Burnett v. NBS Default Servs., 2:19-cv-367-JAM-EFB PS

• Decision Date: 06 August 2020
• Docket Number: No. 2:19-cv-367-JAM-EFB PS,2:19-cv-367-JAM-EFB PS
• Parties: ROY J. BURNETT, Plaintiff, v. NBS DEFAULT SERVICES, LLC; JOHN and JANE DOES, 1-100, Defendants.
• Court: U.S. District Court — Eastern District of California

ROY J. BURNETT, Plaintiff,
v.
NBS DEFAULT SERVICES, LLC; JOHN and JANE DOES, 1-100, Defendants.

No. 2:19-cv-367-JAM-EFB PS

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

August 6, 2020

ORDER

Plaintiff seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. 1915.¹ His declaration makes the showing required by 28 U.S.C. §1915(a)(1) and (2). See ECF No. 2. Accordingly, the request to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a).

Determining that plaintiff may proceed in forma pauperis does not complete the required inquiry. Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines the allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against an immune defendant. As discussed below, plaintiff's complaint must be dismissed for failure to state a claim.

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Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it fails to set forth "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562-563, 570 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)); see also Fed. R. Civ. P. 12(b)(6). "[A] plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do. Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the complaint's allegations are true." Id. at 555 (citations omitted). Dismissal is appropriate based either on the lack of cognizable legal theories or the lack of pleading sufficient facts to support cognizable legal theories. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

Under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) requires a complaint to include "a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests." Twombly, 550 U.S. at 555 (citing Conley, 355 U.S. at 47).

The complaint alleges that plaintiff's father, Lee Roy Burnett (the "decedent"), executed a promissory note to obtain a loan for the purchase of real property located at 1877 18th Street, Olivehurst, California (the "property"). Id. at 2. Sometime after the decedent's death in early 2016, defendant NBS Default Services LLC—the beneficiary of the promissory note and servicer for the decedent's loan—allegedly commenced non-judicial foreclosure proceedings. Id. at 1-2. On January 7, 2019, plaintiff, who is the sole beneficiary of the decedent's estate, mailed defendant a request for information regarding its policies and procedures for dealing with successors in interest, but defendant failed to respond. Id. at 2-3. Based on these allegations, plaintiff alleges claims for violation of the Real Estate Settlement and Procedures Act

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("RESPA"), 12 U.S.C. §§ 2601 et seq.; the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692 et seq.; the Federal Trade Commission Act ("FTCA"), 15 U.S.C. §§ 45 et seq.; and a state law claim for breach of the covenant of good faith and fair dealing. Id. at 3-9.

Plaintiff's allegations are insufficient to state a claim for violation of RESPA. That act requires borrowers be provided certain disclosures related to the mortgage loan settlement process. 12 U.S.C. § 2601. It also requires that loan servicers respond to qualified written requests ("QWR") from borrowers seeking information relating to the servicing of their loan. 12 U.S.C § 2605(e). Although plaintiff alleges defendant failed to respond to his request for information, the complaint reflects that the decedent, and not plaintiff, was the borrower under the loan. See Lal v. American Home Servicing, Inc., 680 F.Supp.2d 1218, 1223 (E.D. Cal. 2010). ("RESPA, 12 U.S.C. § 2605(e), requires that loan servicers timely respond to qualified written requests ('QWRs') from borrowers.") (emphasis added). Furthermore, the complaint contains no allegations reflecting plaintiff assumed any obligations under the loan after his father's death. Aldana v. Bank of Am., N.A., 2014 WL 6750276, at *3 (C.D. Cal. Nov. 26, 2014) (dismissing RESPA claim where the plaintiff was "not a borrower, did not assume obligations under the loan, and was not a third-party beneficiary of the [Deed of Trust]."); see also Brockington v. J.P. Morgan Chase Bank, N.A., 2009 WL 1916690, at *2-3 (N.D. Cal. July 1, 2009) (even though the plaintiff alleged that she was an "equitable owner" of property,...