United States District Court, D. Oregon, Medford Division
OWEN M. PANNER, Sr., District Judge.
This matter comes before the Court on Defendants Northwest Trustee Services, Inc. and CFNA Receivables Inc.'s Request for Judicial Notice (#54), Plaintiff's Request for Judicial Notice (#63), Plaintiff's Motion for Leave to File Amended Complaint (#58) and Defendants' Motions to Dismiss (##49, 53, 54).
Plaintiff in this matter was the owner of property in Josephine County, Oregon. On May 28, 1999, Plaintiff entered into a mortgage loan secured by a deed of trust.
The promissory note on Plaintiff's loan was payable to Associates Financial Services Company of Oregon, Inc., an Oregon corporation. Defendant CFNA Receivables, Inc. (incorrectly identified in the Amended Complaint as CitiFinancial) was successor by merger to Associates Financial Services Company.
On July 27, 2011, Defendant Northwest Trustee Services, Inc. (NWTS) was appointed successor trustee for the deed of trust.
At some point, Plaintiff defaulted on the loan. He was sent a notice of default on August 8, 2011, and a notice of trustee' s sale was recorded on August 10, 2011. Plaintiff retained an attorney, Patrick Kelly, in an unsuccessful attempt to avert foreclosure. The property was sold at auction to the bank on March 16, 2012, and the sale was recorded on March 23, 2012. On July 11, 2013, the bank sold the property to Defendant John Snook. Defendant Snook thereafter initiated an eviction proceeding in the Josephine County Circuit Court and it appears that Plaintiff is no longer in possession of the property.
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).
I. Judicial Notice
Federal Rule of Evidence 201 provides that the court may take judicial notice of a fact that is not subject to reasonable dispute because it 1) is generally known within the 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). The court must take judicial notice if a party requests it and the court is supplied with the necessary information. Fed.R.Evid. 201 (c) (2). The court may also take judicial notice on its own. Fed.R.Evid. 201 (c) (1).
In this case, Defendant NWTS and CFNA jointly request that I take judicial notice of 1) the recorded appointment of successor trustee, 2) the recorded notice of default-and election to sell, 3) the recorded notice of sale, and 4) the trustee's deed upon sale. I note that all of these documents are public records and not subject to reasonable dispute. Accordingly, I conclude that judicial notice is appropriate. Defendant Snook has provided his title insurance policy for the property at issue, as well as the special statutory warranty deed by which he took title to the property. I conclude that these documents are similarly appropriate for judicial notice and, although Defendant Snook does not expressly request judicial notice, I take notice of them of my own accord.
Plaintiff has also filed a request for judicial notice, requesting that I take judicial notice of a number of documents, including 1) the appointment of successor trustee, 2) the trust deed, 3) the notice of default and election to sell, 4) the trustee's deed, and 5) the special statutory warranty deed. As the listed documents are public documents, I conclude that they are appropriate for judicial notice. In addition to these public records, Plaintiff also requests that I take judicial notice of a number of legal arguments. Legal arguments are not properly the subject of judicial notice. Fed.R.Evid. 201. Plaintiff also requests that I take judicial notice of the deposition testimony of NWTS employee Jeff Stenmans, apparently taken in another case. The contents of a deposition are not a clearly established "fact" and are therefore inappropriate for ...