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Wolfbauer v. Ocwen Loan Servicing, LLC

United States District Court, D. Nebraska

April 6, 2018

JAMES WOLFBAUER, an individual; Plaintiff,
OCWEN LOAN SERVICING, LLC, a Delaware Limited Liability Company; and DOES 1 THROUGH 10, INCLUSIVE, Defendants.


          Richard G. Kopf Senior United States District Judge

         Plaintiff James Wolfbauer filed his Complaint (Filing No. 1) on January 11, 2018, and has been granted leave to proceed in forma pauperis (Filing No. 6). The court now conducts an initial review of Plaintiff's Complaint to determine whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).


         Plaintiff filed his Complaint against Defendant Ocwen Loan Servicing, LLC (“Ocwen”) and unknown “Does 1 through 10, inclusive, ” seeking damages and to set aside a foreclosure sale of property located at 3605 W. 14th Street, North Platte, Nebraska (hereinafter “Subject Property”). (Filing No. 1 at CM/ECF pp.2-3, 6.) Plaintiff resides in North Platte, Nebraska, and Ocwen is a Delaware limited liability company. (Id. at CM/ECF p.2.)

         Plaintiff alleges the Subject Property is his “home” and asserts a title interest in the Subject Property. (Id. at CM/ECF pp.2-3, 5.) Plaintiff claims Ocwen “and any entities . . . claiming an interest in Subject Property” acted jointly “for the purpose of enforcing an alleged secured indebtedness upon the . . . Subject Property, extracting money from Plaintiff, and seizing Subject Property.” (Id. at CM/ECF p.4.) On or about November 21, 2017, Plaintiff claims Ocwen and Attorney Kerry Feld[1] (acting as trustee) conducted a trustee sale of the Subject Property without providing Plaintiff proper notice of the sale via registered or certified mail or publication as required by Neb. Rev. Stat. § 76-1008. (Id. at CM/ECF p.5.)


         The court is required to review in forma pauperis complaints to determine whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e). The court must dismiss a complaint or any portion of it that states a frivolous or malicious claim, that fails to state a claim upon which relief may be granted, or that seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).

         Pro se plaintiffs must set forth enough factual allegations to “nudge[] their claims across the line from conceivable to plausible, ” or “their complaint must be dismissed.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”).

         “The essential function of a complaint under the Federal Rules of Civil Procedure is to give the opposing party ‘fair notice of the nature and basis or grounds for a claim, and a general indication of the type of litigation involved.'” Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v. Saunders, 199 F.3d 968, 973 (8th Cir. 1999)). However, “[a] pro se complaint must be liberally construed, and pro se litigants are held to a lesser pleading standard than other parties.” Topchian, 760 F.3d at 849 (internal quotation marks and citations omitted).


         A. Jurisdiction

         Before the court can address Plaintiff's claims it must determine whether it has jurisdiction to do so. Indeed, “[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3). Subject matter jurisdiction may be proper pursuant to 28 U.S.C. § 1332, commonly referred to as “diversity of citizenship” jurisdiction. For purposes of 28 U.S.C. § 1332, “diversity of citizenship” means that “the citizenship of each plaintiff is different from the citizenship of each defendant.” Ryan v. Schneider Nat'l Carriers, Inc., 263 F.3d 816, 819 (8th Cir. 2001). In addition, the amount in controversy must be greater than $75, 000.00 for diversity of citizenship jurisdiction. 28 U.S.C. § 1332(a).

         Plaintiff has alleged the amount in controversy is greater than $75, 000.00, and, given that Plaintiff seeks to recover his home, the court accepts Plaintiff's allegation is made in good faith. See Schubert v. Auto Owners Ins. Co., 649 F.3d 817, 822 (8th Cir. 2011) (“[T]he sum claimed by the plaintiff in good faith is usually dispositive, [unless] it appears to a legal certainty the plaintiff's claim is actually for less than the jurisdictional amount.”). Plaintiff also has alleged that his citizenship is different than the citizenship of the only named Defendant, Ocwen. See 28 U.S.C. § 1332(c)(1) (“[A] corporation shall be deemed to be a citizen of every State . . . by which it has been incorporated and . . . where it has its principal place of business . . . .”). As a result, complete diversity of citizenship exists.[2]OnePoint Solutions, LLC v. Borchert, 486 F.3d 342, 346 (8th Cir. 2007) (“Complete diversity of citizenship exists where no defendant holds citizenship in the same state where any plaintiff holds citizenship.”)

         B. Claim ...

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