Opinion
No. 2:15-cv-1015-TLN-KJN PS
08-05-2015
CONSTANCE MARIA AGEE, Plaintiff, v. THE SECRETARY OF VETERANS AFFAIRS, et al., Defendants.
ORDER
Plaintiff Constance Maria Agee, who proceeds in this action without counsel, has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (ECF No. 3.) Plaintiff's application in support of her request to proceed in forma pauperis makes the showing required by 28 U.S.C. § 1915. Accordingly, the court grants plaintiff's request to proceed in forma pauperis.
This case proceeds before the undersigned pursuant to E.D. Cal. L.R. 302(c)(21) and 28 U.S.C. § 636(b)(1).
The determination that a plaintiff may proceed in forma pauperis does not complete the required inquiry. Pursuant to 28 U.S.C. § 1915, the court is directed to dismiss the case at any time if it determines that the allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against an immune defendant.
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); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327.
To avoid dismissal for failure to state a claim, a complaint must contain more than "naked assertions," "labels and conclusions," or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim upon which the court can grant relief has facial plausibility. 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. When considering whether a complaint states a claim upon which relief can be granted, the court must accept the factual allegations as true, Erickson v. Pardus, 551 U.S. 89, 94 (2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
Pro se pleadings are liberally construed. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Balistreri v. Pacifica Police Dep't., 901 F.2d 696, 699 (9th Cir. 1988). Unless it is clear that no amendment can cure the defects of a complaint, a pro se plaintiff proceeding in forma pauperis is ordinarily entitled to notice and an opportunity to amend before dismissal. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987); Franklin v. Murphy, 745 F.2d 1221, 1230 (9th Cir. 1984).
Plaintiff's 82-page complaint in this case is rambling, confusing, and contains numerous attached documents and exhibits. Nevertheless, liberally construed, plaintiff appears to allege that her real property located at 4136 Stonecutter Way in North Highlands, California was wrongfully foreclosed on August 25, 2014. According to plaintiff, the loan/mortgage was transferred several times without the proper procedures for substituting a new trustee and/or beneficiary, among other irregularities. Defendants GP Equities Inc. and AKS Equities Inc. purchased the property at the foreclosure sale, and the other defendants (the Secretary of Veterans Affairs, Vendor Resource Management, Residential Credit Solutions Inc., and Sage Point Lender Services LLC) were all somehow involved with plaintiff's loan/mortgage as purported lenders, beneficiaries, trustees, and/or loan servicers. It also appears that Defendants GP Equities Inc. and AKS Equities Inc. commenced an unlawful detainer action in state court, attempting to remove plaintiff from the property, and that a writ of possession of real property was issued in that action. Plaintiff's complaint purports to assert causes of action for: (1) breach of contract; (2) negligent misrepresentation; (3) injunctive relief; and (4) quiet title. Plaintiff seeks relief in the form of a judgment that she is the owner of the property and that the defendants have no interest in the property; injunctive relief prohibiting defendants from trespassing on the property or in any way interfering with plaintiff's rights to the property; and return of all payments made to defendants. (See ECF No. 1.)
The district judge has already denied plaintiff's application for a temporary restraining order ("TRO") to prevent plaintiff's eviction from the property in the state court proceedings. --------
Plaintiff's complaint fails to plead sufficient facts to state a claim on which relief can be granted. Although plaintiff vaguely alleges irregularities in the transfer of the loan/mortgage, the substitution of a trustee, and the foreclosure sale, she does not allege how such irregularities actually prejudiced her. See Siliga v. Mortgage Electronic Registration Systems, Inc., 219 Cal. App. 4th 75, 85 (2013); Moriarity v. Nationstar Mortg., LLC, 2014 WL 801021, at *4 (E.D. Cal. Feb. 27, 2014).
Furthermore, despite labeling her causes of action "breach of contract"; "negligent misrepresentation"; "injunctive relief; and "quiet title," plaintiff essentially seeks to set aside the foreclosure sale and quiet title in her name. However, she fails to allege that she tendered the full amount owed on the loan. "Under California law, in an action to set aside a trustee's sale, a plaintiff must demonstrate that he has made a valid and viable tender of payment of the indebtedness. A plaintiff must (1) demonstrate a willingness to pay and (2) show the ability to pay." Pantoja v. Countrywide Home Loans, Inc., 640 F. Supp. 2d 1177, 1183-84 (N.D. Cal. 2009) (internal citations and quotation marks omitted).
In light of the above deficiencies, the court dismisses plaintiff's complaint, but with leave to amend. If plaintiff elects to file an amended complaint, it shall be captioned "First Amended Complaint"; shall be limited to 20 pages (including any attachments); and shall cure the above-mentioned deficiencies, if plaintiff can do so in good faith within the strictures of Federal Rule of Civil Procedure 11. Plaintiff is advised that, upon review of any first amended complaint, the court may, if appropriate, require plaintiff to deposit with the Clerk of Court tender of the full amount of unpaid debt due on the loan at issue before plaintiff's claims will be allowed to proceed.
Alternatively, if plaintiff concludes that she is unable to cure the deficiencies or no longer wishes to pursue the action at this time, she may instead file a notice of voluntary dismissal of the action without prejudice.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's motion to proceed in forma pauperis (ECF No. 3) is granted.
2. Plaintiff's complaint is dismissed, but with leave to amend.
3. Within 28 days of this order, plaintiff shall either (a) file a first amended complaint in accordance with the requirements of this order or (b) file a notice of voluntary dismissal of the action without prejudice.
4. Failure to file either a first amended complaint or a notice of voluntary dismissal by the required deadline may result in the imposition of sanctions, including potential dismissal of the action with prejudice pursuant to Federal Rule of Civil Procedure 41(b).
IT IS SO ORDERED. Dated: August 5, 2015
/s/_________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE