United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.
is proceeding in this action pro se. This matter was
accordingly referred to the undersigned by E.D. Cal.
302(c)(21). Plaintiff has filed a request for leave to
proceed in forma pauperis (“IFP”), and has
submitted the affidavit required by that statute.
See 28 U.S.C. § 1915(a)(1). The motion to
proceed IFP (ECF No. 2) will therefore be granted.
federal IFP statute requires federal courts to dismiss a case
if the action is legally “frivolous or malicious,
” fails to state a claim upon which relief may be
granted, or seeks monetary relief from a defendant who is
immune from such relief. 28 U.S.C. § 1915(e)(2). A claim
is legally frivolous when it lacks an arguable basis either
in law or in fact. Neitzke v. Williams, 490 U.S.
319, 325 (1989). In reviewing a complaint under this
standard, the court will (1) accept as true all of the
factual allegations contained in the complaint, unless they
are clearly baseless or fanciful, (2) construe those
allegations in the light most favorable to the plaintiff, and
(3) resolve all doubts in the plaintiff's favor. See
Neitzke, 490 U.S. at 327; Von Saher v. Norton Simon
Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir.
2010), cert. denied, 564 U.S. 1037 (2011).
court applies the same rules of construction in determining
whether the complaint states a claim on which relief can be
granted. Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(court must accept the allegations as true); Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974) (court must construe
the complaint in the light most favorable to the plaintiff).
Pro se pleadings are held to a less stringent standard than
those drafted by lawyers. Haines v. Kerner, 404 U.S.
519, 520 (1972). However, the court need not accept as true
conclusory allegations, unreasonable inferences, or
unwarranted deductions of fact. Western Mining Council v.
Watt, 643 F.2d 618, 624 (9th Cir. 1981). A formulaic
recitation of the elements of a cause of action does not
suffice to state a claim. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555-57 (2007); Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
state a claim on which relief may be granted, the plaintiff
must allege enough facts “to state a claim to relief
that is plausible on its face.” Twombly, 550
U.S. at 570. “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.” Iqbal, 556 U.S.
at 678. A pro se litigant is entitled to notice of the
deficiencies in the complaint and an opportunity to amend,
unless the complaint's deficiencies could not be cured by
amendment. See Noll v. Carlson, 809 F.2d 1446, 1448
(9th Cir. 1987), superseded on other grounds by statute as
stated in Lopez v. Smith, 203 F.3d 1122 (9th
Cir.2000)) (en banc).
a California citizen, brings suit against Texas corporation
Mr. Cooper Group, Inc. ECF No. 1 at 2. Plaintiff alleges the
basis for federal jurisdiction is diversity, pursuant to 28
U.S.C. § 1332, but also lists 42 U.S.C. §5411 and
28 U.S.C. § 2713 as the basis for federal question
jurisdiction (28 U.S.C. § 1331). Id. at 3.
Plaintiff alleges the amount in controversy is approximately
$100, 000, based on the value of the property at issue in
this case (2445 Del Rio Drive located in Stockton,
California) minus loan encumbrances. Id.
statement of facts, plaintiff says that on August 23, 2019,
her daughter (who resides on the property at issue) called
her and said there was a Notice posted on the door,
announcing a Trustee's Sale scheduled for September 19,
2019. Id. at 4. On September 6, 2019, plaintiff
filed a petition to gain legal rights to the property.
Id. On September 16, 2019, plaintiff contacted
Affinia Default Services to request postponement of the
Trustee's Sale. Id. Plaintiff was directed to
the foreclosure department and told to submit a letter
explaining the reason for the request with supporting
documents. Id. That same day, plaintiff submitted a
letter and called, but postponement was declined.
Id. Plaintiff also contacted the defendant that day
to attempt to postpone the sale, at which point she informed
the defendant that the owners/borrowers on the property are
deceased and if the sale was postponed, plaintiff would be
able to gain legal right to sell the property and pay the
full defaulted amount and note on the Deed of Trust.
Id. Defendant declined to postpone the sale.
Id. Plaintiff indicates that the latest property
owner was her mother, who died intestate. Id.
signed her complaint on September 17, 2019 and filed it on
September 18, 2019, one day before the sale of the property
was scheduled to take place. ECF No. 1 at 6. On September 18,
2019, the District Judge assigned to this case entered a
minute order noting that the complaint appeared to request a
temporary restraining order to enjoin the alleged
Trustee's Sale, but because plaintiff failed to comply
with the filing requirements of Fed.R.Civ.P. 65 and Local
Rule 231, the request was denied. ECF No. 3.
complaint must be dismissed because the facts alleged
demonstrate that plaintiff cannot state a claim for relief
that can be granted. First, plaintiff lacks standing to
challenge the sale because her complaint makes clear that she
was not the property owner or a borrower on the mortgage for
the property at issue. Although plaintiff indicates that she
initiated an action in an unnamed forum to establish an
interest in the property, it is clear that as of the time of
the sale at issue and at the time of filing, she had no such
interest. Because she had no legal interest in the subject
property or the related loan, plaintiff may not pursue claims
alleging malfeasance in foreclosure on or sale of the
property. Only the injured party has standing to bring suit
of any kind. See, generally, Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560 (1992) (injury sufficient
to confer standing must be an invasion of a legally protected
the Federal Rules of Civil Procedure require that a complaint
be brought and signed by the “real party in interest,
” meaning the person who actually holds the claims in
question. Fed.R.Civ.P. 17(a)(1). Even if plaintiff were
somehow authorized by the deceased homeowner to bring suit on
her behalf, or even if plaintiff were the duly authorized
representative of the decedent's estate, she cannot do so
as a pro se litigant. Although a non-attorney may appear in
pro se on her own behalf, that privilege is personal to her
and she has no authority to appear as the attorney for anyone
other than herself. C.E. Pope Equity Trust v. United
States, 818 F.2d 696 (9th Cir. 1987). Accordingly, to
the extent plaintiff holds herself out as having the ability
to sue on behalf of the deceased owner/borrower or the
estate, she may not seek to vindicate their interests in pro
se. “[A] trustee or representative of various entities
may not represent these entities in any capacity in this
District Court” as a pro se litigant. United States
v. Stepard, 876 F.Supp. 214, 215 (D. Ariz. 1994).
the complaint clearly establishes that plaintiff lacks
standing and is not the “real party in interest”
regarding the sale of the subject property, and because she
cannot pursue the claims of others in pro se, leave to amend
would be futile. C.E. Pope Equity Tr., 818 F.2d at
697; N ...