Munson v. Wells Fargo Bank

Filing 12

ORDER: Plaintiff has 14 days to file an amended complaint meeting the heightened pleadings standards under rule 9(b). Wells Fargo will of course be free to move to dismiss Munson's amended complaint and shall not conduct the foreclosure sale until the Court rules on any motions following Munson's filing of the amended complaint. Signed on 7/27/2018 by Judge Michael J. McShane. (Copy mailed to plaintiff) (cp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
STEVE MUNSON,
Plaintiff,
v.

Civ. No. 6:18-cv-00650-MC
ORDER

WELLS FARGO BANK,
Defendant.
_____________________________
MCSHANE, Judge:
Plaintiff Steve Munson, proceeding pro se, moves today for a temporary restraining order
enjoining defendant Wells Fargo Bank from foreclosing on Munson’s home three days from
now. ECF No. 11. On June 11, 2018, the Court granted defendant’s motion to dismiss. ECF No.
7. In that opinion, I noted that Munson’s claim that Wells Fargo violated the requirements of
ORS 86.732(1) failed because the statute does not provide for a private right of action. Opinion,
at 5-6. As amendment would be futile, I dismissed that claim with prejudice. Because Munson’s
fraud claim failed to meet the heightened pleading requirements of rule 9(b), I dismissed that
claim without prejudice. The following day, the clerk mailed Munson a copy of that opinion,
along with a judgment also dated June 11, 2018. ECF No. 8.
1 – OPINION AND ORDER

Over six weeks later, Munson moves to “reopen” the case, ECF No. 10, and for a
temporary restraining order preventing next Monday’s foreclosure sale, ECF No. 11. Although
Munson did not file an amended complaint, he provided a memorandum in support outlining
reasons he believes the court should issue a restraining order. Munson also states that he “is
preparing Motion For Leave To Amend Complaint which will address fraud claim deficiencies
and/or other fraud claim issues described in [the Court’s order] . . . .” ECF No. 10, 2.
The Judgment did not provide Munson with a date in which to file an amended complaint
as to the fraud claim. As noted, that claim was dismissed without prejudice. To the extent
Munson asks for a time period in which to file an amended complaint, he is granted 14 days to
file an amended complaint meeting the heightened pleadings standards under rule 9(b).1 Should
Munson prevail on his claim that Wells Fargo fraudulently induced him to enter the loan, he
would of course be irreparably harmed by the planned foreclosure. Although Munson’s motion
provides scant specifics regarding the who, what, when, and where of the alleged fraud, he
appears to argue “Wells fraudulently Induced Plaintiff into signing a mortgage which it never
intended to modify even though it stated that modification would happen.” ECF No. 11, 1-2.
Wells Fargo will of course be free to move to dismiss Munson’s amended complaint and shall
not conduct the foreclosure sale until the Court rules on any motions following Munson’s filing
of the amended complaint.
DATED this 27th day of July, 2018.
______/s/ Michael McShane_______
Michael J. McShane
United States District Judge

1

Because ORS 86.732(1) does not provide a private right of action, I decline to “reopen” that portion of Munson’s
complaint. That claim was dismissed with prejudice, and the time to appeal has passed. Fed. R. App. P. 4.

2 – OPINION AND ORDER