Summary
explaining that, "in California, there is no requirement that a trustee produce the original promissory note prior to a non-judicial foreclosure sale," and rejecting plaintiff's request that Defendants be required to produce the original note and trust deed
Summary of this case from Washburn v. Bank of Am.Opinion
No. C 11-02633 CW
08-12-2011
BOB U. GONTENAS, Jr.; and JUDY GONTENAS, Plaintiffs, v. HOUSEHOLD FINANCE CORPORATION OF CALIFORNIA and HOUSEKEY FINANCIAL CORPORATION, Defendants.
ORDER DISMISSING COMPLAINT AND DENYING DEFENDANTS' MOTION TO DISMISS AS MOOT
On August 11, 2011, Plaintiffs Bob U. Gontenas, Jr. and Judy Gontenas's action was reassigned to the undersigned. Prior to reassignment, the magistrate judge to whom the action was previously assigned granted Plaintiffs' application to proceed in forma pauperis (IFP). (Docket No. 5.)
The grant of Plaintiffs' application to proceed IFP does not mean that they may continue to prosecute their complaint. A court is under a continuing duty to dismiss a case filed without the payment of the filing fee whenever it determines that the action "(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). Because a dismissal pursuant to § 1915(e)(2)(B) is not a dismissal on the merits, but rather an exercise of the court's discretion under the IFP statute, the dismissal does not prejudice the filing of a paid complaint making the same allegations. Denton v. Hernandez, 504 U.S. 25, 32 (1992).
On July 11, 2011, Defendants Household Finance Corporation of California and Housekey Financial Corporation moved to dismiss Plaintiffs' claims for lack of subject matter jurisdiction and for failure to state a claim. Plaintiffs plead in their complaint that they live in California and the Court has diversity jurisdiction over their state law claims. See 28 U.S.C. § 1332. Defendants counter with evidence that Housekey Financial has its principal place of business in Pomona, California. Wisniewski Decl. ¶ 2. Thus, Defendants argue, diversity jurisdiction does not lie because Plaintiffs and Housekey Financial are California citizens. 28 U.S.C § 1332(c) ("a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business"). Plaintiffs did not respond to Defendants' motion.
Plaintiffs' response to Defendants' motion was due July 25, 2011. Civ. L.R. 7-3(a). No response was received.
Defendants' argument is well-taken, and Plaintiffs' action must be dismissed for lack of subject matter jurisdiction. Even if the Court had jurisdiction, Plaintiffs' claims would be dismissed for failure to state a claim. Their action is based on their allegation that, as part of California's non-judicial foreclosure process, Defendants have not produced the "original wet ink signature Note and the original wet ink signature Deed of Trust in their possession." See Compl. ¶¶ 19 and 21. However, in California, there is no requirement that a trustee produce the original promissory note prior to a non-judicial foreclosure sale. See, e.g., Pantoja v. Countrywide Home Loans, Inc., 640 F. Supp. 2d 1177, 1186 (N.D. Cal. 2009); Smith v. Wachovia, 2009 WL 1948829, at *3 (N.D. Cal.); Neal v. Juarez, 2007 WL 2140640, *8 (S.D. Cal.) (citing R.G. Hamilton Corp. v. Corum, 218 Cal. 92, 94, 97 (1933); Cal. Trust Co. v. Smead Inv. Co., 6 Cal. App. 2d 432, 435 (1935)).
Accordingly, pursuant to the IFP statute, the Court dismisses Plaintiffs' action as legally frivolous. This dismissal is without prejudice to Plaintiffs re-filing their complaint after paying the full filing fee. However, if Plaintiffs intend to re-file their complaint in federal court, they must establish that subject matter jurisdiction exists over their action.
Defendants' motion to dismiss is DENIED as moot. (Docket No. 12.)
The Clerk shall close the file.
IT IS SO ORDERED.
CLAUDIA WILKEN
United States District Judge
UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA
GONTENAS et al, Plaintiff,
v.
HOUSEHOLD FINANCE CORPORATION OF CALIFORNIA et al, Defendant.
Case Number: CV11-02633 CW
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California.
That on August 12, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. Bob U. Gontenas
125 Ramsgate
Vallejo, CA 94591-8300
Judy Gontenas
125 Ramsgate
Vallejo, CA 94591-8300
Richard W. Wieking, Clerk
By: Nikki Riley, Deputy Clerk