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Middleton v. Wells Fargo, N.A.

United States District Court, D. Nevada

August 18, 2017

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

          REPORT OF FINDINGS AND RECOMMENDATION

          PEGGY A. LEEN, UNITED STATES MAGISTRATE JUDGE

         This matter is before the court for screening of Plaintiff Ann Gates Middleton's Amended Complaint (ECF No. 8)[1] which is referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and LR IB 1-4 of the Local Rules of Practice.

         BACKGROUND

         Ms. Middleton is proceeding in this action pro se and in forma pauperis (“IFP”). She commenced this action on September 30, 2015, by filing an IFP Application (ECF No. 1) and proposed complaint. She subsequently filed a Motion to Expedite Ruling on Fee Waiver Request (ECF No. 2). The court denied her request explaining that civil cases are processed in the order in which they are filed in the absence of a true emergency. See Order (ECF No. 3). The order indicated that an order would issue granting or denying IFP status when the court screened the proposed complaint and determined whether it stated a colorable claim.

         Upon review of the complaint, the court determined that it failed to state an actionable claim under the Truth in Lending Act (“TILA”), 15 U.S.C. §§ 1601-1667f. The court therefore issued an Order (ECF No. 4) instructing Middleton to file an amended complaint by February 23, 2017, if she believed she could correct the noted defects in her pleading. Ms. Middleton filed Objections (ECF No. 6) to the undersigned's Order. Although Ms. Middleton disagreed with the finding that her complaint failed to state a claim, she stated she would file an amended complaint by the deadline. Ms. Middleton did not file an amended complaint by the February 23, 2017 deadline.

         On March 31, 2017, the court issued an Order to Show Cause (ECF No. 7) why sanctions should not be imposed for her failure to file an amended complaint and her failure to comply with the Order (ECF No. 4). The order provided that filing the amended complaint on or before April 28, 2017, would satisfy the court that sanctions were not warranted. Ms. Middleton filed her Amended Complaint (ECF No. 8) on April 28, 2017.[2]

         DISCUSSION

         I. Screening the Amended Complaint

         Pursuant to § 1915(e), federal courts must screen all IFP complaints and amended complaint prior to a responsive pleading. Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc) (§ 1915(e) applies to “all in forma pauperis complaints”). If the court determines that 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). If the court determines that the complaint fails to state an actionable claim, the complaint is dismissed and the plaintiff is ordinarily given leave to amend with directions as to curing the pleading deficiencies, unless it is clear from the face of the complaint that the deficiencies cannot be cured by amendment. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 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). 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. 1986); rather, they must follow the same rules of procedure that govern other litigants. Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995).

         A. Ms. Middleton's Amended 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 Am. Compl. (ECF No. 8) at 4. The Amended Complaint names as defendants Guaranteed Rate, Inc. (“GRI”); Wells Fargo Bank, N.A. (“Wells Fargo”); Mortgage Electronics Registration Systems, Inc. (“MERS”); Government National Mortgage Association; Old Republic Title Company of Nevada (“Old Republic”); Office of Debbie Conway, Clark County Recorder (“Recorder's Office”); Assistant Clark County Recorder Eugene Mendiola (“Mr. Mendiola”); and Does 1-25.

         Ms. Middleton alleges that the events giving rise to this case began after she closed escrow on the Property in March 2012. She alleges that GRI withheld information from her and only partially disclosed facts. Had she been in possession of this information, she would not have entered into the agreement. She claims she has tried to validate the alleged debt on her Property with Wells Fargo and GRI but claims she received evasive answers.

         Based on a report she received from Old Republic, Ms. Middleton alleges that several transfers of the mortgage occurred for two months after the closing. Although she believed that GRI was the actual lender, the report indicated that GRI was the interim servicer and Ally Bank was the interim lender. In April 2012, Wells Fargo replaced GRI as the servicer and investor; thus, GRI was paid off. She alleges this extinguished her indebtedness and discharged the security interest on the deed of trust. At the time, the Clark County Recorder had no record of the deed of trust transferring to a third-party, which disputes defendants' later claim that the promissory note and/or the deed of trust was later assigned. Middleton alleges that the numerous transfers on the MERS report violate the statute of frauds and constitute deceptive trade practices. From October 2014 through February 2017, she exchanged various correspondence with defendants requesting an accounting, stating her belief that the account balance is zero, and asserting that defendants have engaged in massive fraud and clouded her title. See Am. Compl. (ECF No. 8), Exhibits C, D, F, H, J.

         In November 2016 and March 2017, Ms. Middleton attempted to file a “Rescission of Signature” and affidavits with the Recorder's Office. See id., Exhibit L. However, Mr. Mendiola denied the requests to record the document. See id., Exhibit K. Middleton alleges that Mr. Mendiola made improper legal determinations about the documents as there was nothing wrong with the documents' formatting. The Recorder's Office ...


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