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Goldberg v. Northwest Trustee Services, Inc.

United States District Court, D. Idaho

June 29, 2015

CHARLES D. GOLDBERG, Plaintiff,
v.
NORTHWEST TRUSTEE SERVICES, INC. and WELLS FARGO HOME MORTGAGE, Defendants.

ORDER

CANDY W. DALE, Magistrate Judge.

INTRODUCTION

The Clerk of Court conditionally filed pro se Plaintiff Charles Goldberg's complaint as a result of his in forma pauperis request. Pursuant to 28 U.S.C. §1915, this Court must review Plaintiff's in forma pauperis complaint to determine whether it may be summarily dismissed. Plaintiff's complaint is subject to dismissal because his complaint fails to state a claim upon which relief can be granted. But because Plaintiff, the only party appearing in this case, has not consented to the jurisdiction of a United States Magistrate Judge to enter final orders in this case, [1] the Court enters the following order directing the Clerk of the Court to reassign this matter to a District Judge for consideration of an order dismissing the Complaint, or alternatively requiring Plaintiff to pay the filing fee to proceed.

BACKGROUND

Plaintiff is suing Northwest Trustee Services, Inc., and Wells Fargo Home Mortgage for alleged violations of the Fair Debt Collection Practices Act and for "Identity Theft." From what the Court can glean from the complaint, it appears Northwest and Wells Fargo have initiated foreclosure proceedings against Plaintiff's personal residence. The complaint has attached to it a Deed of Trust, executed by borrower Charles Goldberg, "a married man as his sole and separate property, " and noting the Lender as Wells Fargo Financial Idaho, Inc. Wells Fargo loaned $118, 560.66 on December 5, 2007, which debt was secured by Plaintiff's residence located at 480 B Avenue East, in Wendell, Idaho. The Deed of Trust indicated Lender could accelerate payment of the indebtedness upon Borrower's default, or invoke the power of sale as a remedy for default.

The complaint indicates that, "at some time after the mortgage was recorded, " Defendants began attempting to foreclose under the terms of the mortgage. Written communications began in July of 2013, between Plaintiff and Defendants. Plaintiff alleges that Defendants falsely represented they held the note, had the right to foreclose, would sell Plaintiff's property at public auction, and that they each issued false documents to him. Plaintiff alleges also that Defendants, beginning on July of 2013 and continuing through May of 2015, obtained records through the public domain that pertain to Plaintiff's property and used the records to "participate in a public auction of the plaintiff's home." Plaintiff contends that Defendants induced him to divulge his tax records and other private information, and "falsely presented" themselves to obtain his property.

Based upon these allegations, Plaintiff asserts one count against each Defendant for violation of the FDCPA, and one count for identity theft against each Defendant. Plaintiff seeks money damages and reimbursement of costs and attorney fees associated with defending against the foreclosure process.

DISPOSITION

Pro se complaints, "however inartfully pleaded, " are held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972). Therefore, because Plaintiff proceeds pro se, the Court will construe his pleadings liberally and afford him the benefit of any doubt. Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). The Court must dismiss a complaint or any portion thereof which states a claim that is frivolous or malicious, that fails to state a claim upon which relief may be granted, or that seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).

If a complaint fails to state a claim, the court must grant the plaintiff leave to amend, "even if no request to amend the pleading was made, unless [the court] determines that the pleading could not possibly be cured by the allegation of other facts." Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv., Inc., 911 F.2d 242, 247 (9th Cir. 1990). Indeed, a dismissal without leave to amend is improper unless it is beyond doubt that the complaint "could not be saved by any amendment." Harris v. Amgen, Inc., 573 F.3d 728, 737 (9th Cir. 2009). "In determining whether a complaint is frivolous, a court is not bound, as it usually is when making a determination based solely on the pleadings, to accept without question the truth of the plaintiff's allegations." See Denton v. Hernandez, 504 U.S. 25, 32 (1992) (emphasis in original). The Court may find a complaint factually frivolous "when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them." See id.; see also O'Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990) (holding complaint submitted in forma pauperis "is frivolous if it has no arguable basis in fact or law").

1. In Forma Pauperis Request

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 $400.00. 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). Motions to proceed in forma pauperis are addressed to the sound discretion of the District Court. United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981), cert. denied, 455 U.S. 958 (1982). Where the moving party fails to establish poverty, it is within the discretion of the court to deny the motion to proceed in forma pauperis. Id.

Plaintiff filed a complaint against Northwest Trustee Services, Inc., and Wells Fargo Home Mortgage Company, because of their "attempted foreclosure of plaintiff's property." Compl. at 4, 7, 8. Plaintiff indicates he owns a home at 480 B Avenue E., in Wendell, Idaho. In Forma Pauperis Application (Dkt. 1 at 3); Deed of Trust (Dkt. 2-1 at 2.) In his IFP request, he indicates he pays home-mortgage payments of $983 per month, and his monthly expenses (including his home mortgage payment) are $1, 713.00. His income consists of social security and disability payments totaling $2, 120 per month, and he has $110.00 in cash and $53.00 in his checking account. The acknowledgement on the Deed of Trust attached to his complaint indicates Plaintiff signed the deed before a notary as "a married man, " yet he failed to list the average monthly income of his spouse on his IFP application. Further, if Plaintiff is indeed facing foreclosure proceedings as his complaint represents, the only way he can be in that predicament is for non-payment of his mortgage payment of $983 per month.

Based upon the above, the Court therefore recommends that Plaintiff's IFP request be denied, and that he pay the full filing fee before he may be allowed to proceed. Alternatively, because Plaintiff's complaint does not state a claim under the ...


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