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Middleton v. Wells Fargo, N.A.

United States District Court, D. Nevada

January 23, 2017

ANN GATES MIDDLETON, Plaintiff,
v.
WELLS FARGO, N.A., et al. Defendants.

          ORDER (IFP APP. - ECF NO. 1)

          PEGGY A. LEEN, UNITED STATES MAGISTRATE JUDGE

         This matter is before the court on Plaintiff Ann Gates Middleton's Application to Proceed In Forma Pauperis (ECF No. 1). This Application is referred to the undersigned pursuant to 28 U.S.C. § 636 (a) and Local Rules LR IB 1-3 and 1-7 of the Local Rules of Practice.

         I. In Forma Pauperis Application

         Ms. Middleton is proceeding in this action pro se, which means that he is not represented by an attorney. See LSR 2-1. Pursuant to 28 U.S.C. § 1915 and LSR 1-1 of the Local Rules of Practice, any person who is unable to prepay the fees in a civil case may apply to the Court for authority to proceed in forma pauperis (“IFP”), meaning without prepaying the full $400 filing fee. Here, Ms. Middleton has requested authority to proceed IFP and submitted the affidavit required by § 1915(a) showing that she is unable to prepay fees and costs or give security for them. Accordingly, her request to proceed IFP will be granted. The court will now review the Complaint.

         II. Screening the Complaint

         After granting a litigant's IFP request, a federal court must screen the complaint and any amended complaints filed prior to a responsive pleading pursuant to § 1915(e). Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc) (§ 1915(e) applies to “all in forma pauperis complaints”). If the complaint states a valid claim for relief, the court will direct the Clerk of the Court to issue summons to the defendant(s) and the plaintiff must then serve the summons and complaint within 90 days. See Fed. R. Civ. P. 4(m). When a court dismisses a complaint pursuant to § 1915(e), a plaintiff is ordinarily given leave to amend with directions as to curing its deficiencies, unless it is clear from the face of the complaint that the deficiencies could not be cured by amendment. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

         A. Middleton's Factual Allegations and Claims for Relief

         This action involves a mortgage note and deed of trust for the real property of 7754 Pink Ginger Street, Las Vegas, Nevada (the “Property”). See Compl. (ECF No. 1-1) at 3. Ms. Middleton alleges she executed a mortgage loan on March 15, 2012. Id. On March 12, 2015, Middleton sent defendants Wells Fargo Bank and Guaranteed Rate, Inc. a notice of rescission pursuant to Federal Reserve Board Regulation Z, 12 C.F.R. § 226.23, and 15 U.S.C. § 1635, which are statutes and regulations regarding the Truth in Lending Act (“TILA”), 15 U.S.C. §§ 1601- 1667f. However, she alleges that defendants have not complied with their statutory obligations as a lender under the notice of rescission. Id. In August 2015, Ms. Middleton recorded a Notice of Release of Mortgage under operation of law. Id. at 4. Defendants did not respond. Id. Middleton seeks a declaratory judgment that the mortgage note related to the Property is terminated, released, void, and invalid. Id. at 4-6. Additionally, she seeks restitution based on Carrington's non-compliance with statutory requirements. Id. at 6-7.

         For the reasons discussed below, the court finds that the complaint fails to state a claim upon which relief can be granted.

         B. Legal Standard

         Federal courts are required to dismiss an in forma pauperis action if the complaint fails to state a claim upon which relief may be granted, is legally “frivolous or malicious, ” or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). In determining whether a complaint is frivolous and therefore warrants complete or partial dismissal, a court is not bound to accept without question truth of plaintiff's allegations. Denton v. Hernandez, 504 U.S. 25, 32 (1992). Allegations are frivolous when they are “clearly baseless, ” id., or lack an arguable basis in law and fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Frivolous claims include those based on legal conclusions that are untenable (e.g., claims against defendants who are immune from suit or claims of infringement of a legal interest that clearly does not exist), as well as claims based on fanciful factual allegations (e.g., fantastic or delusional scenarios). Id. at 327-28; McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). The standard for determining whether a plaintiff has failed to state a claim upon which relief can be granted under § 1915 is the same as the standard under Rule 12(b)(6) of the Federal Rules of Civil Procedure[1] for failure to state a claim. Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). Review under Rule 12(b)(6) is essentially a ruling on a question of law. N. Star Intern. v. Ariz. Corp. Comm'n, 720 F.2d 578, 580 (9th Cir. 1983).

         For the purposes of § 1915's screening requirement, a properly pled complaint must provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2); accord Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The simplified pleading standard set forth in Rule 8(a) of the Federal Rules of Civil Procedure applies to all civil actions with limited exceptions. Alvarez v. Hill, 518 F.3d 1152, 1159 (9th Cir. 2008). Although Rule 8 does not require detailed factual allegations, it demands “more than labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). This requires a plaintiff to state “enough facts to raise a reasonable expectation that discovery will reveal evidence” of the allegations charged. Cafasso, United States ex rel. v. General Dynamics C4 Systems, Inc., 637 F.3d 1047, 1055 (9th Cir. 2011) (quoting Twombly, 550 U.S. at 556). Mere recitals of the elements of a cause of action supported only by conclusory allegations do not suffice. Iqbal, 556 U.S. at 679-80. A complaint “must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). Secondly, where the claims in the complaint have not crossed the line from plausible to conceivable, the complaint should be dismissed. Twombly, 550 U.S. at 570. Stated differently, the factual allegations “must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.” Starr, 652 F.3d at 1216.

         Allegations in a pro se complaint are held to less stringent standards than formal pleading drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Hebbe v. Pliler, 627 F.3d 338, 342 n.7 (9th Cir. 2010) (joining five other circuits finding that liberal construction of pro se pleadings is still required after Twombly and Iqbal). However, pro se litigants “should not be treated more favorably than parties with attorneys of record, ” Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir. ...


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