United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
ANCER L. HAGGERTY, District Judge.
Plaintiff, Rod Eslami, brings this quiet title action pursuant to Oregon Revised Statute (ORS) 86.735(1) to challenge the non-judicial foreclosure of his home. Defendants have filed a Motion to Dismiss [15), a Request for Judicial Notice [17), and a Motion for Summary Judgment [46). Defendants contend that plaintiff's claim is preempted by the Home Owners Loan Act (HOLA), 12 U.S.C. § 1461 et seq., and that this case must be dismissed. Plaintiff has filed a Motion for Leave to File Second Amended Complaint [68) and a Request for Judicial Notice [70). For the following reasons, defendants' Motion to Dismiss [15) and Request for Judicial Notice [17) are granted and all other motions are denied.
In 2005, plaintiff refinanced his home with a loan from World Savings Bank, F.S.B., a federal savings bank, in the amount of $387, 000.00. As security for the loan, plaintiff executed a Deed of Trust, dated May 2, 2005, encumbering the real property located at 18985 SW Gassner Road, Beaverton, OR 97007 (Property). The Deed of Trust was recorded in Washington County, Oregon.
On December 31, 2007, World Savings changed its name to Wachovia Mortgage, F.S.B. On November 1, 2007, Wachovia Mortgage, F.S.B. changed its name to Wells Fargo Bank Southwest, N.A. Wells Fargo Bank Southwest, N.A. then merged into Wells Fargo Bank, N.A. (Wells Fargo).
In 2009, plaintiff failed to make three payments on his home loan and then was unable to make a full payment on his mortgage arrears. From 2009 until 2011, plaintiff tried unsuccessfully to seek a loan modification. In total, plaintiff submitted nine applications for a loan modification, but Wells Fargo allegedly lost portions of his applications and requested additional irrelevant documents such that none of plaintiffs applications were approved.
On January 19, 2012, the Property was sold at a non-judicial trustee's sale in Beaverton, Oregon to Wells Fargo for $336, 872.00. On January 23, 2012, the successor trustee executed a Trustee's Deed, conveying title to the Property to Wells Fargo Home Mortgage, a division of Wells Fargo Bank, NA.
On December 5, 2012, Wells Fargo executed a Warranty Deed conveying its interest in the Property to the Federal National Mortgage Association (Fannie Mae). The Warranty Deed was recorded in Washington County, Oregon. Plaintiff filed this action on May 17, 2013 and filed the First Amended Complaint  on June 30, 2013.
For a significant period of time, plaintiff was acting pro se, however, he obtained counsel prior to responding to the pending motions. The sole claim pleaded in both the First Amended Complaint and the proposed Second Amended Complaint is under ORS 86.735(1). ORS 86.735(1) provides that a trustee's sale is only valid if "the trust deed, any assignments of the trust deed by the trustee or the beneficiary and any appointment of a successor trustee are recorded in the mortgage records in the counties in which the property described in the deed is situated." Plaintiff alleges that written assignment of the deed of trust from World Savings Bank, or its successor in interest, to Fannie Mae was not recorded and as such, the Trustee's Deed is void. The Second Amended Complaint also contains allegations of unfair and deceptive practices and requests for equitable relief, but does not include any additional claims.
To survive a motion to dismiss under Federal Rule of Civil Procedure (FRCP) 12(b)(6), a complaint must allege sufficient facts to state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009). When considering a motion to dismiss, the court must determine whether the plaintiff has made factual allegations that are "enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007). Dismissal under FRCP 12(b)(6) is proper only where there is no cognizable legal theory, or an absence of sufficient facts alleged to support a cognizable legal theory. Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010).
The reviewing court must treat all facts alleged in the complaint as true and resolve all doubts in favor of the nonmoving party. Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1098 n.1 (9th Cir. 2009) (citation omitted). The court need not accept any legal conclusions set forth in a plaintiff's pleading. Ashcroft, 129 S.Ct. at 1949-50.
In considering defendants' Motion to Dismiss, defendants request that this court take judicial notice of the Deed of Trust; a letter dated November 19, 2007, on the letterhead of the Office of Thrift Supervision, Department of the Treasury (OTS) authorizing a name change from World Savings Bank, FSB to Wachovia Mortgage, FSB; the Official Certification of the Comptroller of the Currency stating that effective November 1, 2009, Wachovia Mortgage, F.S.B. converted to Wells Fargo Bank Southwest, N.A., which then merged with and into Wells Fargo Bank, N.A.; and the historical profile of World Savings Bank, F.S.B. (FDIC Certificate # 27076) from the "BankFind" feature of the Federal Deposit Insurance Corporation website. As ...