United States District Court, D. Oregon
OPINION AND ORDER
Michael McShane United States District Judge
Wells Fargo Bank moves to dismiss Plaintiff's complaint
with prejudice and without leave to amend, pursuant to
Fed.R.Civ.P. 12(b)(6). In support of their motion, they ask
the court to take judicial notice of eight proffered
exhibits. ECF Nos. 5 & 6. Plaintiff Mr. Munson,
proceeding pro se, has not filed a response to
either Defendant's motion to dismiss or request for
judicial notice. The parties did confer on Defendant's
motion. See, Def.'s Mot. 1, LR 7-1
allegations in the complaint stem from Defendant beginning a
non-judicial foreclosure process on Plaintiff's
residential property. Plaintiff alleges: (1) Defendant
violated Oregon's mediation rules regarding non-judicial
foreclosure under OAR 137-110; and (2) common-law fraud.
Compl. 1-3, ECF No. 1, Ex. A. Because Mr. Munson's
complaint fails to state a claim upon which relief may be
granted, this Court GRANTS the defendants' motions to
the facts as stated in the complaint as true, Plaintiff owns
residential property located at 65725 Gerking Market Road,
Bend, Oregon 97701 (the "Property"). Compl. ¶
1. On or about October 7, 2008, Plaintiff obtained a loan
from Wells Fargo, and executed a Promissory Note for the
amount of $1, 186, 250.00. The note was secured by a Deed of
Trust recorded in the Deschutes County Official Records on
November 12, 2008. Req. for Jud. Notice (“RJN”),
Ex.'s 1 & 2 (“Home Loan”).
failed to pay on his Home Loan and went into default on
February 1, 2011. After Mr. Munson defaulted, Wells Fargo
started the process for non-judicial foreclosure. A Notice of
Default and Election to Sell was recorded on November 27,
2017 in the Official Records of Deschutes County, Oregon
under Recording No. 2017-047316. RJN, Ex. 3. The Trustee
originally scheduled a foreclosure sale for April 11, 2018,
which has since been postponed to June 29, 2018.
April 9, 2018, Mr. Munson brought this action in state court
alleging violation of Oregon's mediation rules regarding
non-judicial foreclosure (OAR 137-110) and fraud. Service on
the state action was “made” when the complaint
was given to a bank teller at a local Wells Fargo branch in
Bend, Oregon. Wells Fargo then removed the action to federal
court on April 17, 2018. As noted, defendant now moves to
dismiss the complaint. Mr. Munson did not respond and the
time to do so has passed.
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. 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).
Defendant's Request for Judicial Notice
preliminary matter, Defendant requests that this Court take
judicial notice of eight items: Plaintiff's mortgage Note
and Deed of Trust, both dated October 17, 2008 (ECF Nos. 6-1,
6-2); the Notice of Default and Election to Sell, dated
November 27, 2017 (ECF No. 6-3); and five documents related
to Mr. Munson's bankruptcy case filed January 10, 2011,
case no. 11-30188-tmb11 (ECF Nos. 6-4, 6-5, 6-6, 6-7, 6-8).
See RJN, ECF No. 6.
general, material outside of the pleadings may not be
considered in ruling on a motion to dismiss unless the motion
is treated as one for summary judgment and the parties are
“given reasonable opportunity to present all materials
made pertinent to such motion by Rule ...