Sovereign et al v. Deutsche Bank et al
Filing
67
Opinion and Order. Court heard oral argument on the Motion 38 to Vacate Temporary Restraining Order by Defendants CitiMortgage (CM) and Mortgage Electronic Registration System (MERS). Court GRANTED sua sponte the Motion 63 to Dismiss by Defendant s Deutsche Bank and Mortgageit and dismissed Plaintiffs' claims against them for the reasons set out on the record and in the Court's Opinion and Order 42 issued on 11/15/2011. The Court directs Plaintiffs to file their response to Defend ants' Motion to Dismiss no later than 01/25/2012; Defendants' reply, if any, is due 02/06/2012. The Court extended the TRO until further order of this Court. See attached 7 page Opinion and Order for full text. Pro Se plaintiffs. Signed on 01/04/2012 by Judge Anna J. Brown. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
RICK L. SOVEREIGN and AMY J.
SOVEREIGN,
Plaintiffs,
3:11-CV-995-BR
OPINION AND ORDER
v.
DEUTSCHE BANK; MORTGAGEIT,
INC.; MORTGAGE ELECTRONIC
REGISTRATION SYSTEM, a
foreign corporation;
CITIMORTGAGE, INC., a foreign
corporation; and CAL-WESTERN
RECONVEYANCE, a foreign
corporation,
Defendants.
RICK L. SOVEREIGN AND AMY J. SOVEREIGN
401 Cherry Avenue
Oregon City, OR 97045
Plaintiffs, Pro Se
WILLIAM D. MINER, III
BLAKE J. ROBINSON
Davis Wright Tremaine, LLP
1300 S.W. Fifth Avenue, Suite 2300
Portland, OR 97201-5630
(503) 241-2300
Attorneys for Defendants Deutsche Bank and
Mortgageit, Inc.
1 - OPINION AND ORDER
LETA E. GORMAN
Jordan Schrader Ramis PC
Two Centerpointe Drive, Sixth Floor
Lake Oswego, OR 97035
(503) 598-7070
Attorneys for Defendants Mortgage Electronic
Registration System and CitiMortgage
TIMOTHY B. HERING
Dunn Carney Allen Higgins & Tongue, LLP
851 S.W. Sixth Avenue, Suite 1500
Portland, OR 97204-1357
(503) 224-6440
Attorneys for Defendant Cal-Western Reconveyance
Corporation
BROWN, Judge.
On January 4, 2012, the Court heard oral argument on the
Motion (#38) to Vacate Temporary Restraining Order by Defendants
CitiMortgage (CM) and Mortgage Electronic Registration System
(MERS).
The Court granted sua sponte the Motion (#63) to Dismiss
by Defendants Deutsche Bank and Mortgageit and dismissed
Plaintiffs’ claims against them for the reasons set out on the
record and in the Court’s Opinion and Order (#42) issued on
November 15, 2011.
At the hearing on Defendants’ Motion to Vacate the TRO,
Plaintiffs represented that they could not pay and, therefore,
did not intend to pay the $2,000 monthly security required by the
Court as a condition of maintaining the Temporary Restraining
Order (TRO) in its Order (#52) issued on December 12, 2011.
2 - OPINION AND ORDER
As
set out on the record, the Court has determined Plaintiffs’
intended failure to pay this security likely tips the Court’s
analysis of the equities in favor of Defendants in this matter
under this factor of the four-part test for determining whether
to grant (or to maintain) injunctive relief.
Nonetheless, the
Court must still weigh Plaintiffs’ likelihood of success on the
merits to determine whether it is appropriate to maintain the
TRO, an issue which is inextricably intertwined with the Court’s
resolution of the recently-filed Motion by Defendants CM and MERS
(#59) to Dismiss [Plaintiffs’ First Amended Complaint] for
Failure to State a Claim.
The Court, therefore, will consider
and resolve both Motions (#38, #59) simultaneously.
As set out
on the record, the Court directs Plaintiffs to file their
response to Defendants’ Motion to Dismiss no later than January
25, 2012.
Defendants’ reply, if any, is due no later than
February 6, 2012.
As noted during the January 4, 2012, hearing, Defendants’
Motion to Dismiss challenges Plaintiffs’ First Amended Complaint
(#55) and attachments for failure to state a claim under Federal
Rule of Civil Procedure 12.
The standards that govern this
Court’s review of the sufficiency of Plaintiffs’ Amended
Complaint are as follows:
To survive a motion to dismiss, a complaint
must contain sufficient factual matter,
accepted as true, to “state a claim to relief
3 - OPINION AND ORDER
that is plausible on its face.” [Bell
Atlantic v. Twombly, 550 U.S. 554,] 570, 127
S. Ct. 1955. 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. Id. at 556. . . .
The plausibility standard is not akin to a
“probability requirement,” but it asks for
more than a sheer possibility that a
defendant has acted unlawfully. Ibid. Where
a complaint pleads facts that are “merely
consistent with” a defendant's liability, it
“stops short of the line between possibility
and plausibility of ‘entitlement to relief.’”
Id. at 557, 127 S. Ct. 1955 (brackets
omitted).
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).
See also Bell
Atlantic v. Twombly, 550 U.S. 554, 555-56 (2007).
The Supreme Court further clarified in Iqbal the
requirements for a pleading to survive a motion to dismiss:
As the Court held in Twombly, 550 U.S. 544,
127 S. Ct. 1955, 167 L. Ed. 2d 929, the
pleading standard Rule 8 announces does not
require “detailed factual allegations,” but
it demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation.
Id., at 555, 127 S. Ct. 1955 (citing Papasan
v. Allain, 478 U.S. 265, 286, 106 S. Ct.
2932, 92 L. Ed. 2d 209 (1986)). A pleading
that offers “labels and conclusions” or “a
formulaic recitation of the elements of a
cause of action will not do.” 550 U.S., at
555, 127 S. Ct. 1955. Nor does a complaint
suffice if it tenders “naked assertion[s]”
devoid of “further factual enhancement.”
Id., at 557, 127 S. Ct. 1955.
129 S. Ct. at 1949-50.
"[A] complaint may survive a motion to dismiss only if,
taking all well-pleaded factual allegations as true, it contains
4 - OPINION AND ORDER
enough facts to 'state a claim to relief that is plausible on its
face.'”
Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir.
2010)(quoting Iqbal, 129 S. Ct. at 1949 (2009), and Twombly, 550
U.S. at 570).
A pro se plaintiff's complaint “must be held to
less stringent standards than formal pleadings drafted by
lawyers.”
curiam).
Erickson v. Pardus, 551 U.S. 89, 94 (2007)(per
Thus, the court must construe pro se filings liberally.
If a plaintiff fails to state a claim, “[l]eave to amend should
be granted unless the pleading ‘could not possibly be cured by
the allegation of other facts,’ and should be granted more
liberally to pro se plaintiffs.”
Ramirez v. Galaza, 334 F.3d
850, 861 (9th Cir. 2003)(quoting Lopez v. Smith, 203 F.3d 1122,
1130 (9th Cir. 2000)).
As noted during the January 4, 2012,
hearing, Plaintiffs have already been given leave to amend their
Complaint, and the pending Motion to Dismiss is against their
Amended Complaint.
The Court notes Defendants’ Motion to Dismiss is supported
by the Declaration of Leta E. Gorman and an attached exhibit that
does not appear to add any facts to those set out in or referred
to in attachments to Plaintiff’ Complaint.
If Plaintiffs
determine Defendants have, in fact, added new factual material to
the record with their Motion to Dismiss, Plaintiffs may submit
additional evidence in their response to Defendants’ Motion to
rebut that new matter as the Court directed at oral argument.
5 - OPINION AND ORDER
As the Court explained to Plaintiff Rick Sovereign at the
hearing, the Court’s task in resolving Defendants’ Motion to
Dismiss is to determine whether Plaintiffs have stated a
plausible claim for relief.
Because Plaintiff’ only potential
claim in this matter is one for “declaratory judgment,”
Plaintiffs must be able to show in their response to Defendants’
Motion that they have stated a legal basis for relief that
satisfies the “case-or-controversy” requirement for this Court’s
jurisdiction over an action for declaratory relief.
Order (#42) issued November 15, 2011, at 7-9.
See Opin. &
Plaintiffs’
factual allegations concerning their suspicions about
transactions involving their mortgage between its origination and
the issuance of the Notice of Default and Election to Sell are
alone insufficient to state a legal basis for such relief.
As
noted, Plaintiffs must provide some basis in law that, when
considered in light of their factual allegations, shows
Plaintiffs have a legal “justiciable” dispute with Defendants
that the Court has authority to resolve by declaration.
As
explained at oral argument, Defendants do not bear any burden of
proof at this stage of the proceedings.
Furthermore, as
explained by Magistrate Judge Paul Papak in Stewart v. Mortgage
Electronic Registration Systems, the Oregon Trust Deed Act (under
which Plaintiffs proceed here) “does not require presentment of
the Note or any other proof of ‘real party in interest’ or
6 - OPINION AND ORDER
‘standing,’ other than the Deed of Trust.”
No. 09-CV-687-PK,
2010 WL 1055131, at *12 (D. Or. Feb. 9, 2010).
Accordingly, the Court hereby extends the TRO already in
effect in this matter until a further order of this Court that
resolves both Defendants’ Motion to Vacate (#38) and Motion to
Dismiss (#59) in accordance with the schedule set out herein.
IT IS SO ORDERED.
DATED this 4th day of January, 2012.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
7 - OPINION AND ORDER
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