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Lash v. PNC Bank, N.A.

United States District Court, D. Oregon

March 24, 2015

ANTHONY R. LASH, JR., Plaintiff,
PNC BANK, N.A. and CLEAR RECON CORP, a California Corporation, Defendants.

Benjamin D. Knaupp, GARLAND GRIFFITHS KNAUPP, 254 N First Avenue, Hillsboro, OR 97124. Of Attorneys for Plaintiff.

Stepehn P. Yoshida and Michael A. Yoshida, MARTIN BISCHOFF TEMPLETON LANGSLET & HOFFMAN LLP, 888 SW Fifth Avenue, Suite 900, Portland, OR 97204. Of Attorneys for Defendant PNC Bank, N.A.

Rochelle L. Stanford and Tracy J. Frazier, PITE DUNCAN LLP, 621 SW Morrison Street, Suite 425, Portland, OR 97205. Of Attorneys for Defendant Clear Recon Corp.


MICHAEL H. SIMON, District Judge.

Plaintiff, Anthony R. Lash ("Plaintiff" or "Lash"), brings this action against Defendants PNC Bank, N.A. ("PNC Bank") and Clear Recon Corp ("Clear Recon"). Before the Court is Defendant PNC Bank's Motion to Dismiss (Dkt. 4), Defendant Clear Recon's motion to join PNC Bank's Motion to Dismiss (Dkt. 8), and PNC Bank's Request for Judicial Notice (Dkt. 6). For the reasons that follow, Defendants motions are granted and this case is dismissed with prejudice.


A motion to dismiss for failure to state a claim may be granted only when there is no cognizable legal theory to support the claim or when the complaint lacks sufficient factual allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint's factual allegations, the court must accept as true all well-pleaded material facts alleged in the complaint and construe them in the light most favorable to the non-moving party. Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). To be entitled to a presumption of truth, allegations in a complaint "may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively." Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). All reasonable inferences from the factual allegations must be drawn in favor of the plaintiff. Newcal Indus. v. Ikon Office Solution, 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The court need not, however, credit the plaintiff's legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).

A complaint must contain sufficient factual allegations to "plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation." Starr, 652 F.3d at 1216. "A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 663 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).


On August 27, 2007, Plaintiff obtained a $398, 000 construction loan from National City Bank[1] for the construction of a personal residence in Rhododendron, Oregon. The loan was secured by a Deed of Trust on the property naming National City Bank as beneficiary. The underlying promissory note was accompanied by a Construction Addendum that was also executed by Plaintiff. According to the terms of the Construction Addendum, Plaintiff agreed to pay only interest due on the loan during the construction of his home. The Construction Addendum also included a provision in which Plaintiff agreed to execute a Loan Modification Agreement setting the interest rate, payment amount, and due date of payments for the loan period following construction of the home. Plaintiff executed the required Loan Modification Agreement on October 8, 2008, after completing the construction of his home. The Modification Agreement required Plaintiff to pay interest only at a variable rate of five percent for 24 months. After 24 months, Plaintiff was required to pay the remaining principal balance.

According to Plaintiff's Complaint, because of lending conditions created by the 2008 financial crisis, Plaintiff had concerns about his ability to obtain refinancing to repay the remaining principal balance on the loan after the 24-month period ended. On October 2, 2008, Plaintiff emailed a National City Bank loan officer regarding Plaintiff's intent to refinance through a friend. Plaintiff sought alternative financing to pay the principal balance due on the loan, but was unsuccessful. Consequently, Plaintiff was unable to repay the full principal amount owed on November 1, 2010, as required by the Loan Modification Agreement. Despite Plaintiff's failure to repay the principal balance, PNC Bank accepted an interest-only monthly payment from Plaintiff on December 1, 2010. Thereafter, PNC Bank informed Plaintiff that it would no longer accept interest payments beyond the terms of the Loan Modification Agreement.

PNC Bank subsequently commenced foreclosure proceedings, and a trustee's sale occurred on April 2, 2012. PNC Bank then filed an eviction action in Clackamas County Circuit Court on June 29, 2012. Plaintiff retained counsel to defend against the eviction action and PNC voluntarily rescinded the foreclosure. Plaintiff did not lose possession of his home and continues to occupy it. PNC Bank again commenced foreclosure proceedings in July 2014. Those proceedings were canceled pending resolution of the present litigation.


A. Defendant's Request for ...

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