Opinion
Case No. 12-cv-04604 NC
10-22-2012
JULIA MARY SOTELO, Plaintiff, v. REO CAPITAL INVESTMENT AND ASSET MANAGEMENT, INC., Defendant.
ORDER DISMISSING COMPLAINT
WITHOUT LEAVE TO AMEND
On August 31, 2012, Plaintiff Julia Mary Sotelo filed a complaint against Defendant REO Capital Investment and Asset Management, Inc. ("REO") and an application to proceed in forma pauperis. Plaintiff consented to the jurisdiction of a United States magistrate judge under 28 U.S.C. § 636(c). The Court granted Sotelo's motion to proceed in forma pauperis on September 11, 2012. The issue is whether Sotelo's claim can survive the mandatory, sua sponte review under 28 U.S.C. § 1915(e)(2) of complaints proceeding in forma pauperis. Because Sotelo fails to state a claim for relief, the Court dismisses the action without leave to amend.
I. BACKGROUND
REO sued Sotelo in Superior Court of California for the County of San Joaquin on July 18, 2012 for unlawful detainer. See Case No. 12-cv-04665 NC, Dkt. No. 1. Sotelo filed this action against REO alleging that REO had violated the Protecting Tenants at Foreclosure Act ("PTFA"), which gives tenants ninety days to vacate premises that have been foreclosed upon. Case No. 12-cv-04604 NC, Dkt. No. 1. Sotelo also filed a separate action against REO's attorney, Chad Wood, alleging that he too, violated the PTFA. Case No. 12-cv-04602 MEJ, Dkt. No. 1. In addition, Sotelo filed a notice to remove to federal court REO's unlawful detainer claim against her. Case No. 12-cv-04665 NC, Dkt. No. 1.
Chief Magistrate Judge James screened Sotelo's case against Wood under §1915(e)(2) and ultimately dismissed the action because the PTFA does not include a private right of action. Case No. 12-cv-04602 MEJ, Dkt. No. 6. This Court ordered Sotelo to show cause why venue was proper and why this action should not be related to the action she removed to federal court. Sotelo did not respond. October 11, 2012, this Court held a hearing on REO's motion to remand pending in Case No. 12-cv-04665 and to consider whether, for efficiency, the pending actions between Sotelo and REO should be related to each other or to Sotelo's case against Wood. Dkt. No. 6. Sotelo did not appear.
II. STANDARD OF REVIEW
Under 28 U.S.C. § 1915(a)(1), "any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding . . . without prepayment of frees or security thereof." 28 U.S.C. § 1915(a)(1). "Any person wishing the Court to authorize prosecution or defense of the action without payment of fees or security, pursuant to 28 United States Code § 1915, must submit . . . an Ex Parte Motion to Proceed In Forma Pauperis, pursuant to Civil L.R. 7-11." Civil L.R. 3-10(a).
Under 28 U.S.C. § 1915(e)(2), the court must dismiss a complaint at any time if the court determines that the pleading is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against an immune defendant. 28 U.S.C. § 1915(a). In order to properly state a claim for relief, a complaint must contain more than "labels and conclusions"; it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
A complaint is legally frivolous when it lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a complaint as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e) (stating that the 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.").
III. DISCUSSION
The Protecting Tenants at Foreclosure Act of 2009, codified at 12 U.S.C. § 5201, et seq., requires any party acquiring an interest in property through foreclosure to provide existing tenants with ninety-days' notice to vacate. PL 111-22, May 20, 2009, 123 Stat 1632, Sec. 702. Nevertheless, Congress did not create a private right of action to enforce this provision. See, e.g., Miller v. Chase Home Fin., LLC, 677 F.3d 1113, 1116 (11th Cir. 2012) (holding that 12 U.S.C. § 5201 et seq. does not create private right of action); Deutsche Bank Nat. Trust Co. v. Eaddy, 12-cv-01845 YGR, 2012 WL 4173987, at *1 (N.D. Cal. Sept. 18, 2012) ("The PTFA is intended to be used for protection in state court but does not create a private right of action or a basis for federal subject matter jurisdiction.").
Sotelo alleges only one claim against REO: violation of the ninety-day notice provision of the PTFA. Because the PTFA does not accord a private right of action to redress this alleged violation, Sotelo cannot state a claim for relief. Accordingly, the Court DISMISSES THE ACTION WITHOUT LEAVE TO AMEND.
IV. CONCLUSION
The Court reviews this action under § 1915 and finds that Sotelo fails to state a claim on which relief may be granted because the PTFA does not create a private right of action. Therefore, Sotelo's claim for violation of the PTFA against REO is DISMISSED WITHOUT LEAVE TO AMEND.
IT IS SO ORDERED.
____________________
Nathanael M. Cousins
United States Magistrate Judge