Haun v. JPMorgan Chase Bank, N.A. et al
Opinion and Order: Huan is granted leave to file another amended complaint. Amended Complaint is due by 6/30/2017. Failure to cure the deficiencies could result in dismissing this action with prejudice. Signed on 5/31/2017 by Judge Michael J. McShane. (Copy mailed to plaintiff) (cp)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Case No. 6:17-cv-00052-MC
OPINION AND ORDER
JPMORGAN CHASE BANK, N.A., et al.,
Plaintiff Jeffrey Haun, proceeding pro se, moves to proceed in forma pauperis (“IFP”).
ECF No. 2. The Court, pursuant to 28 U.S.C. § 1915(e)(2), must screen applications to proceed
IFP and dismiss any case that is frivolous or malicious, or fails to state a claim on which relief
may be granted. The court previously dismissed Haun’s complaint for failure to state claim.
Haun’s amended complaint suffers the same defects as the original complaint. Haun’s original
complaint alleged, in full:
Plaintiff’s Denial of Due Process and constitutional rights per improper mortgage
company procedures, both servicing and otherwise, and including, but not limited
to, improper noticing for mortgage note and deed activities (i.e., divergent paths
for both). This action cites: Fraud, Negligence, and Misrepresentation attributed
to Defendants’ multiple violations of ignoring proper loan procedures.
1 – OPINION AND ORDER
In my earlier order dismissing Haun’s complaint, I noted:
The Court suspects Haun bases his claim on the fact that the note and deed of trust
were separated due to assignments common when MERS was listed as the
beneficiary on a deed of trust. The Oregon Supreme Court discussed this practice
in Brandrup v. ReconTrust, 353 Or. 668, 672 (2013) and Niday v. GMAC Mortg.,
LLC, 353 Or. 648, 660 (2013). Haun’s sparse allegations at this point fail to state
a claim. Haun’s complaint also fails to meet the heightened pleading standards
required for a fraud claim. Haun fails to lay out any specific factual allegations
supporting his claim that the defendants wronged him. Additionally, the Court is
unable to determine if Haun’s property was ever foreclosed on. If Haun’s claim is
based on a completed foreclosure, he will have to provide specific factual
allegations of some “fundamental flaw in the foreclosure proceedings” to support
his claim. Woods v. U.S. Bank N.A., 831 F.3d 1159, 1166 (9th Cir. 2016).
Technical defects, such as listing the wrong beneficiary on the notice of sale, are
not significant enough to overturn the foreclosure. Id. It is unclear whether Haun
alleges fundamental flaws or technical defects or if there even was a foreclosure
sale at all.
Haun names MERS as a beneficiary. Without more, the fact that MERS was
involved in Haun’s loan does not support a claim for relief. Brandrup did not
render invalid every deed of trust listing MERS as “beneficiary.” Instead, courts
simply treat the lender as the true beneficiary. Niday, 353 Or. at 660.
Haun must support his complaint with specific factual allegations demonstrating
how the individual defendants harmed him. Currently, Haun’s complaint merely
sets out boilerplate language appearing to challenge MERS’s involvement in the
loan. Additionally, Haun fails to meet the heightened pleading standards for a
fraud claim. Haun is granted leave to file an amended complaint at which point
the Court will screen the amended complaint as part of the IFP screening process.
April 12, 2017 Order, 2-3; ECF No. 4.
Haun’s Amended Complaint fails to contain any specific factual allegations. Haun
continues to argue that a splitting of the note and deed into “divergent paths” deprived him of his
“Due Process and constitutional rights.” I recently rejected another plaintiff’s argument based on
a theory around the splitting of the note. See Campbell v. Carrington Mortg. Serv. LLC, 2017
WL 114082 at *2 (D. Or. Jan. 11, 2017 Opinion). In Campbell, I explained:
2 – OPINION AND ORDER
Plaintiff bases her claims for Quiet Title on the premise that the Note has been
split from the Deed of Trust, and is therefore unenforceable. Compl. ¶ 106.
Because under Oregon law a Deed of Trust follows the Note and a deed of trust is
assigned by operation of law whenever a note holder transfers its interest in a note
to another party, the Plaintiff’s premise is incorrect. The Note has not been split
from the Deed of Trust. Brandrup v. Recon Trust Co., N.A., 353 Or. 668 (2013).
Courts will treat the lender (American Bank) as the true beneficiary. Niday v.
GMAC Morg., LLC, 353 Or. 648, 660 (2013).
Haun’s claim, also based on the splitting of the note and deed, fails. Haun also fails to
state a fraud claim with the required specificity under rule 9(b). As Haun brings a fraud claim, he
must provide “the who, what, when, where, and how” specifics of the alleged harm. Vess v.
Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003). In describing when defendants
harmed him, Haun merely states, “These event[s] have especially taken place within the past few
years, following the crises and debacles stemming from the Mortgage Meltdown disaster circa
2008. Causes of action exist from divergent paths that have been taken by both the mortgage
note and by the deed of trust.” Am. Comp., 4. This sparse and generalized accusation does not
approach rule 9(b)’s rigorous standards.
Because it is not clear that leave to amend will be futile, Haun is granted leave to file
another amended complaint. Haun is granted 30 days to file an amended complaint curing the
deficiencies. Failure to cure the deficiencies could result in dismissing this action with prejudice.
IT IS SO ORDERED.
DATED this 31st day of May, 2017.
______/s/ Michael McShane_______
United States District Judge
3 – OPINION AND ORDER
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