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Baricevic v. Mortgage Electronic Registration Services, Inc.

United States District Court, Ninth Circuit

January 24, 2014

MARGARET M. BARICEVIC, Plaintiff,
v.
MORTGAGE ELECTRONIC REGISTRATION SERVICES, INC., as nominee in favor of MORTGAGEIT, INC., a New York corporation; BANK OF AMERICA, N.A., successor by Merger to BAC HOME LOANS SERVICING LP FKA COUNTRYWIDE HOME LOANS SERVICING, LP, a federally chartered bank; SELECT PORTFOLIO SERVICING, INC., a Utah corporation, RECONTRUST COMPANY, N.A., a California corporation; HSBC BANK, N.A., AS TRUSTEE ON BEHALF OF THE HOLDERS OF DEUTSCHE BANK ALT-A SECURITIES MORTGAGE HOME LOAN TRUST, MORTGAGE PASS THROUGH CERTIFICATES, SERVICES 2007-AR2, a Delaware corporation, Defendants.

OPINION AND ORDER

MICHAEL W. MOSMAN, District Judge.

BACKGROUND

Plaintiff Margaret Baricevic challenges the propriety of nonjudicial foreclosure proceedings that resulted in the sale of her property at a trustee's sale on August 12, 2012. (Amend. Compl. [24] ¶ 10.) Defendants moved to dismiss [25, 27] the Amended Complaint under Federal Rule of Civil Procedure 12(b)(6), arguing that Ms. Baricevic fails to state a claim on which relief can be granted because the Oregon Trust Deed Act does not allow post hoc challenges to completed foreclosure sales. I GRANT Defendants' motions and dismiss the complaint with prejudice insofar as it seeks to set aside the trustee's sale and declare that Ms. Baricevic holds legal title to the property. However, I dismiss without prejudice as to any claim Ms. Baricevic may be able to assert for breach of the duty of good faith and fair dealing. While no such claim is pled with sufficient detail to state a claim in the Amended Complaint [24], my ruling does not prevent Ms. Baricevic from filing such a claim, if one can be adequately pled.

LEGAL STANDARDS

To survive a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A pleading that offers only "labels and conclusions" or "naked assertion[s]' devoid of further factual enhancement'" will not suffice. Id. (quoting Twombly, 550 U.S. at 555, 557) (alteration in original). While the plaintiff does not need to make detailed factual allegations at the pleading stage, the allegations must be sufficiently specific to give the defendant "fair notice" of the claim and the grounds on which it rests. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (per curiam) (citing Twombly, 550 U.S. at 555). When reviewing a motion to dismiss, the court must "accept all factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party." Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). A court need not accept legal conclusions as true because "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. These standards apply to suits removed from state court under 28 U.S.C. § 1441 just as they do to complaints originally filed in federal court. Fed.R.Civ.P. 81(c).

A court may take judicial notice of a fact outside the pleadings if the fact "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. 201. Defendants have requested [11, 29] that the court take judicial notice of several documents, including the Deed of Trust, the Notice of Default and Election to Sell, the Trustee's Deed, the assignment of the Deed of Trust from Defendant MERS to Defendant Bank of America, and the Appointment of Successor Trustee. These documents are all public records, as each is found in the records of Multnomah County, where they were filed. Plaintiff does not dispute the authenticity of these documents. (Pl.'s Resp. [32] at 2-3.) Consequently, I GRANT Defendants' requests for judicial notice [11, 29].

BACKGROUND

Ms. Baricevic alleges that she granted a Deed of Trust securing a loan of $945, 000 on November 21, 2006. The Deed of Trust named Defendant MortgageIt, Inc., as lender, Defendant MERS as beneficiary "as nominee for the lender, " and Lawyer's Title Insurance Corporation as Trustee. (Amend. Compl. [24] ¶ 1; Decl. of Laurick [12] Ex. A.) Defendants represent that Ms. Baricevic defaulted on the loan in August 2009; Ms. Baricevic does not contest her default. (Mem. [26] at 1-2.)

Defendant Bank of America was assigned the Deed of Trust by Defendant MERS on October 27, 2011. (Amend. Compl. [24] ¶ 8; Decl. of Laurick [12] Ex. B.) This assignment was recorded in Multnomah County. Id. Defendant Bank of America appointed Defendant Recontrust as successor trustee to institute foreclosure proceedings. (Amend. Compl. [24] ¶ 9; Decl. of Laurick. [12] Ex. C.). Defendant Recontrust did so, filing a Notice of Default and Election to Sell ("NODES") in Multnomah County on October 28, 2011. Ms. Baricevic does not dispute that she received service of the NODES, as required by the Oregon Trust Deed Act ("OTDA"). The NODES stated that a trustee's sale would be held on March 5, 2012. (Decl. of Laurick [12] Ex. D.)

Ms. Baricevic alleges various defects in the nonjudicial foreclosure proceeding, including, inter alia, that Defendant Mortgage Electronic Registration Services was improperly named as beneficiary on the deed of trust and that Defendant Recontrust improperly named Defendants Bank of America and BAC Home Loans in the notice of default and election to sell.[1] (Amend. Compl. ¶¶ 14-20.) She seeks a declaratory judgment that the trustee's sale was invalid and that she remains legal owner of the property. Id. ¶¶ 22-25.

ANALYSIS

I. The Oregon Trust Deeds Act Bars Post Hoc Challenge to a Nonjudicial Foreclosure

Federal courts in this district have held that Or. Rev. Stat. § 86.770 bars a grantor from challenging a nonjudicial foreclosure proceeding after the trustee's sale has taken place and the trustee's deed of sale has been recorded. C.f. Roisland v. Flagstar Bank, No. 13-588, 2013 WL 6212200, at *6-7 (D. Or. Nov. 26, 2013); Nelson v. Am. Home Mortg. Serv., Inc. No. 13-306, 2013 WL 3834656, at *4 (D. Or. July 24, 2013); Mikityuk v. Nw. Trustee Servs., Inc., ___ F.Supp.2d ___, No. 12-1518, 2013 WL 3388536 (D. Or. June 26, 2013).

The OTDA provides that if "a trustee sells property covered by a trust deed, the trustee's sale forecloses and terminates the interest in the property that belongs to a person to which notice of the sale was given." Or. Rev. Stat. § 86.770(1). In Mikityuk, the court analyzed this provision in light of the joint purposes of the OTDA: (1) to "provide creditors with a quick and efficient remedy against a defaulting grantor;'" and (2) to "protect the grantor against the unauthorized loss of its property and to give the grantor sufficient opportunity to cure any default.'" 2013 WL 3388536 at *6 (quoting Staffordshire Invs., Inc. v. Cal-Western Reconveyance Corp., 209 Or.App. 528, 542, 149 P.3d 150, 157-58 (2006)). The court noted that a "statutory presumption of finality" arises under the OTDA where the grantor received the statutorily required notice. Id. at *6 (citing Staffordshire, 209 Or.App. at 543, 149 P.3d at 158). The statute requires 120 days' notice before any trustee's sale; this is the time period afforded as protection against improper ...


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