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Brett Sullivan v. First Mortgage Company of Idaho

December 17, 2010

BRETT SULLIVAN, PLAINTIFF,
v.
FIRST MORTGAGE COMPANY OF IDAHO, DEFENDANT.



The opinion of the court was delivered by: B. Lynn WINMILLChief Judge U.S. District Court

MEMORANDUM DECISION AND ORDER

INTRODUCTION

Before the Court is Plaintiff Brett Sullivan's Application for Leave to Proceed In Forma Pauperis (Dkts. 1&2). Sullivan, proceeding pro se, filed a Complaint on August 27, 2010. In the Complaint, Sullivan identifies six causes of action: (1) breach of fiduciary duty; (2) negligence/negligence per se; (3) agent: common law fraud; (4) breach of the implied covenant of good faith and fair dealing; (5) violation of the Truth In Lending Act (TILA)(15 U.S.C. § 1601 et seq.); and (6) intentional infliction of emotional distress. He also alludes to a civil conspiracy, as well as to violations of § 2607 of the Real Estate Settlement Procedures Act (RESPA)(12 U.S.C. §§ 2601-2617) and the Home Ownership Equity Protection Act (HOEPA)(15 U.S.C. § 1639), Defendants' unjust enrichment, and a claim for quiet title. None of these claims, however, fall under the "Cause of Action" heading in his Complaint.

For the reasons set forth below, the Court will grant Sullivan's applications for leave to file informa pauperis, but will dismiss Sullivan's Complaint with leave to amend.

BACKGROUND

1. Application to Proceed Informa Pauperis

All parties instituting any civil action, suit, or proceeding in a district court of the United States, except an application for a writ of habeas corpus, must pay a filing fee of $350. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff's failure to prepay the entire fee only if the plaintiff is granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 2009).

To determine whether a party should be allowed to proceed in forma pauperis under 28 U.S.C. § 1915, a court should review the overall financial situation of the applicant, including all of the assets and liabilities of the applicant. See Zaun v. Dobbin, 628 F.2d 990, 992-93 (7th Cir. 1980). See also Romesburg v. Trickey, 908 F.2d 258, 259 (8th Cir. 1990) (affirming dismissal of prisoner's case for misrepresenting his claim of poverty where it was later discovered, in contrast to his affidavit, that he owned real estate, even though he contended that it was worth only $5,000 and his elderly wife resided thereon).

Sullivan here states that he is not employed, he has no income, he owes multiple creditors, and he has no funds to support his minor children. Sullivan further claims that he does not own a car, and he does not have any other significant assets such as real estate, stocks, bonds, or securities. His wife works part-time, and presumably pays for his living expenses. Based upon Sullivan's current financial condition, the Court finds it appropriate to grant his Application to Proceed in Forma Pauperis, which allows him to pay the filing fee over time. The Court will order Sullivan to pay $25.00 monthly to the Clerk of Court on or before the last day of every month, starting in January 2011, until the balance of $350.00 is paid in full. Failure to pay the monthly filing fee may result in dismissal of this case without further notice.

2. Initial Review

A. Plaintiffs' Allegations

Sullivan alleges in his Complaint that he "entered into a consumer contract for the refinance of a primary residence located at 107 Arapahoe Lane Hailey ID 83333." Compl. at 1, Dkt. 3. Sullivan does not specify whether he refinanced the loan on the property with Defendant First Mortgage Company of Idaho, LLC. Nor does Sullivan indicate when or where this transaction occurred. And he does not provide any underlying documentation.

Under the heading, "Statement of Cause," Sullivan further alleges: C Defendants, acting in concert and collusion with others, induced Petitioner to enter into a predatory loan agreement with Defendant.

C Defendants committed numerous acts of fraud against Petitioner in furtherance of a carefully crafted scheme ...


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