United States District Court, D. Oregon
WILLIAM X. NIETZCHE, et al., Plaintiffs,
FREEDOM HOME MORTGAGE CORPORATION, et al., Defendants.
OPINION AND ORDER
MICHAEL H. SIMON, DISTRICT JUDGE.
William Kinney, Jr. and Julie Ann Metcalf Kinney (the
“Kinneys”) were the owners of real property
located in Portland, Oregon. Plaintiff William X. Nietzche is
the Trustee of the KRME International Trust (the “KRME
Trust”),  which is “is domiciled in the
ancient Mosan/Salish Territory for Multnomah [Portland,
Oregon USA] Republic” and “holder in due course
and secured-first-party creditor over the parcel of land and
the subject real property structure interest in this
case arises from a nonjudicial foreclosure proceeding.
Plaintiffs bring suit against numerous financial
institutions, certain attorneys who represented some of the
institutions, the “State of Oregon Corporation”
(purportedly suing the state of Oregon), the “United
States Corporation Company” (purportedly suing the
United States), Urban Housing Development, LLC
(“UHD”), who purchased the subject property at
foreclosure, and a person affiliated with UHD, Roman Ozeruga.
Plaintiffs filed an original complaint in this action,
against which several defendants filed motions to dismiss.
While those motions were pending, the Court provided
Plaintiffs with more than two months to prepare an amended
complaint in lieu of responding to the motions to dismiss.
Plaintiffs' First Amended Verified Complaint
(“Amended Complaint”) added numerous claims and
allege 35 claims for relief against 21 named defendants and
numerous Doe defendants. Plaintiffs' claims can be
summarized as claims for: (1) specific performance; (2)
various claims for breach of contract; (3) promissory
estoppel; (4) violation of the Fair Debt Collection Practices
Act (“FDCPA”); (5) violation of Oregon's
Unlawful Debt Collection Practices Act (“UDCPA”);
(6) breach of trustee's duty; (7) various types of fraud,
including “confidence games”; (8) violation of
Oregon's Unlawful Trade Practices Act
(“UTPA”); (9) violation of the Real Estate
Settlement and Procedures Act (“RESPA”); (10)
quiet title; (11) violation of Oregon's abuse of
vulnerable persons statute; (12) rescission under the Truth
in Lending Act (“TILA”); (13) “lack of
standing to foreclose”; (14) slander of title; (15) due
process violations; (16) violation of the United Nations
Declaration on the Rights of Indigenous Peoples; (17) the
federal crime of genocide; (18) adverse possession; (19)
unjust enrichment; (20) civil conspiracy; (21) violation of
the Racketeer Influenced and Corrupt Organizations Act
(“RICO”); (22) abuse of process; (23) wrongful
foreclosure; (24) Pennsylvania's Fair Credit
Extension Uniformity Act; (25) “unconscionable
contract”; and (26) intentional and negligent
infliction of emotional distress. Plaintiffs also allege
claims for accounting, constructive trust, and declaratory
and injunctive relief, but under the circumstances of this
case those are better viewed as remedies Plaintiffs may
request if they prevail on any of their claims, and not
separate causes of action.
motions are pending before the Court, including motions to
dismiss by numerous defendants, two motions by Plaintiffs
requesting reconsideration of two of the Court's previous
orders, motions for default filed by Plaintiffs, and several
other motions filed by Plaintiffs. For the reasons discussed
below, the motions to dismiss are granted, and this case is
dismissed with prejudice. All other pending motions are
denied as moot.
Motion to Dismiss Under Rule 12(b)(6)
motion to dismiss for failure to state a claim under Rule
12(b)(6) of the Federal Rules of Civil Procedure 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
se plaintiffs receive special dispensation. A court 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).
“A pro se litigant must be given leave to
amend his or her complaint unless it is absolutely clear that
the deficiencies of the complaint could not be cured by
amendment.” Karim-Panahi v. Los Angeles Police
Dep't, 839 F.2d 621, 623 (9th Cir. 1988) (citation
and quotation marks omitted). But even a pro se
plaintiff must offer more than “‘labels and
conclusions' or ‘a formulaic recitation of the
elements of a cause of action.'” Iqbal,
556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
Motion to Dismiss Under Rule 12(b)(2)
motion to dismiss for lack of personal jurisdiction under
Rule 12(b)(2) of the Federal Rules of Civil Procedure, the
plaintiff bears the burden of proving that the court's
exercise of jurisdiction is proper. See Schwarzenegger v.
Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004)
(citing Sher v. Johnson, 911 F.2d 1357, 1361 (9th
Cir. 1990)). When resolving such a motion on written
materials, rather than after an evidentiary hearing, the
court need “only inquire into whether the
plaintiff's pleadings and affidavits make a prima facie
showing of personal jurisdiction.” Id.
(quotation marks omitted) (quoting Caruth v. Int'l
Psychoanalytical Ass'n, 59 F.3d 126, 128 (9th Cir.
1995)). Although a plaintiff may not rest solely on the bare
allegations of its complaint, uncontroverted allegations must
be taken as true. Id. In addition, conflicts between
the parties over statements in affidavits must be resolved in
the plaintiff's favor. Id. (citing Am. Tel.
& Tel. Co. v. Compagnie Bruxelles Lambert, 94 F.3d
586, 588 (9th Cir. 1996) and Bancroft & Masters, Inc.
v. Augusta Nat'l Inc., 223 F.3d 1082, 1087 (9th Cir.
2000)). Unless a federal statute governs personal
jurisdiction, a district court applies the law of the forum
state. See Boschetto v. Hansing, 539 F.3d 1011, 1015
(9th Cir. 2008) (citing Panavision Int'l L.P. v.
Toeppen, 141 F.3d 1316, 1320 (9th Cir. 1998)).
Oregon's long-arm statute is co-extensive with
constitutional standards. Gray & Co. v. Firstenberg
Mach. Co., 913 F.2d 758, 760 (9th Cir. 1990) (citing Or.
R. Civ. P. 4(L).
Amended Complaint, Plaintiffs refer to and attach numerous
documents. Although the Court must accept as true
well-pleaded allegations in the Amended Complaint, the Court
is “not required to accept as true conclusory
allegations which are contradicted by documents referred to
in the complaint.” Steckman v. Hart Brewing,
Inc., 143 F.3d 1293, 1295-96 (9th Cir. 1998).
about May 3, 2002, the Kinneys borrowed $96, 300 from
Defendant Freedom Mortgage Corporation dba Freedom Home
Mortgage Corporation (“Freedom”). This loan had
an adjustable rate. The Kinneys executed a Deed of Trust on
the Kinneys' real property located at 4406 N.
Mississippi, Portland, OR 97217 (the “Property”).
This 2002 Deed of Trust secured the promissory note on the
$96, 300 loan. The Deed of Trust listed Freedom as the
“Lender” and listed the “Lender” as
the beneficiary (thus, Freedom was the beneficiary). The
Trustee was Millard S. Rubenstein.
early 2004, when the adjustable rate increased, Plaintiffs
refinanced with Beneficial Oregon, Inc.
(“Beneficial”) and paid off the Freedom loan. A
Deed of Reconveyance, dated April 9, 2004 and recorded April
22, 2004, extinguished the 2002 Deed of Trust. This Deed of
Reconveyance contained a scrivener's error that stated
that the beneficiary of the 2002 Deed of Trust was MERS, even
though the 2002 Deed of Trust listed Freedom as the
beneficiary. The Deed of Reconveyance was signed by George P.
Fisher, as the Successor Trustee to Millard S. Rubenstein.
about March 12, 2004, the Kinneys executed a Deed of Trust
securing their new loan. The 2004 Deed of Trust was recorded
on March 17, 2004. It secured a loan in the amount of $126,
524.92. The beneficiary of this 2004 Trust Deed was
Beneficial and the Trustee was Regional Trustee Services. The
Kinneys also executed a Loan Repayment and Security Agreement
December 28, 2016, Beneficial sent the Kinneys a notice that
as of December 1, 2016, their loan had been transferred from
Beneficial to MTGLQ Investors, L.P. (“MTGLQ”).
This notice stated that MTGLQ was not the loan servicer and
that payments should continue to be sent to the loan
servicer, who continued to be Beneficial. An Assignment of
Deed of Trust executed on May 8, 2017, and recorded on May
11, 2017, purports to document the assignment. The assignment
is from Beneficial Financial 1, Inc. (“BF1”), as
successor through merger to Beneficial, to MTGLQ. This
assignment was signed by MTGLQ as
“attorney-in-fact” for BF1, by Ed Chavez, Vice
President of MTGLQ. At this point, it appears that the Note
was further indorsed, in blank, through an undated Allonge.
The Allonge was signed by Biff Rogers, Vice President of
MTGLQ, with MTGLQ serving as attorney-in-fact to BF1,
successor to Beneficial.
Kinneys then received notice in January 2017 that their loan
servicer was changed from Beneficial to Rushmore Loan
Management Services LLC (“Rushmore”). The Kinneys
received an Interim Payment Coupon instructing them that
Beneficial would stop receiving mortgage payments as of
February 1, 2017, and Rushmore would begin receiving payments
after that date. The Kinneys still had their December 31,
2016 statement from Beneficial describing that their payment
is due January 17, 2017 and providing a payment coupon to be
used to make that payment, payable to Beneficial. The loan
servicer change notice, however, explained that Beneficial
would not accept that January payment after February 1, 2017,
and provided an “interim” coupon to use to make
that January 2017 payment, payable to Rushmore.
7, 2017, the Kinneys, through Mr. Nietzche, sent a letter to
Rushmore requesting “validation” that Rushmore
had a “true claim to collect a debt” from the
Kinneys, and attached a 44-question “Debt Collector
Disclosure Statement” form. This form included a
statement that failure to complete and return the statement,
signed under penalty of perjury, constitutes “tacit
agreement that Debt Collector has no verifiable, Lawful, bona
fide claim regarding the hereinabove-referenced alleged
account, and that Debt Collector tacitly agrees that Debt
Collector waives all Claims against Respondent.” ECF
146-2 at 41. Rushmore responded on June 19, 2017 that it was
reviewing the correspondence, but that the owner of the loan
was “Loan Acquisition Trust 2017-RPL1.” On July
24, 2017, Rushmore responded to the Kinneys' June 7th
request. Rushmore provided copies of the Note, Deed of Trust,
Assignment, payment history, and most recent billing
statement. Rushmore declined to provide the other requested
information as confidential or irrelevant. This letter also
stated the Kinneys were seven payments in arrears.
22, 2017, Rushmore sent a notice to the Kinneys that their
loan had been sold on May 31, 2017, to U.S. Bank Trust
National Association (“U.S. Bank Trust”), not in
its individual capacity but solely as owner trustee for Loan
Acquisition Trust 2017-RPL1. MTGLQ's assignment to U.S.
Bank Trust, dated August 10, 2017, was recorded in Multnomah
County Records on November 16, 2017. This assignment was
signed by Patrick Couture, Vice President of MTGLQ.
February 22, 2018, the Kinneys received another notice that
their loan had been sold or transferred. This transfer was to
U.S. Bank Trust, not in its individual capacity but solely as
owner trustee of REO Trust 2017-RPLI. The assignment from
U.S. Bank Trust's “Loan Acquisition Trust
2017-RPL1” to “REO Trust 2017-RPL1” was
recorded in Multnomah County records on March 30, 2018. This
assignment was signed by Rushmore, as attorney-in-fact for
“Loan Acquisition Trust 2017-RPL1, ” by Jeannette
Kabayan, Vice President of Rushmore.
April 27, 2018, Mr. Nietzche returned the certificate of
compliance with Oregon's foreclosure avoidance program
form, enclosing an April 17, 2018 statement of Ms. Kinney
I, by affidavit am a declared living American sovereign
standing with Treaty Law of God do accept your offer for
value and for the following reasons I am returning your
offer, rejected, for discharge and closure:
1) You have brought United States corporate law with color
outside your jurisdiction and without an international treaty
within My republic State as you have no jurisdiction on the
land of Oregon;
2) You have falsely accused me of being a citizen of the
3) You are trespassing and criminally attempting to convert
corporate statutes with color into lawful criminal codes
without chartered regulatory and delegated jurisdictional
4) You are not registered or chartered for conducting
business in Oregon by My republic State and; 5) You failed to
state a lawful claim upon which relief can be granted.
ECF 146-2 at 55.
30, 2018, Clear Recon Corp. (“Clear Recon”) was
appointed as successor trustee of the 2004 Deed of Trust, and
this appointment was recorded on June 6, 2018 in the records
of Multnomah County.
6, 2018, Rushmore responded to the April 27, 2018
correspondence from the Kinneys. Rushmore noted that the
Uniform Commercial Code (“UCC”) does not apply to
the Kinneys' payments owed on their residential mortgage
loan and thus their attempted rescission or tender of
property was ineffective and rejected. Rushmore further noted
that the Kinneys owed on the mortgage for the January 2017
monthly payment. Rushmore noted that if the terms of the loan
are not complied with, Rushmore will pursue all options,
about June 10, 2018, Plaintiffs received a Debt Validation
Form from Clear Recon, setting forth the amount due on the
loan. On or about June 15, 2018, Defendant Barrister Support
Services (“Barrister”) posted a Trustee's
Notice of Sale on the Property. This notice stated that the
Kinneys were in default by failing to pay the monthly
payments from January 2017 through May 2018 (17 payments). It
provided the amount required to reinstate the loan ($19,
149.98) and to pay off the loan ($112, 338.63). The
foreclosure sale was scheduled for October 23, 2018. Clear
Recon recorded the Notice of Default and Election to Sell in
Multnomah County records on June 12, 2018.
10, 2018, Mr. Nietzche purported to serve a “Writ in
the Nature of Discovery and Disclosure” and a voided
copy of the Trustee's Notice of Sale on Rushmore. Mr.
Nietzche demanded certified and verified copies or inspection
of original loan related documents. Rushmore responded that
Mr. Nietzche was not authorized on the loan account. The
Kinneys then authorized Mr. Nietzche on their loan account.
August 17, 2018, Mr. Nietzche sent an “Affidavit of
Fact and Discovery: Writ of right” pursuant to
“UCC 1-202” to Clear Recon and Rushmore. Mr.
Nietzche asserted his “constitutional and contractual
rights to discovery.” He demanded documents and
information, including answers to questions such as
“what is your nationality” and “does the
word ‘Foreclosure' mean ‘Before the
closure?'” On August 22, 2018, Clear Recon
responded that it was treating the correspondence as
disputing a debt and noted that it was the foreclosure
trustee and not the loan servicer. Clear Recon provided
Rushmore's contact information. Clear Recon also attached
exhibits, including the Note (the 2004 Loan Repayment and
Security Agreement), the Allonge, the 2004 Deed of Trust, the
assignments of the Deed of Trust, and the appointment of the
also responded, on August 24, 2018, again providing copies of
the Note, Deed of Trust, Assignment, Allonge, payment
history, most recent billing statement, notice of sale,
ownership of the loan, notice of servicing transfer, and a
copy of the August 6, 2018 payoff notice.
September 10, 2018, Mr. Nietzche sent an “Affidavit of
Fact Notice of Default Judgment, ” by which he claimed
that because of Clear Recon and Rushmore's failure to
provide the requested discovery, “this notice of
default judgment is being submitted and all claims,
petitions, suits, filings with any third party corporations
regarding Our ancestral estate be dismissed and
expunged.” He quoted the U.S. Constitution, a case from
Alabama, a case from Illinois, and then asserted that Oregon
State courts, because they are not Article III courts, do not
have authority under the “Supreme Law of the
October 5, 2018, Mr. Nietzche sent a “Writ of
Right-Affidavit of Fact” to Rushmore, Clear Recon, and
U.S. Bank Trust. This document opened by stating:
“Praecipe for entry for adverse order, rebuttal and
estoppel.” The document purported to be a “a Lis
Pendens (Pending) revocation of signature by the rightful
beneficiar(ies) Mickey, Pharaoh; and Jewel, Empress of
Compassion, for the House KRME.” It stated it was a
good faith attempt to “clear up any misrepresentations
or confusion” regarding the dispute and stated that the
respondents had seven days before further action would be
October 18, 2018, Rushmore responded that it deemed Mr.
Nietzche's correspondence to be duplicative of previous
requests for which Rushmore had already provided responses
and documentation. Rushmore provided a copy of its earlier
responses and noted that it was now considering the matter
closed and intended to proceed with the foreclosure on
October 23, 2018.
nonjudicial foreclosure sale took place on October 23, 2018.
UHD purchased the Property. The Trustee's Deed was signed
on October 25, 2018, and recorded on November 6, 2018. The
Trustee's Deed named UHD as the recipient of all of the
Kinneys' right, title, and interest in the Property.
UHD's short-term financing company, Defendant Rain City
Capital of Oregon LLC (“Rain City”), was named on
the deed for security purposes only.
November 5, 2018, Plaintiffs filed their original complaint
in this case. On November 19, 2018, UHD filed a forcible
entry and unlawful detainer (“FED”) action in
December 26, 2018, Plaintiffs recorded a purported Quitclaim
Deed purporting to transfer the Property from the Kinneys to
Mr. Nietzche as Trustee of the KRME Trust for the
consideration of 21 silver dollars. This Quitclaim Deed was
titled “Quitclaim Deed Allodial Aboriginal Paramount
Clear Perfect Title of Conveyance/Transfer of Hereditaments
Corporeal and Incorporeal to Private Trust.” It was 12
pages and cited some canons of positive law, sections of the
U.N. Declaration on the Rights of Indigenous Peoples, and a
letter from George Washington. It was served on Defendants
MTGLQ, U.S. Bank Trust, Rushmore, MERS, UHD, Clear Recon, and
Barrister. It also was served on the Governor of Oregon, the
Oregon Attorney General, the Oregon Secretary of State, the
Mayor of the City of Portland, the Multnomah County Clerk,
the Multnomah County Sheriff's Office, the Archdiocese of
Portland, and the “SSKTR Chief Custodial
Minister” in Sweden.
Court first discusses certain claims, regardless of the
defendant against whom they are asserted. The Court then
discusses by defendant whether Plaintiffs state any of the
Dismissal of Certain Claims
their response brief, Plaintiffs “relinquished”
their claims for “confidence games” and under
Pennsylvania's Fair Credit Extension Uniformity Act.
These claims are dismissed with prejudice.
claims under 18 U.S.C. § 1091, the federal crime of
genocide, are dismissed with prejudice. There is no private
right of action under this criminal statute. See 18
U.S.C. § 1092 (noting that nothing “in this
chapter [shall] be construed as creating any substantive or
procedural right enforceable by law by any party in any
proceeding”); see also Clark v. United States,
2018 WL 1950427, *4 (E.D. Ky. April 25, 2018) (noting that 18
U.S.C. § 1091 “is a criminal statute which
[plaintiff] lacks standing to enforce”). Claims under
the United Nations Declaration on the Rights of Indigenous
Peoples are also dismissed with prejudice because it does not
create obligations binding in federal court that give rise to
a private right of action. See Van Hope-el v. United
States Dep't of State, 2019 WL 295774, at *3 n.2
(E.D. Cal. Jan. 23, 2019), aff'd sub nom. Hope-El v.
U.S. Dep't of State, 2019 WL 3941181 (9th Cir. June
26, 2019) (“Indeed, there is no private right of action
under declarations such as the United Nations Declaration on
the Rights of Indigenous Peoples and the American Declaration
of the Rights of Indigenous Peoples.” (citing cases)).
seek rescission under TILA. Plaintiffs allege that they sent
their rescission notice on October 5, 2018. Under TILA,
however, the “conditional right to rescind does not
last forever, ” and expires after three years
“[e]ven if a lender never makes the required
disclosures.” Jesinoski v. Countrywide Home Loans,
Inc., 574 U.S. 259, ---, 135 S.Ct. 790, 792 (2015)
(emphasis in original). “Equitable tolling does not
apply to rescission under this provision of TILA, because
‘§ 1635(f) completely extinguishes the right of
rescission at the end of the 3-year period,' even if the
lender has never made the required disclosures.”
Taylor v. Money Store, 42 Fed.Appx. 932, 933 (9th
Cir. 2002) (quoting Beach v. Ocwen Fed. Bank, 523
U.S. 410, 412-13, 419 (1998)). Thus, because Plaintiff's
conditional right to rescission expired in 2007 and there is
no equitable tolling, Plaintiff's TILA rescission claim
against all defendants is time-barred and is dismissed with
allege a claim under RICO, 18 U.S.C. § 1962, against all
Defendants. The facts alleged, however, relate only to
Freedom. Additionally, considering the complaint as a whole
and looking beyond Plaintiffs' RICO-specific allegations,
the conduct alleged by the other Defendants-servicing loans,
assigning loans, and foreclosing on a loan-are not predicate
acts that constitute the federal crimes of wire fraud, mail
fraud, bank fraud, or extortion under the circumstances of
this case. See Dost v. Nw. Tr. Servs., Inc., 2011 WL
6794028, at *11-13 (D. Or. Dec. 21, 2011) (describing each
crime and how businesses engaged in loan servicing and
foreclosure activities are not engaged in RICO predicate
acts). This claim is dismissed with prejudice against all
Defendants except Freedom. The claim against Freedom is
allege a claim for violations of the FDCPA against all
Defendants. The Supreme Court has clarified that persons who
engage in actions relating to nonjudicial foreclosure do not
qualify as debt collectors under the FDCPA, except for §
1692f(6), the provision that relates to conducting a
nonjudicial foreclosure without proper authority.
Obduskey v. McCarthy & Holthus LLP, 139 S.Ct.
1029, 1038 (2019) (noting that “but for §
1692f(6), those who engage in only nonjudicial foreclosure
proceedings are not debt collectors within the meaning of the
[FDCPA].”); see also Dowers v. Nationstar Mortg.,
LLC, 852 F.3d 964, 970 (9th Cir. 2017) (explaining that
“while the FDCPA regulates security interest
enforcement activity, it does so only through
Section 1692f(6), ” and that “[a]s for the
remaining FDCPA provisions, ‘debt collection'
refers only to the collection of a money debt”
(emphasis in original)). The Supreme Court has also held that
originating lenders who collect a debt owed to themselves and
those who purchase a loan and collect debt owed on that loan
are not debt collectors under the FDCPA. See, e.g.,
Henson v. Santander Consumer USA Inc., 137 S.Ct.
1718, 1721 (2017) (noting that “those who seek only to
collect for themselves loans they originated generally do
not” qualify as debt collectors and finding that even
those who purchase loans from another and then collect on
their own behalf do not qualify as debt collectors under the
FDCPA); Schlegel v. Wells Fargo Bank, NA, 720 F.3d
1204, 1208-09 (9th Cir. 2013) (same). Thus, Plaintiffs'
FDCPA claim is dismissed with prejudice against all
Defendants except Rushmore, Clear Recon, and U.S. Bank Trust.
The Court discusses below whether Plaintiffs plausibly state
a claim under § 1692f(6) against any of these entities.
Plaintiffs' claims under Oregon's UDCPA are similarly
dismissed. See Or. Rev. Stat. § 646.643
(establishing that a “debt collector who is . . . in
compliance with the requirements of the [FDCPA] shall also be
considered to be in compliance with the requirements of ORS
do not plausibly state a claim against MERS. MERS was not
listed as a beneficiary on any Trust Deed or assignment in
this case. The only mention of MERS is in the Deed of
Reconveyance, when the recitation of the terms of the 2002
Trust Deed erroneously stated that MERS was listed as the
beneficiary of the 2002 Trust Deed. Plaintiffs allege based
on that scrivener's error that someone must have assigned
the beneficial interest of the 2002 Trust Deed to MERS
sometime between 2002 and 2004 and that is why MERS is listed
in the Deed of Reconveyance as the beneficiary of the 2002
Trust Deed. The Deed of Reconveyance, however, is purporting
to recite the terms of the 2002 Trust Deed, as expressly
referenced by its recorded date and number in the Multnomah
County records, and that document lists Freedom as the
beneficiary. The Deed of Reconveyance states:
The undersigned, as successor Trustee under a Trust Deed
dated 05/03/02, executed by JULIE ANN METCALF KINNEY, WILLIAM
KINNEY JR as Trustor, in which MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS INC is named as Beneficiary, and MILLARD
S RUBENSTEIN as Trustee, Recorded on 06/17/02 as Instrument #
2002-106872 in Multnomah County, State of Oregon, State of
Oregon [sic], pursuant to a written request of the
Beneficiary thereunder, does hereby reconvey, without
warranty, to the person or persons entitled thereunto, the
trust property now held by him as successor Trustee under
said Trust Deed, which Trust Deed covers real property
situated in Multnomah County, State of Oregon.
ECF 146-2 at 24.
is simply no plausible interpretation of the documents
attached to the Amended Complaint that show that at any time
MERS was a beneficiary of the 2002 Trust Deed. The documents
also show that MERS has no connection to the 2004 Trust Deed.
Thus, all claims against MERS are dismissed with prejudice,
because amendment would be futile.