Nedelku et al v. Wells Fargo Bank, N.A.

Filing 63

ORDER: Granting 12 Motion to Dismiss. This action is dismissed with prejudice. Signed on 7/19/2013 by Judge Owen M. Panner. (dkj)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PAVEL NEDELKU and LYUDMILA
NEDELKU

3:12-cv-651-PA
ORDER

Plaintiffs,
v.

WELLS FARGO BANK, N.A.,
NORTHWEST TRUSTEE SERVICES,
INC. and FEDERAL NATIONAL
MORTGAGE ASSOCIATION,
Defendants.
PANNER,

J.

Defendants move to dismiss this action challenging a
completed non-j udicia'l foreclosure sale. Defendants motion ( #12)
is GRANTED. This action is dismissed, with prejudice.
Background

Plaintiffs admit obtaining a loan from defendant Wells
Fargo, secured by a deed of trust, to purchase the real property
at issue.

(Compl. 'll 5.) Plaintiffs allege Wells Fargo transferred

its beneficial interest in the note and deed of trust, and that
the assignments were not recorded in the county land records. Id.
Plaintiffs admit defendants sold the property at a non-judicial

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foreclosure sale, but argue the trustee lacked authority to
conduct the sale due to a failure to record all assignments, and
a failure to record the appointment of a successor trustee. Id.
at

~

8: Plaintiffs filed this complaint five months after the

trustee's sale. Plaintiffs seek a declaration that the sale was
improper.
At oral argument, plaintiffs admitted to: signing the loan
documents; receiving the funds; being in default on the
obligation at the time of the sale; and having prior notice of
the sale.
Standard

On a motion to dismiss, the court must review the
sufficiency of the complaint. Scheuer v. Rhodes,

416 U.S. 232,

236 (1974). To survive a motion to dismiss under Rule 12(b) (6), a
complaint must contain sufficient facts that "state a claim to
relief that is plausible on its face." Ashcroft v. Iqbal, 129
S.Ct. 1937, 1949 (2009). This plausibility standard requires the
pleader to present facts that demonstrate "more than a sheer
possibility" that defendant is liable for the alleged misconduct.
Id.
In considering a motion to dismiss, a court must distinguish
between the factual allegations and legal conclusions asserted in
the complaint. Id. All allegations of material fact are taken as
true and construed in the light most favorable to the nonmoving
party.

American Family Ass'n,

Inc. v. City & County of San

Frncisco, 277 F.3d 1114, 1120 (9th Cir. 2002). At the pleadings
stage,

"a plaintiff's obligation to provid~ the 'grounds' of his

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'entitle[ment] to relief' requires more than labels and
conclusions." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). Therefore, if the well-pleaded factual allegations
plausibly give rise to the relief sought, a court shall deny the
motion to dismiss. Iqbal, 129 S.Ct. at 1950.
Discussion

As noted, plaintiffs only challenge the fact that defendants
a·l·:legedly failed to record ( 1) all assignments of the deed of
trust, and (2) the appointment of a successor trustee. Plaintiffs
admit being in default at the time of the sale, and to receiving
notice of the sale. Plaintiff filed this action five months after
the trustee's sale and the recording of the trustee's deed.
After briefings were filed in this case, I issued an opinion
in a case involving similar issues. See Mikityuk v. Northwest Tr.
Servs., Inc., 2013 WL 3388536 (D. Or.). There, plaintiffs waited
nineteen months after the sale before filing the complaint. Id.
at *1. After examining both ORS 86.770(1), which states the
trustee's sale "forecloses and terminates" one's property
interest in certain scenarios, and the dual objectives of the
Oregon Trust Deed Act,

I concluded:

The legislature provided notice and reinstatement
provisions to protect grantors against the threat of
wrongful foreclosure. [Staffordshire Investments, Inc.,
v. Cal-Western Reconveyance Corp., 209 Or. App. 528,
542 (2006) .] Voiding the sale here would encourage
grantors who receive notice of a sale to sit on their
rights, rather than compelling grantors to bring presale challenges to a trustee's sale. Grantors are wise
to raise any challenges to non-judicial foreclosure
proceedings~ including challenges based on ORS 86.735,
before the statutory presumption of finality contained
in ORS 86.780. Post-sale challenges run the risk of
being barred, as is the case here, because the
grantors' interest in the property was "foreclosed and
terminated" pursuant to ORS 86.770(1).
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Mikityuk, 2013 WL 3388536 at *10.
Like the plaintiffs in Mikityuk, plaintiffs' challenges to
the non-judicial foreclosure sale here are barred. As plaintiffs
received advance notice of the sale, their interest in the
property was "foreclosed and terminated." ORS 86.770(1).
Therefore, for the reasons discussed in Mikityuk, this action is
dismissed, with prejudice.
Conclusion

Defendant's motion to dismiss

(#12) is GRANTED. This action

is dismissed, with prejudice.
IT IS SO ORDERED.

DATED this

/5(

day of July, 2013.

~R£V7~
Owen M. Panner
United States District Judge

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