28 U.S.C. § 636(c), so the undersigned REQUESTS that the clerk of court reassign this matter to a district judge, with the RECOMMENDATION that the case be dismissed without leave to amend, but without prejudice to future re-filing by a licensed attorney.

         I. BACKGROUND

         Sepehry-Fard purports to bring his complaint qui tam on behalf of the United States of America and the Internal Revenue Service, alleging a single cause of action under the federal False Claims Act, 31 U.S.C. §§ 3729-3733. See Compl. ¶ 1. The complaint names as defendants U.S. Bank N.A., as trustee for Greenpoint Mortgage Trust Pass-Through Certificates, Series 2007-AR2; Nationstar Mortgage LLC; Greenpoint Mortgage Funding, Inc.; Capital One N.A.; Severson & Werson APC; Joseph W. Guzzetta; Bernard J. Kornberg; Adam N. Barasch; Mark Joseph Kenney; William A. Aspinwall; Financial Guaranty Insurance Company; Clear Recon Corporation; and fifty Doe defendants. Id. In broad terms, Sepehry-Fard accuses the defendants of fabricating and falsifying financial instruments and documents related to the foreclosure of Sepehry-Fard's property located at 12309 Saratoga Creek Drive, Saratoga, California 95070, and using those fraudulent documents to evade taxation and obtain other financial benefits. Id. ¶¶ 13, 49-76.

         This is Sepehry-Fard's fifth lawsuit related to the foreclosure of the Saratoga Creek Drive property. The other four are: Sepehry-Fard v. Nationstar Mortgage LLC, Case No. 14-cv-03218-LHK (N.D. Cal.) (dismissing without leave to amend); Sepehry-Fard v. Green Point Mortgage Funding, Inc., Case No. 13-cv-4535-EJD (N.D. Cal.) (dismissing without prejudice for lack of subject matter jurisdiction); Sepehry-Fard v. Aurora Bank FSB, Case No. 12-cv-00871-EJD (N.D. Cal.) (dismissing with prejudice); Sepehry-Fard v. Aurora Bank FSB, No. 1-11-cv-209804 (Cal. Super. Ct.).

         On top of the five lawsuits related to the Saratoga Creek Drive property, Sepehry-Fard has filed five actions related to the foreclosure of a different property located at 18314 Baylor Avenue, Saratoga, California 95070. Those five are: Sepehry-Fard v. Select Portfolio Servicing, Inc., No. 16-mc-80112 (N.D. Cal.); Sepehry-Fard v. Select Portfolio Servicing, Inc., No. 14-cv-5142-LHK (N.D. Cal.); Sepehry-Fard v. Countrywide Home Loans, Inc., No. 13-cv-5769-BLF (N.D. Cal.); Sepehry-Fard v. Bank of N.Y. Mellon, No. 12-cv-1260-LHK (N.D. Cal.); Sepehry-Fard v. Bank of N.Y. Mellon, No. 1-11-cv-210028 (Cal. Super. Ct.).[1]

         After the fourth lawsuit about the Baylor Avenue property, District Judge Lucy H. Koh declared Sepehry-Fard a vexatious litigant. See ECF 58 in Case No. 14-cv-5142-LHK. That order requires Sepehry-Fard to “obtain leave before filing any action in the United States District Court for the Northern District of California related to the foreclosure on his property located at 18314 Baylor Avenue, Saratoga, California 95070.” Id. at 21. It was this vexatious litigant order that caused the general duty judge to review and deny Sepehry-Fard's fifth attempt to initiate a lawsuit about the Baylor Avenue property. See ECF 2 in Case No. 16-mc-80112-EJD.

         The Ninth Circuit has summarily affirmed dismissals of Sepehry-Fard's lawsuits as to both properties. See Sepehry-Fard v. Bank of N.Y. Mellon, No. 13-16674 (9th Cir. Dec. 18, 2014); Sepehry-Fard v. Aurora Bank FSB, No. 13-15307 (9th Cir. Dec. 18, 2014).

         II. DISCUSSION

         A. Relatedness Referral and Vexatious Litigant Assessment

         In light of Sepehry-Fard's history before this Court, two procedural matters are in order. First, this case is referred to District Judge Edward J. Davila to determine whether it is related to the first-filed action in this Court related to the ...


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