United States District Court, D. Oregon, Portland Division
EMMA J. LAVINE, Plaintiff
AAMES FUNDING CORP., et al., Defendants.
OPINION AND ORDER
MICHAEL W. MOSMAN Chief United States District Judge.
matter comes before me on Defendants' Motions to Dismiss
for Failure to State a Claim [14, 18]. For the reasons set
forth below, I GRANT Defendants' Motions and DISMISS the
February 22, 2006, Plaintiff Emma Lavine executed a
promissory note ("the Note") for a loan in the
amount of $208, 650, secured by a Deed of Trust encumbering
506 NE Monroe Street, Portland, Oregon 97212 ("the
Subject Property"). The Deed of Trust listed Aames
Funding Corporation ("Aames") as the lender and
beneficiary, and First American Title Insurance Company as
the Trustee. The Deed of Trust was recorded in the Office of
the Multnomah County Recorder on February 28, 2006, as
Instrument No. 2006-036716.
4, 2008, Aames assigned the Deed of Trust to LaSalle Bank
National Association ("LaSalle"). Sometime
thereafter, Bank of America merged with LaSalle. On December
10, 2012, Bank of America assigned all rights and interests
in the Deed of Trust to U.S. Bank, and on December 24, 2012,
the assignment was recorded as Instrument No. 2012-166692.
Lavine defaulted on her loan in February 2009. On March 13,
2013, U.S. Bank initiated judicial foreclosure proceedings in
the Multnomah County Circuit Court, which eventually resulted
in summary judgment in U.S. Bank's favor. A Judgment of
Foreclosure was entered against Ms. Lavine on March 25, 2014,
and a Writ of Execution in Foreclosure was entered on
December 31, 2014. Despite the foreclosure, it appears Ms.
Lavine continues to live in the Subject Property.
22, 2016, Ms. Lavine brought suit against Aames, LaSalle,
Goldman Sachs Mortgage Company ("Goldman Sachs"),
GS Mortgage Securities ("GS"), Wells Fargo Bank
("Wells Fargo"), Mortgage Electronic Registration
Systems ("MERS"), and Does 1 through 100. Although
she asserts several causes of action, her central claim is
that her loan is unenforceable because it was improperly
securitized. She alleges the securitization process involved
several transfers that were not properly performed and are
therefore void. She also claims that during the
securitization process, the Note and underlying mortgage were
separated, making them unenforceable. As a result of these
deficiencies, Ms. Lavine claims that no Defendant was in a
position to enforce the mortgage against her.
addition to her claims about improper securitization, Ms.
Lavine also alleges several issues dealing with the substance
of the Note. Specifically, she alleges that the terms and
conditions of the Note were unclear and inconspicuous, and
not properly disclosed by Aames. She also claims that Aames
wrongfully qualified her for a loan in the first place,
knowing that she could not afford the amount.
August 18, 2016, Defendants Goldman Sachs and GS filed a
Motion to Dismiss . Then, on August 22, 2016,
Defendant's U.S. Bank (erroneously sued as LaSalle),
Wells Fargo, and MERS filed an Amended Motion to Dismiss
. After unsuccessfully seeking a preliminary injunction,
Ms. Lavine responded to the Motions on February 8, 2017.
survive a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim, "a
complaint must contain sufficient factual matter, accepted as
true, to 'state a claim to relief that is plausible on
its face.'" Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting BellAtl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). A pleading that offers only
"labels and conclusions" or '"naked
assertion[s]' devoid of 'further factual
enhancement'" will not suffice. Id.
(quoting Twombly, 550 U.S. at 555, 557). While the
plaintiff does not need to make "detailed factual
allegations" at the pleading stage, the allegations must
be sufficiently specific to give the defendant "fair
notice" of the claim and the grounds on which it rests.
See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007)
(per curiam) (citing Twombly, 550 U.S. at 555).
addition to the general pleading requirements, a party
alleging fraudulent conduct "must state with
particularity the circumstances constituting fraud or
mistake." Fed.R.Civ.P. 9(b). Under this heightened
standard, a plaintiff must state the "time, place, and
specific content of the false representations as well as the
identities of the parties to the misrepresentations."
Swartz v. KPMGLLP, 476 F.3d 756, 764 (9th Cir. 2007)
(citing Edwards v. Marin Park, Inc., 356 F.3d 1058,
1066 (9th Cir. 2004)). This includes identifying the role of
the individual defendants in the alleged fraudulent scheme.
Moore v. Kayport Package Express, Inc., 885 F.2d
531, 541 (9th Cir. 1989).
reviewing a motion to dismiss against apro se
plaintiff, the court construes the pro se pleadings
"liberally, " affording the plaintiff the
"benefit of any doubt." Hebbe v. Pliler,
627 F.3d 338, 342 (9th Cir. 2010) (internal quotations
omitted). This liberal interpretation may not, however,
"supply essential elements of the claim that were not
initially pled." Ivey v. Bd. of Regents of Univ. of
Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
Lavine asserts ten causes of action arising from
Defendants' alleged conduct: (1) Lack of
Standing/Wrongful Foreclosure; (2) Fraud in the Concealment;
(3) Fraud in the Inducement; (4) Intentional Infliction of
Emotional Distress; (5) Slander of Title; (6) Quiet Title;
(7) Declaratory Relief; (8) Violations of TILA and HOEPA; (9)
Violation of RESPA; and (10) Rescission. Several problems
with Ms. Lavine's Complaint warrant its dismissal. Some
of these problems pertain to Ms. Lavine's claims against
particular Defendants and others pertain to the claims
Request for Judicial Notice
preliminary matter, Defendants U.S. Bank, Wells Fargo, and
MERS request that I take judicial notice of several documents
submitted with their Motion to Dismiss. Generally, a court
cannot consider any material outside of the pleadings when
ruling on a motion to dismiss. Daniels-Hall v.
Nat'lEduc. Ass 'n, 629 F.3d 992, 998 (9th Cir.
2010). But, "under Rule 201 of the Federal Rules of
Evidence, [a] court may take judicial notice, on its own or
at a party's request, of 'matters of public
record.'" Nelmes v. Nationstar Mortg., LLC,
No. 3:16-cv-615-AC, 2016 WL 7383335, at *1 (D. Or. Nov. 9,
2016) (citing Lee v. City of Los Angeles, 250 F.3d
668, 689 (9th Cir. 2001)).
Defendants request that I take judicial notice of the
Adjustable Rate Balloon Note, the recorded Deed of Trust,
Assignments of the Deed of Trust, and court documents from
the state foreclosure proceeding in the Multnomah County
Circuit Court. These documents are "not subject to
reasonable dispute because [they] . . . can be accurately and
readily determined from sources whose accuracy cannot
reasonably be questioned." Fed.R.Evid. 201. Thus, I