United States District Court, D. Oregon
A. Glass Attorney for Plaintiff
J. Elkanich Nellie Q. Barnard Holland & Knight LLP
Attorneys for Defendants Selene Finance LP, MERS and
Wilmington Savings Fund Society, FSB d/b/a Christiana Trust,
not individually but as trustee for Pretium Mortgage
OPINION & ORDER
A. HERNÁNDEZ, UNITED STATES DISTRICT JUDGE.
the Court is Defendants' Motion to Dismiss .
Plaintiff James Daniel Harris brought this action on January
30, 2018, alleging: a civil Racketeering Influenced and
Corrupt Organizations Act (“RICO”) claim, 18
U.S.C. § 1962(c); Fair Debt Collection Practices Act
(“FDCPA”) claims, 15 U.S.C. §§
1692c(a)(2), 1692d; Oregon Unlawful Trade Practices Act
(“UTPA”) claims, O.R.S. §§ 646.607; and
breach of the implied duty of good faith and fair dealing
under Oregon state law. Defendants are composed of lenders
and/or lenders' agents that allegedly conspired and took
other fraudulent and unlawful actions to cause Plaintiff to
default on his mortgage and lose is home. Defendants'
motion is GRANTED and Plaintiff's claims are DISMISSED.
factual allegations below are taken from Plaintiff's
Complaint  and assumed to be true. In 2007, Plaintiff obtained
a home mortgage for $341, 000 with Plaza Home Mortgages Inc.
(“Plaza”). Compl. ¶ 30, ECF 1. Plaza
appraised the value of the home at $400, 000. Id.
Plaintiff claims the actual market value was $227, 000.
Id. On August 28, 2007, Plaintiff's note was
assigned to Countrywide Home Loans Inc.
(“Countrywide”). Id. at ¶ 33.
Countrywide approved a loan modification that would lower
Plaintiff's interest rate. Id. Plaintiff
completed three trial payments under the program; then the
loan was transferred to Bank of America Servicing Inc.
(“B of A”). Id. at ¶ 34. B of A
required Plaintiff to reapply to the modification program.
Id. Plaintiff's subsequent application was
turned down and B of A gave Plaintiff three choices:
foreclosure; short sale; or tender the deed in lieu of
foreclosure. Id. at ¶ 35.
agreed to a short sale and moved out of the house.
Id. at ¶ 36. B of A refused an offer on the
short sale and instead transferred the loan to Seterus Inc.
(“Seterus”) for servicing. Id. at ¶
37. Seterus required Plaintiff to fill out another
modification application that it turned down in April 2015.
Id. In May 2016, Seterus transferred the loan to
Selene Finance (“Selene”). Id. at ¶
38. Selene also offered Plaintiff a loan modification
program; however, Selene continually lost or misplaced
Plaintiff's application and ultimately denied it.
Id. at ¶¶ 41-42. During this period,
Defendants called Plaintiff and demanded payment, threatened
foreclosure, and demanded certain documents be produced
within particular time frames. Id. at ¶ 43.
Additionally, when Plaintiff sent the requested paperwork,
Defendants claimed they had not received the documents.
Id. Defendants then repeated their paperwork
requests, continuing the cycle. Id.
11, 2017, Plaintiff filed for Chapter 7 voluntary bankruptcy.
Id. at ¶ 24; Request for Judicial Notice, Ex. A
(Case No. 17-32593-tmb7). On October 16, 2017, the United
States Bankruptcy Court for the District of Oregon signed an
order discharging and closing Plaintiff's case as a
“no asset” estate. Request for Judicial Notice,
Ex. B at 3.
filed their Motion to Dismiss on June 8, 2018. On June 20,
2018, the court held a Rule 16 telephone conference.
See ECF 29. At that conference, the Court granted
Plaintiff's request for an extension of time to respond
to Defendants' Motion. Id. Plaintiff was given
until July 10, 2018 to file a response. To date, Plaintiff
has not filed a response to Defendants' Motion to
Dismiss, and the Motion remains unopposed.
motion to dismiss, the court must review the sufficiency of
the complaint. Scheuer v. Rhodes, 416 U.S. 232, 236
(1974). A complaint is construed in favor of the plaintiff,
and its factual allegations are taken as true.
Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d
992, 998 (9th Cir. 2010). “[F]or a complaint to survive
a motion to dismiss, the non-conclusory factual content, and
reasonable inferences from that content, must be plausibly
suggestive of a claim entitling the plaintiff to
relief.” Moss v. United States Secret Serv.,
572 F.3d 962, 969 (9th Cir. 2009) (internal quotation marks
omitted). “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.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). “[O]nce a claim
has been stated adequately, it may be supported by showing
any set of facts consistent with the allegations in the
complaint.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 563 (2007). The court, however, need “not
assume the truth of legal conclusions merely because they are
cast in the form of factual allegations.” Id.
“[A] plaintiff's obligation to provide the
‘grounds' of his ‘entitle[ment] to
relief' requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do . . . .” Id. at 555.
claim that Plaintiff lacks standing and is judicially
estopped from asserting his claims based on his 2017
bankruptcy. Under 11 U.S.C. § 521(1), a bankruptcy
debtor is required to schedule all assets and liabilities.
Further, a bankruptcy estate includes “all legal or
equitable interests of the debtor in property as of the
commencement of the case.” 11 U.S.C. § 541(a)(1).
Causes of actions are generally considered assets
dischargeable in bankruptcy. Strong v. Prudential Ins.
Co. of Am., 172 F.3d 58 (9th Cir. 1999). The cause of
action becomes part of the estate regardless of whether the
plaintiff scheduled it, unless the bankruptcy trustee
abandons the claim. 11 U.S.C. § 541(a); Estate of
Spirtos v. One San Bernardino Cty. Superior Court Case
Numbered SPR 02211, 443 F.3d 1172, 1176 (9th Cir. 2006).
“[A] trustee of a bankruptcy estate is the
representative of the estate. As such, he has the capacity to
sue on behalf of the estate, and those with claims against
the estate can sue him.” Spirtos, 443 F.3d at
1175 (citations omitted).
case, Plaintiff did not list his claims as assets of the
bankruptcy estate. His claims all accrued by the time his
bankruptcy petition was filed in July of 2017 and well before
the discharge order was entered in October of 2017. The Court
finds that Plaintiff's RICO claim based on
Defendants' pre-discharge conduct was subject to the
injunctive power of the bankruptcy discharge. See
Spirtos, 443 F.3d at 1175-77 (dismissing civil RICO
claim for lack of standing based on the finding that only the
bankruptcy trustee had standing to sue); Johnson v.
Johnson, No. 1:15-CV-01793 MJS, 2016 WL 5235047, at *5-6
(E.D. Cal. Sept. 21, 2016), reconsideration denied,
No. 1:15-CV-01793 MJS, 2016 WL 6803567 (E.D. Cal. Nov. 17,
2016) (dismissing civil RICO claims based on a prior
bankruptcy discharge). The entirety of Plaintiff's civil
RICO claim is based on Defendants' activities from
approximately 2007 through mid-2017. Plaintiff bases his
claim on Defendants' repeated refusals to modify his
mortgage, repeatedly misplacing his modification
applications, and threats and demands. Plaintiff also alleges
that Defendants directly contacted him even though they knew
he retained counsel given the parties' participation in
the bankruptcy proceedings. In short, Plaintiff is seeking
damages for Defendants' pre-discharge conduct. Because
Plaintiffs civil RICO claim was subject to the bankruptcy
estate and not abandoned by the trustee, Plaintiff lacks
standing to bring the claim. Johnson, 2016 WL
5235047 at *6-7. Likewise, the Bankruptcy Code precludes
Plaintiffs FDCPA claim. See Walls v. Wells Fargo Bank,
N.A.,276 F.3d 502, 510 (9th Cir. 2002) (“While
the FDCPA's purpose is to avoid ...