Bojorquez, et al v. Wells Fargo Bank, NA et al

Filing 84

OPINION AND ORDER: Denying as moot Mr. and Ms. Haws' Motion to Dismiss Case for Lack of Jurisdiction 73 . As such, WFB's request for oral argument is denied as unnecessary.; Granting 80 Motion to Dismiss for Failure to State a C laim. Any motion to amend the SAC is due within 20 days of the date of this opinion and must be filed in accordance with this Court's orders; failure to do so will result in automatic dismissal of this lawsuit with prejudice. Signed on 5/8/14 by Chief Judge Ann L. Aiken. (ljb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

RICARDO BOJORQUEZ and
STEPHANIE BOJORQUEZ,

Case No.

6:12-cv-02077-AA
OPINION AND ORDER

Plaintiffs,
v.
WELLS FARGO BANK, NA;
FIRST AMERICAN TITLE
COMPANY OF OREGON; MATT
KOON; JEFF HAWS; CATHY
HAWS,
Defendants.

Ricardo Bojorquez
Stephanie Bojorquez
624 Hornet Drive N
Keizer, Oregon 97303
Pro se plaintiffs
Pilar C. French
Anthony M. Stark
Lane Powell, PC
601 SW Second Avenue, Suite 2100
Portland, Oregon 97204
Attorneys for defendant Wells Fargo Bank, NA
Michael J. Martinis
Martinis & Hill
PO Box 3938
110 Madrona Avenue, SE
Salem, Oregon 97302
Attorney for defendants Matt Koon,
AIKEN, Chief Judge:

Page 1 - OPINION AND ORDER

Jeff Haws, and Cathy Haws

Defendant Wells Fargo Bank, NA ("WFB") moves to dismiss
plaintiffs Ricardo and Stephanie Bojorquez's second amended
complaint ("SAC") pursuant to Fed. R. Civ. P. 12 (b) (6).
Defendants Jeff and Cathy Haws also move to dismiss plaintiffs'
For the reasons discussed below, WFB's motion is granted

SAC.

and Mr. and Ms. Haws' motion is denied as moot.
BACKGROUND
On June 17, 2012, Mr. Bojorquez, a Hispanic American, and
his wife, a member of the military, entered into an agreement
("Contract") with Mr. and Ms. Haws to purchase a residential
property in Keizer, Oregon ("Property"), and subsequently moved
therein.

The Contract listed the Property's price as $199,200,

with $7,000 to be paid up front and the balance contingent upon
financing.

Suppl. Ex. D-1 to Haws' Mot Dismiss 11-12. 1

On June

20, 2012, WFB, via loan officer Matt Koon, pre-approved Mr.
Bojorquez for a loan, subject to a detailed review of his credit
report, verification of all the information provided within his
loan application, and "once all documentation and underwriting

1

Mr. and Ms. Haws submitted several attachments to their
motion, labeled "Supplement Ex. D," that were docketed separately
and numbered individually.
The Court will therefore cite to the
attachment number as well as the exhibit.
Further, the Court
takes judicial notice of Mr. and Ms. Haws' supplemental exhibits
to the extent they were publicly filed pursuant to the parties'
arbitration proceedings.
See Fed. R. Evid. 201(b); Lee v. City
of L.A., 250 F.3d 668, 689 (9th Cir. 2001); see also Suppl. Ex.
D-1 to Haws' Mot. Dismiss 11-20; Suppl. Ex. D-4 to Haws' Mot.
Dismiss 7-10; Suppl. Ex. D-5 to Haws' Mot. Dismiss 1-9; Suppl.
Ex. E to Haws' Mot. Dismiss 1-6.
Page 2 - OPINION AND ORDER

requirements and conditions are met and [the bank] receive[s] an
acceptable property,

[then an] appraisal and title report [must

also be obtained]."

SAC

'1I

8.

On July 30, 2012, plaintiffs deposited $2,000 with First
American Title Company of Oregon ("American") for the purchase of
the Property, after which American issued a receipt indicating
that the funds were "for closing."

Id. at

'1I'1I

14-15.

On July 31,

2012, American wired $700 to U.S. Bank and $1,300 to HomeStreet
Bank, for the benefit of Ms. Haws.

Id. at

'1I'1I

16, 19.

On August

15, 2012, plaintiffs deposited an additional $5,000 with American
and again received a receipt reflecting that the funds were "for
closing."

Id. at

'1I'1I

27-28.

On August 16, 2012, American wired

$5,000 to Todd and Tory Bolatis "at the instruction of Wells
Fargo, Koon, Jeff Haws, and Cathy Haws," and for the Haws'
benefit.

Id. at

'1I'1I

29-30.

Thereafter, Mr. Koon informed plaintiffs 2 they were not
approved for a loan.

Because plaintiffs continued to reside at

the Property, Mr. and Ms. Haws "attempted to coerce Plaintiffs
into entering into a lease option to purchase the Property with
unfavorable terms."
offer.

Id. at

'1I

37.

Plaintiffs rejected this

As a result, on September 28, 2012, Mr. and Ms. Haws e-

mailed plaintiffs a notice demanding that they vacate the

2

At some unspecified time, Mr. Bojorquez's loan application
was denied by WFB "due to his debt to income ratio." SAC '1I 21.
Plaintiffs then reapplied for a loan in both of their names.
Page 3 - OPINION AND ORDER

Property.
On November 15, 2012, plaintiffs filed a complaint in this
Court alleging:

(1) violations of the Racketeer Influenced and

Corrupt Organizations Act ("RICO");
Unfair Trade Practices Act ("UTPA");
fraud.

(2) violations of Oregon's
(3) conversion; and (4)

On June 24, 2013, WFB filed a motion to dismiss the

complaint.

On July 13, 2013, plaintiffs moved for a temporary

restraining order to stay arbitration between themselves and Mr.
and Ms. Haws; the Honorable Magistrate Judge Coffin denied that
motion.

Suppl. Ex. D-1 to Haws' Mot. Dismiss 3-8; Suppl. Ex. D-5

to Haws' Mot. Dismiss 1-9.

Through arbitration, it was

determined that Mr. and Ms. Haws were entitled to a $9,654.53
judgement against plaintiffs, plus attorney fees and costs,
representing the amount owed as a result of plaintiffs'
occupation of the Property, less the $7,000 in funds previously
furnished.

Suppl. Ex. E to Haws' Mot. Dismiss 1-6.

On August 14, 2013, with leave from the Court, plaintiffs
filed their first amended complaint ("FAC"), reasserting their
previous claims, along with new claims under the Equal Credit
Opportunity Act ("ECOA") and the Fair Housing Act

("FHA").

On

August 28, 2013, WFB filed a renewed motion to dismiss with
prejudice.
FAC.

On September 11, 2013, American moved to dismiss the

On November 7, 2013, the Court granted defendants' motions

and dismissed plaintiffs' FAC without prejudice.

Page 4 - OPINION AND ORDER

See generally

Bojorquez v. Wells Fargo Bank, NA, 2013 WL 6055258

(D.Or. Nov. 7,

2013).
On January 20, 2014, plaintiffs filed their SAC, alleging
ECOA, UTPA, and fraud claims against WFB, as well as a fraud
claim against Mr. and Ms. Haws. 3

On February 3, 2014, Mr. and

Ms. Haws moved to dismiss the SAC for lack of jurisdiction.

On

February 6, 2014, WFB moved to dismiss plaintiffs' SAC with
prejudice.
withdraw.

On February 21, 2014, plaintiffs' counsel moved to
On March 5, 2014, the Court granted plaintiffs'

counsel's motion and provided an additional 20 days, until March
26, 2014, for plaintiffs to either file a response to defendants'
motions or advise the Court of new counsel.

As of the date of

this opinion, plaintiffs have neither filed an opposition nor
advised the Court of newly-acquired counsel.
STANDARD OF REVIEW

Where the plaintiff "fails to state a claim upon which
relief can be granted," the court must dismiss the action.

3

Fed.

WFB twice moved to dismiss plaintiffs' previous
complaints, documenting alleged deficiencies therein.
Additionally, the Court wrote a detailed opinion explaining why
plaintiffs' FAC failed to state a claim. Yet plaintiffs' SAC is
virtually identical to the FAC, with the only relevant
differences being that plaintiffs now allege that WFB discouraged
Ms. Bojorquez from listing her name on the first loan, repeatedly
delayed the loan process, and guaranteed that the loan would be
funded.
See SAC ~~ 9, 11, 22.
The Court, however, considered
these new allegations in regard to WFB's previous motion to
dismiss, as plaintiffs introduced these facts in their opposition
to that motion.
Bojorquez, 2013 WL 6055258 at *2-4.
Page 5 - OPINION AND ORDER

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

To survive a motion to dismiss, the

complaint must allege "enough facts to state a claim to relief
that is plausible on its face."
550 U.S. 544, 570 (2007).

Bell Atlantic Corp. v. Twombly,

For purposes of a motion to dismiss,

the complaint is liberally construed in favor of the plaintiff
and its allegations are taken as true.
F.2d 1422, 1424 (9th Cir. 1983).

Rosen v. Walters, 719

Bare assertions, however, that

amount to nothing more than a "formulaic recitation of the
elements" of a claim "are conclusory and not entitled to be
assumed true."

Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009).

Rather, to state a plausible claim for relief, the complaint
"must contain sufficient allegations of underlying facts" to
support its legal conclusions.

Starr v. Baca, 652 F.3d 1202,

1216 (9th Cir. 2011), cert. denied, 132 s.ct. 2101 (2012).
Moreover, where fraud is alleged, heightened pleading
standards apply.

See Fed. R. Civ. P. 9(b).

The plaintiff "must

state the time, place, and specific content of the false
representations as well as the identities of the parties to the
misrepresentations."

Schreiber Distrib. v. Serv-Well Furniture

Co., 806 F.2d 1393, 1401 (9th Cir. 1986)
quotations omitted).

(citation and internal

Likewise, the plaintiff is required to "set

forth what is false or misleading about a statement, and why it
is false."

Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106

(9th Cir. 2003)

(citation and internal quotations omitted).

Page 6 - OPINION AND ORDER

Additionally, "Rule 9(b) does not allow a complaint to merely
lump multiple defendants together but require[s] plaintiffs to
differentiate their allegations .

and inform each defendant

separately of the allegations surrounding his alleged
participation in fraud.n
65 (9th Cir. 2007)

Swartz v. KPMG LLP, 476 F.3d 756, 764-

(citation and internal quotations omitted).
DISCUSSION

WFB asserts that, because plaintiffs failed to overcome the
pleading "deficiencies identified by the Court in dismissing [the
FAC],n their SAC should be dismissed with prejudice.
in Supp. of Mot. Dismiss 2-4.

WFB's Mem.

Specifically, WFB argues that

plaintiffs do not allege facts supporting their three remaining
claims.

Id. at 7-13.

Mr. and Ms. Haws argue that the Court

lacks subject matter jurisdiction because the parties are bound
by the Contract's mandatory arbitration provision, pursuant to
which arbitration proceedings have already commenced.

Haws' Mot.

Dismiss 2.
I. Equal Credit Opportunity Act Claim
Pursuant to the ECOA, it is wrongful for "any creditor to
discriminate against any applicant, with respect to any aspect of
a credit transaction

. on the basis of race, color, religion,

national origin, sex or marital status, or age,n or because "all
or part of the applicant's income derives from any public
assistance program.n

15 U.S.C.

Page 7 - OPINION AND ORDER

§

1691(a).

To state a claim

under the ECOA, the plaintiff is required to allege that he or
she: " ( 1) is a member of a protected class;
credit;

( 2) applied for

(3) was qualified for credit; and (4) was denied credit,

despite being qualified."

Blair v. Bank of Am., N.A., 2012 WL

860411, *13 (D.Or. Mar. 13, 2012)

(citation omitted).

The Court finds that plaintiffs' ECOA claim fails at the
pleadings level.

Plaintiffs neglect to allege any facts

demonstrating that they were eligible for but nonetheless denied
credit.

See SAC

~~

43-48.

Rather, they conclude that "Mr.

Bojorquez was qualified for the loan that Wells Fargo offered him
and that Mr. Koon guaranteed would be funded."

Id. at

~

46.

Plaintiffs' other allegations, however, undermine this assertion.
See id. at

~

8 ("approval" was "subject to" several conditions

precedent); see also id.

at~

21

(Mr. Bojorquez was ultimately

denied a loan because his debt to income ration was too high) .
Essentially, plaintiffs were pre-approved for a loan, but preapproval is not inconsistent with ultimately not qualifying for a
loan.

Even though the Court specifically identified this

pleading deficiency, plaintiffs fail to cure it and instead rely
on their previous conclusory allegations.
6055258 at *5-6.

See Bojorquez, 2013 WL

Therefore, WFB's motion is granted in this

regard.
II. State Law Claims
Dismissal of federal claims does not automatically deprive a
court of subject matter jurisdiction over any supplemental
Page 8 - OPINION AND ORDER

claims.

Carlsbad Tech., Inc. v. HIF Bio, Inc., 129 S.Ct. 1862,

1866 (2009).

Where a district court dismisses "all claims over

which it has original jurisdiction," it may, in its discretion,
"decline to exercise supplemental jurisdiction" over any pendent
state law claims.

28 U.S.C.

§

1367(c) (3); see also Lacey v.

Maricopa Cnty., 649 F.3d 1118, 1137 (9th Cir. 2011).

Here, in

light of plaintiffs' pro se status, the Court will retain
jurisdiction over their state law claims in order to briefly
address their merits.

See, e.g., Ovitsky v. Oregon, 2013 WL

4505832, *4 (D.Or. Aug. 20, 2013).
A. Unfair Trade Practices Act Claim
The UTPA extends a private cause of action to "any person
who suffers any ascertainable loss of money or property" due to
unlawful trade practices.

Or. Rev. Stat.

§

646.638(1).

The

statute lists, as subsections, examples of specific unfair trade
practices.

See Or. Rev. Stat.

§§

646.607, 646.608.

To state a

claim under the UTPA, a plaintiff is required to plead:

(1) that

the defendant violated one or more of these subsections; "(2)
causation ('as a result of'); and (3) damage ('ascertainable
loss')."

Moore v. Wells Fargo Bank, NA, 2013 WL 3965313, *5

(D.Or. Aug. 1, 2013)

(quoting Feitler v. Animation Celection,

Inc., 170 Or. App. 702, 708 (2000)).
Plaintiffs allege that WFB engaged in unfair trade practices
by misrepresenting that: Ms. Bojorquez was not originally
qualified for a loan, Mr. Bojorquez was approved for a loan, and
Page 9 - OPINION AND ORDER

I

the loan was guaranteed.

SAC

~~

49-55.

The timing of

plaintiffs' allegations is problematic; Ms. Bojorquez's initial
lack of qualification and Mr. Bojorquez's alleged approval
transpired prior to WFB formally processing Mr. Bojorquez's loan
application.

See SAC

~~

8-9, 21, 23.

In other words, causation

is lacking because plaintiffs did not rely on Mr. Koon's
allegedly false and misleading statements, as they were living on
the Property at the time Mr. Bojorquez received pre-approval,
which was contingent upon a number of conditions.

See SAC

~~

7-

10, 21-23.
Plaintiffs' allegation that Mr. Koon, on behalf of WFB,
guaranteed a loan after Mr. Bojorquez was indivdiually denied
likewise fails to state a claim.

As this Court noted in its

previous opinion, WFB's "refusal to fund plaintiffs' acquisition
of the Property is not contravened by its determination that they
were pre-approved for a loan, such that, beyond so concluding,
plaintiffs have not provided any basis for this Court to
determine that WFB violated the UTPA."
6055258 at *7 n.5.

Bojorquez, 2013 WL

For these reasons, WFB's motion is granted as

to plaintiffs' UTPA claim.
B. Fraud Claims
"In Oregon, the prima facie elements of a common-law fraud
claim are:

( 1) a representation;

materiality;

( 2) its falsity;

( 3) its

(4) the speaker's knowledge of its falsity or

ignorance of its truth;

I

(5) the speaker's intent that the

Page 10 - OPINION AND ORDER

I

representation should be acted upon by the listener in the manner
reasonably contemplated;

(6) the listener's ignorance of the

representation's falsity;

(7) the listener's reliance on the

truth of the representation;

(8) the listener's right to rely

thereon; and (9) the listener's consequent and proximate injury."
Numrich v. JP Morgan Chase Bank, NA, 2012 WL 1952654, *6 (D.Or.
May 30, 2012)

(citing Webb v. Clark, 274 Or. 387, 391 (1976)).

Plaintiffs allege that Mr. Koon made false representations
concerning the loan, "including but not limited to the fact Ms.
Bojorquez was not qualified for the loan; that the plaintiffs
were qualified for the loan; and that the loan was guaranteed to
be funded."

SAC

~

57.

Plaintiffs further allege that Mr. and

Ms. Haws made false representations regarding the need for the
$7,000 down payment on the Property. 4

Id. at

~

68.

"Given that pre-approval is merely a preliminary
determination that an applicant may qualify for credit if certain
other conditions are met," it is unclear from plaintiffs' SAC
that defendants' statements were false or material.

Bojorquez,

2013 WL 6055258 at *9 (citing CRM Collateral II, Inc. v. TriCnty. Metro. Transo. Dist. Of Or., 2009 WL 3054959, *5 (D.Or.

4

The Court notes that several of plaintiffs' allegations
relating to Mr. and Ms. Haws contradict their arbitration
proceedings.
Compare SAC ~~ 67-77, with Suppl. Ex. E to Haws'
Mot. Dismiss 1-6. Additionally, because plaintiffs contractually
agreed to pay $7,000 as a down payment, Mr. and Ms. Haws' alleged
misstatements concerning their need for those funds are
immaterial.
Page 11 - OPINION AND ORDER

I

Sept. 18, 2009)).

As discussed above, plaintiffs do not allege

facts indicating that they were qualified and approved for a
loan.

Without such allegations, they cannot establish that their

inability to secure financing for the purchase of the Property
was caused by defendants' alleged misrepresentations.
Furthermore, plaintiffs once again "do not acknowledge, let
alone comply with, Fed. R. Civ. P. 9(b)'s heightened pleading
standards."
56-77.

Bojorquez, 2013 WL 6055258 at *9; see also SAC ! !

Although this Court previously highlighted this

shortcoming, plaintiffs nonetheless neglected to plead, with
particularity, "the time, place, and specific content of the
false representations."

Edwards v. Marin Park, Inc., 356 F.3d

1058, 1066 (9th Cir. 2004)
omitted).

(citation and internal quotations

Thus, WFB's motion is granted and plaintiffs' fraud

claims are dismissed.
III. Dismissal With or Without Prejudice
Generally, upon dismissal pursuant to Fed. R. Civ. P.
12(b) (6), the "district court should grant leave to amend even if
no request to amend the pleading was made, unless it determines
that the pleading could not possibly be cured by the allegation
of other facts."
2000)

(en bane)

Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir.
(citations and internal quotations omitted).

Because plaintiffs' SAC fails to plead requisite facts,

it is

unclear whether their claims "could not possibly be cured by the

Page 12 - OPINION AND ORDER

allegation of other facts."

Id.

proceeding pro se in this matter.

Further, plaintiffs are now
Accordingly, plaintiffs' SAC

is dismissed without prejudice; however, failure to conform any
future proposed pleadings with this Court's orders will result in
dismissal with prejudice.

CONCLUSION
WFB's motion to dismiss
Haws' motion to dismiss

(doc. 80) is GRANTED.

(doc. 73) is DENIED as moot.

Mr. and Ms.
As such,

WFB's request for oral argument is DENIED as unnecessary.

Any

motion to amend the SAC is due within 20 days of the date of this
opinion and must be filed in accordance with this Court's orders;
failure to do so will result in automatic dismissal of this
lawsuit with prejudice.
IT IS SO ORDERED.
Dated this

~ay

Ann Aiken
United States District Judge

Page 13 - OPINION AND ORDER