McDaniel v. BAC Home Loans Servicing, LP et al

Filing 56

ORDER: Granting in Part, Denying in Part Motion to Dismiss #48 . Signed on 3/31/2011 by U.S. District Judge Michael R. Hogan. (jw)

McDaniel v. BAC Home Loans Servicing, LP et al

Doc. 56

r ':, ,_I "_'--- F-Ii EII' 'j l' 'r1'H, p ,_I 1 I' C':,1C;i 1::;TIi:-IIRc'"
0:100
I

I',

_.j

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
SCOTT A. MCDANIEL, Plaintiff, vs. )
)

CASE NO. lO-6143-HO ORDER

)
)

)
)

BAC HOME LOANS SERVICING, LP; ) RECONTRUST COMPANY NAi MORTGAGE ) ELECTRONIC REGISTRATION SYSTEM, INC.; ) THE BANK OF NEW MELLON CORP. i ˇ ) CHRISTINA BALANDRAN; DIANE BOLTONi ) DANIEL B.RODRIGUEZ; JONATHAN JACKSONi) E.L. HOWARDi LUCY MANSOURIANi PETER ) LOPEZ;STACEY L. BLOUIN; JANINE R. ) WRIGHT; KARLA MERIDA; SUMMIT MORTGAGE) ) CORPi and DOES 1 50,
)

Defendants.

)

Introduction De Home Loans Servicing, LP (BAC); rust

Defendants in plaintiff's First laint previously named defendants BAC; ReconTrust; and MERS as well as newly named Bank of New York Mellon (BNYMellon); (ten employees of ReconTrust) ,Christ ane ton; Daniel Rodriguez; Jonathan Jac on; E.L. Howard; (continued... )

Dockets.Justia.com

Company N.A. System, Inc.,

(ReconTrust); Mortgage Electronic Registration (MERS); and Bank of New York Mellon (BNYMellon);

move to dismiss pro se plaintiff, Scott McDaniel's First Amended Complaint. [#40; #48J. Plaintiff alleges seventeen causes of action against all defendants and seeks damages and injunctive relief. 234-237J. Background The property at issue is plaintiff's residence located at 25225 Cultus Lane, Bend Oregon, 97701. [#40-Cj[ 6, Ex.1J. [#40-Cj[Cj[

Decision One Mortgage Company originated plaintiff's mortgage loan on October 17, 2006. [#40-Ex.1; #40-Cj[Cj[ 27-29; #49-p.10]. [#40-Cj[Cj[ 38-43; #49-p.11].

BAC Home Loans was the loan servicer. The
Tru~t

Deed names MERS as the beneficiary of the loan under Id. The loan is currently owned by The
2

the security instrument.

Bank of New York Mellon (BNYMellon) plaintiff
a~serts

and BAC and ReconTrust 3 who,

"lack[] or lacked standing to initiate a [#40-Cj[

foreclosure proceeding against the subject property." 122] .

'Cˇˇˇcontinued) Lucy Mansourian; Peter Lopez; Stacey Blouin; Janine Wright; Karla Merida; Summit Mortgage Corp. (Summit) and Does 1-50.
2 Defendants agree that in 2009, BNYMellon was assigned the Deed of Trust. [#49-p.11].

ReconTrust is the successor trustee that initiated foreclosure proceedings. [#4 O-Cj[ 50; # 4 9-p. 11 J . 2 - ORDER

3

Plaintiff admits tnat April of 2009. [#40 <]'[ 37]. PIa

11 behind on his loan payments iff alleges that in September

2009, he offered BAC Home.Loans a partial mortgage payment of $1,825.73 which BAC re the full amount due of , instead requiring that plaintiff and past due amounts.
y

[#40-<]'[ 38J.

On December 31, 2009, ReconTrust served plaintiff with a Trustee Notice of Sal amount of $255,000.00 August 11 2009 <]'[ 53; #40-Ex.2,p.l]. a Qualified Wr
61;

ch demanded full payment of the loan r with 7% interest calculat 1 In re late charges,
f~es

and costs. [#40

, plaintiff sent what he t (QWR1, on February 2, 2010. [[#40 <]'[ ly to

ten PI

s

#49-p.9J.

iff asserts that defendants did not 1 st of e BAC Home Loans "attempt note and obstruct the [#40-<]'[ 70].

comply with the obscure the true investigation of Defendant BAC and/or request appraisalˇ

in of title."

that they provided all ls including .his loan ication,

mater

, good faith estimate, deed of trust, le rate rider, truth in 1 sc sure

te a May 7, 2010 foreclosure e [#40-Ex.4 p.2J,on Notice of Default and Election to Sell l it does not appear that subject property has s at a foreclosure sale. Loans RESPA. 3 - ORDER Which although it was an improper ed they would treat as a st
. 9] .

4

De

to the

statement, HUD-1 settlement statement and payment history detailing transactions during BAC's loan servicing. [#49-p.9J .

On March 4, 2010, plaintiff alleges that he deposited 6 $275,000.00 with "Notary Witness Cynthia Homer," who "was instructed to deliver Notice of Tender of Payment to BAC and exchange said funds for the Original Promissory Note that the Lenders/Agents allege to hold as collateral for Loan Number 154164052-8 .

"

[#40-~

90J.

She sent the Note of Tender to
[#40-~

BAC Home Loans on March 4, 2009.

91J.

Plaintiff asserts

that defendants failed to collect the funds, because they are not in possession of the "Note"
[#40-~~

and thus have no right to foreclose.

107-108J. Discussion
1. Standard:

A Motion to Dismiss under Fed.R.Civ.P. 12(b) (6)

is proper

only where there is a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable theory.

Balisteri v. Pacific Police Dept., 901 F. 2d 696,699 (9 th

It's not entirely clear what plaintiff deposited with Ms. Homer. Defendants assert that rather than depositing $275,000 in some sort of negotiable form with the notary, plaintiff instead deposited a document he had drawn up labeled "Notice of Tender of Payment" and "Notice of Public Policy" which stated interalia that plaintiff was "part of the national banking association the members of which may issue negotiable instruments [whichJ are required by law to be accepted as "l~gal tender" of payment for all debts public and private. . on the same par and category with the Federal reserve notes." [#49-p.9, -2dting #40-Ex. 17J. Defendants did not accept this proffer~ 4 - ORDER

6

Cir.1990).

The issue is not

aintiff is likely to is s ficient to

succeed on the merits but if entitle the plaintiff to p attempt to establish
45, 48

the pleadings in an De La Cruz v.

s cIa

Torrey, 582 F.2d

( 9 Li Cir 1978) .

A plaintiffs! material and the complaint const

Ie

ions must be accepted as true

the light most favorable to him.

Love v. United States, 915 F.2d 1242,. 1245 (91::-: Cir. 1988).
Additionally, pro se pI standard than se ngs are held to a less st by rs.

Haines v. Kerner, 404

U.S. 519,' 520 (1972). interpretation of a
se

less, a court's libe
litiga~tfs

pleadings may not s

y

essential elements of a claim that are not pleaded.

Pena v.
s

Gardner, 976 F.2d 469, 471 (9th Cir. 1992).
"free to unwarranted form of ct
1 1 conclusions,

Thus the court

unsupported conclusions, the

rences and sweeping legal conclusions cast allegations."

Sitanggang v.

c

FSB,

2009 WL 1286484,p.2 (citing Farm Credit

ce v; Am. State

Bank, 339 F.3d 765, 767
S

(8~

Cir. 2003).
more are ilure to state a

, conclusory allegation wi ent to feat a motion to dismiss

insuffi

McGl

v. Shell Chemical Co., 845 F.2d 802 810 (9 th Iqbal, 129 S.Ct 1937, 1949
must contain

Cir 1988); see also Ashcroft v. (2009) (To s 5 ORDER

a motion to dismiss, a

sufficient factual matter, accepted as true, to state a claim that is plausible on its face.) (citations omitted). Thus a pro

se litigant's claims may be dismissed when the plaintiff can prove no set of facts in support that would entitle him to relief. 2008) .
~

Barrett v. Belleque, 554 F.3d 1060, 1061 (9 th Cir.

Defendants' Motion to Dismiss:

Defendants BAC Home Loans, ReconTrust and MERS; move to
.-'

dismiss plaintiff's amended complaint with prejudice for failure to state a claim. [# 48; #49; #53J.

hl Claims 1, 10, 11, 15 and 16, alleging defendants' lack
of standing:

Plaintiff claims: 159J; (10)

(1)

fraudulent assignment,

[#40-<j[<j[ 150 (11)

set aside illegal trustee sale, [#40-<j[<j[ 212-217J; (15)

[#40-<j[<j[ 209-211J;

quiet title,

slander of title, and (16)

fraudulent foreclosure,

[#40-<j[<j[ 231-233J; which are all based on

the premise that defendants lack standing to foreclose because
a~signments

of the deed of trust through MERS was fraudulent for
reason~.

a variety of

[#40J.

Plaintiff does not claim that the

notices given py defendants were insufficient or legally faulty or that he was not properly served with the notice on the subject properties. funded, Plaintiff argues that "the loan was originated,

sold on multiple occasions" [#40-<j[36J, and contends that

his ability to tender the debt is sufficient reason to disrupt

6 - ORDER

the non-judicial foreclosure.

[#54 J .

Defendants respond that the Deed of Trust 7 recorded in Deschutes County as instrument 2006-71660, names Decision One as the lender and MERS as the nominee beneficiary and states plainly that MERS is a separate corporation acting solely as nominee for lender and lender's successors and assigns. #40 'l1'l1 29-34J. MERS then assigned the Deed to BNYMellon and recorded that assignment in Deschutes County as instrument 2009-54494. Ex. 2 J ˇ [#40 [#49-p.15; see also

BNYMellon appointed ReconTrust as successor trustee and

recorded that assignment in Deschutes Court as instrument 2009 54495. [# 4 0 - Ex. 3 J . ReconTrust filed a Notice of Default and

Election to Sell (reflecting plaintiff's default on the loan), in Deschutes County and recorded that as instrument 2009-54496.

The Deed of Trust (of which this court previously took judicial notice), states in pertinent part: MERS is a separate corporation t~at is acting solely as a nominee for Lender and Lender's successors and assigns. MERS is the beneficiary under this Security Instrument.

7

* * * * * * * *

The beneficiary of this Security Instrument is MER~ (solely as nominee for Lender and Lender's successors and assigns).

Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Security Instrument, but, if necessary to comply with law or custom, MERS (as nominee for Lender and Lender's successors and assigns) has the right: to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the Property; and to take any action required of Lender[.] [#17-p.12; #19-Ex.1-pp./1-3J (emphasis in defendants' brief only)

7 - ORDER

{ # 4 0 - Ex. 4 J ˇ
This court has also previously found that MERS may be designated as a beneficiary on a Deed of Trust.
Inc., USDC 09-6244-HO. Burgett v. MERS,

Thus, plaintiff's signature on the Deed

of Trust explicitly authorizes MERS to act as a berieficiary with the right to foreclose. The Oregon Trust Deed Act does not require presentation of the note or any other proof of real party in interest or standing other than the Deed of Trust. See ORS 86.705 to 86.795.

However, ORS 86.735 8 does provide that if foreclosure by sale is pursued, all prior unrecorded assignments must be filed in connection with the foreclosure. originator in this matter. Decision One was the loan

Nothing in the record demonstrates

that the note transfers from Decision One to subsequent lenders/loan servicers were recorded.
Becaus~

there is nothing in the record to support

defendants' allegations that they have fully complied with the statutory recording requirements and are a real party in interest

ORS § 86.735(1) specifically provides: The trustee may foreclose a trust deed by adveitisement and sale in the manner provided in ORS 86.740 to 86.755 if: (1) The trust deed, any assignments of the trust deed by the trustee or the beneficiary and any appointment of a successor trustee are recorded in the mortgag~ ~ecords in the counties in which the property described in the deed is situated ... 8 - ORDER

with standing to fa iff's claims: one,
r

s' motion to dismiss assignment; ten, to set

aside illegal trustee sale; eleven, to quiet title; and sixteen, for fraudulent fore Plaintiff's fifte that defendants have made a ; is for slander of title al lse and malicious public statement
[#40-'IT'IT 229-30].

disparaging his title to the property.

law defines the elements of slander of title as: statement that dispa s a person's title;

(I) a published lse;

(2) that is

(3) that is made with mal
Cawrse v. Signal

and (4) results in
666, 670 (1940).

cial damages.

1 Co., 164 Or.

damages in this context usua ly mean that the pia ready, willing and
279,

iff.lost a

1, 274 Or.

r.

Shenefield v. Ax

282-83 (1976).
Plaintiff's cIa appears to rest on his as a right to the property, lse statement and has Plaintiff's ion

defendants do not

plaintiff does not identify any specific freely admit assertions, insufficient to defendant's mot slander of t

he is delinquent on his loan. alone as they are, are t ead a slander of tit cl

refore Accordingly, eenth
cl~im

to dismiss plaintiff/sfi is granted.

for

9 - ORDER

~

Claim (2)

for Violation of Real Estate Settlement Procedures Act (RESPA):

Plaintiff's second cIa provide the informat Request" (QWR) violated

s that defendants' failure to

s

in his "Qualified Written

ir duties under the Real Estate [#40 160

Settlement Procedures Act (RESPA), 12 U.S.C.§ 2605. 69J. Defendants respond that

s claim fails because s r to the to

plaintiff's purported QWR was sent for an improper (i.e., did not re validity of the sustain (or allege) Defendants also to servicing of the loan but ), and because plaintiff has fail resulting damages 10 ˇ. that p intiff's letter [#17 .6].

d not

lify as

A "QWR~ is in the RESPA as: [AJ qualif written request shall be a wr ten carre . that. . includes, or se enables a servicer to identify, name and account of the borrower; . includes a statement of the reasons for the 1 f of the borrower, to the extent applicable, that error or provides sufficient detail to the servicer other information sought by the borrower. 12 U.S.C. § 2605(e) (1) (B). Thus if " cer of a federally related mortgage loan receives a quali written request from the borrower foi information rela to the servicing of loan, the servicer shall provide a written response acknowl receipt of the corre within 20 days . " 12 U.S.C. § 2605 (e) (1) (A) ( sis added).
10 Contrary to defendants assertion, section 26059f) does not require pI . iff to allege to establish a violation of section 2605 ..

9

10 - ORDER

a QWR, which under RESPA, must relate to the servicing l l of such loan and to which only t respond. se cer (BAC), is required to

12 U.S.C. § 2605(e) (1) (A).
s have adequately responded to
r

As exp plaintiff's

an explanation of why the account were not answered, a copy of his him a phone number that he could use 1 De This response is consistent wi s motion to dismiss plaintiff's second is granted

is correct, why certa payment history if he had 12 U.S.C. §2605. claim of RESPA
.C)

Claim (3) violation of Truth in Lending Act (TlLA)

iff al failing to improperly ca . 73] . De

s

defendants have violated TILA by
disclose the finance charge and by

ing the annual percentage rate.

[#40-q[q[ 170

s argue that they were not involved with the loan even if they were, plaintiff's claim is t TILA's one-year statute of limitat [#49 .23].

TILA 1635(f). Oct

s a three year limit of rescission.

15 U.S.C.§

Given that plaintiff signed the loan transaction on 23, 2006 and filed this action almost four years later on

"Se cing," in this context, "means rece any periodic payments from a borrower pursuant to the terms and making the payments of 1 and and such other payments with re ct to the amounts
from the borrower as may be requi to the
rece loan." 12 U. S . c. § 2605 (i) (3) .
terms 11 ORDER

II

July 9, 2010, pl motion to dismiss p therefore granted.

iff's TILA claim is time-barred.

De

,s
is

iff's third claim for a TILA violat

Ql

Claim (4) violation of Fair Credit Reporting Act (FCRA)

Plainti

cla

defendants have violated

Fair to

Credit Reporting Act (FCRA) by reporting negat one or more information on score. s which resulted in ne

a

iff's credit report and lowe Defendar..ts note that

s

t

[#40-<J[<J[ 174 180J.

ff does not and
§

provide any notice of dispute from a credit therefore Is to state a claim under 15 U.S.C.

1681s 2(b).

[# 4 9-pp. 26 27]. Pursuant to 15 U.S.C. information credit repo provide for a
§

1681s-2(a),

rs of c to a does not

t

a duty to provide accurate ncy (CRA) , however this sect e cause of
§

~ction.

A

cause of action receipt of information is ts to determine ded to the ion that

is provided under 15 U.S.C. a notice required to

1681s-2(b), where, r

a CRA of a dispute, the furnis sti

within specified time 1

the accuracy or completeness of the informat CRA and must is This CRA of a 12 ORDER , delete or block report

te, incomplete or cannot be verif
ss is only triggered
e.
b~the

consumer notifying a st does not

A furnisher's duty to

arise unless and until it receives notice of the credit reporting dispute directly from the CRA12. party cannot bypass the CRA. Plaintiff provides no
evidenc~

An allegedly aggrieved private

of any notice provided to

defendants by a CRA as a result of plaintiff's allegations. Additionally, plaintiff's admission that he became late on his payments in April 2009 and has subsequently defaulted on his loan makes any delinquency reported on his loan accurate and plaintiff's FCRA claim unsustainable.
E) Claim (5) for Fraudulent
~srepresentation:

Plaintiff's fifth claim for fraudulent misrepresentation appears based on some misunderstanding that he had about "material information" regarding the terms of his loan which, had he known, would-have prevented him from entering into the transaction. [#40-']['][ 181-187J. Defendants contend that

plaintiff's claim fails because it lacks sufficient specificity regarding the operative facts or actions of defendants that plaintiff claims were fraudulent. [#49-pp. 27-28J . J .

A deceit/fraud/misrepresentation claim in Oregon requires a plaintiff to allege: (1) a knowing, false representation by the

Congress provided a filtering mechanism in credit disputes by requiring the disputatious consumer to notify a CRA and setting up the CRA to receive notice of the investigation by the furnisher. Nelson v. Chase Manhattan Mortgage Corp., 282 F. 3 d 1057, 1060 (9 th Ci r. 2002). 13 - QRDER

12

defendant;

(2) an on sentat from

to induce plaintiff to act or refrain

from acting in reI reliance on the plaintiff result
Contra"ctor, Inc., v.

s
by p reI

resentation;

(3)

justifiable

intiff and (5) damage to the
Riley Hill Gen.

Corp., 303 Or 390, 405 (1987).

The relation of the con ial re

a

r and a borrower is not one envisioned by tje court (which

hifs included relat patient or a pastor this t of s,

such as those between a doctor and his a church member)," wnich may give rise to
edler v. Taylor, 473 F.Supp. 2d 1090,

1103 (2007) . mis
~

iff's fifth claim for fraudulent

sentation is unsustainable.
Claim 6 for Breach of Fiduciary Duty:

PIa duty by "f mort intent 190 J . not
-,

iff alleges that defendants breached their ently inducing plaintiffs [sicJ to enter

a

transaction which was contrary to plaintiff's s contrary to plaintiff's interests De s respond that plaintiff's
If

[#40-'3\ aint does

lege that any of the defendants were invol ion rather, plaintiff" identif

with the loan

ori as

s Decision One and Surmni t [#49-p.28 citing contact with

loan originator and mortgage broker. Thus defendants did not have

#40 '3\'3\ 25, 28J.

iff at the time of the alleged elements of a cause of action for breach of fiduciary 14 - ORDER

duty are: 1) the existence of a the fiduciary duty; and 3) res
Weiss,

i i

duty; 2) a breach of
Pallergrini v.

165 Cal.App.4th 515, 524

(2008).

Absent special

ciicumstances, there is no acti borrower
becau~e

duty between a lender and

loan transact ons are arms-length and thus do

not invoke fiduc

s.

Oa

Managem't Corp.

V.

Superior

Court, 145 Cal.App.4th 453,

466 (2006) ( no fiduciary relationship
Nymark v. Heart Fed.

between the borrower
Sav.
&

lender); see also

Loan Assn.,. 231 Cal.App.3d 1089,

1096 (1991) (as a general

rule, a _financial

st

owes no duty of care to a borrower in the loan transaction does s conventional" role as a mere
r

when the institution's not exceed the scope of money) . Oregon law ho for his own

of

a purchaser must use reasonable care r's

ction and cannot rely blindly on a sel use of his means of knowledge

statements but, must rna

failing to do so, cannot claim that he was misled.
v. Patterson,

278 Or. 367, 375 (1977).

This is because

is

well est institut
Uptown

i

the relationship between a and its borrower-client is not fiduciary
ts Assoc. Ltd. v. Seafirst. Corp.
I'

nature.

320 Or 638, 650

(1995) (a rms 1 const

banking and loan transactions do
1 or fiduciary relationship).

a
at

To es of care

lish a rt

there must be some standa

15

from those imposed by a loan
Heights, 320 Or

or contract.

Uptown

at 650.
s were not y were, iff loan originators or mortgage re would not be a fiduciary defendants. Plaintiff's sixth

Because de brokers and even if relationship between

claim fails as a matter of
G) Claim 7 for Unjust Enrichment:

Plaintiff al

s

t

fendants "had an implied contract

with plaintiffs [sic] to ensure that plaintiffs [sic] understood all fees on plaintiffs' related to
" [#40

be pa [sic] settlement
192 97j.

to the Defendants to obtain credit f and to not charge any fees which were loan and without full dis

Plaintiff's s matter of law loan or
whi
t

claim for unjust ,enrichment fails as a se, even if defendants were involved in
i

by plaintiff to understand the terms by went unjust

he bound

elf and under which the proce

forward would not as a matter of law, state a cl
Best v. U.S. National Bank, 303 Or 557, 565
(1987) (fees are decided by the reasonable contractual

at

of the parties) ..

H) Claims 8 and 9 alleging Civil Conspiracy:

PIa 16 - ORDER

iff alleges two separate claims of

1

both of which flow from

a

's allegations of fraud and

breaches of fidu~iary duty. A civil by concerted act accomplish some means." se not
i

is "a combination of two or more persons ish an unlawful purpose, or to itself unlawful by unlawful 147 Or.App. 269, 273 (1997). C 1

Yanney v. Koehler,

conspiracy is not a separate tort or basis of recovery but rather depends on the
Harding,

I

Y of the underlying tort.

Granewich v.

329 Or. 47, 53 (1999). rl tort claims fail as a matter of

Because plaintiff's con

racy claims also fail .
USUry:

.!

Claim 12 for
all

Plainti

s that the interest rate charged on

sloan

was "greater than state law permitted." [#40-'J{ 220]. Under ORS 82.010 (3) (a) or interest on business loans of $50,000 r y ORS t

ss may not exceed the greater of 12% or 5%
l~

, 1

Reserve Bank discount rate on 90
1

commerc

in effect when the loan is made. interest rate that may be charged on ot of $50,000 or less is subject to t same

82.010(3) (b), t

1 1

combined effect of. ORS 82.010 (3) (a) ations on interest rates that may $50,000.

(b) is to for

loans

17

ORDER

Because the loan at issue in this matter far exceeds that amount, plaintiff's usury claim fails as a matter of law.

Ql

Claim 13 alleges Pr.edatory Lending:

The sole defendant named in this claim is Summit.

Plaintiff

alleges that Summit engaged in "predatory lending practices . the specifics of which are unknown, but which are subject to discovery" and future amendment of the complaint.

[#40-'Il'll 223

225 ]
Nothing in the record shows that plaintiff has served this defendant (or any of the other newly named defendants), newly added to plaintiff's amended complaint. Plaintiff has 120 days

from the date of filing his Amended Complaint within which to serve Summit. Therefore Summit (and the other newly named

defendants), must be served no later than April 11, 2011.
~

Claim 14 alleges Unfair Debt' Collection Practices.:

Plaintiff simply states that he "is informed, and believes and thereupon alleges" that the defendants have violated proviSions of the Federal Fair Debt Collection Act RESPA 13 ˇ (FDCPA) and

[#40-'Il'll 226-228].

He does not supply any facts to back

this conclusory statement. Ho0ever, even without this factual deficit, plaintiff's

Noris there a cause of action that for debt collection pursuant to RESPA.

13

18 - ORDER

claim would

1.

He cannot state a claim under

r Debt osing on collection of

Collections Practices Act because, the activity of the property a debt within to a deed of trust is not meaning of the FDCPA.

Hulse v. Ocwen Fed.

Bank, FSB, 195 F. Supp.2d 1188, 1204 (D. Or. 2002) ("Payment of funds is not lender is re object of the foreclosure act
s

Rather, the rty"); see also

its interest in the p de Home Loans, Inc.,

Williams v. Count

504 F. Supp.2d 176, 190 debts are not 'debt

(S.D. Tex.2007) (mortgage companies collect collectors) .
~ Cla~

i7 alleges Refusal of Payment

Plainti

alleges that BAC's refusal

s "tender of ." [#40-" 234-36].

payments is a violation of UCC law . However, document the Unit

s respond that plaintiff's tender was a drew up in which he cIa States and a national ban to be a creditor of

ng association who

therefore, can draw on the debt of the United States to discha his obI tender. ; in otherˇ words

s "t

is not a legit

e

[#49-p.30, citing #40-Ex.17]. Oregon law, the 'tender' has definite 1
I

Under

significance imparting not merely perform but also
th~

willingness and intent to of tender to pay dge v. Miller, 235 Or 396, 402

ability at

with the offer.

19

ORDER

(1963). has
P

Nothing in plaintiff's pleadings indicate lity to pay in acco iff's seventeenth re smissed. with his offer. aim for refusal of

he had or

is

there

De in

s' Motion to

ss is granted in

and denied

as follows: GRANTED for Claims: (4) (6) b FCRA alation;

(2) violations of RESPA; (5) fraudulent (7) unj ust (14) unfair (17) refusal of (10 ) ory lending

(3) TILA violation;

s
enr

sentation; ;

of fiduciary duty; 1 conspiracy; s
i

(8) and ( 9) c

(12) us

debt collection pract and DENIED for c ill 1 trustee sale;

(15) slander of title; (1) frqudulent ass et title; sure.
(13)

(11)

(16) fraudulent forec IT IS SO ORDERED.
DATED this

,f
of March, 2011.

Sl'~-'day

20 - ORDER