United States District Court, D. Oregon
OPINION AND ORDER
Michael McShane United States District Judge.
Jeffrey Haun, proceeding pro se, moves to proceed
in forma pauperis (“IFP”). ECF No. 2.
The Court, pursuant to 28 U.S.C. § 1915(e)(2), must
screen applications to proceed IFP and dismiss any case that
is frivolous or malicious, or fails to state a claim on which
relief may be granted. The court previously dismissed
Haun's complaint for failure to state claim. Haun's
amended complaint suffers the same defects as the original
complaint. Haun's original complaint alleged, in full:
Plaintiff's Denial of Due Process and constitutional
rights per improper mortgage company procedures, both
servicing and otherwise, and including, but not limited to,
improper noticing for mortgage note and deed activities
(i.e., divergent paths for both). This action cites: Fraud,
Negligence, and Misrepresentation attributed to
Defendants' multiple violations of ignoring proper loan
earlier order dismissing Haun's complaint, I noted:
The Court suspects Haun bases his claim on the fact that the
note and deed of trust were separated due to assignments
common when MERS was listed as the beneficiary on a deed of
trust. The Oregon Supreme Court discussed this practice in
Brandrup v. ReconTrust, 353 Or. 668, 672 (2013) and
Niday v. GMAC Mortg., LLC, 353 Or. 648, 660 (2013).
Haun's sparse allegations at this point fail to state a
claim. Haun's complaint also fails to meet the heightened
pleading standards required for a fraud claim. Haun fails to
lay out any specific factual allegations supporting his claim
that the defendants wronged him. Additionally, the Court is
unable to determine if Haun's property was ever
foreclosed on. If Haun's claim is based on a completed
foreclosure, he will have to provide specific factual
allegations of some “fundamental flaw in the
foreclosure proceedings” to support his claim.
Woods v. U.S. Bank N.A., 831 F.3d 1159, 1166 (9th
Cir. 2016). Technical defects, such as listing the wrong
beneficiary on the notice of sale, are not significant enough
to overturn the foreclosure. Id. It is unclear
whether Haun alleges fundamental flaws or technical defects
or if there even was a foreclosure sale at all.
Haun must support his complaint with specific factual
allegations demonstrating how the individual defendants
harmed him. Currently, Haun's complaint merely sets out
boilerplate language appearing to challenge MERS's
involvement in the loan. Additionally, Haun fails to meet the
heightened pleading standards for a fraud claim. Haun is
granted leave to file an amended complaint at which point the
Court will screen the amended complaint as part of the IFP
12, 2017 Order, 2-3; ECF No. 4.
Amended Complaint fails to contain any specific factual
allegations. Haun continues to argue that a splitting of the
note and deed into “divergent paths” deprived him
of his “Due Process and constitutional rights.” I
recently rejected another plaintiff's argument based on a
theory around the splitting of the note. See Campbell v.
Carrington Mortg. Serv. LLC, 2017 WL 114082 at *2 (D.
Or. Jan. 11, 2017 Opinion). In Campbell, I
Plaintiff bases her claims for Quiet Title on the premise
that the Note has been split from the Deed of Trust, and is
therefore unenforceable. Compl. ¶ 106. Because under
Oregon law a Deed of Trust follows the Note and a deed of
trust is assigned by operation of law whenever a note holder
transfers its interest in a note to another party, the
Plaintiff's premise is incorrect. The Note has not been
split from the Deed of Trust. Brandrup v. Recon Trust
Co., N.A.,353 Or. 668 (2013). ...