Lind v. Fidelity National Title Insurance Company et al

Filing 41

ORDER: Defendant Deutsche Bank's Motion for Joinder 39 is GRANTED. Defendants' Motion for Partial Summary Judgment 33 on the issue of surplus proceeds is GRANTED. Defendant Deutsche Bank's Motion to Dismiss 25 is GRANTED. This case is DISMISSED with leave to file an amended complaint within 30 days of the date of this Order. All other pending motions are DENIED as moot. Signed on 5/30/2014 by Judge Owen M. Panner. (dkj)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION

DAWN LIND,
Plaintiff,

3:13-cv-2200-PA
ORDER

v.

FIDELITY NATIONAL TITLE
INSURANCE COMPANY;
DEUTSCHE BANK NATIONAL
TRUST COMPANY, as trustee
for American Home Mortgage
Assets Trust 2006-6,.
Mortgage-Backed Pass-Through
Certificates Series 2006-6,
Defendants.

P.ANNER,

J.

This matter comes before the Court on Defendant Deutsche
Bank's Motion to Dismiss

(#25) and Motion for 0oinder (#39) and

Defendant Fidelity's Motion for Partial Summary Judgment
Those Motions are GRANTED.
1

- ORDER

(#33).

All other pending motions are DENIED

as moot.
Background

Plaintiff took out a loan to purchase the property at issue
on January 30, 2006.
Trust.

The loan was secured by a Note and Deed of

Plaintiff defaulted on her loan and the property was sold

at a non-judicial foreclosure sale on December 17, 2010.

The

Trustee's Deed indicates that the property was sold for
$2,590,000, an amount far in excess of the balance of her loan.
Legal Standards

I. Motion to Dismiss
Where the plaintiff "fail[s] to state a claim upon which
relief can

b~

granted," the court must dismiss the

R. Civ. P. 12 (b) (6).

~ction.

Fed.

To survive a motion to dismiss, the

complaint must allege "enough facts to state a claim to relief
that is plausible on its face."

Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 570 (2007). For the purpose of the motion to
dismiss, the complaint is liberally construed in favor of the
plaintiff and its allegations are taken as true.
Walters, 719 F.2d 1422, 1424

(9th Cir. 1983).

Rosen v.

However, bare

assertions that amount to nothing more than a "formulaic
recitation of the elements" of a claim "are conclusory and not
entitled to be assumed true."
680-81 (2009).

Ashcroft v. Iqbal, 556 U.S. 662,

Rather,' to state a plausible claim for relief,

the complaint "must contain sufficient allegations of underlying
facts" to support its legal conclusions.
1202, 1216, reh'g en bane denied,
2

- ORDER

Starr v. Baca, 652 F.3d

659 F.3d 850

(9th Cir. 2011).

II. Motion for Summary Judgment

Summary judgment is appropriate "if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law." Fed. R. Civ.
P. 56(a). Whether or not a fact is material is determined by the
substantive law on the issue. T.W. Elec. Serv., Inc. v. Pacific
Elec. Contractors Ass'n, 809 F.2d 626,

630

(9th Cir. 1987). There

is a genuine dispute if the evidence is such that a reasonable
jury would return a verdict for the nonmoving party. Anderson v.
Liberty Lobby,

Inc.,

477 U.S. 242, 248-49 (1986). The moving

party has the burden of establishing the absence of a genuine
issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986).
Special rules of construction apply to evaluating summary
judgment motions:

(1) all reasonable doubts as to the existence

of genuine issues of material facts should be resolved against
the moving party; and (2) all inferences must be drawn in the
light most favorable to the nonmoving party. T.W. Elec., 809 F.2d
at 630-31.
Discussion

Defendant Deustche Bank has moved to dismiss all of
Plaintiff's claims not related to the alleged surplus.

Defendant

Fidelity has filed a motion-for partial summary judgment on
Plaintiff's surplus claim.
I. Motion for Partial Summary Judgment

As a preliminary matter, Deutsche Bank moves to join
3

- ORDER

Fidelity in their motion for partial summary judgment.

The

motion is GRANTED.
ORS 86.794 governs the distribution of the proceeds of a
trustee's sale.

The proceeds go first to satisfy the expenses of
"·

the sale, next to the obligation secured by the trust deed, then
to the junior lienholders, and finally "[t]he surplus, if any, to
the grantor of the trust deed."

ORS 86.794.

The balance of Plaintiff's loan was approximately $300,000.
The Trustee's Deed in this case indicates that the property was
sold for $2,590,000.

Defendants have produced evidence that the

figure on the Trustee's Deed was the result of a typographical
error and that the property actually sold for $259,000.

As this

sum is less than the outstanding balance of the loan, no surplus
exists.

Plaintiff has not responded and the time for doing so

has passed.
In light of the evidence,

I conclude that no genuine issue

of material fact remains with respect to the issue of the alleged
surplus.

It is clear that the property was sold for $259,000 and

that no surplus exists.

Accordingly, Defendants' Motion for

Partial Summary Judgment is GRANTED.
II. Motion to Dismiss
In addition to the claim for the surplus, Plaintiff's Second
Amended Complaint allege's violations of the Real Estate
Settlement Procedures Acts (RESPA) and the Federal Truth in
Lending Act

(TILA), 15 U.S.C.

for wrongful foreclosure.
4

- ORDER

§

1601 et seq., as well as a claim

Deutsche Bank has moved to dismiss

these claims.
A. RESPA

Plaintiff concedes that she has incorrectly listed a
violation of RESPA.

I acce~t Plaintiff's concession and this

claim is DISMISSED.
B. TILA

Plaintiff's Second Amended Complaint focuses,

for the most

part, on Defendants' alleged failure to record transfers of the
Deed of Trust.

Plaintiff does not clearly allege what provisions

of TILA have been violated, nor does she clearly allege what
conduct constitutes the violation.
Nor does it appear that Plaintiff could benefit from the
remedies provided for under TILA.

As the loan at issue was for a

residential mortgage transaction, she cannot claim the benefit of
the right of rescission.
v. BNC Mortg.,

~nc.,

15 U.S.C.

§

1635(e) (1); see also Hadley

466 Fed. App'x. 612 (9th Cir 2012).

A claim

'for monetary damages would be subject to TILA's one year statute
of limitations, beginning with the creation o£ the Deed of Trust.
15 U.S.C.

§

1640(e); Nelson v. Am. Home Loan Serv., Inc., No.

3:13-cv-00306-BR, 2013 WL 3834656 at *8
'

(D. Or. July 24, 2013).

As the Deed of Trust in this case was created in 2006, seven
years before

~laintiff

brought this action, a claim for monetary

damages would be barred by the statute of limitations.
C. Wrongful Foreclosure

Plaintiff's claim for wrongful foreclosure

lS

premised upon

Defendants' alleged failure to record transfers of the Note and
5

- ORDER

Deed of Trust.

The Oregon Supreme Court has recently resolved

this issue, however, holding that it was not necessary to record
assignments that occurred by operation of law.
ReconTrust Co., 353 Or. 668, 700-01

(2013).

Brandrup v.

Plaintiff cannot,

therefore, base her claim for wrongful foreclose on a failure to
record.

The Brandrup decision also discusses the role of MERS in

the loan process and, while it does hold that MERS does not meet
the statutory definition of a beneficiary, it does not hold that
the mere involvement of MERS invalidates the loan.
Plaintiff also makes a number of arguments about Defendants'
alleged failure to comply with the terms of the Pooling and
Servicing Agreement

(PSA).

It is well settled that a plaintiff

lacks standing to enforce the terms of a PSA where she is neither
a party to, nor a third party beneficiary of, that agreement.
Oliver v. Delta Fin. Liquidating Trust, No. 6:12-cv-00869-AA,
2012 WL 3704954 at *4

(D. Or. Aug. 27, 2012); Graham v.

ReconTrust Co., NA, No. 3:11-cv-01339-BR, 2012 WL 1035712 at *4
(D. Or. Mar. 27, 2012); Branson v. ReconTrust Co., NA, No. 3:11cv-1526, 2012 WL 1473395 at *3

(D. Or. April 26, 2012).

Plaintiff, as a borrower, is neither a party to, nor a third
party beneficiary of, the PSA and therefore lacks standing to
challenge Defendants' compliance with ita terms.
D. Dismissal Without Prejudice

Pro se pleadings are held to less stringent standard than
those drafted by lawyers.
520 (1972).
6

- ORDER

See Haines v. Kerner,

404 U.S. 519,

Before dismissing a pro se complaint, the court

must, in many circumstances, instruct the pro se litigant as to
the deficiencies in the complaint and grant leave to amend.

See

Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987).
Although Plaintiff's complaints (considered individually or
collectively) do not presently state a claim for which relief can
be granted, -it is not impossible that Plaintiff could cure the
deficiencies and submit an amended complaint that did state a
claim.

Accordingly, I dismiss without prejudice.

Plaintiff

shall have thirty days frbm the date of this Order to submit an
amended complaint.
CONCLUSION

Defendant Deutsche Bank's Motion for Joinder (#39) is
GRANTED.

Defendants' Motion for Partial Summary Judgment (#33)

on the issue of surplus proceeds is GRANTED.
Bank's Motion to Dismiss

(#25) is GRANTED.

Defendant Deutsche
This case is

DISMISSED with leave to file an amended complaint within 30 days
of the date of this Order.

All other pending motions are DENIED

as mo_ot.
IT IS SO ORDERED.
DATED this

5'0

day of May, 2014.

OWEN M. PANNER
U.s: DISTRICT JUDGE

7

- ORDER