Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Munson v. Wells Fargo Bank

United States District Court, D. Oregon

June 11, 2018

STEVE MUNSON, Plaintiff,
v.
WELLS FARGO BANK, Defendant.

          OPINION AND ORDER

          Michael McShane United States District Judge

         Defendant 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 Certification.

         The 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 dismiss.

         BACKGROUND

         Accepting 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”).

         Plaintiff 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.

         On 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.

         STANDARD OF REVIEW

         To 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.

         When 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).

         DISCUSSION

         I. Defendant's Request for Judicial Notice

         As a 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.

         In 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.