United States District Court, D. Oregon, Portland Division
A. Cochran Pacific Property Law LLC Attorney for Plaintiff
J. Elkanich Nellie Q. Barnard Holland & Knight LLP
Attorneys for Defendants
OPINION & ORDER
A. HERNÁNDEZ UNITED STATES DISTRICT JUDGE
Gurcharan Singh brings seven claims for relief against
Defendants Shellpoint Mortgage Servicing and MTGLQ Investors,
L.P. These claims include: (1) a request for declaratory
judgment, (2) unjust enrichment and fraud, (3) violations of
the Fair Debt Collection Practices Act, (4) conversion, (5)
breach of good faith and duties of care, (6) violation of the
Equal Credit Opportunity Act and Fair Housing Act, and (7)
misrepresentation. Before the Court is Defendants' motion
to dismiss Plaintiff's amended complaint for failing to
state a claim upon which relief may be granted. For the
reasons that follow, Defendants' motion is GRANTED.
19, 2001, Plaintiff executed a residential Deed of Trust for
the property located at 14599 NE Brazee Court in Portland,
Oregon, and secured a Note in the amount of $160, 000. Am.
Compl. ¶ 1; Mot. Judicial Notice, Ex. B. In June 2017,
Plaintiff was promised a favorable loan modification on that
Note. Id. In return, Plaintiff paid
“approximately $125, 413 to make the loan current/not
in default status.” Id. Instead of receiving a
loan modification, however, Plaintiff was told he needed to
pay an additional $4, 816.24 “to make the loan
current.” Id. Plaintiff paid the additional
$4, 816.24, but still did not receive a loan modification.
Id. After repeated calls to Defendants'
representative, who initially promised to investigate the
matter, Plaintiff was eventually told that the representative
“could not help in any way” and “Plaintiff
would have to simply find another bank for a better
loan.” Id. ¶ 2. When Plaintiff protested,
the representative “replied that people in India sleep
in the streets so what are you complaining about.”
it is unclear to the Court when or if Defendants threatened
or initiated foreclosure proceedings, Plaintiff does allege
that “the lender” repeatedly called him for
“payment and collection” but “would not
supply any documentation or validate that amount was proper
or legitimate.” Id. ¶ 4.
motion to dismiss for failure to state a claim 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 all material facts alleged in the complaint
as true and construe them in the light most favorable to the
plaintiff. Wilson v. Hewlett-Packard Co., 668 F.3d
1136, 1140 (9th Cir. 2012). However, the court need not
accept conclusory allegations as truthful. Holden v.
Hagopian, 978 F.2d 1115, 1121 (9th Cir. 1992).
motion to dismiss under Rule 12(b)(6) will be granted if
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 Atlantic
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
survive a motion to dismiss, the 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 omitted). Additionally, “only a
complaint that states a plausible claim for relief survives a
motion to dismiss.” Id. The complaint must
contain “well-pleaded facts” which “permit
the court to infer more than the mere possibility of
misconduct.” Id. at 679.
move (1) for judicial notice, (2) to strike factual
allegations raised in Plaintiff's response to the motion
to dismiss that do not appear in the amended complaint, and
(3) to dismiss the amended complaint for failing to state a
move for judicial notice of the following records:
A. A Deed of Trust dated July 19, 2001 and recorded in
Multnomah County land records under record number 2001-112853
on July 23, 2001;
B. The Note executed by Plaintiff on or about July 19, 2001;
C. A copy of the June 6, 2012 Corporate Assignment of Deed of
Trust recorded in Multnomah County land records on or about
August 3, 2012 under record number 2012-094962;
D. A copy of the December 15, 2014 Oregon Assignment of Deed
of Trust recorded in Multnomah County land records on or
about June 4, 2015 under record number 2015-066295; and
E. A copy of the June 16, 2016 Assignment of Deed of Trust
recorded in Multnomah County land records on or about June
29, 2016 under record number 2016-079490.
Mot. Judicial Notice Exs. A-E. Plaintiff does not respond to
Rule of Evidence 201 governs judicial notice of adjudicative
facts. A judicially noticed fact must be one not subject to
reasonable dispute in that it is either (1) generally known
within the territorial jurisdiction of the trial court or (2)
capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned.
Fed.R.Evid. 201(b). The court must take judicial notice if
requested by a party and supplied with the necessary
information. Fed.R.Evid. 201(c), (d).
may take judicial notice of public records. Santa Monica
Food not Bombs v. City of Santa Monica, 450
F.3d 1022, 1025 n.2 (9th Cir. 2006). In particular,
“documents in county land records are properly subject
to judicial notice.” Durham v. Bank of New York
Mellon, Civ. No. 12-273 PA, 2012 WL 2529188, at *1 (D.
Or. June 28, 2012). A court may also take judicial notice of
documents referenced in the complaint. Elizabeth Retail
Properties LLC v. KeyBank Nat. Ass'n, 83 F.Supp.3d
972, 984 (D. Or. 2015). More specifically, a court may
“consider documents in situations where the complaint
necessarily relies upon a document or the contents of the
document are alleged in a complaint, the document's
authenticity is not in question and there are no disputed
issues as to the document's relevance.” Coto
Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir.
2010). A court's decision to take judicial notice of
documents that are matters of public record does not convert
a motion to dismiss into a motion for summary judgment.
See, e.g., Zucco Partners, LLC v. Digimarc
Corp., 553 F.3d 981, 989 (9th Cir. 2009) (court may
consider judicially noticed documents on Rule 12(b)(6)
motion); MGIC Indem. Corp. v. Weisman, 803 F.2d 500,
504 (9th Cir. 1986) (district court, when determining whether
complaint fails to state a claim, may take “judicial
notice of matters of public record outside the
exhibits A and B-the Deed of Trust and Note-are explicitly
referenced and relied on in the amended complaint. Exhibits
A, C, D, and E were recorded in the Multnomah County land
records. Plaintiff raises no objections to these exhibits.
Thus, the Court takes judicial notice of each requested
Motion to Strike
a general rule, ‘a district court may not consider any
material beyond the pleadings in ruling on a Rule 12(b)(6)
motion.'” Lee v. City of Los Angeles, 250
F.3d 668, 688 (9th Cir. 2001) (quoting Branch v.
Tunnell, 14 F.3d 449, 453 (9th Cir. 1994)). The
Court's decision to grant Defendants' motion for
judicial notice does not convert Defendants' motion to
dismiss into a motion for summary judgment. See
Id. The Court therefore strikes all facts raised in
Plaintiff's response to Defendants' motion to dismiss
which are not alleged in the underlying complaint.
Failure to State a Claim
Claim 1: Declaratory Judgment
Declaratory Judgment Act authorizes a district court to
declare the rights and other legal relations of parties in
cases of “actual controversy within its
jurisdiction.” 28 U.S.C. § 2201(a). “A
declaratory judgment offers a means by which rights and
obligations may be adjudicated in cases ‘brought by any
interested party' involving an actual controversy that
has not reached a stage at which either party may seek a
coercive remedy and in cases where a party who could sue for
coercive relief has not yet done so.” Seattle v.
Audubon Soc. v. Moseley, 80 F.3d 1401, 1405 (9th Cir.
1996) (citing 28 U.S.C. § 2201; 10A Wright & Miller,
Federal Practice and Procedure, § 2751).
“separate declaratory relief claim should not be used .
. . to determine identical issues subsumed within other
claims.” Jensen v. Quality Loan Serv. Corp.,
702 F.Supp.2d 1183, 1189 (E.D. Cal. 2010) (finding that the
“resolution of [the plaintiff's] quiet title claim
will necessarily determine ‘who owns [the
plaintiff's] Subject property'” making the
declaratory relief claim “entirely duplicative”
of the plaintiff's other claims); see also Camillo v.
Wash. Mut. Bank, F.A., No. 1:09-CV-1548 AWI SMS, 2009 WL
3614793, at *13 (E.D. Cal. Oct. 27, 2009) (dismissing
declaratory relief claim as redundant where there was no
reason to believe it would “resolve any issues aside
from those already addressed by the substantive claims”
in the case) (internal quotation marks omitted). “[T]he
requirements of pleading and practice in actions for
declaratory relief are exactly the same as in other civil
actions.” Kam-Ko Bio-Pharm Trading Co.
Ltd-Australia v. Mayne Pharma (USA) Inc., 560 F.3d 935,
943 (9th Cir. 2009) (citation omitted).
while the claim titled “Declaratory Judgment -
Standing” references various forms of relief,
Court identifies a single request for a declaration of
rights: “Plaintiff requests a declaratory judgment as
to the lawful holder of the Note and the ...