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Gilbert v. Federal National Mortgage Association

United States District Court, D. Hawaii

December 20, 2017

ROBERT FREDERICK GILBERT, Plaintiff,
v.
FEDERAL NATIONAL MORTGAGE ASSOCIATION; THE COMMISSIONER ALAN KONISHI; TIMOTHY MAYOPOULOS; DAVID C. BENSON; OCWEN FINANCIAL CORP.; OCWEN FINANCIAL SERVICING; RONALD M. FARIS, CEO; MICHAEL R. BOURQE, CEO; STEVEN T. IWAMURA; ROBERT M. EHRHORN; KEN OHARA; M. KENYON WONG; ALAN S. KONISHI, Defendants.

          ORDER (1) GRANTING APPLICATION TO PROCEED WITHOUT PREPAYING FEES AND COSTS; AND (2) DISMISSING COMPLAINT WITH LEAVE TO AMEND

          J. MICHAEL SEABRIGHT CHIEF UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         On November 30, 2017, pro se Plaintiff Robert Frederick Gilbert (“Plaintiff”) filed a Complaint asserting claims pursuant to 42 U.S.C. § 1983, and an Application to proceed in forma pauperis (“IFP”). ECF Nos. 1, 2. Plaintiff alleges that Defendants Federal National Mortgage Association (“Fannie Mae”); “The Commissioner Alan Konishi”; Timothy Mayopoulos; David C. Benson; Ocwen Financial Corporation (“Ocwen”); Ronald M. Faris; Michael R. Bourqe; Steven T. Iwamura; Robert M. Ehrhorn; Ken Ohara; and M. Kenyon Wong (collectively, “Defendants”)[1] violated his constitutional rights in connection with the servicing and impending foreclosure of a mortgage.

         The Court has screened the Complaint pursuant to 28 U.S.C. §§ 1915(e)(2). Based on the following, the IFP Application is GRANTED, and the Complaint is DISMISSED with leave to amend.

         II. DISCUSSION

         A. IFP Application

         Plaintiff's IFP Application shows that he is a pauper within the meaning of the statute, and it is GRANTED. The court will not order the Complaint served at this time.

         B. The Complaint

         1. Background

         As alleged in the Complaint, Plaintiff obtained a mortgage loan from IndyMac Bank in 2005. Compl. at 9. On February 6, 2010, “the Bank forced the take over of the payment of MY taxes.” Id. On January 29, 2013, the “attorneys brought forward an action of Foreclosure” in the State of Hawaii district court. Id. Plaintiff sought to modify his loan, but the “attorneys and the Bank were only prolonging the foreclosure process and not negotiating a true loan modification.” Id. Meanwhile, “IndyMac Bank contracted the sell (sic) of my . . . loan, ” without Plaintiff's knowledge or signature, therefore making the new loan contract “not valid.” Id. at 9-10.

         The Complaint also conclusorily alleges that the “Kingdom of Hawaii . . . continues to be recognized as a subject of international law[.]” Id. at 4-6. It further alleges that “under the doctrine of Ultra Vires, the attorneys are . . . acting as third-party debt collectors.” Id. at 4. Finally, the Complaint alleges that “[t]he attorneys . . . created the assumption that they have the authority to foreclose when, their bonds and certificates to practice law in a foreign country are not lawful nor legal and have not been endorsed with the signatures of the United States to do so.” Id. at 10.

         The Complaint asserts § 1983 claims for violation of Plaintiff's right to due process under the Fourteenth Amendment and of federal law proscribing the failure to prevent the commission of wrongs against Plaintiff's constitutional rights, and possibly state-law claims based on the alleged invalid transfer of Plaintiff's loan to a new loan servicer and wrongful foreclosure. Id. at 4, 6-8. Plaintiff alleges that Defendants' actions have not caused “physical injuries . . . [but] the mental and physical tole (sic) of these past years has been very hard on me . . . and my family.” Id. Plaintiff seeks relief in the form of an order enjoining Defendants from further “litigation or judicial actions . . . against myself . . . and my house and property.” Id.

         2. Standards of Review

         The court may dismiss sua sponte a complaint for lack of subject-matter jurisdiction. Fiedler v. Clark, 714 F.2d 77, 78-79 (9th Cir. 1983); Belleville Catering Co. v. Champaign Mkt. Place, L.L.C., 350 F.3d 691, 693 (7th Cir. 2003) (“[I]nquiring whether the court has jurisdiction is a federal judge's first duty in every case.”); Fed.R.Civ.P. 12(h)(3). “Federal courts are courts of limited jurisdiction, ” possessing “only that power authorized by Constitution and statute.” United States v. Marks, 530 F.3d 799, 810 (9th Cir. 2008) (quoting Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994)). Plaintiff bears the burden of establishing subject-matter jurisdiction. Kokkonen, 511 U.S. at 377. At the pleading stage, Plaintiff must allege sufficient facts to show a proper basis for the court to assert subject-matter jurisdiction over the action. Johnson v. Columbia Props. Anchorage, L.P., 437 F.3d 894, 899 (9th Cir. 2006); Fed.R.Civ.P. 8(a)(1).

         In addition, the court must subject each civil action commenced pursuant to 28 U.S.C. § 1915(a)[2] to mandatory screening, and order the dismissal of any claims it finds “frivolous, malicious, failing to state a claim upon which relief may be granted, or seeking monetary relief from a defendant immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); see, e.g., Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding that “the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners”); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (stating that 28 U.S.C. § 1915(e) “not only permits but requires” the court to sua sponte dismiss an in forma pauperis complaint that fails to state a claim).

         Screening under § 1915(e)(2) involves the same standard of review as that used under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). Under Rule 12(b)(6), a complaint must “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). ‚ÄúDetermining whether a complaint states a plausible claim for relief ...


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