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Ochoa v. U.S. Bank National Association

United States District Court, D. Oregon, Medford Division

August 15, 2014

U.S. BANK, NATIONAL ASSOCIATION, as Trustee for the Chevy Chase Funding Mortgage Backed Certificates, Series 2005-3, Defendant.


OWEN M. PANNER, District Judge.

This matter comes before the Court on Defendants' Motion to Dismiss and Request for Judicial Notice (#12). Defendant's motion is GRANTED. This case is DISMISSED with prejudice.


This case has already been extensively litigated and the factual background is well known to both parties. Plaintiffs received a loan for the purchase of the Property, later defaulted on that loan, and Defendant initiated foreclosure proceedings Plaintiffs filed suit in federal court under various claims disputing the validity of the debt and Defendant's standing to foreclose; they were unsuccessful. The court granted summary judgment and issued a judgment of foreclosure. Plaintiffs later filed suit in state court seeking to stay the sale of the Property, also unsuccessfully. They come now bringing essentially the same claims as brought in the original action.

Legal Standard

Where the plaintiff "fail[s] 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 purpose 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). However, bare assertions 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. Baca , 652 F.3d 1202, 1216, reh'g en bane denied, 659 F.3d 850 (9th Cir. 2011).

In general, a court cannot consider any material outside of the pleadings when ruling on a motion to dismiss unless the motion is treated as one for summary judgment and the parties are "given reasonable opportunity to present all materials made pertinent to such motion by Rule 56." Jacobson v. AEG Capital Corp. , 50 F.3d 1493, 1496 (9th Cir. 1995) (citing Fed.R.Civ.P. 12(b)). However, under Rule 201 of the Federal Rules of Evidence, the court may take judicial notice, on its own or at a party's. request, of "matters of public record." Lee v. Cnty. Of Los Angeles , 250 F.3d 668, 689 (9th Cir. 2001). Rule 201 allows judicial notice of a fact "not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. 201(b). For instance, a court may take judicial notice of complaints and briefs filed in another case to determine what issues were litigated before that court. Reyn's Pasta Bella, LLC v. Visa USA, Inc. , 442 F.3d 741, 746 n.6 (9th Cir. 2006).


As a preliminary matter, Defendarit has asked the Court to take judicial notice of court filings from a previous District of Oregon proceeding involving the parties (Ochoa v. Capital One, NA, et al., 2012 WL 2921373 (D. Or. July 16, 2012) (Ochoa I)), as well as of court filings and public records relating to a second proceeding between the parties in Linn County Circuit Court (Ochoa v. Capital One, NA, et al., No. 13CV05926 (Linn Cnty. Or. Mar. 4, 2014)). Because the documents are matters of public record, and because their authenticity cannot reasonably be questioned, Defendant's request for judicial notice is GRANTED.

Plaintiffs' complaint asserts claims for violation of the Fair Debt Collection Practices Act (FDCPA), intentional misrepresentation, fraud, and unjust enrichment, while seeking declaratory relief, injunctive relief, cancellation of instruments, and to quiet title. Defendant argues that Plaintiffs' complaint should be dismissed because it is barred by res judicata, and to the extent that Plaintiffs' FDCPA claim arose. subsequent to the prior litigation, should nonetheless be dismissed because Defendant is not a "debt collector" as defined in the FDCPA.

A. Plaintiffs' First Claim

Plaintiffs' first claim is for violation of the Fair Debt Collection Practices Act (FDCPA). Courts in this District have held that actions taken to foreclose on a property pursuant to a Deed of Trust are not a debt collection within the meaning of the FDCPA. Hulse v. Ocwen , 195 F.Supp.2d 1188, 1204 (D. Or. 2002; Lampshire v. Bank of America, No. 6:12-cv-1574-AA, 2013 WL 1750479 at *3 (D. Or. April 20, 2013).

As this claim relates entirely to Defendants' attempt to foreclose the property, I conclude Plaintiffs cannot state a claim for violation of the ...

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