United States District Court, D. Oregon
MICHAEL H. SIMON UNITED STATES DISTRICT JUDGE.
March 6, 2018, Plaintiff Hoa Van Nguyen filed a complaint in
Multnomah County Circuit Court against Defendants Specialized
Loan Servicing LLC (“SLS”), Quality Loan Service
Corporation of Washington (“Quality”), and The
Bank of New York Mellon (“BNYM”). In the original
complaint, Plaintiff asserted six claims against Defendants:
declaratory judgment, breach of contract, intentional
interference with economic relationship, violation of
Oregon's Unfair Trade Practices Act, breach of the
covenant of good faith and fair dealing, and violation of Or.
Rev. Stat. § 86.748(1). On Plaintiff's motion, the
state court issued a preliminary injunction, enjoining
Defendants from proceeding with their scheduled non-judicial
foreclosure of Plaintiff's home. Defendants removed the
case to federal court and moved to dismiss the complaint and
to dissolve the preliminary injunction. This Court granted
the motion to dismiss without prejudice and denied the motion
to dissolve the preliminary injunction without prejudice, and
with leave to renew, if appropriate, after Plaintiff filed an
amended complaint. ECF 24.
thereafter, Plaintiff filed an Amended Complaint and asserted
three of the same claims he made in the original complaint:
declaratory judgment, breach of contract, and intentional
interference with economic relationship. ECF 25. Defendants
SLS and BNYM moved to dismiss and to dissolve the preliminary
injunction (ECF 26) and Defendant Quality joined with its own
motion (ECF 27). Plaintiff's amended complaint differs
from the original complaint in only one material aspect. The
amended complaint adds one new paragraph, but is otherwise
virtually identical to the original complaint. This new
At the time of the purported corrective assignment, MERS was
not the designated nominee for Aegis Wholesale Corporation,
as Aegis Wholesale Corporation was dissolved at the time,
having gone out of business on October 27, 2010. MERS was not
authorized to act on Aegis's behalf as Aegis's agent.
ECF 25 ¶10.
bare assertions in this paragraph cannot cure the
deficiencies in Plaintiff's allegations. 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 enable the opposing party to
defend itself effectively.” Starr v. Baca, 652
F.3d 1202, 1216 (9th Cir. 2011). The court need not credit
the plaintiff's legal conclusions that are couched as
factual allegations. Ashcroft v. Iqbal, 556 U.S.
662, 678-79 (2009).
provides no factual support for its legal conclusion that
MERS was not authorized to act on Aegis's behalf as
Aegis's agent. The fact that Aegis Wholesale Corporation
was dissolved at the time of the corrective assignment has no
effect on whether MERS was authorized to act on Aegis's
behalf. Under Oregon law, a dissolved corporation does not
automatically cease to exist, but may carry on business
appropriate to wind up and liquidate the corporation's
business and affairs. See Or. Rev. Stat. 60.637.
Although Plaintiff claims that there is no evidence showing
that Aegis transferred the beneficial interest through a line
of succession that ends with BNYM, the 2017 corrective
assignment that Plaintiff attached to his amended complaint
tells a different story. The 2017 corrective assignment shows
that MERS acted “as designated nominee for Aegis”
and Plaintiff has not pleaded any facts to show that the
corrective assignment was fraudulent or illegitimate.
Court has several times described the relationship between
MERS and the original lender or its successors as that of
principal-agent. ECF 24 at 6 (citing James v. ReconTrust
Co., 845 F.Supp.2d 1145, 1165 (D. Or. 2012)). MERS was
lawfully able to act as an agent for Aegis in the 2017
corrective assignment, and legally assigned Aegis's
beneficial interest in the deed of trust to BNYM, which then
lawfully appointed Quality as trustee. As a result, Quality
could lawfully initiate a non-judicial foreclosure.
Plaintiff's amended complaint fails to allege facts
showing that the 2017 corrective assignment was not lawful
and valid, Plaintiff's declaratory judgment claim fails
for the reasons discussed in this Court's Opinion and
Order. ECF 24. Plaintiff's breach of contract claim and
intentional interference with economic relationship claim
fail to state a plausible claim for relief for the reasons
already enumerated in this Court's Opinion and Order
dismissing the original Complaint. ECF 24.
has not shown that he is likely to succeed on the merits of
his claims. See Winter v. Nat. Res. Def. Council,
555 U.S. 7, 20 (2008) (“A plaintiff seeking a
preliminary injunction must establish that he is likely to
succeed on the merits, that he is likely to suffer
irreparable harm in the absence of preliminary relief, that
the balance of equities tips in his favor, and that an
injunction is in the public interest.”). The Court
therefore finds that it would be inappropriate to continue to
maintain the preliminary injunction imposed by the state
court. Defendants SLS and BNYM's Motion to Dismiss and to
Dissolve the Preliminary Injunction ECF 26 and ECF 27 are
GRANTED. Plaintiff's Amended Complaint (ECF 25) is
dismissed with prejudice.