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Worley v. Pite Duncan, LLP

United States District Court, D. Oregon

February 23, 2014

TERRY WORLEY, Plaintiff,
v.
PITE DUNCAN, LLP; and PNC BANK, NA dba PNC MORTGAGE, Defendants.

Keith D. Karnes, Karnes Law Offices, PC, Salem, Oregon. E. Clarke Balcom, Jay B. Derum, Clarke Balcom, PC, Portland, Oregon. Attorneys for plaintiff.

Casper J. Rankin, Tracy J. Frazier, Pite Duncan, LLP., Portland, Oregon. Attorney for defendant Pite Duncan, LLP

Michael A. Yoshida, Stephen P. Yoshida, Martin, Bischoff, Templeton, Langslet & Hoffman, LLP, Portland, Oregon. Attorneys for defendant PNC Bank, NA.

OPINION AND ORDER

ANN AIKEN, District Judge.

Defendant Pite Duncan, LLP ("Pite") filed a motion to dismiss plaintiff Terry Worley's Fair Debt Collection Practices Act ("FDCPA") claim pursuant to Fed.R.Civ.P. 12(b)(6); defendant PNC Bank, NA ("PNC") moves to join in that motion. Additionally, Pite and plaintiff request judicial notice of certain documents. For the reasons set forth below, Pite's motion to dismiss is granted and this case is dismissed.

BACKGROUND

In 2005, plaintiff took out a loan in the amount of $190, 000 from AccuBanc Mortgage to purchase a residential property in Roseburg, Oregon ("Property"). Pursuant to this transaction, plaintiff executed a promissory note ("Note"). The Note was secured by a deed of trust ("DOT"), pursuant to which, plaintiff agreed: (1) to make monthly mortgage payments to PNC, the loan servicer, as required under the Note; (2) that she would be in default, and subject to foreclosure, if she failed to make such payments; and (3) to pay fees for services performed in connection with any default, including, but not limited to, attorney fees, property inspection fees, and appraisal costs.[1]

At some unspecified time thereafter, plaintiff agreed to sell the Property to an unrelated third-party for $283, 000. While PNC initially refused to authorize the sale, it eventually directed plaintiff to contact Pite for the amount due and owing under the Note and DOT ("Payoff Amount"). Plaintiff followed PNC's instructions and, on January 16, 2013, Pite provided a letter listing the Payoff Amount as $183, 662.37. See Compl. ¶ 23. On January 18, 2013, PNC furnished its own Payoff Amount; in total, PNC sought $187, 907.93 under the Note and DOT. Id . Ultimately, "[p]laintiff's financial situation forced her into closing the sale and paying the amounts that PNC sought in its payoff." Id. at ¶ 25.

On November 26, 2013, plaintiff filed a complaint in this Court, alleging claims for: (1) violations of the FDCPA, 15 U.S.C. §§ 1692e(2)(A), 1692e(2)(B), 1692e(10), 1692e(11), 1692f(1), and 1692g, against Pite; (2) violation of Or. Rev. Stat. § 646.608(1)(u), Oregon's Unlawful Trade Practices Act, against PNC; and (3) conversion against PNC. On December 26, 2013, Pite filed a motion to dismiss plaintiff's FDCPA claim with prejudice. On January 15, 2013, PNC moved to join in Pite's motion to dismiss.

STANDARD

Where the plaintiff "fails to state a claim upon which relief can be granted, " the court must dismiss the action. Fed.R.Civ.P. 12(b) (6). To survive a motion to dismiss, the complaint must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007). For the purposes of the motion to dismiss, the complaint is liberally construed in favor of the plaintiff and its allegations are taken as true. Rosen v. Walters , 719 F.2d 1422, 1424 (9th Cir. 1983). Bare assertions, however, that amount to nothing more than a "formulaic recitation of the elements" of a claim "are conclusory and not entitled to be assumed true." Ashcroft v. Iqbal , 556 U.S. 662, 680-81 (2009). Rather, to state a plausible claim for relief, the complaint "must contain sufficient allegations of underlying facts" to support its legal conclusions. Starr v. Bacca , 652 F.3d 1202, 1216 (9th Cir. 2011), cert. denied, 132 S.Ct. 2101 (2012).

DISCUSSION

Pite argues that plaintiff's FDCPA claims under 15 U.S.C. § 1692e(11) and 15 U.S.C. § 1692g should be dismissed because its January 16, 2013 letter provided the statutorily-required notices. Pite also contends that dismissal is appropriate because the fees listed in the Payoff Amount were both ...


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