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Nietzche v. Freedom Home Mortgage Corp.

United States District Court, D. Oregon

October 8, 2019

WILLIAM X. NIETZCHE, et al., Plaintiffs,



         Plaintiffs William Kinney, Jr.[1] and Julie Ann Metcalf Kinney[2] (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”), [3] 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 matter.”

         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 numerous defendants.

         Plaintiffs 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”;[4] (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;[5] (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.

         Many 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.


         A. Motion to Dismiss Under Rule 12(b)(6)

         A 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).

         A 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)).

         Pro 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).

         B. Motion to Dismiss Under Rule 12(b)(2)

         In a 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).


         In the 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).

         On or 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.

         In 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.

         On or 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 (the “Note”).

         On 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.

         The 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.

         On June 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.

         On June 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.

         On 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.

         On 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 that stated:

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 UNITED STATES;
3) You are trespassing and criminally attempting to convert corporate statutes with color into lawful criminal codes without chartered regulatory and delegated jurisdictional authority;
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.

         On May 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.

         On June 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, including foreclosure.

         On or 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.

         On July 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.

         On 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 successor Trustee.

         Rushmore 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.

         On 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 Land.”

         On 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 taken.

         On 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.

         The 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.

         On 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 state court.

         On 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.


         The 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 remaining claims.

         A. Dismissal of Certain Claims

         In 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.

         Plaintiffs' 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)).

         Plaintiffs 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 prejudice.

         Plaintiffs 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 discussed below.

         Plaintiffs 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 646.639”).

         B. Defendant MERS

         Plaintiffs 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.

         There 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.[6]

         C. ...

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