United States District Court, D. Oregon
DALE MAXFMILIANO ROLLER, aka DALE MAXFMILIANO ROLLER RAMIREZ, an individual, Plaintiff,
ALFREDO NUNEZ HERRERA, an individual; and CHURCHILL LEONARD, PC, aka CHURCHILL LEONARD LAWYERS, an Oregon Professional Corporation, Defendants.
OPINION AND ORDER
A. Russo, United States Magistrate Judge.
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 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.
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.
3, 2013, plaintiff and Herrera entered into a Real Property
Purchase Agreement ("Agreement"), through which
Herrera sold the Property to plaintiff for $50,
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.
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. 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.
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).
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).
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.
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.
August 30, 2017, plaintiff was disbarred by order of the
Oregon Supreme Court. First Lis Decl. Ex. 2 (doc. 71).
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.
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.
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.
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" - 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.
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
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
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.
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
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).
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 ...