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Roller v. Herrera

United States District Court, D. Oregon

September 23, 2019

DALE MAXFMILIANO ROLLER, aka DALE MAXFMILIANO ROLLER RAMIREZ, an individual, Plaintiff,
v.
ALFREDO NUNEZ HERRERA, an individual; and CHURCHILL LEONARD, PC, aka CHURCHILL LEONARD LAWYERS, an Oregon Professional Corporation, Defendants.

          OPINION AND ORDER

          Jolie A. Russo, United States Magistrate Judge.

         Pro se plaintiff Dale Roller brings this real property suit against defendants Alfredo Herrera and Churchill Leonard, P.C. ("Churchill"). All parties consented to allow a Magistrate Judge enter final orders and judgment in this case in accordance with Fed.R.Civ.P. 73 and 28 U.S.C. § 636(c). Defendants each move for summary judgment[1] pursuant to Fed.R.Civ.P. 56. Oral argument was held on September 13, 2019. For the reasons set forth below, defendants' motions are granted.

         BACKGROUND

         On October 15, 2012, Herrera purchased property located at 462 B Street in Independence, Oregon ("Property"). First Herrera Decl. ¶ 2 & Ex. 1 (doc. 70). At that time, plaintiff, a licensed attorney, had been living at the Property for several years pursuant to a rental agreement with the prior owners. First Lis Decl. Ex. 1, at 23, 26 (doc. 71).

         On June 3, 2013, plaintiff and Herrera entered into a Real Property Purchase Agreement ("Agreement"), through which Herrera sold the Property to plaintiff for $50, 000.[2] First Am. Compl. ("FAC") ¶ 9 & Ex. 4 (doc. 9). The Agreement required plaintiff to make a $2, 000 down payment and thereafter provide a minimum of $6, 000 by June 3rd each year until the balance of the purchase price was paid in full. FAC Ex. 4, at 1 (doc. 9). The Agreement also required plaintiff to pay annual property taxes. Id. at 2. Further, plaintiff was obligated, "at his sole expense, " to "keep and maintain" the Property and "comply with any and all laws, ordinances, rules and orders of any and all governmental or quasi-governmental authorities affecting the cleanliness, use, occupancy and preservation" of the Property. Id. at 1-2. In the event the Property was "destroyed or rendered wholly inhabitable by fire, storm, earthquake, or other casualty not caused by the negligence of Buyer, " the Agreement remained in place. Id.

         Herrera had the right to terminate the Agreement if plaintiff failed to cure any material breach (other than for nonpayment) within thirty days of delivery of notice.[3] Id. at 3. If plaintiff failed to make a payment within sixty days of when it became due, Herrera likewise had the right to terminate the Agreement or "declare the entire balance of payments payable hereunder to be immediately due and payable and may exercise any and all rights and remedies available ... at law or in equity." Id.

         On May 11, 2017, an electrical fire severely damaged structures on the Property. FAC ¶ 13 (doc. 9). Plaintiff thereafter did not remit the entire $6, 000 payment due under the Agreement by June 3, 2017, nor did he pay the 2016 or 2017 property taxes. First Herrera Decl. Exs. 2-3 (doc. 70); First Lis Decl. Ex. 1, at 42, 71-72 (doc. 71); First Lis Decl. Ex. 22, at 6 (doc. 71).

         On July 20, 2017, the City of Independence mailed a Violation Notice to Herrera instructing that the Property was unsafe and in violation of several maintenance codes, and therefore needed to be vacated and demolished by August 25, 2017, due to the fire. FAC Ex. 6 (doc. 9). As record owner of the Property, Herrera was responsible for remedying the code violations; however, under the Agreement, he did not have a right to possession or any duty to maintain the Property in a safe and habitable condition. FAC Ex. 4 (doc. 9).

         Accordingly, on July 30, 2017, Herrera provided the Violation Notice to plaintiff via text message and sought his cooperation in remedying the issues raised therein. FAC ¶ 16 (doc. 9). On July 31, 2017, after receiving no response, Herrera asked plaintiff to remove his personal items from the structures on the Property so that Herrera could have them demolished. First Herrera Decl. ¶ 13 & Exs. 2-3 (doc. 70). Plaintiff replied that he would try to remove his personal property within the next couple weeks. Id.

         As an alternative to fixing the code violations himself, Herrera sought to deed the Property to plaintiff so that plaintiff would be the record owner. First Herrera Decl.¶7 (doc. 70). On August 1, 2017, Herrera requested through text message that plaintiff provide a deed form to effectuate the transfer. First Herrera Decl. Ex. 2 (doc. 70). Plaintiff replied in the affirmative but never provided the deed or otherwise followed up about this transfer. First Herrera Decl.¶7 (doc. 70); First Lis Decl. Ex. 1, at 59-60 (doc. 71).

         On August 30, 2017, plaintiff was disbarred by order of the Oregon Supreme Court. First Lis Decl. Ex. 2 (doc. 71).

         Herrera regularly contacted plaintiff through early September 2017 in an effort to remedy the code violations. First Herrera Decl.¶8 (doc. 70). Plaintiff refused to take any remedial action, despite acknowledging that, under the Agreement, "Herrera was no longer a landlord and therefore no longer responsible for any repairs that needed to be made on the property." First Lis Decl. Ex. 1, at 35-36, 60 (doc. 71); First Lis Decl. Ex. 14, at 11-12 (doc. 71).

         After Herrera's efforts to obtain plaintiffs cooperation failed, Herrera hired Churchill to represent him in connection with complying with the Violation Notice. On September 14, 2017, Churchill posted a Notice to Vacate on plaintiffs door, which explained:

Your continued possession of the property in violation of Independence Municipal Code 6196 is outrageous in the extreme due to the location of the school in the immediate vicinity. You are actively preventing securing the property which presents an extreme danger to the safety of the community.

         First Lis Decl. Ex. 10 (doc. 71). The Notice to Vacate further informed plaintiff that, if necessary, Herrera intended to take possession of the Property pursuant to Or. Rev. Stat. § 105.105 through Or. Rev. Stat. § 105.168, and provided contact information for Herrera's attorney, Jill Foster, who worked for defendant Churchill. Id.

         Also on September 14, 2017, Churchill posted on plaintiffs door and sent, via certified mail, a Notice of Default and Forfeiture. First Lis Decl. Ex. 11 (doc. 71). This notice detailed plaintiffs material breaches of the Agreement, including failure to: (1) pay property taxes "due on or before November 15, 2016 in the amount of $ 1, 101.49"; (2) "make the payment due on or before June 3, 2017 in an amount of not less than $6, 000"; and (3) comply with city code and maintain the Property following the May 2017 fire. Id. at 1. The notice apprised plaintiff that "the entire balance of payments payable hereunder" - i.e., "$27, 101.49"[4] - was "immediately due and payable" and that, if plaintiff "fail[ed] to cure the defaults outlined above, [his] interest in the Contract of Sale and the property [will be forfeited] on December 13, 2017." Id. at 2.

         Plaintiff thereafter did not contact Foster or Herrera to discuss the notices or the errors he purportedly believed were included therein, nor did he vacate the Property or tender any additional payments. First Lis Decl. Ex. 1, at 60-68, 73-77 (doc. 71).

         On October 18, 2017, Herrera filed a forcible entry and detainer action against plaintiff in Polk County Circuit Court to regain possession of the Property and comply with the Violation Notice ("Polk County Lawsuit I"). First Herrera Decl. ¶¶ 9-10 (doc. 70). On October 31, 2017, plaintiff moved for judgment on the pleadings in Polk County Lawsuit I. FAC Ex. 11 (doc. 9). The following day, plaintiff issued document requests in Polk County Lawsuit I, three of those requests sought information related to amounts owed for the Property. FAC Ex. 13 (doc. 9). Before Herrera's responses were due, the Polk County Circuit Court granted plaintiffs motion on the grounds that no landlord-tenant relationship existed. First Lis Decl. Ex. 13 (doc. 71).

         On November 17, 2017, Herrera filed a second action against plaintiff in Polk County Circuit Court to recover the Property, enjoin plaintiff from residing there, and require plaintiff to remedy the code violations and pay amounts owed under the Agreement. ("Polk County Lawsuit II"). FAC Ex. 15 (doc. 9). On November 27, 2017, the Polk County Circuit Court held a TRO hearing, during which plaintiff testified that he was entitled to 120 days of notice to cure his defaults before he could be required to vacate the property, as opposed to the 90 days of notice Herrera provided. First Lis Decl. Ex. 3, at 26 (doc. 71). However, plaintiff admitted that he did not pay the amount due and owing under the Agreement as of June 3, 2017, or the 2016 or 2017 property taxes. Id. at 21. Plaintiff indicated that he paid Herrera $30, 000 of the Property's $50, 000 purchase price, such that Herrera was seeking to recover more than was owed. Id. at 26.

         On December 11, 2017, plaintiff filed a Notice of Claim of Right pursuant to Or. Rev. Stat. § 93.915(5). First Foster Decl. ¶ 15 & Ex. 2 (doc. 69). This notice asserted a longer period of time for plaintiff to cure his default and requested proof of the amount owing. First Foster Decl. Ex. 2 (doc. 69).[5]

         On December 12, 2017, plaintiff provided Herrera with a cashier's check in the amount of $27, 101.49 and demanded that the Property be deeded to his father. First Foster Decl. Ex. 6 (doc. 69); First Lis Decl. Ex. 1, at 87 (doc. 71); First Lis Decl. Ex. 4, at 23, 25 (doc. 71); First Lis Decl. Ex. 5 (doc. 71). Herrera voluntarily dismissed Polk County Lawsuit II on the day after he received payment. First Lis Decl. Ex. 28 (doc. 71).

         On January 10, 2018, plaintiff commenced this lawsuit premised on the fact that, as of September 2017, he only owed "Herrera a total of $21, 106.39 towards the home inclusive of 2016 property taxes." FAC ¶ 20 (doc. 9). Plaintiff filed an Amended Complaint on January 31, 2018, alleging claims for: (1) violation of the Fair Debt Collection Practices Act ("FDCPA") against Churchill; (2) abuse of process against all defendants; (3) violation of Oregon's Unfair Trade Practices Act ("UTPA) against Churchill; (4) fraud against all defendants; and (5) tortious breach of the implied duty of good faith and fair dealing against Herrera. Plaintiff seeks emotional distress damages, statutory damages, and $152, 000 for the fair market value of the ...


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