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Belssner v. One Nevada Credit Union

United States District Court, D. Nevada

August 2, 2017

CHARLES N. BELSSNER, Plaintiff,
v.
ONE NEVADA CREDIT UNION, Defendant.

          REPORT & RECOMMENDATION

          Cam Ferenbach United States Magistrate Judge.

         Before the Court are pro se Plaintiff Charles N. Belssner's (“Mr. Belssner's”) application to proceed in forma pauperis (ECF No. 1) and complaint (ECF No. 1-1). For the reasons stated below, Mr. Belssner's in forma pauperis application is granted. The Court, however, recommends that Mr. Belssner's complaint be dismissed with prejudice.

         I. Discussion

         Mr. Belssner's filings present two questions: (1) whether Mr. Belssner may proceed in forma pauperis under 28 U.S.C. § 1915(e); and (2) whether Mr. Belssner's complaint states a plausible claim for relief. Each is discussed below.

         1. Mr. Belssner May Proceed In Forma Pauperis

         Mr. Belssner's application to proceed in forma pauperis is granted. Under 28 U.S.C. § 1915(a)(1), a plaintiff may bring a civil action “without prepayment of fees or security thereof” if the plaintiff submits a financial affidavit that demonstrates the plaintiff “is unable to pay such fees or give security therefor.” Under § 1915(a)(1), Mr. Belssner submitted a financial affidavit. (See ECF No. 1 at 1). According to the affidavit, Mr. Belssner brings in no income and has a minimal checking account balance. Mr. Belssner's application lists significant expenses. (See ECF No. 1 at 2). Mr. Belssner's application to proceed in forma pauperis is, therefore, granted.

         2. Mr. Belssner's Complaint Fails to State a Plausible Claim

         a. Legal Standard

         Because the Court grants Mr. Belssner's application to proceed in forma pauperis, it must review Mr. Belssner's complaint to determine whether the complaint is frivolous, malicious, or fails to state a plausible claim. (See 28 U.S.C. § 1915(e)). The Court's review of Mr. Belssner's complaint is guided by two legal standards: Federal Rule of Civil Procedure 8 and the Supreme Court's decision in Erickson v. Pardus, 551 U.S. 89 (2007).

         Federal Rule of Civil Procedure 8(a) provides that a complaint “that states a claim for relief must contain … a short and plain statement of the claim showing that the [plaintiff] is entitled to relief.” (See Fed.R.Civ.P. 8(a)(2)). The Supreme Court's decision in Ashcroft v. Iqbal, states that to satisfy Rule 8's requirements a complaint's allegations must cross “the line from conceivable to plausible.” (556 U.S. 662, 680 (2009)). The Court's decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007) and Iqbal prescribe a two-step procedure to determine whether a complaint's allegations cross that line.

         First, the Court must identify “the allegations in the complaint that are not entitled to the assumption of truth.” (See Iqbal, 556 U.S. at 679, 680). Factual allegations are not entitled to the assumption of truth if they are “merely consistent with liability, ” id. at 678, or “amount to nothing more than a ‘formulaic recitation of the elements' of a constitutional” claim. (Id. at 681).

         Second, the Court must determine whether the complaint states a “plausible” claim for relief. (Id. at 679). A claim is “plausible” if the factual allegations, which are accepted as true, “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” (Id. at 678). This inquiry is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” (Id. at 679 (citation omitted)). If the factual allegation, which are accepted as true, “do not permit the Court to infer more than the mere possibility of misconduct, the complaint has alleged- but it has not ‘show[n]'-that the pleader is entitled to relief.” (Id. at 679 (citing Fed.R.Civ.P. 8(a)(2))).

         “[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” (See Erickson, 551 U.S. at 94 (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976))). If the Court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend the complaint 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. (See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (citation omitted)).

         Mr. Belssner brings the instant suit under 15 U.S.C. §§ 45(a) and 53(b) against One Nevada Credit Union (“One Nevada”) for allegedly deceptive and unfair practices related to their mortgage services. Mr. Belssner's complaint alleges that One Nevada is mortgage lender who collaborated with Consumer Services of Nevada (“Consumer Services”) to provide federally protected mortgages under Fannie Mae guidelines. Mr. Belssner alleges that he was a participant in this nonprofit program. Mr. Belssner alleges that One Nevada, inter alia, reneged on promises to reimburse him for various costs, misled him on the status of his application, and misconstrued or ignored evidence to disqualify and avoid providing him a mortgage. Mr. Belssner asserts that he ...


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