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Rodney Chestnut v. Wells Fargo Bank

February 22, 2012

RODNEY CHESTNUT, PLAINTIFF,
v.
WELLS FARGO BANK, N.A., ROSICKI, ROSICKI & ASSOCIATES, P.C., SHAPIRO, DICARO & BARACK, LLC, HOGAN LOVELLS US LLP, EDGETON C. MONROE, JEFFREY R. SZYMENDERA, OCWEN, RICHARD J. KAUFMAN, ESQ., BARCLAYS BANK PLC, HOMEQ SERVICING CORPORATION, SECURITIZED ASSET BACK RECEIVABLES LLC, FREMONT INVESTMENT & LOAN, DEFENDANTS.



APPEARANCES: For Plaintiff: Rodney Chestnut, Pro Se 112 West Bartlett Road Middle Island, New York 11953 For Defendants: No appearances

The opinion of the court was delivered by: Seybert, District Judge:

ORDER

On October 31, 2011, pro se plaintiff Rodney Chestnut ("Plaintiff") commenced this declaratory judgment action against the defendants pursuant to 28 U.S.C. §§ 1983, 1985, 2201 and 2202, and filed an application to proceed in forma pauperis. Plaintiff's financial status, as set forth in his declaration in support of the application, qualifies him to commence this action without prepayment of the filing fees. See 28 U.S.C. § 1915(a)(1). Accordingly, Plaintiff's application to proceed in forma pauperis is granted. However, for the reasons that follow, the Complaint is sua sponte dismissed for lack or subject matter jurisdiction pursuant to 28 U.S.C. § 1915 and Federal Rule of Civil Procedure 12(h)(3) unless the Plaintiff files an Amended Complaint as set forth below within thirty (30) days from the date that this Order is served upon him.

BACKGROUND

The instant Complaint is the second filed by Plaintiff in this Court against Wells Fargo Bank, N.A. ("Wells Fargo") concerning a foreclosure dispute. The first action, 10-CV-4244 (JS)(ARL), Chestnut v. Wells Fargo Bank, N.A., was dismissed on the Defendant's motion because the claims were barred by the Rooker-Feldman doctrine, collateral estoppel and res judicata. See Mem. & Order, dated March 3, 2011, Seybert, D.J. The Court further found that even in the absence of a procedural bar, Plaintiff's claims were insufficiently pled.

THE INSTANT COMPLAINT

Plaintiff again seeks to challenge the foreclosure of his home and claims that there was fraud involved in the transfer of his mortgage loan. The instant Complaint, brought pursuant to Sections 1983 and 1985 and the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202, names twelve (12) private-actor defendants, including Wells Fargo, as well as Rosicki, Rosicki & Associates, P.C. ("Rosicki"), Shapiro, DiCaro & Barack, LLC ("Shapiro"), Hogan Lovells US LLP ("Hogan"), Edgeton C. Monroe ("Monroe"), Jeffrey R. Szymendera ("Szymendera"), OCWEN, Richard J. Kaufman, Esq. ("Kaufman"), Barclays Bank PLC ("Barclays"), HomEq Servicing Corporation, Securitized Asset Back Receivables LLC ("Securitized Asset"), and Fremont Investment & Loan (collectively, "Defendants"). Like the prior Complaint, the instant Complaint contains limited factual information and is largely comprised of excerpts from Plaintiff's mortgage loan documents and Plaintiff's summaries thereof. Plaintiff does not allege any facts concerning conduct by any of the Defendants other than Richard Kaufman, Esq., who is alleged to be the trustee who sold the property in question. (Compl. ¶ at 9). The Complaint also alleges that Fremont Investment & Loan sold his mortgage to Barclays and that Wells Fargo was the trustee of the trust that held his mortgage. (Compl. at ¶¶ 5, 20).

Plaintiff lists two causes of action:

FIRST CAUSE OF ACTION

DEFENDANT VIOLATED THE CONSTITUTIONAL RIGHTS OF THE PLAINTIFF HEREIN WHEN HE PARTICIPATED IN THE ILLEGAL FORECLOSURE ACTION AND THE THEFT OF EQUITY IN VIOLATION OF THE UNITED STATES CONSTITUTIONAL RIGHTS OF DUE PROCESS

SECOND CAUSE OF ACTION

DEFENDANT PARTICIPATED IN FRAUD, UNJUST ENRICHMENT AND OTHER SCHEMES TO COMMIT THEFT OF EQUITY AND TO USE THE LEGAL SYSTEM FOR THE PURPOSE TO COMMIT SUCH FRAUDULENT ACTIONS (Compl. at page 9). As a result, Plaintiff seeks to recover, inter alia, the sum of $1.75 million.

DISCUSSION

I. In Forma Pauperis ...


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