Benton v. Real Estate Financial Services, Inc. et al

Northern District of California, cand-4:2015-cv-03500

ORDER DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS, DENYING MOTION FOR PRELIMINARY INJUNCTION AND DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND. Signed by Judge Jeffrey S. White on 10/14/15.

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SEDALIA BENTON, 7 Case No. 15-cv-03500-JSW Plaintiff, 8 ORDER DENYING APPLICATION TO v. PROCEED IN FORMA PAUPERIS, 9 DENYING MOTION FOR REAL ESTATE FINANCIAL SERVICES, PRELIMINARY INJUNCTION AND 10 INC., et al., DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO 11 Defendants. AMEND 12 Re: Docket Nos. 11-12 Northern District of California United States District Court 13 14 On July 29, 2015, Plaintiff, Sedalia Benton ("Ms. Benton") filed her Complaint, an 15 application to proceed in forma pauperis, and a motion for a temporary restraining order. On July 16 30, 2015, the Court issued an Order denying her application to proceed in forma pauperis, denied 17 her motion for a temporary restraining order, and dismissed her Complaint with leave to amend. 18 On October 1, 2015, pursuant to the Court's Order, Ms. Benton filed a First Amended 19 Complaint ("FAC"), and on October 13, 2015, she filed a renewed application to proceed in forma 20 pauperis and a motion for a preliminary injunction. 21 In her FAC, Ms. Benton alleges that she obtained a mortgage loan of $636,000.00 from 22 Defendant Real Estate Financial Services, Inc. on June 30, 2006, "in order to purchase the rental 23 property of 5804 E. 16th Street, in Oakland, California" (the "Property"). (FAC ¶ 7.) She further 24 alleges that Defendant, Indymac Federal Bank, recorded a modification on September 3, 2009 and 25 that a notice of default was filed on November 25, 2009. (Id. ¶ 10.) She further alleges that on 26 December 21, 2009, an assignment was recorded assigning Onewest as the trustee and/or servicer. 27 (Id.) Finally, in her motion for an emergency injunction, she suggests that an entity named Seterus 28 is not a holder in due course and cannot perform any service relating to "the instrument." It is not 1 clear whether the instrument refers to the Promissory Note or the Deed of Trust. 2 Once again, Ms. Benton has not alleged whether a notice of trustee's sale has been 3 scheduled. Nor is it clear whether Ms. Benton applied for another loan modification after 4 September 3, 2009. If she did apply for another loan modification, she does not allege when she 5 did so. Although Ms. Benton identifies three causes of action, "violation of assignment 6 requirements," "disqualified trustee," and "violation of holder in due course," the Court still 7 cannot discern the nature of Defendant's alleged misconduct. 8 Ms. Benton has also attached two letters to her FAC which refer to dual tracking, but there 9 are insufficient allegations in the FAC from which the Court could reasonably infer dual tracking 10 has occurred. Accordingly, Plaintiff has not stated a viable claim for relief, and the Court 11 DENIES her renewed application to proceed in forma pauperis. 12 The Court DISMISSES the FAC, and it shall provide Ms. Benton with one final Northern District of California United States District Court 13 opportunity to amend her complaint to cure the deficiencies identified in this Order. If Ms. 14 Benton wishes to pursue this action, she must file an amended complaint setting forth a cognizable 15 legal claim and some factual basis to support a claim with federal jurisdiction by November 13, 16 2015. Plaintiff may file a renewed application to proceed in forma pauperis upon filing an 17 amended complaint. Failure to file timely an amended complaint shall result in dismissal of this 18 action with prejudice. 19 The Court FURTHER ORDERS that Ms. Benton's motion for an emergency injunction, 20 which the Court construes as a motion for a temporary restraining order, is DENIED. In order to 21 obtain a temporary restraining order or preliminary injunctive relief, Plaintiff "must establish that 22 she is likely to succeed on the merits, that she is likely to suffer irreparable harm in the absence of 23 preliminary relief, that the balance of equities tips in her favor, and that an injunction is in the 24 public interest." Winter v. Natural Resources Defense Council, 555 U.S. 7, 20 (2008) (citations 25 omitted). The Winter court also noted that because injunctive relief is "an extraordinary remedy," 26 it "may only be awarded upon a clear showing that the plaintiff is entitled to such relief." 555 27 U.S. at 22 (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam)). Thus "[i]n each 28 case, courts 'must balance the competing claims of injury and must consider the effect on each 2 1 parrty of the graanting or witthholding off the requesteed relief.'" IId. at 24 (citting Amoco P Production 2 Co. v. Gambelll, 480 U.S. 531, 5 542 (1987)). 3 Followiing Winter, courts c in thee Ninth Circuuit may applly a sliding sscale test whhen there is a 4 lesser showing of likelihoo od of successs that amounnt to "seriouss questions oon the meritss" and the 5 ballance of hard dships tips sttrongly in th he plaintiff's favor, as lonng as the plaaintiff satisfiies the other 6 two o prongs und der Winter by b showing th hat there is a likelihood of irreparable injury andd that the 7 inju unction is in n the public interest. i Alliiance For Thhe Wild Rockies v. Cottrrell, 632 F.3dd 1127, 113 34 (9th Cir. 2011). Becaause the Cou urt finds thatt Ms. Bentonn fails to alleege a valid cclaim, the 8 Court DENIES S the motion for a prelim minary injuncction. That rruling is withhout prejudiice to 9 ren newing her motion m if, and d when, she files an ameended compllaint. 10 The Co ourt again ad dvises Ms. Beenton that a Handbook ffor Pro Se Liitigants, whiich contains 11 hellpful informaation about proceeding p without w an atttorney, is avvailable throough the Couurt's websitee 12 Northern District of California United States District Court or in i the Clerk's office. Th he Court also o advises Mss. Benton thhat she also m may wish to seek 13 asssistance from m the Legal Help H Center.. Ms. Bentoon may call thhe Legal Heelp Center att 415-782- 14 898 82 or sign up p on the 15th h Floor of th he San Franccisco Courthoouse, Room 2796, or onn the 4tth 15 Flo oor of the Oaakland Courtthouse, Room m 470S, for a free appoiintment withh an attorneyy who may 16 be able to prov vide basic leg gal help, but not legal reppresentationn. 17 IT IS SO S ORDER RED. 18 Daated: Octoberr 14, 2015 19 20 ___________________________ 21 JE EFFREY S. W WHITE 22 Unnited States D District Judgge 23 24 25 26 27 28 3