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D'Ambrosio v. Sterling Savings Bank

United States District Court, Ninth Circuit

October 22, 2013

JULIAN B. D'AMBROSIO, Plaintiff,
v.
STERLING SAVINGS BANK; FIDELITY NATIONAL TITLE INSURANCE COMPANY; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; AND DOES 1-20, Defendants.

JULIAN B. D'AMBROSIO, Clackamas, OR, Plaintiff, Pro Se.

JODY M. McCORMICK, MICHAEL L. LOFT, GEANA M. VAN DESSEL Witherspoon Kelly, Spokane, WA, Attorneys for Defendants Sterling Savings Bank and Mortgage Electronic Registration Systems, Inc.

DANIEL A. WOMAC, The Law Division of Fidelity National Title Group Seattle, WA, Attorney for Defendant Fidelity National Title Company.

OPINION AND ORDER

ANNA J. BROWN, District Judge.

This matter comes before the Court on Defendant Sterling Savings Bank's Motion (#60) To: (A) Dismiss Count Two of Plaintiff's First Amended Complaint; and (B) Discharge Lis Pendens and the Motion (#65) of Mortgage Electronic Registration System (MERS) to Dismiss Counts Five, Six and Seven of Plaintiff's First Amended Complaint. For the reasons that follow, the Court GRANTS Sterling's Motion and MERS's Motion.

BACKGROUND

The following facts are taken from Plaintiff's First Amended Complaint and documents judicially noticed by the Court.

On November 8, 2005, Plaintiff Julian B. D'Ambrosio signed a Promissory Note with Action Mortgage Company secured by property located at 2530 Lorinda Court, West Linn, Oregon. Plaintiff also entered into a Trust Deed as to that property with Plaintiff as grantor; Fidelity Service Corporation as Trustee; and Mortgage Electronic Registration System (MERS) solely as nominee for the beneficiary, Action.

At some point the Trust Deed was recorded in Clackamas County, Oregon.

Plaintiff alleges Action sold Plaintiff's "Loan"[1] to "investors" at some point and Defendant Sterling Savings Bank was appointed as successor trustee.

On July 22, 2010, MERS filed an Appointment of Successor Trustee in Clackamas County and appointed Defendant Fidelity National Title Insurance as the successor trustee.

On July 29, 2010, Fidelity executed a Notice of Default and Election to Sell against Plaintiff's property in which Fidelity alleged Plaintiff was in default on the Note, and Fidelity initiated a nonjudicial foreclosure of Plaintiff's property.

On December 8, 2010, Fidelity sold Plaintiff's property to Sterling at the foreclosure sale.

On December 18, 2011, Sterling sold the property to Defendant First Federal Savings and Loan Association of Port Angeles. On December 19, 2011, Sterling filed a Quit Claim Deed in Clackamas County "convey[ing] and quit claim[ing]" the property to First Federal.

On October 10, 2012, Plaintiff filed a Complaint in this Court against Sterling, Fidelity, MERS, and Does 1-20 alleging claims against all Defendants for (1) declaratory relief, (2) injunctive relief, (3) quiet title, and (4) wrongful foreclosure. Plaintiff also brings a claim for breach of fiduciary duty against Fidelity.

On November 28, 2012, Plaintiff filed a Notice of Pendency of An Action ( Lis Pendens ) against the property in Clackamas County.

On February 26, 2013, Sterling filed a Motion to Dismiss in which it sought dismissal of Plaintiff's claims for declaratory and injunctive relief and Plaintiff's claim for quiet title as well as discharge of the lis pendens.

On June 13, 2013, the Court issued an Opinion and Order in which it granted Sterling's Motion to dismiss Plaintiff's claims against Sterling for declaratory and injunctive relief without leave to amend, granted Sterling's Motion to dismiss Plaintiff's claim against Sterling for quiet title with leave to amend, and denied Sterling's Motion as to discharge of the lis pendens.

On July 2, 2013, Plaintiff filed a First Amended Complaint against Sterling, First Federal, Fidelity, MERS, and Does 1-20 in which he alleges claims for (1) declaratory judgment against Fidelity, MERS, and First Federal; (2) quiet title against all Defendants; (3) wrongful foreclosure against Fidelity and MERS;

(4) breach of fiduciary duty against Fidelity; (5) violation of Oregon Revised Statute § 646.607; (6) violation of Oregon Revised Statute § 646.639; and (7) abuse of process against Fidelity and MERS. Plaintiff seeks damages as well as declaratory and injunctive relief.

On July 17, 2013, Sterling filed a Motion to Dismiss Count Two of Plaintiff's First Amended Complaint and to Discharge Lis Pendens.

On July 25, 2013, MERS filed a Motion for Joinder in Sterling's Motion. Also on July 25, 2013, MERS filed a Motion to Dismiss Counts Five, Six and Seven of Plaintiff's First Amended Complaint. Fidelity filed a Motion for Joinder in Sterling's Motion on July 25, 2013.

On July 30, 2013, the Court granted the Motions for Joinder of MERS and Fidelity. The Court took Defendants' Motions to Dismiss ...


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