1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Taniela F Kivalu, No. CV-25-01897-PHX-KML
10 Plaintiff, ORDER
11 v.
12 USAA, et al.,
13 Defendants. 14 15 Plaintiff Taniela F. Kivalu believes five entities and one individual committed some 16 largely-unidentified wrongs related to his mortgage. Kivalu requests leave to proceed in 17 forma pauperis and he is entitled to do so. But granting that request means the court “shall 18 dismiss” the case if it determines the complaint “fails to state a claim on which relief may 19 be granted.” 28 U.S.C. § 1915(e)(2). Kivalu’s claims against one defendant are dismissed 20 because he already sued that defendant for the same claims. Kivalu’s claims against all 21 other defendants are dismissed because he has not stated any plausible claim for relief 22 against them. 23 I. Background 24 The present suit is Kivalu’s second suit in the past twelve months related to the 25 handling of his mortgage.1 In September 2024, Kivalu filed a complaint alleging he had a 26 1 Excluding the present suit, Kivalu has filed seven lawsuits since 2016. Of those suits, five 27 were dismissed upon screening (CV-16-2871, CV-16-2929, CV-17-1579, CV-21-379, CV- 24-2441), and two were dismissed based on motions to dismiss (CV-16-2928, CV-21- 28 1809). Including the present suit, Kivalu has been unable to state any plausible claim for relief across eight different suits. 1 mortgage contract with Axen Mortgage and United Wholesale Mortgage, LLC (“UWM”). 2 CV-24-2441, Doc. 8 at 2. Kivalu alleged those entities “breached the governing contract 3 by changing the amount of his monthly payment” because of “changes to the amount 4 required to fund his escrow account.” CV-24-2441, Doc. 8 at 3. The written contract at 5 issue allowed for “changes to the monthly payment based on adjustments to the escrow 6 account,” so the court dismissed Kivalu’s suit in its entirety. CV-24-2441, Doc. 8 at 3. 7 Kivalu appealed and his appeal remains pending. 8 Kivalu filed this suit on June 2, 2025, and amended his complaint on June 20, 2025. 9 Kivalu’s amended complaint identifies six defendants: USAA, UWM, OneMain Finance, 10 Carrington Mortgage Services, NEXA Mortgage, and Randon L. Harvey. (Doc. 1 at 2.) 11 Unfortunately, most of Kivalu’s amended complaint is undecipherable. As best the court 12 can understand, Kivalu appears to be complaining about some of the same events he 13 described in his 2024 case. 14 In the first eight pages of the amended complaint, Kivalu alleges he executed a 15 “Veteran’s Mortgage” contract with non-party Axen Mortgage. (Doc. 9 at 4.) Axen 16 Mortgage then selected defendant UWM to service the mortgage. (Doc. 9 at 4.) At some 17 point UWM—through its agent defendant Randon L. Harvey—“produced a new Veteran 18 Mortgage” that contained Kivalu’s forged signatures. (Doc. 9 at 4.) Kivalu “fulfilled all 19 obligations required under the original Veteran Mortgage.” (Doc. 9 at 4.) And on June 17, 20 2025, Kivalu “received a notice from [defendant] Carrington Mortgage” that Carrington 21 would “be the new servicer of the Veteran Mortgage Contract.” (Doc. 9 at 4, 7.) 22 Based only on these facts Kivalu alleges “[d]efendants breached their respective 23 contracts.” (Doc. 9 at 7.) While not clear, the alleged breaches appear to consist of someone 24 forging Kivalu’s signature, UWM “increas[ing] [his] mortgage monthly payments . . . 25 without notifying [him],” and USAA “dropping the bundle auto and mortgage insurance.” 26 (Doc. 9 at 6-7.) Defendants also allegedly breached the covenant of good faith and fair 27 dealing by failing “to apply good faith and fair dealing promises on [sic] plaintiff.” (Doc. 28 9 at 8.) These initial allegations involve UWM, Harvey, Carrington, and USAA but there 1 are no allegations regarding NEXA Mortgage LLC or OneMain Finance in the first eight 2 pages of the amended complaint. 3 The amended complaint starts over on page nine with a caption and new paragraph 4 numbering. (Doc. 1 at 9.) In pages nine to seventeen, Kivalu re-alleges some of the same 5 facts as earlier, such as that UWM increased his monthly payments “claiming that the 6 mortgage insurance has increased.” (Doc. 9 at 11.) But Kivalu also alleges he “located an 7 unofficial mortgage agreement proposal drafted by Nexa Mortgage adopted by UWM” and 8 OneMain Finance told Kivalu his “auto coverages on the Kia was lapsed two months.” 9 (Doc. 9 at 11-12.) These additional actions in some indeterminable way provide additional 10 grounds for Kivalu’s claims for breach of contract and breach of the covenant of good faith 11 and fair dealing. 12 As for relief, Kivalu seeks “$150,000.00 Stat reliefs [sic] while the case is on trial.” 13 (Doc. 9 at 16.) Kivalu also seeks $250 million as “Disabled Veterans being violated and 14 denied accommodation damages.” And $150 million because of defendants’ “scheme to 15 defraud the Disable [sic] Veteran and planned to hold the Veterans [sic] Hostages.” (Doc. 16 9 at 16.) 17 II. Analysis 18 A. Res Judicata Bars Claims Against UWM 19 Kivalu’s 2024 lawsuit alleged UWM had breached the parties’ contract by making 20 a change to his monthly payment amount. CV-24-2441, Doc. 7 at 5. Kivalu’s claims against 21 UWM in that suit were dismissed with prejudice. CV-24-2441, Doc. 8. Kivalu appears to 22 be trying to pursue the same (or similar) claims against UWM in this suit. (Doc. 9 at 11). 23 Because he already litigated his claims against UWM and they were dismissed with 24 prejudice, Kivalu cannot relitigate the same claims by filing a new complaint. Kivalu is 25 also prohibited from suing UWM in this suit for different wrongs than what he identified 26 in his 2024 complaint because Kivalu could have sued over those different wrongs in his 27 earlier suit. 28 “Res judicata bars relitigation of all grounds of recovery that were asserted, or could 1 have been asserted, in a previous action between the parties, where the previous action was 2 resolved on the merits.” Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Plan. Agency, 322 3 F.3d 1064, 1078 (9th Cir. 2003). If the claims “could have been brought” in the earlier suit, 4 they are now barred. Id. Kivalu’s 2024 lawsuit named UWM as a defendant and alleged it 5 had committed wrongs in relation to his mortgage. That suit was filed in September 2024 6 alleging misconduct before the filing date. The current complaint involves wrongs UWM 7 allegedly committed “since 8/2/2023”—including changing Kivalu’s monthly payments— 8 meaning Kivalu’s claims against UWM in this suit were available to him in September 9 2024. (Doc. 9 at 5.) Because Kivalu could have brought his current claims against UWM 10 in his 2024 case, he cannot pursue the claims against UWM in this suit. But even assuming 11 res judicata does not bar the claims against UWM, those claims are subject to dismissal on 12 an additional basis that applies to all defendants. 13 B. Amended Complaint Fails to State Plausible Claim for Relief 14 Given the disjointed nature of the amended complaint’s allegations, it is not possible 15 to determine which defendant is being sued, “for what relief, and on what theory, with 16 enough detail to guide discovery.” McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996). 17 To the extent the court can understand the amended complaint, Kivalu has not stated a 18 plausible claim against any defendant. 19 Kivalu is trying to allege contract claims against UWM (and Randon L. Harvey) 20 based on an increase in monthly payments, but he does not point to any contract prohibiting 21 such increases. And it is implausible that Kivalu’s mortgage contract prohibits increasing 22 monthly payments when his home insurance premiums increase.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Taniela F Kivalu, No. CV-25-01897-PHX-KML
10 Plaintiff, ORDER
11 v.
12 USAA, et al.,
13 Defendants. 14 15 Plaintiff Taniela F. Kivalu believes five entities and one individual committed some 16 largely-unidentified wrongs related to his mortgage. Kivalu requests leave to proceed in 17 forma pauperis and he is entitled to do so. But granting that request means the court “shall 18 dismiss” the case if it determines the complaint “fails to state a claim on which relief may 19 be granted.” 28 U.S.C. § 1915(e)(2). Kivalu’s claims against one defendant are dismissed 20 because he already sued that defendant for the same claims. Kivalu’s claims against all 21 other defendants are dismissed because he has not stated any plausible claim for relief 22 against them. 23 I. Background 24 The present suit is Kivalu’s second suit in the past twelve months related to the 25 handling of his mortgage.1 In September 2024, Kivalu filed a complaint alleging he had a 26 1 Excluding the present suit, Kivalu has filed seven lawsuits since 2016. Of those suits, five 27 were dismissed upon screening (CV-16-2871, CV-16-2929, CV-17-1579, CV-21-379, CV- 24-2441), and two were dismissed based on motions to dismiss (CV-16-2928, CV-21- 28 1809). Including the present suit, Kivalu has been unable to state any plausible claim for relief across eight different suits. 1 mortgage contract with Axen Mortgage and United Wholesale Mortgage, LLC (“UWM”). 2 CV-24-2441, Doc. 8 at 2. Kivalu alleged those entities “breached the governing contract 3 by changing the amount of his monthly payment” because of “changes to the amount 4 required to fund his escrow account.” CV-24-2441, Doc. 8 at 3. The written contract at 5 issue allowed for “changes to the monthly payment based on adjustments to the escrow 6 account,” so the court dismissed Kivalu’s suit in its entirety. CV-24-2441, Doc. 8 at 3. 7 Kivalu appealed and his appeal remains pending. 8 Kivalu filed this suit on June 2, 2025, and amended his complaint on June 20, 2025. 9 Kivalu’s amended complaint identifies six defendants: USAA, UWM, OneMain Finance, 10 Carrington Mortgage Services, NEXA Mortgage, and Randon L. Harvey. (Doc. 1 at 2.) 11 Unfortunately, most of Kivalu’s amended complaint is undecipherable. As best the court 12 can understand, Kivalu appears to be complaining about some of the same events he 13 described in his 2024 case. 14 In the first eight pages of the amended complaint, Kivalu alleges he executed a 15 “Veteran’s Mortgage” contract with non-party Axen Mortgage. (Doc. 9 at 4.) Axen 16 Mortgage then selected defendant UWM to service the mortgage. (Doc. 9 at 4.) At some 17 point UWM—through its agent defendant Randon L. Harvey—“produced a new Veteran 18 Mortgage” that contained Kivalu’s forged signatures. (Doc. 9 at 4.) Kivalu “fulfilled all 19 obligations required under the original Veteran Mortgage.” (Doc. 9 at 4.) And on June 17, 20 2025, Kivalu “received a notice from [defendant] Carrington Mortgage” that Carrington 21 would “be the new servicer of the Veteran Mortgage Contract.” (Doc. 9 at 4, 7.) 22 Based only on these facts Kivalu alleges “[d]efendants breached their respective 23 contracts.” (Doc. 9 at 7.) While not clear, the alleged breaches appear to consist of someone 24 forging Kivalu’s signature, UWM “increas[ing] [his] mortgage monthly payments . . . 25 without notifying [him],” and USAA “dropping the bundle auto and mortgage insurance.” 26 (Doc. 9 at 6-7.) Defendants also allegedly breached the covenant of good faith and fair 27 dealing by failing “to apply good faith and fair dealing promises on [sic] plaintiff.” (Doc. 28 9 at 8.) These initial allegations involve UWM, Harvey, Carrington, and USAA but there 1 are no allegations regarding NEXA Mortgage LLC or OneMain Finance in the first eight 2 pages of the amended complaint. 3 The amended complaint starts over on page nine with a caption and new paragraph 4 numbering. (Doc. 1 at 9.) In pages nine to seventeen, Kivalu re-alleges some of the same 5 facts as earlier, such as that UWM increased his monthly payments “claiming that the 6 mortgage insurance has increased.” (Doc. 9 at 11.) But Kivalu also alleges he “located an 7 unofficial mortgage agreement proposal drafted by Nexa Mortgage adopted by UWM” and 8 OneMain Finance told Kivalu his “auto coverages on the Kia was lapsed two months.” 9 (Doc. 9 at 11-12.) These additional actions in some indeterminable way provide additional 10 grounds for Kivalu’s claims for breach of contract and breach of the covenant of good faith 11 and fair dealing. 12 As for relief, Kivalu seeks “$150,000.00 Stat reliefs [sic] while the case is on trial.” 13 (Doc. 9 at 16.) Kivalu also seeks $250 million as “Disabled Veterans being violated and 14 denied accommodation damages.” And $150 million because of defendants’ “scheme to 15 defraud the Disable [sic] Veteran and planned to hold the Veterans [sic] Hostages.” (Doc. 16 9 at 16.) 17 II. Analysis 18 A. Res Judicata Bars Claims Against UWM 19 Kivalu’s 2024 lawsuit alleged UWM had breached the parties’ contract by making 20 a change to his monthly payment amount. CV-24-2441, Doc. 7 at 5. Kivalu’s claims against 21 UWM in that suit were dismissed with prejudice. CV-24-2441, Doc. 8. Kivalu appears to 22 be trying to pursue the same (or similar) claims against UWM in this suit. (Doc. 9 at 11). 23 Because he already litigated his claims against UWM and they were dismissed with 24 prejudice, Kivalu cannot relitigate the same claims by filing a new complaint. Kivalu is 25 also prohibited from suing UWM in this suit for different wrongs than what he identified 26 in his 2024 complaint because Kivalu could have sued over those different wrongs in his 27 earlier suit. 28 “Res judicata bars relitigation of all grounds of recovery that were asserted, or could 1 have been asserted, in a previous action between the parties, where the previous action was 2 resolved on the merits.” Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Plan. Agency, 322 3 F.3d 1064, 1078 (9th Cir. 2003). If the claims “could have been brought” in the earlier suit, 4 they are now barred. Id. Kivalu’s 2024 lawsuit named UWM as a defendant and alleged it 5 had committed wrongs in relation to his mortgage. That suit was filed in September 2024 6 alleging misconduct before the filing date. The current complaint involves wrongs UWM 7 allegedly committed “since 8/2/2023”—including changing Kivalu’s monthly payments— 8 meaning Kivalu’s claims against UWM in this suit were available to him in September 9 2024. (Doc. 9 at 5.) Because Kivalu could have brought his current claims against UWM 10 in his 2024 case, he cannot pursue the claims against UWM in this suit. But even assuming 11 res judicata does not bar the claims against UWM, those claims are subject to dismissal on 12 an additional basis that applies to all defendants. 13 B. Amended Complaint Fails to State Plausible Claim for Relief 14 Given the disjointed nature of the amended complaint’s allegations, it is not possible 15 to determine which defendant is being sued, “for what relief, and on what theory, with 16 enough detail to guide discovery.” McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996). 17 To the extent the court can understand the amended complaint, Kivalu has not stated a 18 plausible claim against any defendant. 19 Kivalu is trying to allege contract claims against UWM (and Randon L. Harvey) 20 based on an increase in monthly payments, but he does not point to any contract prohibiting 21 such increases. And it is implausible that Kivalu’s mortgage contract prohibits increasing 22 monthly payments when his home insurance premiums increase. 23 For USAA, Kivalu alleges it breached a contract when it “dropped the auto part 24 insurance endorsed under the bundle offered by USAA.” (Doc. 9 at 12.) It is not clear what 25 this means but the amended complaint does not identify the contract that prohibited USAA 26 from “dropp[ing] the auto part insurance,” and it is implausible such a contract exists. 27 For OneMain Finance, it allegedly “instituted an increased [sic] in auto insurance 28 policy.” (Doc. 9 at 12.) Again, there are no allegations identifying a contract that prohibited 1 such an increase, and it is implausible that such a contract exists. 2 For Carrington Mortgage, Kivalu alleges only that it is becoming the servicer of his 3 mortgage as of July 2025. (Doc. 9 at 4.) There are no allegations that a change in servicer 4 is prohibited by contract, and it is implausible that such a contract exists. 5 Finally, NEXA Mortgage is identified as “the drafter of the Mortgage Contract used 6 by UWM.” (Doc. 9 at 3.) Being the drafter of a contract used by a third party does not 7 establish a breach of contract and there is no other indication of a meaningful relationship 8 between NEXA Mortgage and Kivalu. 9 Kivalu’s amended complaint consists of “unadorned, the-defendant-unlawfully- 10 harmed-me accusation[s].” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Such allegations 11 are not enough to state a claim and the complaint is dismissed.2 Leave to amend is not 12 appropriate because some of Kivalu’s claims are barred by res judicata and even if not 13 barred, Kivalu could not allege additional facts to state a plausible claim against any 14 defendant. 15 On June 30, 2025, Kivalu filed a “Motion to Freeze and Stop Changes to VA 16 Mortgage Contract.” (Doc. 10.) That motion seeks an injunction prohibiting “any changes” 17 to Kivalu’s mortgage. (Doc. 10 at 1.) Kivalu can obtain injunctive relief only if he is likely 18 to succeed on the merits or, at the very least, there are serious questions going to the merits. 19 All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). Kivalu has not 20 made either showing so his motion is denied. 21 / 22 / 23 / 24 / 25 / 26 / 27 2 Page eight of the complaint identifies “USERRA, Disability Act of 1974, and Social 28 Security Disability Act of 2010” as somehow relevant to Kivalu’s claims. The complaint does not attempt to allege claims under these statutes. (Doc. 9 at 8.) 1 Accordingly, 2 IT IS ORDERED the Motion for Fee Waiver (Doc. 2) is GRANTED. 3 IT IS FURTHER ORDERED the Motion to Freeze and Stop Changes to VA Mortgage Contract (Doc. 10) is DENIED. 5 IT IS FURTHER ORDERED complaint (Doc. 9) is DISMISSED WITH || PREJUDICE. The Clerk of Court shall enter judgment in favor of defendants and close this case. 8 Dated this 7th day of July, 2025. 9 10 é VY) ly Va n ry G. / ll AA AOA PM A □ Honorable Krissa M. Lanham 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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