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Brooks v. BC Custom Construction, Inc.

United States District Court, D. Oregon

August 1, 2019

BRIAN JAMES BROOKS and JENNIFER HATCHER BROOKS, Plaintiffs,
v.
BC CUSTOM CONSTRUCTION, INC.; HOF II VERTICAL, LLC; THE HOLT GROUP, INC.; GREG KUBICEK; and WILLIAM C. WINKENBACH, Defendants.

          ORDER

          MARCO A. HERNÁNDEZ UNITED STATES DISTRICT JUDGE

         Magistrate Judge You issued a Findings and Recommendation [ECF 47] on May 21, 2019, in which she recommends that this Court grant in part and deny in part the Motion to Dismiss [ECF 26] filed by Defendants BC Custom Construction, Inc., and William C. Winkenbach (collectively the “Builder Defendants”); and grant in part and deny in part the Motion to Dismiss [ECF 28] filed by Defendants HOF II Vertical, LLC; The Holt Group, Inc.; and Greg Kubicek (collectively the “Lender Defendants”). In particular, Magistrate Judge You recommends the Court:

         (1) Dismiss Plaintiffs' Claim One in part without prejudice and with leave to amend on the bases that (a) Defendants are not “creditors” within the meaning of the Truth in Lending Act (“TILA”), 15 U.S.C. § 1601 et seq., and (b) Plaintiffs cannot obtain actual damages under TILA because they have not adequately pleaded detrimental reliance. Judge You, however, also recommends the Court decline to dismiss Claim One in part on the basis that Plaintiffs have adequately alleged that Builder and Lender are “mortgage originators” within the meaning of TILA;

         (2) Dismiss Plaintiffs' Claim Two, which Plaintiffs bring under the Oregon Mortgage Lender Law, Oregon Revised Statutes §§ 86A.095-86A.103, without prejudice and with leave to amend;

         (3) Dismiss Plaintiffs' Claim Three under the Oregon Mortgage Loan Origination law, Oregon Revised Statutes §§ 86A.200-86A.242, with prejudice;

         (4) Dismiss Claim Four under the Oregon Unlawful Trade Practices Act, Oregon Revised Statutes §§ 646.605-646.652, without prejudice and with leave to amend;

         (5) Decline to dismiss Claim Five, which Plaintiffs bring against the Builder Defendants for breach of fiduciary duty;

         (6) Decline to dismiss Claim Six, which Plaintiffs bring against the Lender Defendants for aiding and assisting the breach of a fiduciary duty;

         (7) Decline to dismiss Claim Seven as to the Lender Defendants. Although Plaintiffs bring Claim Seven against all Defendants under an unjust-enrichment theory, only the Lender Defendants moved to dismiss Plaintiffs' unjust-enrichment claim; and

         (8) Resolve Plaintiffs' claims for declaratory and injunctive relief in the same manner as the corresponding underlying claims set out above.

         The matter is now before the Court pursuant to 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil Procedure 72(b). Each of the parties filed timely objections to the Magistrate Judge's Findings and Recommendation. Lender Defs' Objs., [ECF 51, 56];[1] Plaintiffs' Objs. [ECF 53]; Builder Defs' Objs. [ECF 54].[2] When any party objects to any portion of the Magistrate Judge's Findings & Recommendation, the district court must make a de novo determination of that portion of the Magistrate Judge's report. 28 U.S.C. § 636(b)(1); Dawson v. Marshall, 561 F.3d 930, 932 (9th Cir. 2009); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).

         The Court has carefully considered the parties' objections and concludes there is not any basis to modify the Findings and Recommendation. The Court has also reviewed the pertinent portions of the record de novo and finds no error in the Magistrate Judge's Findings and Recommendation.

         CONCLUSION

         The Court, therefore, ADOPTS Magistrate Judge You's Findings and Recommendation [ECF 47] as its own Opinion and Order. Accordingly, the Court GRANTS in part and DENIES in part the Builder Defendants' Motion to Dismiss [ECF 26] and GRANTS in ...


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