United States District Court, D. Oregon
Pidasheff and Victor Pidasheff, pro se.
Marshall and Barbara L. Bollero, Anglin Flewelling Rasmussen
Campell & Trytten LLP, Of Attorneys for Defendant
SunTrust Bank as Successor in Interest to SunTrust Mortgage,
Inc. Emilie K. Edling and Amber Labrecque, Houser &
Allison, APC, Of Attorneys for Defendants U.S. Bank, National
Association and Ocwen Loan Servicing, LLC.
OPINION AND ORDER
Michael H. Simon United States District Judge.
Elena and Victor Pidasheff bring this action seeking damages
for wrongful foreclosure of their home. Defendants Suntrust
Bank (“Suntrust”), U.S. Bank National Association
as trustee for the Lehman XS Trust Mortgage Passthrough
Certificates Series 2006-10N (“U.S. Bank”), and
Ocwen Loan Servicing, LLC (“Ocwen”) move to
dismiss the complaint under Federal Rule of Civil Procedure
12(b)(6)for failure to state a claim upon which relief can be
granted. Defendants U.S. Bank and Ocwen also seek dismissal
of the action for insufficient service of process. For the
reasons that follow these motions are GRANTED.
motion to dismiss for failure to state a claim may be granted
only when there is no cognizable legal theory to support the
claim or when the complaint lacks sufficient factual
allegations to state a facially plausible claim for relief.
Shroyer v. New Cingular Wireless Servs., Inc., 622
F.3d 1035, 1041 (9th Cir. 2010). In evaluating the
sufficiency of a complaint's factual allegations, the
court must accept as true all well-pleaded material facts
alleged in the complaint and construe them in the light most
favorable to the non-moving party. Wilson v.
Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir.
2012); Daniels-Hall v. Nat'l Educ. Ass'n,
629 F.3d 992, 998 (9th Cir. 2010). 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 to enable the opposing party to defend itself
effectively.” Starr v. Baca, 652 F.3d 1202,
1216 (9th Cir. 2011). All reasonable inferences from the
factual allegations must be drawn in favor of the plaintiff.
Newcal Indus. v. Ikon Office Solution, 513 F.3d
1038, 1043 n.2 (9th Cir. 2008). The court need not, however,
credit the plaintiff's legal conclusions that are couched
as factual allegations. Ashcroft v. Iqbal, 556 U.S.
662, 678-79 (2009).
complaint must contain sufficient factual allegations to
“plausibly suggest an entitlement to relief, such that
it is not unfair to require the opposing party to be
subjected to the expense of discovery and continued
litigation.” Starr, 652 F.3d at 1216. “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 (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556
(2007)). “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) (quotation marks omitted).
must liberally construe the filings of a pro se
plaintiff and afford the plaintiff the benefit of any
reasonable doubt. Hebbe v. Pliler, 627 F.3d 338, 342
(9th Cir. 2010). “‘Unless it is absolutely clear
that no amendment can cure the defect, . . . a pro se
litigant is entitled to notice of the complaint's
deficiencies and an opportunity to amend prior to dismissal
of the action.'” Garity v. APWU Nat'l Labor
Org., 828 F.3d 848, 854 (9th Cir. 2016) (alteration in
original) (quoting Lucas v. Dep't of
Corrections, 66 F.3d 245, 248 (9th Cir. 1995) (per
curiam)). Under Federal Rule of Civil Procedure 8(a)(2),
however, every complaint must contain “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” This standard “does not
require ‘detailed factual allegations, '” but
does demand “more than an unadorned, the
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). “A pleading that offers ‘labels and
conclusions' or ‘a formulaic recitation of the
elements of a cause of action will not do.'”
Id. (quoting Twombly, 550 U.S. at 555).
January 25, 2006, Plaintiff Elena Pidasheff signed a note and
deed of trust with Suntrust Mortgage, Inc., to purchase a
home in Clackamas County, Oregon. She then conveyed the
property to Victor Pidasheff, her husband, and herself as
tenants by the entirety. ECF 22 at 48. First American Title
Insurance Company was the original trustee and Mortgage
Electronic Registration Systems, Inc. was identified as the
beneficiary. ECF 22 at 33-35. Elena Pidasheff agreed to make
monthly instalments on the loan. Compl ¶ 27. Upon
Plaintiffs' “information and belief, ” they
determined that no rightful party could legally collect
payments from Plaintiffs, and Plaintiffs “subsequently
ceased making payments” on the loan. Compl. ¶ 32.
In 2009, Plaintiff failed to make her monthly loan payments
due fron November 2008 through February 2009 and defaulted on
her loan. ECF 22 at 53. A foreclosure sale was schedule for
July 2009, but the sale never happened. ECF 22 at 54, 58.
Plaintiff failed to make twelve payments on her loan between
March of 2009 and February of 2010. ECF 22 at 66. Another
foreclosure sale was scheduled for June 15, 2010. ECF 22 at
67. This sale, too, never took place.
defaulted on the loan again in April of 2011, and Ocwen, who
had assumed servicing of Plaintiffs' loan in February of
2013, filed a judicial foreclosure proceeding against Elena
Pidasheff in Clackamas County Court on June 12, 2013. Elena
Pidasheff, represented by counsel, filed counterclaims
alleging that Ocwen had not demonstrated any legal interest
in the note or deed of trust and therefore could not initiate
a judicial foreclosure proceeding. Elena Pidasheff disputed
whether Ocwen was the true loan servicer, and also alleged
that Ocwen had failed to follow the required legal procedures
before initiating the foreclosure. She sought a declaratory
judgment regarding the legal rights and obligations of all
parties, and also brought counterclaims under the Unlawful
Trade Practices Act, breach of contract and duty of good
faith and fair dealing claims, and claims under the Real
Estate Settlement Practices Act, 12 U.S.C. § 2605. On
August 27, 2013, U.S. Bank filed an amended complaint in the
Clackamas County Court action, substituting itself for Ocwen
as the named plaintiff. ECF 22 at 157. On November 17, 2014,
the parties entered into a stipulated order and general
judgment of dismissal, in which U.S. Bank's claims were
dismissed without prejudice and Elena Pidasheff's claims
were dismissed with prejudice.
7, 2018, Mortgage Electronic Registration Systems, Inc., as
designated nominee for Suntrust Mortgage, Inc., assigned its
interest in the mortgage to U.S. Bank. ECF 22 at 69. The
instrument recording U.S. Bank's interest in the mortgage
was recorded in Clackamas County. ECF 22 at 71. U.S. Bank
then appointed Quality Loan Service Corporation as successor
trustee, replacing First American Title Insurance Company.
ECF 72. On November 16, 2018, Quality Loan Service
Corporation notified Plaintiffs that they were again in
default and that a foreclosure sale was scheduled for April
1, 2019. The foreclosure sale has not yet taken place.
Plaintiffs filed the pending action against U.S. Bank, Ocwen,
Suntrust, and Quality Loan Service Corporation, seeking
damages for wrongful foreclosure.
Bank and Ocwen argue that Plaintiffs' service of process
on them was insufficient and failed to meet the requirements
of Rule 4 of the Federal Rules of Civil Procedure. The
certificates of service for both parties are signed by
Plaintiff Elena Pidasheff herself. Rule 4(c) requires that
service may be made by “any person who is not a
party.” See Mongeon v. City of Portland, 2015
WL 5129561 at *4 (D. Or. July 2, 2015) (finding ineffective
service of process where plaintiff signed the proof of
service); see also Constein v. United States, 628
F.3d 1207, 1213-14 (10th Cir. 2010 (“Even when service
is effected by use of the mail, only a nonparty can place the
summons and complaint in the mail.”). It appears as
though Plaintiffs attempted to cure the defect in service by
submitting a declaration stating that “I, ...