United States District Court, D. Oregon
KELLI M. CAMPBELL, Plaintiff,
CARRINGTON MORTGAGE SERVICES LLC as servicer; AMERICAN BANK, A FEDREAL SAVINGS BANKS as investor; ROBINSON & TAIT, PS as trustee; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. as nominee; DOES 1 THROUGH 25, Defendants.
OPINION AND ORDER
MICHAEL J. McSHANE, UNITED STATES DISTRICT JUDGE
initial complaint was dismissed on Defendants' Rule
12(b)(6) motion to dismiss with leave given to Plaintiff to
file an amended complaint. Opinion & Order, ECF No. 13.
Plaintiff subsequently filed a First Amended Complaint
(“FAC”) which raises new claims for breach of
contract and promissory estoppel while removing the
previously stated claims. FAC; ECF No. 16. Before this Court
now is a motion to dismiss Plaintiff's First Amended
Complaint pursuant to Fed.R.Civ.P. 12(b)(6) submitted by
Defendants Carrington Mortgage Services, LLC
(“Carrington”) and Mortgage Electronic
registration Systems, Inc. (“MERS”). ECF No. 19.
In addition to their motion to dismiss Defendants request
judicial notice under Fed.R.Evid. 201(b)(2) of several real
property records and one Oregon Judicial Case record. ECF No.
20. Defendant Robinson Tait, P.S. joins in the motion. ECF
No. 21 & 22. Plaintiff Kelli M. Campbell, proceeding
pro se, did not respond and the time to do so has
passed. Although a failure to respond may be construed as a
concession, I address the merits of defendants' motions,
in part, because pro se plaintiffs are afforded greater
leniency than other litigants. Cano v. Baldwin, No.
91-171-FR, 1991 WL 57030, at *1 (D. Or. Apr. 10, 1991);
citing Hughes v. Rowe, 449 U.S. 5, 9 (1980).
the First Amended Complaint fails to state a claim upon which
relief may be granted, Defendants' Motion to Dismiss, ECF
No. 19, is GRANTED. Plaintiff's claims are DISMISSED with
prejudice. Defendants' Request for Judicial Notice, ECF
No. 20, and Defendant Robinson Tait's motions for
joinder, ECF No. 21 & 22, are GRANTED.
Campbell and John Campbell signed a Promissory Note and Deed
of Trust to secure a loan to purchase real property on May
15, 2008. Campbell subsequently defaulted on the loan. The
parties to the Deed of Trust were as follows: Kelli Campbell
and John Campbell, Borrowers; American Bank, Lender; United
General Title Insurance, Trustee; and MERS,
“beneficiary.” Def.'s Request, Ex. 1, ECF No.
11. On January 22, 2016, Bank of America, N.A (Successor by
Merger to BAC Home Loans Servicing, LP fka Countrywide Home
Loan Servicing, LP) assigned the Deed of Trust to Carrington
Mortgage Services, LLC. Def.'s Request, Ex. 7, ECF No.
11. Carrington then appointed Robinson Tait, PS. as trustee
to conduct a non-judicial foreclosure on the property. The
non-judicial foreclosure sale has not yet occurred and is
set-over pending the resolution of this case. Plaintiff's
First Amended Complaint alleges: (1) breach of contract, and
(2) promissory estoppel, while seeking relief in the form of
compensatory damages, an order determining rights in the
property, a preliminary injunction halting foreclosure, and
other monetary awards and relief. FAC pp. 7-8, ECF No. 16.
survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a
complaint must contain sufficient factual matter that
“state[s] a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007). A claim is plausible on its face when
the factual allegations allow the court to infer the
defendant's liability based on the alleged conduct.
Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). The
factual allegations must present more than “the mere
possibility of misconduct.” Id. at 678.
considering a motion to dismiss, the court must accept all
allegations of material fact as true and construe those facts
in the light most favorable to the non-movant, Burget v.
Lokelani Bernice Pauahi Bishop Trust, 200 F.3d 661, 663
(9th Cir. 2000), but the court is “not bound to accept
as true a legal conclusion couched as a factual allegation,
” Twombly, 550 U.S. at 555. In resolving a
motion to dismiss for failure to state a claim, the court may
consider a matter that is properly the subject of judicial
notice, such as matters of public record. Ashcroft,
supra, 556 U.S. at 689. “A court may take
judicial notice of matters of public record without
converting a motion to dismiss into a motion for summary
judgment, as long as the facts noticed are not subject to
reasonable dispute.” Skilstaf, Inc. v. CVS Caremark
Corp., 669 F.3d 1005, 1016 n. 9 (9th Cir. 2012). If the
complaint is dismissed, leave to amend should be granted
unless the court “determines that the pleading could
not possibly be cured by the allegation of other
facts.” Doe v. United States, 58 F.3d 494, 497
(9th Cir. 1995).
Requests for Judicial Notice
considering a motion to dismiss, a court does not normally
look beyond the complaint in order to avoid converting a
motion to dismiss into a motion for summary judgment. See
Mack v. South Bay Beer Distributors Inc., 798 F.2d 1279,
1282 (9th Cir.1986), overruled on other grounds by
Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501
U.S. 104 (1991). A court may, however, properly take judicial
notice of: 1) material which is included as part of the
complaint or relied upon by the complaint; and 2) matters in
the public record. See Lee v. City of Los Angeles,
250 F.3d 668, 688-69 (9th Cir.2001). Under Federal Rule of
Evidence 201(b), a “judicially noticed fact must be one
not subject to reasonable dispute in that it is either: (1)
generally known within the territorial jurisdiction of the
trial court; or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot
reasonably be questioned.” Further, a court
“shall take judicial notice if requested by a party and
supplied with the necessary information.” See
Fed. R. Evid. 201(d); Mullis v. U.S. Bankr. Court for
Dist. of Nevada, 828 F.2d 1385, 1388 n. 9 (9th
Cir.1987). Plaintiff did not respond to the request for
judicial notice and has not challenged the authenticity of
the documents. In addition, exhibits 1 through 9 are
appropriate for judicial notice under Fed.R.Evid. 201. To the
extent necessary to rule on the pending motions, the Court
takes judicial notice of the exhibits.
Breach of Contract
breach of contract claim, Plaintiff claims that the
defendants are threatening to foreclose her property and
refusing to abide by an “obligation to explore options
to avoid foreclosure.” FAC 1, ECF No. 16. Plaintiff
claims that under the mortgage contract Defendants are
obligated to abide by Federal and Oregon law and allow
Plaintiff to modify her loan in some manner. FAC 6, ECF No.
obligations are to be found in the federal or Oregon statutes
or in the contractual terms agreed to between plaintiff and
defendants. Sometimes the required terms of a contract are
dictated by statute; for example, Oregon's Residential
Landlord and Tenant statute Chapter 90 obligates a
residential landlord with certain responsibilities towards a
tenant. The law does not however obligate a residential
landlord to re-negotiate the terms of a lease if a tenant is
no longer able to pay the rent. Here Plaintiff's
Complaint asserts a broad legal conclusion, but fails to
point to a specific federal or state law that obligates a
loan provider to re-visit the terms of a mortgage if a
mortgagee is no longer able ...