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Moradi v. Recontrust Company, N.A.

United States District Court, D. Oregon

July 31, 2017

KAMBIZ and HOMA MORADI, husband and wife, Plaintiffs,
v.
RECONTRUST COMPANY, N.A., et al., Defendants.

          Kambiz and Homa Moradi, pro se.

          James P. Laurick, Kilmer, Voorhees & Laurick, P.C., 732 N.W. 19th Avenue, Portland, OR 97209. Of Attorneys for Defendants.

          OPINION AND ORDER

          Michael H. Simon United States District Judge

         Plaintiffs, Kambiz and Homa Moradi, bring claims against Defendants, ReconTrust Company, N.A. (“ReconTrust”), Bank of America, N.A. (“BoA”), and the Bank of New York Mellon (“BNYM”) (collectively, “Defendants”). Plaintiffs' claims arise out of Defendants' foreclosure on Plaintiffs' home in Washington County, Oregon. Plaintiffs allege that because Mortgage Electronic Registration Systems, Inc., (“MERS”) unlawfully assigned its interest in the deed of trust on Plaintiffs' home, the entire foreclosure process was a fraudulent and deceptive act in violation of Oregon law. Defendants move to dismiss Plaintiffs' complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, asserting that Plaintiffs' claims are barred by the applicable statutes of limitations. Defendants also request that the Court take judicial notice of several documents relating to Plaintiffs' home loan. For the reasons discussed below, Defendants' motion to dismiss and request for judicial notice are granted.

         STANDARDS

         A. Motion to Dismiss Under Rule 12(b)(6)

         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., Inc. 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 plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).

         B. Pro Se Filings

         A court must liberally construe the filings of a pro se plaintiff and afford the plaintiff the benefit of any reasonable doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). “‘Unless it is absolutely clear that no amendment can cure the defect, . . . a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal of the action.'” Garity v. APWU Nat'l Labor Org., 828 F.3d 848, 854 (9th Cir. 2016) (alteration in original) (quoting Lucas v. Dep't of Corrections, 66 F.3d 245, 248 (9th Cir. 1995) (per curiam)). Under Federal Rule of Civil Procedure 8(a)(2), however, every complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” This standard “does not require ‘detailed factual allegations, '” but does demand “more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Id. (quoting Twombly, 550 U.S. at 555).

         BACKGROUND

         The following facts are alleged in Plaintiffs' complaint and contained in documents of which the Court takes judicial notice.[1] On June 19, 2007, plaintiff Homa Moradi executed a promissory note (the “Note”) and a deed of trust (the “Deed”). The Deed listed Countrywide Home Loans, Inc. dba America's Wholesale Lender (“AWL”) as the lender, Fidelity National Title as the trustee, and MERS as the beneficiary “solely as a nominee for Lender and Lender's successors and assigns.” ECF 10-1 at 1. The Deed was recorded in Washington County, Oregon, on June 25, 2007.

         On March 13, 2009, MERS appointed ReconTrust as successor trustee under the Deed. On November 18, 2009, MERS purported to assign its rights in the Note and the Deed to BAC Home Loan Servicing, LP (“BAC”). Plaintiffs allege that this assignment was a false representation because MERS acted in its individual capacity, but purported to be acting as nominee for AWL, the lender. BoA, having merged with BAC, then assigned its purported rights in the loan to BNYM. Plaintiffs also allege that this assignment was fraudulent because BoA knew or should have known that it never received any rights in the Note and the Deed because MERS did not have authority to assign such rights. Each of these assignments was recorded.

         On January 6, 2012, ReconTrust conducted a foreclosure sale on behalf of BoA and sold Plaintiffs' property at public auction to BNYM, even though ReconTrust and BoA allegedly knew or should have known that they had no rights in the Deed on which to foreclose. ReconTrust also executed and recorded a trustee's deed, conveying the property to BNYM. On February 17, 2012, Plaintiffs were served with a summons and ...


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