United States District Court, D. Oregon
and Homa Moradi, pro se.
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
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.
Motion to Dismiss Under Rule 12(b)(6)
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).
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
Pro Se Filings
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).
following facts are alleged in Plaintiffs' complaint and
contained in documents of which the Court takes judicial
notice. 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.
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
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