Opinion
3:23-cv-01120-JR
04-02-2024
VICTOR NAUMOV, Plaintiff, v. SHELLPOINT MORTGAGING SERVICE, a division of New Rez; WILMINGTON SAVINGS FUND SOCIETY FSB TRUST, COUNTRYWIDE HOME LOANS, INC., DTCC, MERS, H&H PREFERRED REAL ESTATE, and SAVE ON RECYCLING AND TOWING, Defendants.
FINDINGS AND RECOMMENDATION
JOLIE A. RUSSO, UNITED STATES MAGISTRATE JUDGE
Pro se plaintiff Victor Naumov brings this action against defendants Shellpoint Mortgage Servicing (“Shellpoint”), Wilmington Savings Fund Society FSB (“Wilmington”), Countrywide Home Loans, Inc., DTCC, MERS, H&H Preferred Real Estate, and Save on Auto Recycling and Towing. Shellpoint now moves to dismiss plaintiff's amended complaint pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiff also filed a “Motion for Change of Jurisdiction and Bill of Exceptions.” For the reasons stated below, Shellpoint's motion should be granted, and plaintiff's motion should be denied.
BACKGROUND
At all relevant times, plaintiff owned a personal residence located at 4524 S.E. 282nd Avenue in Gresham, Oregon (“Property”). First Am. Compl. (“FAC”) pgs. 4-5 (doc. 22). In late 2006 and/or early 2007, plaintiff took out two mortgages in relation to the Property. Id. at pgs. 4, 7. Plaintiff subsequently defaulted on his second mortgage. Id. at pg. 10.
In May 2022, plaintiff contacted American Relief Advisors (“ARA”), a third-party unaffiliated with defendants, to obtain assistance in “stop[ping] the foreclosure procedure, reinstating the mortgage loan, [and] reducing the interest rate and monthly payment.” Naumov v. Shellpoint Mortg. Serv., 2023 WL 7017836, *1 (D. Or. Sept. 29, 2023), adopted by 2024 WL 81393 (D. Or. Jan. 5, 2024). “ARA advised plaintiff to default on his first mortgage in order to catch up on his second mortgage.” Id. “To that end, plaintiff paid ARA nearly $3000 for their purported services and was then instructed to begin making payments again with Shellpoint.” Id. However, Shellpoint “was unable to complete the loan modification [because Wilmington] recorded a Trustee's Deed and Quit claim.” FAC pg. 10 (doc. 22). Thereafter, plaintiff contacted ARA “for an explanation [but] was told not to contact them again . . . Plaintiff tried to call later and the phone number was disconnected.” Id. at pg. 11.
In January 2023, Wilmington through its attorneys “JANEWAY LAW FIRM, LLC filed a court case . . . on the second mortgage.” Id.; Naumov, 2023 WL 7017836 at *1. According to plaintiff, he “never received correspondence regarding a foreclosure or for a court appearance on a foreclosure case that was filed by Wilmington.” FAC pg. 11 (doc. 22). Plaintiff “went to court and Judge Benjamin Johnston denied [his] request for Motion to Stay Execution and set aside Default Judgement.” Naumov, 2023 WL 7017836 at *1.
“During January and February 2023, plaintiff made two monthly mortgage payments to Shellpoint, each in the amount of $1,417.” Id.
“In March 2023, plaintiff filed a case in Multnomah County Circuit Court against Shellpoint seeking ‘verification of debt' and ‘the original wet ink signature Promissory Note.'” Id.(citation omitted). “Pursuant to those proceedings, plaintiff moved to compel production of the ‘wet ink signature of Promissory Note' relating to his mortgage debt on the Property.” Id. (citation omitted). The Multnomah County Circuit Court later entered an order dismissing plaintiff's case. Id.
“Plaintiff received correspondence of eviction notice after the Trustees' Deed and Quit Claim was recorded, court proceedings had been concluded and . . . the foreclosure process [had begun].” FAC pg. 11 (doc. 22). He “did not abandon the [Property], went to work out of state and the [Property] was deemed abandoned.” Id.
In May 2023, the Multnomah County Sherriff's Office served plaintiff with an “Eviction Trespass Notice.” Id.; Naumov, 2023 WL 7017836 at *1. “At some unspecified time, plaintiff vacated the Property.” Naumov, 2023 WL 7017836 at *1. “Save on Auto Recycling and Towing removed all of [plaintiff's] personal property without [his] consent.” FAC pg. 12 (doc. 22). And H&H Preferred Real Estate listed the Property “for sale, and chang[ed] utility bills from the name of Victor Naumov to Damian Pogue” without plaintiff's consent. Id.
In August 2023, plaintiff initiated this action seeking a declaration he “is the owner of the Property and entitled to possession,” and that defendants “have no estate, right, title, or interest whatsoever in or to the Property,” as well as $100,000,000 in damages. Am. Compl. pg. 4 (doc. 3). On January 5, 2024, the Court granted Shellpoint's motion to dismiss. Specifically, the Court found “[t]he preliminary requirements for application of claim preclusion are met in this case.” Naumov, 2023 WL 7017836 at *3. The Court also detailed numerous pleading defects but declined to dismiss plaintiff's claims with prejudice given his pro se status. Id. at *4.
On January 31, 2024, plaintiff filed the FAC pursuant to several federal statutes - i.e., “12 U.S.C. § 412, et al, 18 U.S.C. § 1956 (LAUNDERING OF MONETARY INSTRUMENTS), 12 U.S.C. § 504 (CIVIL MONEY PENALTY - FEDERAL RESERVE ACT), 18 U.S.C. § 2314 (TRANSPORTATION OF STOLEN SECURITIES) 18 U.S.C. § 1348 (SECURITIES AND COMMODITIES FRAUD),” and “Article 18 U.S. Code § 241 and 242 and 42 U.S. Code § 1983” - and Oregon common law (“breach of contract, non-disclosure, fraud, claiming title to land that is private, and fraudulent foreclosure”). FAC pgs. 2, 14 (doc. 22).
On March 1, 2024, Shellpoint filed the present motion to dismiss. On March 5, 2024, plaintiff purported to challenge the Court's jurisdiction via his “Motion for Change of Jurisdiction and Bill of Exceptions.”
STANDARDS OF REVIEW
Where the court lacks subject matter jurisdiction, the action must be dismissed. Fed.R.Civ.P. 12(b)(1). Courts “have an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006). Subject matter jurisdiction may be based on either diversity or federal question jurisdiction. 28 U.S.C. §§ 1331, 1332.
Where the plaintiff “fails to state a claim upon which relief can be granted,” the court must dismiss the action. Fed.R.Civ.P. 12(b)(6). To survive a motion to dismiss, the complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). For the purposes for the motion to dismiss, the complaint is liberally construed in favor of the plaintiff and its allegations are taken as true. Rosen v. Walters, 719 F.2d 1422, 1424 (9th Cir. 1983). Regardless, bare assertions that amount to nothing more than a “formulaic recitation of the elements” of a claim “are conclusory and not entitled to be assumed true.” Ashcroft v. Iqbal, 556 U.S. 662, 680-81 (2009). Rather, to state a plausible claim for relief, the complaint “must contain sufficient allegations of underlying facts” to support its legal conclusions. Starr v. Bacca, 652 F.3d 1202, 1216 (9th Cir. 2011).
Pro se pleadings are held to a less stringent standard than those drafted by lawyers. See, e.g., Haines v. Kerner, 404 U.S. 519, 520 (1972). The court, in many circumstances, instructs the pro se litigant regarding deficiencies in the complaint and grants leave to amend. Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987). Nevertheless, a pro se plaintiff's claims may be dismissed without leave to amend where it appears beyond doubt that the plaintiff can prove no set of facts that would entitle him or her to relief. Barrett v. Belleque, 544 F.3d 1060, 1061-62 (9th Cir. 2008).
Pursuant to the All Writs Act, 28 U.S.C. § 1651(a), district courts can regulate the legal actions of vexatious litigants by restricting their ability to file suit without first obtaining leave. De Long v. Hennessey, 912 F.2d 1140, 1147 (9th Cir. 1990). However, a pre-filing order imposes “a serious burden” on a potential litigant. Ringgold-Lockhard v. L.A. Cty., 761 F.3d 1057, 1062 (9th Cir. 2014). Accordingly, out of regard for the constitutional underpinnings of the right to court access, “pre-filing orders should rarely be filed,” and only if courts comply with certain procedural and substantive requirements. De Long, 912 F.2d at 1145-48; see also Ringgold-Lockhard, 761 F.3d at 1062 (articulating “five substantive factors to determine whether a party is a vexatious litigant”).
DISCUSSION
Plaintiff's amended claims rest on the same allegations that he: (1) possesses an “original land patent” and “superior allodial title”; and (2) was “tricked” into “doing a blank indorsement” and “releasing a copy of the Negotiable Instruments.” FAC pgs. 4-7 (doc. 22). The FAC also alleges plaintiff did not consent to the securitization of the Note or the “sell[ing] [of his] credit,” “there is no real loan” because “[t]he Mortgage Company maintains two sets of books . . . in order to conceal the fraud,” and that he “has had exclusive, complete, actual, open, notorious, hostile, and continuous possession of the [Property] adverse to defendants for more than 16 years.” Id. at pgs. 7-9.
Shellpoint argues dismissal with prejudice is warranted because plaintiff “has failed to allege any facts sufficient to support a claim” and “largely [relies on the same allegations that have] been dismissed repeatedly.” Def.'s Mot. Dismiss 2 (doc. 25). Additionally, Shellpoint contends plaintiff “is a vexatious litigant who has failed over and over again to support a cause of action,” such that “a pre-filing order . . . requiring him to obtain leave of court before filing further causes of action like those set forth in his four complaints” should be entered. Id.
Plaintiff, in turn, seeks transfer of this case “to the Equity Court . . . on grounds that it is not legal for the Federal District court to hear a Land Patent case.” Pl.'s Mot. Change Jurisdiction 3 (doc. 30). Plaintiff nonetheless separately opposes Shellpoint's motion - because Shellpoint “is noncompliant with (§ 4287.335 Substitution of Lender) for not having the original wet signature Promissory Note in possession,” the loan terms and “collateralization of the original promissory note” were not disclosed, “[p]laintiff requested validation of debt,” and “[t]he land patent is the highest evidence of title and is immune from collateral attack” - but while still maintaining “[t]his case is not in a legal court and needs to be moved to a legal court.” Pl.'s Resp. to Mot. Dismiss 34, 7, 9 (doc. 32).
I. Plaintiff's “Motion for Change of Jurisdiction and Bill of Exceptions”
Plaintiff's challenges to this Court's jurisdiction and request for transfer are not well-taken. The FAC asserts numerous federal claims. See, e.g., FAC pgs. 13-14 (doc. 22). Indeed, plaintiff expressly alleges “[t]he jurisdiction of this court arises under 28 U.S.C. § 1331.” Id. at pg. 2.
In sum, plaintiff, as the party prosecuting federal claims, selected this Court as his own chosen forum when he filed the summons and complaint initiating this lawsuit and thus has not demonstrated that transfer is warranted. Cf. Dvornekovic v. Looney, 2013 WL 6571935, *1 (W.D. Wash. Dec. 13, 2013) (denying pro se plaintiff's motion to remand based on “concern[s] over the Court's role within the federal government” in a case asserting allodial title where original jurisdiction existed under 28 U.S.C. § 1331 in light of the complaint's inclusion of federal claims). The Court will nonetheless construe any future motion for transfer as a notice of voluntary dismissal.
II. Defendant's Motion to Dismiss
As the Court discussed previously, “[t]here is a Multnomah County Circuit Court Order binding on the parties that dismisses plaintiff's ‘verification of debt' claims in their entirety [and] plaintiff does not dispute that his present claims could have been brought in his prior lawsuit.” Naumov, 2023 WL 7017836 at *3. And both the FAC and plaintiff's response are silent as to this issue. See Justice v. Rockwell Collins. Inc., 117 F.Supp.3d 1119, 1134 (D. Or. 2015), aff'd, 720 Fed.Appx. 365 (9th Cir. 2017) (“if a party fails to counter an argument that the opposing party makes . . . the court may treat that argument as conceded”) (citation and internal quotations and brackets omitted). As such, claim preclusion appears to continue to apply to plaintiff's amended allegations.
Moreover, the FAC contains several pleading defects. Initially, the majority of plaintiff's allegations are vague and conclusory, such that it is unclear how Shellpoint, Wilmington, Countrywide Home Loans, Inc., DTCC, and/or MERS caused him harm. See McHenry v. Renne, 84 F.3d 1172, 1176-78 (9th Cir. 1996) (each averment of a pleading must be simple, concise, and direct, stating which defendant is liable for which wrong); see also Plong v. Coutts, 2023 WL 4275505, *3-7 (C.D. Cal. May 31), adopted by 2023 WL 4269755 (C.D. Cal. June 28, 2023) (granting the defendants' Rule 12(b)(6) motion where, amongst other reasons, the plaintiffs' claims premised on the lack of a “wet ink signature” failed “to allege how each of the nine defendants were involved in the foreclosure proceedings and on what ground each defendant should be held liable”).
Concerning allegations sounding in fraud, the FAC still fails to meet Fed.R.Civ.P. 9(b)'s heightened pleading requirements. See Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055 (9th Cir. 2011) (“[t]o satisfy Rule 9(b)” - which applies to challenges raised under Fed.R.Civ.P. 12 - “a pleading must identify the who, what, when, where, and how of the misconduct charged, as well as what is false or misleading about [the purportedly fraudulent] statement, and why it is false”) (citations and internal quotations omitted). That is, other than through the blank endorsement and securitization of the promissory note, it is unclear how defendants' actions were fraudulent.
Under the Oregon Trust Deed Act, the statutory scheme governing nonjudicial foreclosures, the “beneficiary” possesses the right to foreclose. Brandrup v. Recon Trust Co., N.A., 353 Or. 668, 687, 303 P.3d 301 (2013). The beneficiary is the “lender to whom the obligation that the trust deed secures is owed or the lender's successor in interest.” Id. at 689. More specifically, the beneficiary is the “person entitled to repayment of the note obligation.” Niday v. GMAC Mortg., LLC, 353 Or. 648, 664, 302 P.3d 444 (2013). Where a promissory note is endorsed in blank, the holder of the note is the person entitled to both repayment and enforcement. Bank of N.Y. Mellon as Tr. For Certificate Holders of CWALT, Inc. Alt. Loan Tr. 2007-3T1, Mortg. Pass-Through Certificates2007-3T1 v. Delaney, 299 Or.App. 1, 7-9, 455 P.3d 42 (2019), rev. denied, 366 Or. 292, 461 P.3d 221 (2020). Accordingly, whoever possesses a note endorsed in blank holds the beneficial interest therein and may non judicially foreclose. See, e.g., Blanton v. Fed. Home Loan Mortg. Co., 2016 WL 1158591, *4 (D. Or. Feb. 29), adopted by 2016 WL 1192663 (D. Or. Mar. 21, 2016); McLeanv. Fed. Nat'l Mortg. Ass'n, 2019 WL 99275, *4-5 (D. Or. Jan. 3, 2019); see also Deutsche BankTr. Co. Ams. v. Walmsley, 277 Or.App. 690, 696-97, 374 P.3d 937 (2016) (note holder is not required to prove that it properly came into possession of the note). Thus, the fact that plaintiff mistakenly endorsed a promissory note in blank does not necessarily render it unenforceable.
Regarding adverse possession, Oregon law requires, amongst other elements, that the plaintiff establish “hostile . . . possession of the property for a ten-year period.” Nietzche v.F reedom Home Mortg. Corp., 2019 WL 5057174, *23 (D. Or. Oct. 8, 2019), aff'd, 2023 WL 2570417 (9th Cir. Mar. 20, 2023) (citations and internal quotations omitted). However, a debtor does “not have hostile possession of the property during the time they were the lawful owners” pursuant to a mortgage. Id. (emphasis in original). In other words, the requisite ten-year period does not begin to commence until after a foreclosure takes place. Id.; see also Asnake v. Deutsche Bank Nat'l Tr. Co., 313 F.Supp.3d 84, 88 (D. D.C. 2018) (“a mortgagor and mortgagee cannot be hostile to one another until one party repudiates the relationship, such as if the mortgagor defaults and the mortgagee forecloses on the property”). Because plaintiff does not allege that ten years have elapsed since the foreclosure has been completed (and he is apparently no longer in possession of the Property), he fails to state a plausible adverse possession claim.
To the extent the FAC seeks to quiet title or pursue contractual claims, plaintiff attacks defendants' actions but does not otherwise dispute that he has defaulted on his mortgages, which is a requisite element. See Lamb-Weston, Inc. v. Or. Auto Ins. Co., 219 Or. 110, 116, 341 P.2d 110 (1959) (the party seeking to recover under the terms of an express contract must prove their own substantial performance, or a valid excuse for the failure to perform, in order to recover); Statonv. BAC Home Loans Servicing, L.P., 2012 WL 1624296, *8-9 (D. Or. May 5, 2012), aff'd in relevant part, 671 Fed.Appx. 459 (9th Cir. 2016) (dismissing the plaintiff's quiet title claim where there were no facts indicating she could cure her default); see also Collier v. Wilmington Savings Fund Soc'y, FSB as Trustee of Stanwich Mortg. Loan Trust A, 2022 WL 1223253, *2 (D. Or. Apr. 26, 2022) (“[p]laintiffs remain responsible for fulfilling their ongoing debt obligation, and equity would not be served by the court granting a quiet title claim that would nullify a security interest without also ensuring that the underlying debt had been satisfied”) (citation and internal quotations omitted).
Moreover, plaintiff's references to potential causes of action under 42 U.S.C. § 1983, 18 U.S.C. § 241, 18 U.S.C. § 242, 18 U.S.C. § 1348, 18 U.S.C. § 1956, 18 U.S.C. § 2314, 12 U.S.C. § 412, and 12 U.S.C. § 504 are misplaced. That is, plaintiff has not cited to, and the Court is not aware of, any case law to support the existence of a private right of action under the identified criminal statutes. Cf. Schwettmann v. Starns, 2023 WL 8284064, *2 (E.D. Cal. Nov. 30, 2023) (“[a] citizen does not have authority to bring criminal charges, either under state or federal law”); see also Wormley v. Hemphill, 2021 WL 11670848, *2 (D. C. Mar. 22, 2021) (dismissing the pro se plaintiff's claims, explaining “[she] brings suit pursuant to various sections of Chapter 18 of the U.S. Code . . . which are criminal statutes. But none of those criminal statutes includes an express private right of action”); Hart v. Granado, 2023 WL 7301872, *2-3 (D. Ariz. Nov. 6, 2023) (18 U.S.C. § 241 and 18 U.S.C. § 242 “provide no basis for civil liability”) (quoting Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980)).
The same is true for the civil statues cited by plaintiff, including portions of the Federal Reserve Act and Uniform Commercial Code. See Smith v. Osvaldik, 2024 WL 733227, *3 (E.D. Cal. Feb. 22), adopted by 2024 WL 1160680 (E.D. Cal. Mar. 18, 2024) (“numerous district courts across the country have found that the Federal Reserve Act does not provide individuals with a private cause of action”) (collecting cases). Additionally, 42 U.S.C. § 1983 generally does not apply to banking and other private institutions involved in nonjudicial foreclosures. See Apao v. Bank of N.Y., 324 F.3d 1091, 1092-95 (9th Cir. 2003) (nonjudicial foreclosure of mortgagor's residence did not qualify as state action for the purposes of 42 U.S.C. § 1983).
Plaintiff's assertion of allodial title/land patent also do not salvage his claims. Allodial rights - i.e., those that create “absolute ownership in the title holder, free and clear of any lien, mortgage, rent, service, property tax obligation, or other encumbrance” - “are sometimes claimed by tax or zoning protesters,” or “by property owners who believe that they can use these devices to prevent foreclosure.” United States v. Miljus, 2007 WL 4287608, *3 (D. Or. Dec. 3, 2007); Flores v. Wells Fargo Bank, N.A., 2013 WL 1192767, *2 (E.D. Wis. Mar. 22, 2013) (citation omitted). “It does not appear, however, that any American state or federal court has ever acknowledged allodial ownership of any property other than by the United States itself.” Miljus, 2007 WL 4287608 at *3 (citation omitted). Stated differently, “the concept of allodial title to land . . . is an archaic concept not recognized in modern United States law.” Id. at *1.
As a result, courts that have “considered these types of claims in other cases . . . have uniformly rejected them, with most courts deeming the claims frivolous.” Flores, 2013 WL 1192767 at *2 (collecting cases); see also Palmer v. Katona, 2021 WL 4439758, *3 (N.D. Ind. Sept. 28, 2021) (“[s]elf-drafted land patents are frivolous and hold no legal weight”) (citing Wisconsin v. Glick, 782 F.2d 670, 672 (7th Cir. 1986)); Webb v. Citi Mortg., Inc., 2011 WL 13142488, *6 (D. Ariz. July 13, 2011), aff'd, 503 Fed.Appx. 539, 9th Cir. Jan. 3, 2013) (“[p]laintiff's assertion that a purported Land Patent precludes foreclosure is without merit .... Property received through a federal land patent is [still] subject to state and local regulations” and contractual obligations).
And, as noted in the Court's prior decision, this District has likewise “uniformly rejected the ‘show me the note' theory, a version of which plaintiff appears to be making via these proceedings.” Naumov, 2023 WL 7017836 at *4 (citing Hubbard v. Bank of Am., 2011 WL 2470021, *3 (D. Or. Apr. 21), adopted by 2011 WL 2462961 (D. Or. June 20, 2011)); see also Nietzche, 2019 WL 5057174 at *22 (“‘show me the note' argument[s] [are] unsupported by Oregon law”).
Despite the complaint's deficiencies, the Court declines to dismiss plaintiff's claims with prejudice. Plaintiff is proceeding pro se and has only sought amendment once, such that the Court cannot conclude, at least at this stage in the proceedings, that the FAC's deficiencies are incurable as a matter of law. See Rigor v. Freemont Inv. & Loan, 2012 WL 913631, *2 (D. Or. Feb. 13), adopted by 2012 WL 913566 (D. Or. Mar. 16, 2012) (declining to dismiss the pro se plaintiff's complaint with prejudice under analogous circumstances). The Court reiterates, however, that any claims premised on criminal statutes, the Federal Reserve Act, a “wet ink signature” or “show me the note” theory, and/or plaintiff's purported allodial title are frivolous and therefore should not be realleged.
III. Defendant's Request for a Pre-Filing Order
Shellpoint's motion provided plaintiff with adequate notice and opportunity to respond. Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1058-59 (9th Cir. 2007). However, the substantive requirements for a pre-filing order are not met.
Federal courts have held that the “inordinate number” requirement is met based on the filing of substantially more than 20 lawsuits. See Committe v. Or. State Univ., 2018 WL 4623159, *4 (D. Or. Sept. 26, 2018) (collecting cases); see also Committe v. AACSB Int'l, 2020 WL 6471723, *4 (D. Or. Sept. 8), adopted by 2020 WL 6471689 (D. Or. Nov. 3, 2020) (finding this standard met where the plaintiff “filed a total of 28 near identical lawsuits”). Likewise, courts have issued pre-filing orders where the plaintiff repeatedly pursues claims that have been rejected more than once on their legal merits. See AASCB Int'l, 2020 WL 6471723 at *4 (granting a pre-filing order where the plaintiff “had repeatedly been informed that certain claims - such as those alleging age discrimination under 42 U.S.C. § 1983 - fail as a matter of law, yet plaintiff continues to assert such claims in each successive suit”); see also Phelps v. Lockheed Missiles & Space, Co., Inc., 1993 WL 186639, *2 (9th Cir. June 1, 1993) (affirming the entry of a pre-filing order against a plaintiff whose repeated filings were facially “frivolous and incomprehensible”).
Plaintiff's sole lawsuit against Shellpoint in the District of Oregon (even coupled with his state court case) neither constitutes an “inordinate amount,” nor have all his claims been substantively dismissed. For instance, plaintiff's fraud claim fails due to the dearth of well-plead facts. Pre-filing orders are a rare exception to the rule of open access to the courts and, while such an order as to this plaintiff may well be appropriate in future, the Court declines to apply the exception at this stage of the proceedings.
RECOMMENDATION
For the reasons stated herein, Shellpoint's Motion to Dismiss (doc. 25) should be granted and plaintiff's Motion for Change of Jurisdiction and Bill of Exceptions (doc. 30) should be denied. Any motion to amend the complaint must be filed within 30 days of the District Judge's order.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.