Nelson v. American Home Mortgage Servicing, Inc.
Filing
38
Opinion and Order: The Court GRANTS the Motion 5 to Dismiss of Homeward Residential, Inc., and Homeward's Request 8 for Judicial Notice and DISMISSES with prejudice this action against Homeward Residential, Inc. See attached 21 page Opinion and Order.Signed on 07/24/2013 by Judge Anna J. Brown. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
BRUCE R. NELSON,
3:13-CV-00306-BR
Plaintiff,
OPINION AND ORDER
v.
AMERICAN HOME MORTGAGE
SERVICING, INC. (aka AHMSI);
OPTION ONE MORTGAGE COMPANY;
and HSBC BANK USA
Defendants.
BRUCE R. NELSON
580 Riverview Drive N.W.
Salem, OR 97304
(206) 414-5971
Plaintiff, Pro Se
CODY M. WESTON
KRISTINA J. HOLM
Perkins Coie LLP
1120 N.W. Couch Street
Tenth Floor
Portland, OR 97209-4128
(503) 727-2000
Attorneys for Defendant American Home Mortgage
Servicing, Inc., now known as Homeward Residential,
Inc.
1 - OPINION AND ORDER
BROWN, Judge.
This matter comes before the Court on the Motion (#5) to
Dismiss of Defendant Homeward Residential, Inc., and Homeward's
Request (#8) for Judicial Notice.
Because the Court concludes
the record in this matter is sufficiently developed, the Court
concludes oral argument would not be helpful.
For the reasons that follow, the Court GRANTS Homeward's
Motion to Dismiss and Request for Judicial Notice.
BACKGROUND
The following facts are taken from Plaintiff Bruce Nelson's
First Amended Complaint and the documents referenced therein.
On May 26, 2006, Michael Nelson executed a Trust Deed as to
property located at 580 Riverview Drive N.W., Salem, Oregon.
The
Trust Deed named Michael Nelson as grantor, First American Title
Insurance Company as Trustee, and Defendant Option One Mortgage
as lender and beneficiary.
The Trust Deed was recorded in Polk County, Oregon, on
June 1, 2006.
Plaintiff alleged in his state complaint, and Defendant
Homeward Residential, Inc., does not dispute, that Option One
declared bankruptcy at some point in 2007.
Wilbur Ross & Company
purchased Option One and merged American Home Mortgage and Option
One into a new entity, American Home Mortgage Servicing, Inc.,
2 - OPINION AND ORDER
which is now known as Homeward Residential, Inc.
In February 2009 Michael Nelson passed away and Plaintiff
Bruce R. Nelson was appointed administrator of Michael Nelson's
estate.
Michael Nelson also left a will transferring to
Plaintiff the property located at 580 Riverview Drive N.W.,
Salem, Oregon.
On April 4, 2009, First American Title Insurance Company
executed an Appointment of Successor Trustee in which it
appointed Fidelity National Title Company as successor trustee of
the Trust Deed.
On April 4, 2009, Fidelity executed a Notice of Default and
Election to Sell against Plaintiff's property in which Fidelity
alleged a default of seven missed payments from October 1, 2008,
through April 4, 2009, on the mortgage loan and initiated a
nonjudicial foreclosure of Plaintiff's property.
On April 7, 2009, the Appointment of Successor Trustee and
the Notice of Default and Election to Sell were recorded in Polk
County.
On July 22, 2009, Fidelity recorded in Polk County a
Rescission of Notice of Default and a second Notice of Default
and Election to Sell.
The second Notice of Default reflected
four delinquent mortgage payments between April 2009 and July
2009.
On August 3, 2009, Plaintiff was appointed to act as the
3 - OPINION AND ORDER
personal representative of Michael Nelson through Letters
Testamentary filed in Polk County Circuit Court.
On November 3, 2009, Fidelity recorded in Polk County a
Rescission of Notice of Default and a third Notice of Default and
Election to Sell.
The third Notice of Default reflected seven
delinquent mortgage payments between January 2004 and October
2009.
On November 6, 2009, Plaintiff filed a complaint in Polk
County Circuit Court against Homeward and Option One.
Plaintiff,
however, never served summons on either Homeward or Option One.
On April 1, 2010, Fidelity sold Plaintiff's property to
Defendant HSBC Bank USA at a nonjudicial foreclosure sale.
On April 14, 2010, the Trustee Deed was recorded in Polk
County.
On December 11, 2012, Plaintiff filed a First Amended
Complaint in Polk County Circuit Court against Homeward, Option
One, and HSBC and brought claims against them for declaratory
relief; breach of contract; interference; tortious wrongful
foreclosure; and violation of the Truth in Lending Act (TILA), 15
U.S.C. § 1601, et seq.
Plaintiff sought a declaration that he is
"the sole owner of the property in question, in fee simple"; a
declaratory judgment voiding "any sale or transfer as a result of
Defendant's [sic] non-judicial sale"; and damages.
On January 22, 2013, Plaintiff served Homeward with his
4 - OPINION AND ORDER
first amended complaint.
Plaintiff has not served Option One
Mortgage or HSBC with the first amended complaint.
On February 20, 2013, Homeward timely removed the matter to
this Court on the basis of diversity jurisdiction.
After this
matter was removed, Plaintiff's counsel withdrew representation.
On February 27, 2013, Homeward filed a Motion to Dismiss
this matter on the ground that Plaintiff fails to state a claim
and also filed a Request for Judicial Notice.
The Court took
Homeward's Motion and Request under advisement on May 16, 2013.
HOMEWARD'S REQUEST FOR JUDICIAL NOTICE
Homeward requests the Court to take judicial notice of the
documents attached to the Declaration of Kristina Holm in Support
of Homeward's Motion to Dismiss pursuant to Federal Rule of
Evidence 201.
I.
Standards
Federal Rule of Evidence 201 allows the Court to take
judicial notice of facts that can be “accurately and readily
determined from sources whose accuracy cannot reasonably be
questioned.”
Fed. R. Evid. 201(b)(2).
The Court may take
judicial notice of documents that are matters of public record.
See MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir.
1986)(When determining whether a complaint fails to state a
claim, a district court may take “judicial notice of matters of
5 - OPINION AND ORDER
public record outside the pleadings.”).
II.
Analysis
The documents as to which Homeward requests the Court take
judicial notice are:
1.
The May 26, 2006, Trust Deed signed by
Michael Nelson;
2.
The April 4, 2009, Appointment of Successor
Trustee;
3.
The April 4, 2009, Notice of Default and
Election to Sell;
4.
The July 22, 2009, Rescission of Notice of
Default;
5.
The July 22, 2009, Notice of Default and
Election to Sell;
6.
The August 3, 2009, Letters Testamentary;
7.
The November 3, 2009, Rescission of Notice of
Default;
8.
The November 3, 2009, Notice of Default and
Election to Sell;
9.
An Affidavit of Mailing recorded in Polk
County on March 5, 2010;
10.
The January 4, 2010, Deed of the Personal
Representative signed by Plaintiff; and
6 - OPINION AND ORDER
11.
A February 24, 2010, Trust Deed for a Fixed
Rate Home Equity Conversion Line of Credit
signed by Plaintiff.
These documents are all matters of public record and
publicly available, and their accuracy is not reasonably subject
to debate.
In addition, numerous courts in this District have
taken judicial notice of these types of documents in actions
involving allegations of wrongful foreclosure.
See, e.g.,
Meza-Lopez v. Deutsche Bank Nat’l Trust Co., No. 3:11-CV00891-HU, 2012 WL 1081454, at *3 (D. Or. Feb. 13, 2012);
Robertson v. Wells Fargo Home Mortg., No. 10-CV-1110-BR, 2011 WL
5157772, at *2 (D. Or. Oct. 28, 2011).
Accordingly, the Court GRANTS Homeward's Request for
Judicial Notice and takes judicial notice of the documents
attached to Holm's Declaration.
HOMEWARD'S MOTION TO DISMISS
I.
Standards
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.” [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
7 - OPINION AND ORDER
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 court must
accept as true the allegations in the complaint and construe them
in favor of the plaintiff.
Intri-Plex Tech., Inc. v. Crest
Group, Inc., 499 F.3d 1048, 1050 n.2 (9th Cir. 2007).
"The court
need not accept as true, however, allegations that contradict
facts that may be judicially noticed by the court."
Shwarz v.
United States, 234 F.3d 428, 435 (9th Cir. 2000)(citations
omitted).
The court's reliance on judicially-noticed documents
does not convert a motion to dismiss into a summary-judgment
motion.
II.
Intri-Plex, 499 F.3d at 1052.
Analysis
As noted, Homeward moves to dismiss this matter on the
ground that Plaintiff fails to state a claim.
A.
Plaintiff's First and Second Claims
In his First Claim Plaintiff seeks a declaration that
he is the sole owner of the property "without any claim or
interest of the Defendants or their successors in interest" on
the ground that even though Plaintiff "made repeated requests to
see the original trust deed and mortgage documents," Homeward has
8 - OPINION AND ORDER
not provided Plaintiff with those original documents.
In his
Second Claim Plaintiff seeks a declaration that "any sale or
transfer as a result of Defendant's [sic] non-judicial sale" is
void on the ground that "Defendants have not proved, and cannot
prove, any actual interest in the property by original signatures
on a trust or mortgage deed."
Homeward moves to dismiss Plaintiff's First and Second
Claims on the grounds that (1) there is not any requirement under
Oregon law to show original documents before proceeding with a
nonjudicial foreclosure and (2) Plaintiff is not entitled to
these remedies because they would affect a bona fide purchaser of
the property.
1.
Original documents
Plaintiff seeks declarations that he is the sole
owner of the property and that the sale of the property is void
on the ground that Homeward has not produced the original trust
deed.
This Court, however, has held the Oregon Trust Deed Act
(OTDA), Oregon Revised Statute § 86.705, et seq., does not
require presentment of the original promissory note or trust deed
to proceed with a nonjudicial foreclosure sale.
Tabb v. OneWest
Bank (IndyMac), No. 10-CV-855-ST, 2010 WL 5684402, *5 (D. Or.
Nov. 1, 2010), adopted by 2011 WL 344593 (D. Or. Jan. 31, 2011)
("Oregon . . . does not require any party to a trustee's sale to
produce a physical copy of the original note.”).
9 - OPINION AND ORDER
Other courts in
this District have reached the same conclusion.
See, e.g., Glaab
v. Wells Fargo Home Mortg., Inc., No. 6:11–CV–06267–AA, 2012 WL
5304148, at *2 (D. Or. Oct. 23, 2012); Vettrus v. Bank of Am.,
N.A., No. 6:12–CV–00074–AA, 2012 WL 2905167, at *6 (D. Or.
July 13, 2012).
The Court, therefore, concludes Homeward's alleged
failure to produce the original note and Trust Deed is not a
sufficient basis to support Plaintiff's First and Second Claims.
2.
Bona fide purchaser
As noted, Fidelity sold the property at the
nonjudicial foreclosure sale to HSBC, a bona fide purchaser.
Plaintiff does not allege he did not receive the November 3,
2009, Notice of Default and Election to Sell recorded by
Fidelity.
Oregon Revised Statute § 86.770(1) provides:
If, under ORS 86.705 to 86.795, a trustee sells
property covered by a trust deed, the trustee's
sale forecloses and terminates the interest in the
property that belongs to a person to which notice
of the sale was given under ORS 86.740 and 86.750
or to a person that claims an interest by, through
or under the person to which notice was given. A
person whose interest the trustee's sale
foreclosed and terminated may not redeem the
property from the purchaser at the trustee's sale.
A failure to give notice to a person entitled to
notice does not affect the validity of the sale as
to persons that were notified.
The Court, therefore, concludes to the extent that HSBC
is a bona fide purchaser, the sale of the property may not be
rescinded.
10 - OPINION AND ORDER
Accordingly, the Court grants Homeward's Motion to Dismiss
Plaintiff's First and Second Claims.
Because there is not any
plausible basis on which Plaintiff could cure the defects in his
First and Second Claims, the Court dismisses those claims with
prejudice.
B.
Plaintiff's Third Claim
Plaintiff alleges in his Third Claim that he and
Homeward "entered into an agreement [at some point] to hold any
foreclosure or enforcement proceedings until [Homeward]
delivered" documents establishing "proof of any interest in the
property or the current status of any loans."
Plaintiff also
alleges "Defendants acted in concert, in an unlawful manner, to
the detriment of the Plaintiff; and the tort should apply by
theory of civil conspiracy pursuant to Granewich v. Harding, 150
Or. App. 34 (1997)."
Homeward asserts Plaintiff's Third Claim is barred by
Oregon's statute of frauds, Oregon Revised Statute § 41.580.
Homeward further asserts a claim for civil conspiracy does not
lie under the circumstances.
1.
Breach of contract
Under Oregon's statute of frauds several types of
agreements, including agreements for the sale of real property,
must be made in writing and be “subscribed by the party to be
charged.”
Or. Rev. Stat. § 41.580(1)(e).
11 - OPINION AND ORDER
Agreements subject to
the statute of frauds may be modified only by a written agreement
when the agreement as modified would also fall within the statute
of frauds.
See, e.g., Wash. Square, Inc. v. First Lady Beauty
Salons, Inc., 290 Or. 753, 761 (1981)(“A lease required by the
statute of frauds to be in writing may be modified only by an
agreement also in writing if the lease as modified would itself
be within the statute of frauds”).
The Trust Deed here is subject to the statute of
frauds.
Any alteration to the Trust Deed such as the alleged
agreement to "hold [off on conducting] any foreclosure or
enforcement proceedings" was also required to be in writing.
See, e.g., Rapacki v. Chase Home Fin. LLC, No. 3:11–CV–185–HZ,
2012 WL 1340119, at *8 (D. Or. Apr. 17, 2012)("[T]he [Trust Deed]
is an agreement regarding the sale of real property and thus was
required to be in writing.
The modification agreement changed
only the amount of the monthly payment, for only three months,
and did not alter the fact that the agreement still related to
the sale of real property.
Thus, because the [Trust Deed] as
modified would still come within the statute of frauds, the
modification had to be writing and be subscribed by the party to
be charged to be effective.
Accordingly, while the record,
interpreted in a light most favorable to plaintiff, shows that an
oral trial period modification agreement was reached on
August 24, 2009, it cannot bind Chase because the statute of
12 - OPINION AND ORDER
frauds requires that it be in writing and be signed by Chase.").
Plaintiff does not allege the agreement to "hold any foreclosure
or enforcement proceedings" was in writing.
Plaintiff,
therefore, has not stated a claim for breach of contract related
to the alleged agreement between Plaintiff and Homeward to stay
any foreclosure or enforcement proceedings.
2.
Civil conspiracy
Plaintiff alleges in his Third Claim that
Homeward's acts constitute the tort of civil conspiracy.
Oregon
courts permit parties to pursue a cause of action in tort as well
as under contract in limited circumstances:
When the relationship involved is between
contracting parties, and the gravamen of the
complaint is that one party caused damage to the
other by negligently performing its obligations
under the contract, then, and even though the
relationship between the parties arises out of the
contract, the injured party may bring a claim for
negligence if the other party is subject to a
standard of care independent of the terms of the
contract. If the plaintiff's claim is based
solely on a breach of a provision in the contract,
which itself spells out the party's obligation,
then the remedy normally will be only in contract,
with contract measures of damages and contract
statutes of limitation. That is so whether the
breach of contract was negligent, intentional, or
otherwise. In some situations, a party may be
able to rely on either a contract theory or a tort
theory or both. See Ashmun v. Nichols, 92 Or. at
234-35, 180 P. 510 (suggesting that a plaintiff
might be able to rely on both contract and tort
theories).
Georgetown Realty, Inc. v. The Home Ins. Co., 313 Or. 97, 106
(1992).
The relationship between a lender and a holder of a
13 - OPINION AND ORDER
trust deed and the grantor of a trust deed is strictly one of
contract.
It is an arm's-length transaction and not the "kind of
relationship [that] carries with it a standard of care that
exists independent of the contract and without reference to the
specific terms of the contract."
Id. at 110-11.
Thus,
Plaintiff's allegations related to breach of contract do not also
sound in tort.
Accordingly, the Court grants Homeward's Motion to
Dismiss Plaintiff's Third Claim.
Because there is not any
plausible basis on which Plaintiff could cure the defects in his
Third Claim, the Court dismisses that claim with prejudice.
C.
Plaintiff's Fourth Claim
In his Fourth Claim Plaintiff alleges Homeward breached
its contract when it "denied [Plaintiff] access to information
and documents necessary for Plaintiff to perform under the trust
deed and mortgage documents."
Plaintiff alleges Homeward
prevented Plaintiff from fulfilling his contract obligations by
"denying information on the payment schedule, loan, or validity
or existence of a trust deed and mortgage."
Homeward notes Plaintiff fails to allege the specific
information and/or documents that Homeward denied him access to
and does not identify the provisions in the Trust Deed that
Homeward allegedly violated when it failed to provide Plaintiff
with that unspecified information.
14 - OPINION AND ORDER
In addition, it is unclear
whether Plaintiff intends to assert that Homeward did not
establish the validity or existence of the Trust Deed when it
failed to provide Plaintiff with the original Trust Deed.
Such
an assertion, as noted, does not state a claim under Oregon law.
Even if Plaintiff specified the information that he
sought from Homeward and Homeward refused and/or failed to
provide it, Homeward asserts Plaintiff's claim must be dismissed
because Plaintiff cannot show that the terms of the contract had
been fully satisfied and that the contract had not been breached
at the time he sought the information.
In fact, the record
reflects Michael Nelson was in breach of the Trust Deed as early
as October 1, 2008, for failing to make the required mortgage
payments.
To establish a claim for breach of contract under
Oregon law, a “'plaintiff must allege the existence of a
contract, its relevant terms, plaintiff's full performance and
lack of breach and defendant's breach resulting in damage to
plaintiff.'”
Vettrus v. Bank of Am., N.A., No. 6:12–CV–00074–AA,
2012 WL 5462914, at *7 (D. Or. Nov. 6, 2012)(quoting Slover v.
Or. State Bd. of Clinical Soc. Workers, 144 Or. App. 565, 570–71
(1996)).
Michael Nelson contractually agreed to make monthly
mortgage payments as required under the Trust Deed.
Thus, when
Michael Nelson stopped making the requisite loan repayments in
October 2008, he materially breached the parties' contract.
15 - OPINION AND ORDER
See
Commerce Mortg. Co. v. Indus. Park Co., 101 Or. App. 345, 349,
791 P.2d 132 (1990)(“Whether a breach is material is ordinarily a
question of fact for the jury; however, the issue may be
determined as a matter of law" when, as here, “the uncontested
evidence is consistent only with the idea of a material
breach.”).
Michael Nelson failed to make the required payments
before Plaintiff inherited the property and, therefore, defaulted
on the Trust Deed.
Thus, Plaintiff cannot state a claim for
breach of contract because first Michael Nelson and then
Plaintiff were in breach of the contract at the time Homeward
allegedly breached the contract when it failed to provide
Plaintiff with the information that he requested.
See Vettrus,
2012 WL 5462914, at *7 ("[B]ecause plaintiff was already in
default when defendants initiated nonjudicial foreclosure of the
Property, he cannot state a claim for breach of contract.").
Homeward, therefore, was entitled to foreclose on the property
even before Plaintiff became involved in this matter.
Accordingly, the Court grants Homeward's Motion to
Dismiss Plaintiff's Fourth Claim.
Because there is not any
plausible basis on which Plaintiff could cure the defects in his
Fourth Claim, the Court dismisses that claim with prejudice.
D.
Plaintiff's Fifth Claim
In his Fifth Claim Plaintiff alleges Homeward's acts
16 - OPINION AND ORDER
constitute tortious wrongful foreclosure.
Plaintiff does not
point to, nor could this Court find, any case in which a court
recognized the tort of wrongful foreclosure in Oregon.
In fact,
in at least two cases in this district, the court concluded
Oregon does not recognize tortious wrongful foreclosure as a
cause of action under Oregon law:
Rapacki v. Chase Home Finance
LLC, 797 F. Supp. 2d 1085, 1092 (D. Or. 2011), and Meza-Lopez v.
Deutsche Bank Nat. Trust Co., No. 3:11–CV–00891–HU, 2012 WL
1081454, at *9 (D. Or. Feb. 13, 2012) adopted by 2012 WL 1079823,
at *1 (D. Or. Mar. 30, 2012).
The Court finds the reasoning in
Rapacki and Meza-Lopez to be persuasive and concludes Oregon does
not recognize the tort of wrongful foreclosure.
In addition, to the extent that Plaintiff intended to
allege a claim for tortious breach of the duty of good faith and
fair dealing by Homeward, Oregon recognizes such a claim only
when the parties to the contract are in a "special relationship."
Bennett v. Farmers Ins. Co., 332 Or. 138, 160 (2001).
See also
Confederated Tribes of Warm Springs Reservation of Or. v. Ambac
Assur. Corp., No. CV–10–130–KI, 2010 WL 4875657, at *3 (D. Or.
Nov. 17, 2010)(same).
"A special relationship exists [when] 'one
party has authorized the other to exercise independent judgment
on his or her behalf and, consequently, the party who owes the
duty has a special responsibility to administer, oversee, or
otherwise take care of certain affairs belonging to the other
17 - OPINION AND ORDER
party.'”
Id. (quoting Conway v. Pac. Univ., 324 Or. 231, 241
(1996)).
"Arms-length relationships between a bank and a
customer or between a borrower and a creditor do not support a
tortious breach of duty claim."
Rapacki, 2012 WL 1340119, at *3
(citing Uptown Heights Assocs. Ltd. P'Ship v. Seafirst Corp., 320
Or. 638, 648–50 (1995)).
Plaintiff, therefore, cannot establish
a claim for tortious breach of the duty of good faith and fair
dealing arising from Homeward's alleged acts.
Accordingly, the Court grants Homeward's Motion to
Dismiss Plaintiff's Fifth Claim.
Because there is not any
plausible basis on which Plaintiff could cure the defects in his
Fifth Claim, the Court dismisses that claim with prejudice.
E.
Plaintiff's Sixth Claim
In his Sixth Claim Plaintiff alleges Option One (and
its successor-in-interest Homeward) violated unspecified
provisions of TILA "in creating the alleged trust deed and
mortgage documents agreements, and in responding to inquiries of
the property owner."
Specifically, Plaintiff alleges Homeward
violated TILA when it did not serve "mandatory notices . . . on
the deceased Michael Nelson," made unspecified promises "to
induce the deceased's signature which were not honored," engaged
in unspecified predatory mortgage lending practices, and failed
18 - OPINION AND ORDER
to honor Plaintiff's attempt "to take advantage of the recession
provision of the TILA."
Homeward asserts Plaintiff's TILA claims are untimely.
Claims for damages under TILA must be brought within one year of
the alleged violation.
15 U.S.C. § 1640(e).
See also Cervantes
v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1045 (9th Cir.
2011).
As noted, Michael Nelson entered into the Trust Deed and
mortgage loan on May 26, 2006, and, therefore, the limitations
period for the portions of Plaintiff's TILA claim related to the
creation of the Trust Deed "and mortgage documents agreements,"
the promises allegedly made "to induce the deceased's signature,"
and the alleged predatory nature of the mortgage loan began to
run on that date.
Id.
Plaintiff, however, did not file an
action until December 9, 2009, and did not file his First Amended
Complaint and serve Homeward with the First Amended Complaint
until January 22, 2012.
Plaintiff's claim for damages under TILA
arising from the creation of the Trust Deed "and mortgage
documents agreements," the promises allegedly made "to induce the
deceased's signature," and the alleged predatory nature of the
mortgage loan are, therefore, untimely.
Claims for rescission
under TILA may be brought not more than "three years after the
date of consummation of the transaction."
19 - OPINION AND ORDER
15 U.S.C. § 1635(f).
Michael Nelson entered into the Trust Deed and mortgage loan
on May 26, 2006.
Plaintiff did not file any action until
December 9, 2009, and did not serve Homeward or any Defendant
until January 22, 2012.
Plaintiff's claim for rescission under
TILA, therefore, is also untimely.
Finally, under TILA a borrower may state a claim for
damages only against a creditor.
15 U.S.C. § 1640(a).
TILA
defines a creditor as one who "regularly extends . . . consumer
credit” and “is the person to whom the debt arising from the
consumer credit transaction is initially payable.”
§ 1602(g).
15 U.S.C.
Homeward, however, was not the original lender and,
therefore, is not the entity to which the debt was initially
payable.
See Moreno v. Bank of Am., N.A., No. 3:11–CV– 1265–HZ,
2012 WL 1462338, at *7 (D. Or. Apr. 27, 2012).
Thus, Plaintiff
may not bring a claim for damages against Homeward for violation
of TILA.
Accordingly, the Court grants Homeward's Motion to
Dismiss Plaintiff's Sixth Claim.
Because there is not any
plausible basis on which Plaintiff could cure the defects in his
Sixth Claim, the Court dismisses that claim with prejudice.
CONCLUSION
For these reasons, the Court GRANTS the Motion (#5) to
Dismiss of Homeward Residential, Inc., and Homeward's Request
20 - OPINION AND ORDER
(#8) for Judicial Notice and DISMISSES with prejudice this action
against Homeward Residential, Inc.
IT IS SO ORDERED.
DATED this 24th day of July, 2013.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
21 - OPINION AND ORDER
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