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.

Mencl v. U.S. Bank National Association

United States District Court, D. Oregon

July 10, 2018

ANGELA MENCL and JAMES STUBBS, Plaintiffs,
v.
U.S. BANK NATIONAL ASSOCIATION, as Trustee for Specialty Underwriting and Residential Finance Trust Mortgage Loan Asset-Backed Certificates, Series 2006-AB2; NATIONSTAR MORTGAGE, LLC d/b/a MR. COOPER; and CLEAR RECON CORPORATION, Defendants.

          FINDINGS AND RECOMMENDATION

          STACIE F. BECKERMAN UNITED STATES MAGISTRATE JUDGE.

         Plaintiffs Angela Mencl (“Mencl”) and James Stubbs (“Stubbs”) (collectively, “Plaintiffs”), appearing as self-represented litigants, bring this action against U.S. Bank National Association (“U.S. Bank”), Nationstar Mortgage, LLC (“Nationstar”), and Clear Recon Corporation (“Clear Recon”) (collectively, “Defendants”). U.S. Bank and Nationstar (together, the “Moving Defendants”) move to dismiss Plaintiffs' complaint for failure to state a claim. See Fed.R.Civ.P. 12(b)(6). The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332. For the reasons that follow, the Court recommends that the district judge grant the Moving Defendants' motion to dismiss.

         BACKGROUND

         On November 8, 2005, Mencl executed a promissory note (“Note”) with FMF Capital, LLC (“FMF”). (Compl. ¶ 2; id. Ex. 1, at 1.) Pursuant to the Note, FML loaned Mencl $308, 000 to purchase residential property located at 2026 SE 35th Place, Portland, Oregon (the “Property”). (Compl. ¶¶ 1-2; id. Ex. 1, at 1, 3.) The Note was secured by a deed of trust (“Trust Deed”) executed in favor of Mortgage Electronic Registration Systems, Inc. (“MERS”), as beneficiary for FMF and its successors and assigns. (Compl. ¶ 3; id. Ex. 1, at 1.) The Trust Deed was recorded in the Multnomah County Recorder's Office on November 9, 2005. (Compl. ¶ 3; id. Ex. 1, at 1.)

         On March 1, 2008, Mencl defaulted on the loan by failing to make her scheduled payment. (Compl. Ex. 7, at 2.) On August 18, 2008, MERS executed an assignment of the Trust Deed to U.S. Bank.[1] (See Compl. Ex. 2, at 1.) On July 30, 2013, Bank of America, N.A. (“Bof A”) executed an assignment of the Trust Deed to Nationstar.[2] (Compl. Ex. 3, at 1.) On October 20, 2014, MERS executed a “corrective” assignment of the Trust Deed to U.S. Bank, which made explicit that MERS was the assignor of the 2008 assignment. (Compl. Ex. 4, at 1) (all caps omitted). On July 27, 2017, MERS executed a second corrective assignment of the Trust Deed to U.S. Bank, because MERS' first corrective assignment incorrectly stated that the Trust Deed was recorded on November 8, 2005, instead of November 9, 2005. (Compare Compl. Ex. 5, at 1, with id. Ex. 4, at 1.) On August 3, 2017, Nationstar, acting as “attorney-in-fact” for U.S. Bank, executed a “Gap” assignment of the Trust Deed to Bof A, in order to “complete the break in [the] chain” of title between Bof A's 2013 assignment and MERS' 2014 assignment. (Compl. Ex. 6, at 1) (all caps omitted).

         On June 22, 2017, a Certificate of Compliance with the State of Oregon Foreclosure Avoidance Program was recorded in the Multnomah County Recorder's Office.[3] (Laurick Decl. Ex. A, at 1.) The Certificate of Compliance indicated that a compliance officer determined that U.S. Bank “and/or its agents complied with the requirements of Oregon Laws 2013, Chapter 304, sections 2, 3, and 4[.]” (Laurick Decl. Ex. A, at 1.) The Certificate of Compliance also indicated that a copy was provided to Mencl and Oregon's Attorney General. (Laurick Decl. Ex. A, at 1.)

         On September 13, 2017, Clear Recon recorded a Notice of Default and Election to Sell in the Multnomah County Recorder's Office. (Compl. Ex. 7, at 1-3.) The Notice of Default indicated, inter alia, that Mencl defaulted on her loan by failing to make her payments between March 1, 2008, and September 1, 2017, that Mencl owed $306, 505.20 in past-due payments, that U.S. Bank was the beneficiary, and that the Notice of Default's references to “trustee” or “beneficiary” included “their respective successors in interest, if any.” (Compl. Ex. 7, at 1-3.) A Trustee's Notice of Sale was recorded on January 11, 2018, setting a January 23, 2018 sale date. (Compl. Ex. 8, at 1-4.) The Notice of Sale also identified U.S. Bank as the beneficiary. (Compl. Exs. 7-8, at 1.)

         On January 22, 2018, Plaintiffs filed a complaint against Defendants in Multnomah County Circuit Court.[4] In their complaint, Plaintiffs sought a declaratory judgment that the impending foreclosure was invalid under the OTDA because the Notice of Sale identifies U.S. Bank, as opposed to Nationstar, as the beneficiary under the Trust Deed. (See Compl. ¶¶ 28-40, indicating that Plaintiffs' “claim for relief” is premised on the Notice of Sale being “invalid” since it failed to list Nationstar as the beneficiary, even though Bof A previously assigned the Trust Deed to Nationstar, and stating that under the OTDA, a notice of sale “must” list the name of the proper beneficiary; id. at 11-12, seeking a declaratory judgment that the impending foreclosure was invalid based on, inter alia, the “defective” Notice of Sale).

         On February 28, 2018, within thirty days of being served with the complaint, U.S. Bank and Nationstar removed Plaintiffs' case to federal district court on the basis of diversity jurisdiction. (Notice of Removal ¶¶ 2-3.) Clear Recon consented to the removal. (Id. ¶ 15.) The Moving Defendants' motion to dismiss followed and was taken under advisement on June 6, 2018.

         ANALYSIS

         I. STANDARD OF REVIEW

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). “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. “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Mashiri v. Epstein Grinnell & Howell, 845 F.3d 984, 988 (9th Cir. 2017) (internal quotation marks omitted) (citing Iqbal, 556 U.S. at 678)).

         II. DISCUSSION

         The Moving Defendants argue that the complaint should be dismissed with prejudice for three reasons: (1) Stubbs lacks standing to complain about any alleged misconduct regarding a loan to which he was not a party, (2) the complaint is “based on untenable legal conclusions that conflict with applicable law, ” and (3) Plaintiffs' allegations “are ...


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.