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McQuiston v. Chase Bank N.A.

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA
Mar 9, 2016
CASE NO. C16-5151 RBL (W.D. Wash. Mar. 9, 2016)

Opinion

CASE NO. C16-5151 RBL

03-09-2016

DANIEL W. MCQUISTON, Plaintiff, v. CHASE BANK N.A., Defendant.


ORDER

THIS MATTER is before the Court on Plaintiff McQuiston's Motion for Leave to proceed in forma pauperis, supported by his proposed complaint. [Dkt. #1]. This is the second case arising out of McQuiston's Chase mortgage (see McQuiston v Chase Manhattan Mortgage, et al., Cause No. 12-cv-5534RBL, Western District of Washington). The complaints are virtually the same, but in the current itneration McQuiston has included discovery demands and requests, which are not properly part of a complaint.

A district court may permit indigent litigants to proceed in forma pauperis upon completion of a proper affidavit of indigency. See 28 U.S.C. § 1915(a). The court has broad discretion in resolving the application, but "the privilege of proceeding in forma pauperis in civil actions for damages should be sparingly granted." Weller v. Dickson, 314 F.2d 598, 600 (9th Cir. 1963), cert. denied 375 U.S. 845 (1963). Moreover, a court should "deny leave to proceed in forma pauperis at the outset if it appears from the face of the proposed complaint that the action is frivolous or without merit." Tripati v. First Nat'l Bank & Trust, 821 F.2d 1368, 1369 (9th Cir. 1987) (citations omitted); see also 28 U.S.C. § 1915(e)(2)(B)(i). An in forma pauperis complaint is frivolous if "it ha[s] no arguable substance in law or fact." Id. (citing Rizzo v. Dawson, 778 F.2d 527, 529 (9th Cir. 1985); Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984).

A pro se plaintiff's complaint is to be construed liberally, but like any other complaint it must nevertheless contain factual assertions sufficient to support a facially plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim for relief is facially plausible 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.

McQuiston's complaint does not support in forma pauperis status. First, this case is a repeat of the prior case, in which McQuiston's claims against Chase were dismissed with prejudice [see Dkt. #12 in the prior case]. The claims are facially barred by res judicata. The doctrine of res judicata bars a party from re-filing a case where three elements are met: (1) identity of claims; (2) final judgment on the merits; and (3) identity or privity between parties. Frank v. United Airlines, Inc., 216 F.3d 845, 850, n. 4 (9th Cir. 2000); Thompson v. King Co., 163 Wash. App. 184 (2011). This claim is literally a repeat of his prior claim. The claim is barred by the dismissal with prejudice of the same prior claim, arising out of the same transaction, against the same lender.

Second, the case is based on McQuiston's claim that his lender refuses to "show him the original note." "Show me the note" is not a viable claim, or a viable defense to a foreclosure action. Courts of this district routinely reject show-me-the-note claims. See, e.g., Mikhay v. Bank of Am., NA., 2011 WL 167064, *2-*3 (W.D. Wash. 2011); Wright v. Accredited Home Lenders, 2011 WL 39027 (W.D. Wash. 2011); Pelzel v. First Saving Bank Northwest, 2010 WL 3814285, at *2 (W.D. Wash. 2010); Wallis v. IndyMac Fed. Bank, 717 F. Supp. 2d 1195, 1200 (W.D. Wash. 2010); Freeston v. Bishop, White & Marshall, P.S., 2010 WL 1186276, at *6 (W.D. Wash. 2010). Indeed, the Washington Deed of Trust Act requires that a foreclosing lender demonstrate its ownership of the underlying note to the trustee, not the borrower. RCW 61.24.030(7).

There are other deficiencies, as well. The compliant does not recite any facts; it contains only conclusions and (misstated) legal principles. The "who what when where and why" of the claim is missing, entirely. A complaint must allege facts to state a claim for relief that is plausible on its face. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). A claim has "facial plausibility" when the party seeking relief "pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Although the Court must accept as true a complaint's well-pled facts, conclusory allegations of law and unwarranted inferences will not defeat an otherwise proper Rule 12(b)(6) motion. Vasquez v. L.A. County, 487 F.3d 1246, 1249 (9th Cir. 2007); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). "[A] plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations and footnote omitted). This requires a plaintiff to plead "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 129 S. Ct. at 1949 (citing Twombly ). McQuiston's proposed compliant fails to state a claim under this standard.

Finally, the claim appears to be time barred, as the prior case was filed more than three years ago, and the events giving rise to it presumably occurred well before that.

For these reasons, McQuiston's in forma pauperis application is DENIED. He must pay the filing fee or submit a proposed amended complaint addressing and remedying these deficiencies within 30 days of this order, or the matter will be dismissed. Any amended complaint must articulate FACTS supporting an identified, viable LEGAL CLAIM. It must address and explain why it is not barred by the prior case's dismissal, and why it is not barred by the passage of time. If it does not, the case will be dismissed without further notice.

IT IS SO ORDERED.

Dated this 9th day of March, 2016.

/s/_________

Ronald B. Leighton (as auth/dn)

United States District Judge


Summaries of

McQuiston v. Chase Bank N.A.

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA
Mar 9, 2016
CASE NO. C16-5151 RBL (W.D. Wash. Mar. 9, 2016)
Case details for

McQuiston v. Chase Bank N.A.

Case Details

Full title:DANIEL W. MCQUISTON, Plaintiff, v. CHASE BANK N.A., Defendant.

Court:UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA

Date published: Mar 9, 2016

Citations

CASE NO. C16-5151 RBL (W.D. Wash. Mar. 9, 2016)