United States District Court, D. Oregon
GARY C. GOSHA, an individual; and KIT M. GOSHA, an individual, Plaintiffs,
BANK OF NEW YORK MELLON CORPORATION FKA THE BANK OF NEW YORK, as Trustee CWALT 2005-72, a Delaware Corporation; BAYVIEW LOAN SERVICING LLC, a Florida Corporation; and CLEAR RECON CORP, a California Corporation, Defendants.
C. Gosha Kit M. Gosha Pro Se Plaintiffs
J. Salmon ALDRIDGE PITE, LLP Attorney for Defendants
OPINION & ORDER
A. HERNÁNDEZ, UNITED STATES DISTRICT JUDGE
Plaintiffs Gary C. Gosha and Kit M. Gosha bring this action
against Defendants Bank of New York Mellon
(“BONYM”), Bayview Loan Servicing LLC
(“Bayview”), and Clear Recon Corp (“Clear
Recon”) for breach of contract, unfair trade practices
under Or. Rev. Stat. § (“ORS”) 646.608,
violations of the Fair Debt Collection Practices Act
(“FDCPA”), and violations of the Real Estate
Settlement Procedures Act (“RESPA”). Plaintiffs
also seek a declaratory judgment regarding: (1) the rights of
the parties under the Oregon Trust Deed Act, ORS 86.705; and
(2) Defendant BONYM's standing under the Note and Deed of
Trust. Defendants now move to dismiss this action under
Federal Rule of Civil Procedure 12(b)(6). The Court grants in
part and denies in part Defendants' motion.
fourteen years ago, Plaintiffs obtained an adjustable rate
loan to refinance their home in Tualatin, Oregon. Gosha
v. Bank of New York Mellon Corp., No. 3:16-CV-00073-BR,
2016 WL 7238927, at *1-2 (D. Or. Dec. 13, 2016),
aff'd, 707 Fed.Appx. 484 (9th Cir. 2017). In
September 2011, after their payments began to increase and
Plaintiffs sought assistance from their loan servicer,
Plaintiffs stopped making payments and defaulted on their
loan. Id.; Compl. ¶ 29, ECF 1.
years since, Defendants have attempted three times to
nonjudicially foreclose on Plaintiffs' home. Plaintiffs
filed their first action to stop the first nonjudicial
foreclosure in this Court on January 15, 2016. Compl. ¶
18; Compl., No. 3:16-CV-00073-BR, ECF 1. Ultimately, Judge
Brown dismissed that suit under Fed.R.Civ.P. 12(b)(6). Compl.
¶ 18; Gosha, 2016 WL 7238927. Defendants then
voluntarily rescinded the non-judicial foreclosure. Compl.
¶ 18. Defendants asserted that they rescinded the
foreclosure due to the expiration of the period to postpone
under the Oregon statute. Defs. Mot. Disburse 2-3, No.
3:16-CV-00073-BR, ECF 165.
14, 2018, Defendant Bayview-the loan servicer-invited
Plaintiffs to once again participate in the Oregon
Foreclosure Avoidance Program (“OFAP”). Compl.
¶ 25. During the OFAP, Defendant Bayview produced a copy
of the Note. Compl. ¶ 31. Plaintiffs allege that the
Note is not endorsed to any party or endorsed in blank, and
the lender identified is America's Wholesale Lender
(“AWL”). Compl. ¶¶ 32-34, Ex. C. In
addition, Defendant Bayview provided a Note payment history
and payoff quotes that included “additional charges,
” increasing the money demanded from the $320, 000 in
the initial loan to $536, 600. Compl. ¶ 35, Ex. A.
Plaintiffs, citing RESPA, subsequently sent Defendant Bayview
a “Qualified Written Request” for information
related to the additional charges and Defendant BONYM's
status as the beneficiary of the Deed of Trust. Compl. ¶
36, Ex. D. Defendant Bayview only responded to
Plaintiffs' request for “beneficiary info, ”
naming Defendant BONYM as the owner of the loan. Compl.
¶ 37, Ex. D.
suggest that Defendant Bayview engaged in “nefarious
behavior” during the OFAP conference. Plaintiffs note
that Defendant Bayview and the OFAP facilitator would not
reset the conference so that Plaintiffs could be represented
by counsel, “deliberately thwart[ing]” their
ability to discuss foreclosure avoidance. Compl. ¶ 43.
The OFAP conference “ended with an adverse result
for” Plaintiffs because Defendant Bayview was provided
with a certificate of compliance, which is required for them
to pursue the non-judicial foreclosure under Oregon law.
October 10, 2018, Defendant Clear Recon filed its second
Notice of Default in Washington County, Oregon. Compl. ¶
47, Ex. J. On October 29, 2018, Plaintiffs sent a dispute
letter to Defendant Clear Recon demanding that the
foreclosure be rescinded. Compl. ¶ 47. The next day,
Defendant Clear Recon rescinded the second notice of default
and acceleration of the debt. Compl. ¶ 48, Ex. K.
December 22, 2018, Plaintiffs were served with another
Trustee's Notice of Sale. Compl. ¶ 49 Ex. A. The
Notice indicates that the current beneficiary of the deed of
trust is Defendant BONYM and the trustee is Defendant Clear
Recon. Compl. Ex. A at 4-5. The Notice also reflects
delinquent payments by Plaintiffs beginning in September of
2011, with a total required to reinstate of $247, 892.26.
conjunction with their Complaint, Plaintiffs filed a Motion
for a Temporary Restraining Order (“TRO”) to
restrain Defendants from conducting a foreclosure sale of
Plaintiffs' home, which was scheduled for April 23, 2019.
Pls. Mot. TRO 2, ECF 2. The Court granted the Motion for a
TRO on April 15, 2019, Order, ECF 18, and, after a hearing on
the Motion for a Preliminary Injunction, the Court entered a
preliminary injunction staying the foreclosure on June 5,
2019, Op. & Order, ECF 35. Defendants have since
rescinded the third foreclosure. Pls. Req. Judicial Notice,
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) tests the sufficiency of the claims. Navarro v.
Block, 250 F.3d 729, 732 (9th Cir. 2001). “All
allegations of material fact are taken as true and construed
in the light most favorable to the nonmoving party.”
Am. Family Ass'n, Inc. v. City & Cnty. of
S.F., 277 F.3d 1114, 1120 (9th Cir. 2002). To survive a
motion to dismiss, a complaint “must contain sufficient
factual matter, accepted as true, to state a claim to relief
that is plausible on its face[, ]” meaning “the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal quotation
marks omitted). In other words, a complaint must contain
“well-pleaded facts” that “permit the court
to infer more than the mere possibility of
misconduct[.]” Id. at 679.
the court need not accept conclusory allegations as truthful.
See Warren v. Fox Family Worldwide, Inc., 328 F.3d
1136, 1139 (9th Cir. 2003) (“[W]e are not required to
accept as true conclusory allegations which are contradicted
by documents referred to in the complaint, and we do not
necessarily assume the truth of legal conclusions merely
because they are cast in the form of factual
allegations.”) (internal quotation marks, citation, and
alterations omitted). A motion to dismiss under Rule 12(b)(6)
will be granted if a plaintiff alleges the
“grounds” of his “entitlement to
relief” with nothing “more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action[.]” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). “Factual
allegations must be enough to raise a right to relief above
the speculative level on the assumption that all the
allegations in the complaint are true (even if doubtful in
fact)[.]” Id. (citations and footnote
must liberally construe pro se pleadings. Wolfe v.
Strankman, 392 F.3d 358, 362 (9th Cir. 2004).
Additionally, a court cannot dismiss a pro se complaint
without first explaining to the plaintiff the deficiencies of
the complaint and providing an opportunity to amend.
Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir.
1992). Dismissal of a pro se complaint without leave to amend
is proper only if it is clear that the deficiencies of the
complaint could not be cured by amendment. Lucas v.
Department of Corrections, 66 F.3d 245, 248 (9th Cir.
move to dismiss Plaintiffs' claims under Rule
12(b)(6). The Court addresses each claim and the
parties' respective arguments below.
Claims for ...