1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 VONETTA LaBELLE BENOIT, No. 2:19-cv-1063 MCE DB PS 12 Plaintiff, 13 v. ORDER 14 PNC BANK; QUALITY LOAN SERVICE

CORP.,

15 16 Defendants. 17 18 Plaintiff Vonetta LaBelle Benoit is proceeding in this action pro se. This matter was 19 referred to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). 20 Pending before the court are plaintiff’s motion to proceed in forma pauperis, plaintiff’s amended 21 complaint, and defendant PNC Bank’s motion to dismiss. (ECF Nos. 2, 8, 12.) For the reasons 22 explained below, plaintiff’s amended complaint is dismissed, plaintiff is granted leave to file a 23 second amended complaint, and defendant’s motion to dismiss is denied without prejudice as 24 premature. 25 I. Plaintiff’s Application to Proceed In Forma Pauperis 26 Plaintiff’s in forma pauperis application makes the financial showing required by 28 27 U.S.C. § 1915(a)(1). However, a determination that a plaintiff qualifies financially for in forma 28 pauperis status does not complete the inquiry required by the statute. “‘A district court may deny 1 leave to proceed in forma pauperis at the outset if it appears from the face of the proposed 2 complaint that the action is frivolous or without merit.’” Minetti v. Port of Seattle, 152 F.3d 3 1113, 1115 (9th Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th 4 Cir. 1987)); see also McGee v. Department of Child Support Services, 584 Fed. Appx. 638 (9th 5 Cir. 2014) (“the district court did not abuse its discretion by denying McGee’s request to proceed 6 IFP because it appears from the face of the amended complaint that McGee’s action is frivolous 7 or without merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“It is the duty of the 8 District Court to examine any application for leave to proceed in forma pauperis to determine 9 whether the proposed proceeding has merit and if it appears that the proceeding is without merit, 10 the court is bound to deny a motion seeking leave to proceed in forma pauperis.”). 11 Moreover, the court must dismiss an in forma pauperis case at any time if the allegation of 12 poverty is found to be untrue or if it is determined that the action is frivolous or malicious, fails to 13 state a claim on which relief may be granted, or seeks monetary relief against an immune 14 defendant. See 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an 15 arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. 16 Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a 17 complaint as frivolous where it is based on an indisputably meritless legal theory or where the 18 factual contentions are clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e). 19 To state a claim on which relief may be granted, the plaintiff must allege “enough facts to 20 state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 21 570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as 22 true the material allegations in the complaint and construes the allegations in the light most 23 favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v. 24 Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245 25 (9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by 26 lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true 27 conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western 28 Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). 1 The minimum requirements for a civil complaint in federal court are as follows: 2 A pleading which sets forth a claim for relief . . . shall contain (1) a short and plain statement of the grounds upon which the court’s 3 jurisdiction depends . . . , (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for 4 judgment for the relief the pleader seeks. 5 Fed. R. Civ. P. 8(a). 6 II. Plaintiff’s Complaint 7 Here, plaintiff’s amended complaint fails to contain a short and plain statement of a claim 8 showing that plaintiff is entitled to relief. In this regard, in the amended complaint plaintiff 9 alleges: 10 The claim I am making is that I was denied assistance for reasons I was never made aware were stipulations to receiving assistance. I 11 have been approved in the past for a loan modification in the past and upon accepting the offer for assistance I was never informed that if I 12 accepted the help there is a timeframe in which I cannot request assistance again or I would not qualify and be denied, neither was 13 there any disclaimer that states there is a maximum dollar amount that I cannot exceed being delinquent on my payments to receive 14 assistance. 15 (Am. Compl. (ECF No. 8) at 6.1) The amended complaint goes on to allege that defendant sent 16 plaintiff “a hardship application package,” which plaintiff completed. (Id.) Plaintiff later learned 17 the “application package was not being reviewed,” which plaintiff believes “was unfair and 18 deceptive[.]” (Id.) 19 It appears from the vague and conclusory allegations of the amended complaint that 20 plaintiff is displeased with defendant’s failure to review plaintiff’s hardship application, possibly 21 because plaintiff had previously been granted a loan medication. However, the amended 22 complaint fails to identify a claim, state the elements of that claim, or allege factual allegations is 23 support of the claim. 24 Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a 25 complaint must give the defendant fair notice of the plaintiff’s claims and must allege facts that 26 state the elements of each claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v. 27 1 Page number citations such as this one are to the page number reflected on the court’s CM/ECF 28 system and not to page numbers assigned by the parties. 1 Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). “A pleading that offers ‘labels 2 and conclusions’ or ‘a formulaic recitation of the elements of cause of action will not do.’ Nor 3 does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual 4 enhancements.’” Ashcroft v. Iqbal, 556 U.S.662, 678 (2009) (quoting Twombly, 550 U.S. at 555, 5 557). A plaintiff must allege with at least some degree of particularity overt acts which the 6 defendants engaged in that support the plaintiff’s claims. Jones, 733 F.2d at 649. 7 It appears plaintiff may be attempting to allege a claim for wrongful foreclosure. 8 The basic elements of a tort cause of action for wrongful foreclosure track the elements of an equitable cause of action to set aside a 9 foreclosure sale. They are: “(1) the trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property 10 pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale (usually but not always the trustor or 11 mortgagor) was prejudiced or harmed; and (3) in cases where the trustor or mortgagor challenges the sale, the trustor or mortgagor 12 tendered the amount of the secured indebtedness or was excused from tendering.” 13 14 Miles v. Deutsche Bank National Trust Co., 186 Cal.Rptr.3d 625, 636 (2015) (quoting Lona v. 15 Citibank, N.A., 202 Cal.App.4th 89, 104 (2011)). 16 Plaintiff is also advised that California Civil Code § 2924.18 provides, in relevant part: 17 (a)(1) If a borrower submits a complete application for a first lien loan modification offered by, or through, the borrower’s mortgage 18 servicer, a mortgage servicer, trustee, mortgagee, beneficiary, or authorized agent shall not record a notice of default, notice of sale, 19 or conduct a trustee’s sale while the complete first lien loan modification is pending, and until the borrower has been provided 20 with a written determination by the mortgage servicer regarding the borrower’s eligibility for the requested loan modification. 21 And California Civil Code § 2924.6(c)-(h) provides: 22 (c) If a borrower submits a complete application for a first lien loan 23 modification offered by, or through, the borrower’s mortgage servicer, a mortgage servicer, trustee, mortgagee, beneficiary, or 24 authorized agent shall not record a notice of default, notice of sale, or conduct a trustee’s sale while the complete first lien loan 25 modification is pending. A mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall not record a notice of default 26 or notice of sale or conduct a trustee’s sale until any of the following occurs: 27 28 //// 1 (1) The mortgage servicer makes a written determination that the borrower is not eligible for a first lien loan modification, and any 2 appeal period pursuant to subdivision (d) has expired. 3 (2) The borrower does not accept an offered first lien loan modification within 14 days of the offer. 4 (3) The borrower accepts a written first lien loan modification, but 5 defaults on, or otherwise breaches the borrower’s obligations under, the first lien loan modification. 6 (d) If the borrower’s application for a first lien loan modification is 7 denied, the borrower shall have at least 30 days from the date of the written denial to appeal the denial and to provide evidence that the 8 mortgage servicer’s determination was in error. 9 (e) If the borrower’s application for a first lien loan modification is denied, the mortgage servicer, mortgagee, trustee, beneficiary, or 10 authorized agent shall not record a notice of default or, if a notice of default has already been recorded, record a notice of sale or conduct 11 a trustee’s sale until the later of: 12 (1) Thirty-one days after the borrower is notified in writing of the denial. 13 (2) If the borrower appeals the denial pursuant to subdivision (d), the 14 later of 15 days after the denial of the appeal or 14 days after a first lien loan modification is offered after appeal but declined by the 15 borrower, or, if a first lien loan modification is offered and accepted after appeal, the date on which the borrower fails to timely submit 16 the first payment or otherwise breaches the terms of the offer. 17 (f) Following the denial of a first lien loan modification application, the mortgage servicer shall send a written notice to the borrower 18 identifying the reasons for denial, including the following: 19 (1) The amount of time from the date of the denial letter in which the borrower may request an appeal of the denial of the first lien loan 20 modification and instructions regarding how to appeal the denial. 21 (2) If the denial was based on investor disallowance, the specific reasons for the investor disallowance. 22 ... (g) In order to minimize the risk of borrowers submitting multiple 23 applications for first lien loan modification for the purpose of delay, the mortgage servicer shall not be obligated to evaluate applications 24 from borrowers who have already been evaluated or afforded a fair opportunity to be evaluated for a first lien loan modification prior to 25 January 1, 2013, or who have been evaluated or afforded a fair opportunity to be evaluated consistent with the requirements of this 26 section, unless there has been a material change in the borrower’s financial circumstances since the date of the borrower’s previous 27 application and that change is documented by the borrower and submitted to the mortgage servicer. 28 1 (h) For the purposes of this section, an application shall be deemed “complete” when a borrower has supplied the mortgage servicer with 2 all documents required by the mortgage servicer within the reasonable timeframes specified by the mortgage servicer. 3 4 III. Leave to Amend 5 For the reasons stated above, plaintiff’s amended complaint must be dismissed. The 6 undersigned has carefully considered whether plaintiff may further amend the complaint to state a 7 claim upon which relief can be granted. “Valid reasons for denying leave to amend include 8 undue delay, bad faith, prejudice, and futility.” California Architectural Bldg. Prod. v. Franciscan 9 Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1988); see also Klamath-Lake Pharm. Ass’n v. Klamath 10 Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall 11 be freely given, the court does not have to allow futile amendments). 12 However, when evaluating the failure to state a claim, the complaint of a pro se plaintiff 13 may be dismissed “only where ‘it appears beyond doubt that the plaintiff can prove no set of facts 14 in support of his claim which would entitle him to relief.’” Franklin v. Murphy, 745 F.2d 1221, 15 1228 (9th Cir. 1984) (quoting Haines v. Kerner, 404 U.S. 519, 521 (1972)); see also Weilburg v. 16 Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (“Dismissal of a pro se complaint without leave to 17 amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be 18 cured by amendment.”) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir. 19 1988)). 20 Here, given the vague and conclusory nature of the amended complaint’s allegations, the 21 undersigned cannot yet say that it appears beyond doubt that further leave to amend would be 22 futile. Plaintiff’s amended complaint will therefore be dismissed, and plaintiff will be granted 23 leave to file a second amended complaint. Plaintiff is cautioned, however, that if plaintiff elects 24 to file a second amended complaint “the tenet that a court must accept as true all of the 25 allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of 26 the elements of a cause of action, supported by mere conclusory statements, do not suffice.” 27 Ashcroft, 556 U.S. at 678. “While legal conclusions can provide the complaint’s framework, they 28 must be supported by factual allegations.” Id. at 679. Those facts must be sufficient to push the 1 claims “across the line from conceivable to plausible[.]” Id. at 680 (quoting Twombly, 550 U.S. 2 at 557). 3 Plaintiff is also reminded that the court cannot refer to a prior pleading in order to make an 4 amended complaint complete. Local Rule 220 requires that any amended complaint be complete 5 in itself without reference to prior pleadings. The second amended complaint will supersede the 6 amended complaint just as the amended complaint superseded the original complaint. See Loux 7 v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, in a second amended complaint, just as if it were 8 the initial complaint filed in the case, each defendant must be listed in the caption and identified 9 in the body of the complaint, and each claim and the involvement of each defendant must be 10 sufficiently alleged. Any amended complaint which plaintiff may elect to file must also include 11 concise but complete factual allegations describing the conduct and events which underlie 12 plaintiff’s claims. 13 IV. Defendant’s Motion to Dismiss 14 As noted above, defendant filed a motion to dismiss on July 31, 2019. (ECF No. 12.) 15 However, the court had not yet screened plaintiff’s amended complaint as required. See 28 16 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc). 17 Above, the undersigned has found that the amended complaint is deficient, must be dismissed, 18 and will grant plaintiff leave to file a second amended complaint. Because plaintiff’s amended 19 complaint will be dismissed and the court must screen plaintiff’s second amended complaint 20 defendant’s motion to dismiss the amended complaint will be denied without prejudice to renewal 21 as premature. 22 If plaintiff elects to file a second amended complaint the court will have to again screen 23 that complaint unless plaintiff pays the applicable filing fee. If, as to defendant PNC Bank, the 24 undersigned finds that the second amended complaint is not frivolous or malicious, states a claim 25 on which relief may be granted, and does not seek monetary relief against an immune defendant, 26 the undersigned will grant plaintiff’s motion for leave to proceed in forma pauperis and order 27 defendant PNC Bank to file a responsive pleading. 28 //// 1 CONCLUSION 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. The amended complaint filed July 9, 2019 (ECF No. 8) is dismissed with leave to 4 || amend.” 5 2. Within twenty-eight days from the date of this order, a second amended complaint 6 | shall be filed that cures the defects noted in this order and complies with the Federal Rules of 7 || Civil Procedure and the Local Rules of Practice.? The second amended complaint must bear the 8 || case number assigned to this action and must be titled “Second Amended Complaint.” 9 3. Failure to comply with this order in a timely manner may result in a recommendation 10 | that this action be dismissed. 11 4. Defendant’s July 31, 2019 motion to dismiss (ECF Nos. 9 & 12) is denied without 12 || prejudice as premature. 13 | Dated: February 7, 2020 14 15 16 BORAH BARNES

UNITED STATES MAGISTRATE JUDGE

17 18 19 20

DLB:6

21 DB/orders/orders.pro se/benoit1063.dism.Ita.ord 22 23 24 25 26 > Plaintiff need not file another application to proceed in forma pauperis at this time unless plaintiffs financial condition has improved since the last such application was submitted. 27 3 Alternatively, if plaintiff no longer wishes to pursue this action plaintiff may file a notice of 28 | voluntary dismissal of this action pursuant to Rule 41 of the Federal Rules of Civil Procedure.