IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

MICHAEL ROTHSTEIN and ROMAINE 

ROTHSTEIN, 

Plaintiffs, 

v. 

BAYVIEW LOAN SERVICING, LLC, 

Defendant. 

PAPAK, Magistrate Judge: 

3: 14-CV-1102-PK 

FINDINGS AND 

RECOMMENDATION 

Plaintiffs Michael Rothstein ("Michael") and Romaine Rothstein ("Romaine" and, 

collectively with Michael, the "Rothsteins") brought this action against defendant Bayview Loan 

Servicing, LLC ("Bayview"), in the Multnomah County Circuit Court on June 5, 2014. Bayview 

removed the action to this comt effective July 10, 2014. The Rothsteins amended their 

Page 1 - FINDINGS AND RECOMMENDATION 

Case 3:14-cv-01102-PK Document 21 Filed 01/09/15 Page 1 of 14
complaint in this court effective October 24, 2014. By and through their amended complaint, the 

Rothsteins allege Baview's liability for violation of Oregon's Unlawful Trade Practices Act (Or. 

Rev. Stat. 646.605 et seq.), violation of the federal Fair Debt Collections Practices Act (15 

U.S.C. § 1692 et seq.), breach of contract in violation of Oregon common law, and negligent 

misrepresentation in violation of Oregon common law. This court has federal-question 

jurisdiction over the Rothsteins' Fair Debt Collections Practices Act claim pursuant to 28 U.S.C. 

§ 1331, and may properly exercise supplemental jurisdiction over plaintiffs' three state-law 

claims pursuant to 28 U.S.C. § 1367. 

Now before the comt is Bayview's motion (#16) to dismiss the Rothsteins' breach of 

contract and negligent misrepresentation claims for failure to state a claim upon which relief can 

be granted. I have considered the motion, oral argument on behalf of the pmties, and all of the 

pleadings and papers on file. For the reasons set forth below, Bayview's motion should be 

granted, and the Rothsteins' common-law claims of negligent misrepresentation and breach of 

contract should be dismissed with prejudice. 

LEGAL STANDARD 

To survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint 

must contain more than a "fmmulaic recitation of the elements of a cause of action;" specifically, 

it must contain factual allegations sufficient to "raise a right to relief above the speculative level." 

Bell Atlantic Corp. v. T.vombly, 550 U.S. 544, 555 (2007). To raise a right to relief above the 

speculative level, "[t]he pleading must contain something more ... than ... a statement of facts 

that merely creates a suspicion [of] a legally cognizable right of action." Id, quoting 5 C. Wright 

& A. Miller, Federal Practice and Procedure§ 1216, pp. 235-236 (3d ed. 2004); see also Fed. R. 

Page 2 - FINDINGS AND RECOMMENDATION 

Case 3:14-cv-01102-PK Document 21 Filed 01/09/15 Page 2 of 14
Civ. P. 8(a). Instead, the plaintiff must plead affirmative factual content, as opposed to any 

merely conclusory recitation that the elements of a claim have been satisfied, that "allows the 

court to draw the reasonable inference that the defendant is liable for the misconduct alleged." 

Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009). "In sum, for a complaint to 

survive a motion to dismiss, the non-concluso1y 'factual content,' and reasonable inferences from 

that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." lvloss v. 

United States Secret Serv., 572 F.3d 962, 970 (9th Cir. 2009), citing Iqbal, 129 S. Ct. at 1949. 

"In ruling on a 12(b)(6) motion, a court may generally consider only allegations contained 

in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial 

notice." Swartz v. KP1'1JG LLP, 476 F.3d 756, 763 (9th Cir. 2007). In considering a motion to 

dismiss, this court accepts all of the allegations in the complaint as true and construes them in the 

light most favorable to the plaintiff. See Kahle v. Gonzales, 474 F.3d 665, 667 (9th Cir. 2007). 

Moreover, the court "presume[ s] that general allegations embrace those specific facts that are 

necessary to support the claim." Nat'! Org.for Women v. Scheidler, 510 U.S. 249, 256 (1994), 

quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). The court need not, however, 

accept legal conclusions "cast in the form of factual allegations." Western lvlining Council v. 

Watt, 643 F.2d 618, 624 (9th Cir. 1981). 

FACTUAL BACKGROUND 

I. The Parties 

Plaintiffs Michael and Romaine are residents of Washington County, Oregon. Defendant 

Bayview is a limited liability company organized under the laws of the State of Delaware, with 

its principal place of business in Coral Gables, Florida. 

Page 3 - FINDINGS AND RECOMMENDATION 

Case 3:14-cv-01102-PK Document 21 Filed 01/09/15 Page 3 of 14
II. The Rothsteins' Allegations Regarding the Parties' Dispute 1 

In August 2006 the Rothsteins purchased a residential prope1ty located at 1352 Evah Lane 

in West Linn, Oregon (the "property"). In connection with their purchase of the property, the 

Rothsteins entered into two m01tgage loans with Bank of America, each secured by a Trust Deed 

for the prope1ty. 

In or around August 2009, the Rothsteins stopped making monthly payments on both 

Bank of America loans. In early 2011, Bank of America advised the Rothsteins that the property 

would be sold at a public foreclosure sale. The Rothsteins filed for Chapter 7 bankruptcy in June 

2011, and in December 2011, the Bankruptcy Co mt granted a discharge absolving the Rothsteins 

of personal liability on each of the two defaulted loans. 

In 2012, Bank of America transferred the "servicing" of the senior loan to Bayview and 

the servicing of the junior loan to third paity Real Time Resolutions. At some time in 2012, 

Bayview initiated discussions with the Rothsteins regarding the possibility of avoiding 

foreclosure proceedings through transfer of the Rothsteins' interest in the property to Bayview (a 

type of transaction referred to by the parties as a "deed in lieu of foreclosure" or more briefly as a 

"deed in lieu"). 

From late 2012 through late 2013, Michael negotiated with Bayview representatives 

regarding the terms of the proposed transfer. In late 2013, a Bayview representative orally 

advised Michael that "the deed in lieu was approved," and that Bayview would pay the 

Rothsteins $8,500 in exchange for their execution of the transfer documents. Subsequently, a 

1 Except where otherwise indicated, the following recitation constitutes my construal of 

the allegations of the Rothsteins' complaint and of the matters properly subject to judicial notice 

in the light most favorable to the Rothsteins. 

Page 4 - FINDINGS AND RECOMMENDATION 

Case 3:14-cv-01102-PK Document 21 Filed 01/09/15 Page 4 of 14
different Bayview representative advised Michael that Bayview would pay only $2,000 in 

exchange for the transfer. The Rothsteins then requested that the proposed arrangement be 

memorialized in a writing, but Bayview sent them only "mortgage assistance request forms" by 

and through which Bayview requested information about the Rothsteins' financial status. The 

Rothsteins did not fill out or return the forms. 

From July to December 2013, Bayview sent the Rothsteins a total of eight letters 

indicating that Bayview was negotiating the terms of a deed-in-lieu transfer with Real Time 

Resolutions (the junior loan servicer). Notwithstanding that repeated representation, Bayview 

did not, in fact, at any time contact Real Time Resolutions regarding the proposed transfer of 

interest. Moreover, Bayview has continued to send the Rothsteins monthly billing statements in 

connection with the senior m01igage loan on the property, notwithstanding the bankruptcy 

discharge of December 2011. The parties never executed documents effecting a deed-in-lieu 

transfer of the Rothsteins' interest in the property to Bayview. 

ANALYSIS 

By and through its motion, Bayview seeks dismissal only of the Rothsteins' common-law 

claims of breach of contract and negligent misrepresentation. I discuss the parties' arguments in 

connection with each of those claims in turn, below. 

I. Breach of Contract 

The purported contract underlying the Rothsteins' breach of contract claim is the alleged 

deed in lieu of foreclosure agreement pursuant to which the Rothsteins hoped to transfer their 

interest in the property to Bayview in exchange for Bayview's promises to pay the Rothsteins 

either $8,500 or $2,000 and to forbear on foreclosure of the senior Bank of America loan. 

Page 5 - FINDINGS AND RECOMMENDATION 

Case 3:14-cv-01102-PK Document 21 Filed 01/09/15 Page 5 of 14
Bayview takes the position that it is entitled to dismissal of the breach of contract claim because 

the purported agreement, even if entered into by the patties, is as a matter of law an 

unenforceable oral agreement under Oregon's statute of frauds. It is undisputed that the 

purported agreement was never memorialized in a writing subscribed by the parties. 

Under Oregon, law, a plaintiff in a breach of contract action "has the burden to establish 

the existence of a valid contract and the breach thereof." Pendleton Grain Growers v. Pedro, 

271 Or. 24, 28 (1975). Pursuant to Oregon's statute of frauds, certain contracts (including 

contracts that cannot be perfo1med within one year of their date of execution, contracts for the 

transfer of interests in real property, and ce1tain promises to forbear in connection with the 

repayment of debt) must be in a subscribed writing in order to be valid and enforceable: 

(1) In the following cases the agreement is void unless it, or some note or 

memorandum thereof, expressing the consideration, is in writing and 

subscribed by the party to be charged, or by the lawfully authorized agent 

of the patty; evidence, therefore, of the agreement shall not be received 

other than the writing, or secondary evidence of its contents in the cases 

prescribed by law: 

* * * 

( e) An agreement ... for the sale of real property, or of any interest 

therein. 

* * * 

(h) An agreement, promise or commitment ... to forbear with respect 

to the repayment of any debt payable in money, to modify or 

amend the terms under which the person has lent money or 

otherwise extended credit, to release any guarantor or cosigner or 

to make any other financial accommodation pe1taining to an 

existing debt or other extension of credit. This paragraph does not 

apply: 

(A) If no party to the agreement, promise or commitment is a 

financial institution as defined in ORS 706.008, a consumer 

Page 6 - FINDINGS AND RECOMMENDATION 

Case 3:14-cv-01102-PK Document 21 Filed 01/09/15 Page 6 of 14
finance company licensed under ORS chapter 725 or a 

m01igage banker as defined in ORS 86A.100; or 

(B) To a loan of money or extension of credit to a natural 

person which is primarily for personal, family or household 

purposes and not for business or agricultural purposes or 

which is secured solely by residential property consisting of 

one to four dwelling units, one of which is the primary 

residence of the debtor. · 

Or. Rev. Stat 41.580(1). 

The purported deed-in-lieu agreement, if entered into by the paiiies as suggested by the 

Rothsteins' allegations, is within the scope of Oregon's statute of frauds. The purp01ied 

agreement is most clearly within the scope of Section 41.580(1 )( e ), in that it allegedly would 

provide for the Rothsteins to transfer their interest in the prope1iy to Bayview in exchange for 

both monetaiy consideration and Bayview's promise to forbear to foreclose on the senior loan. 

See Or. Rev. Stat 41.580(l)(e); see also, e.g., Oltmanns v. Lewis, 135 Or. App. 35, 38 (1995) 

("In general, an oral agreement to transfer real prope1iy is unenforceable, because it violates the 

Statute of Frauds"). 

Because the purpo1ied agreement is clearly within the scope of Section 41.580(1 )( e ), the 

comi need not consider whether it falls within the scope of any other provision of Section 

41.580(1 ). I nevertheless note that the purpo1ied agreement likely falls also within the scope of 

Section 41.580(1 )(h), in that Bayview is alleged to have promised to forbear with respect to 

repayment of the senior Bank of America loan.2 See Or. Rev. Stat 41.580(1)(h). 

2 The Rothsteins argue that Section 41.580(1 )(h) is inapplicable here in consequence of 

the December 2011 bankruptcy discharge which absolved them of personal liability in 

connection with either of the two Bank of America loans. However, the Rothsteins' argument is 

not well taken because it is clear as a matter of law that a discharge under Chapter 7 of the 

Bankruptcy Code extinguishes only the personal liability of the debtor, and not the underlying 

Page 7 - FINDINGS AND RECOMMENDATION 

Case 3:14-cv-01102-PK Document 21 Filed 01/09/15 Page 7 of 14
The Rothsteins argue that, even on the assumption that the parties' purported agreement 

was within the scope of the Statute of Frauds, they partially performed their obligations 

thereunder such that it would be inequitable for this court not to disregard the Statute for 

purposes of determining the agreement's enforceability. I agree with the Rothsteins that, under 

appropriate circumstances, a party's pmiial performance of an oral contract may render the 

contract enforceable notwithstanding the Statute of Frauds: 

Under the doctrine of partial perfonnance, ifthe pmiy asserting the doctrine can 

show, by a preponderance of the evidence, the existence of an agreement that is 

debt; where the debt was secured by real property lhe creditor retains the right to pursue recovery 

of the debt through foreclosure of the mortgage. See Johnson v. Home State Bank, 501 U.S. 78, 

83 (1991); see also, e.g., In re Culpepper, 481 B.R. 650, 657 (Bankr. D. Or. 2012) (same). 

Bayview's alleged promise to forbear in connection with that retained right to foreclose on the 

senior mo1igage loan therefore necessarily falls within the scope of the provision. 

The Rothsteins fmiher argue, in the alternative, that if the purported agreement falls 

within the scope of Section 41.580(1 )(h) the provision is nevertheless inapplicable because it also 

falls within the scope of the exception codified at Section 41.580(l)(h)(B). The gravmnen of this 

argument is that because the Rothstein's mortgage loan from Bank of America was a personal 

loan secured by real prope1iy that was the primary dwelling place of the borrowers, and thus 

would have been within the scope of the exception to Section 41.580(1 )(h), Bayview's purported 

agreement to forbear from foreclosing in connection with that loan must likewise fall within the 

scope of the exception. The Rothsteins' reasoning in connection with this argument is fatally 

flawed, however, in that the Rothsteins' allegations cannot be construed as suggesting that the 

purported deed-in-lieu agreement is (or could be) identical with the senior Bank of America loan. 

To the contra1y, it is clear from the Rothsteins' allegations that the purported agreement at issue 

here is an agreement to transfer an interest in real property in exchange for both monetary 

consideration and a promise to forbear from foreclosure on an existing debt, and is therefore 

outside the scope of the exception. 

The parties do not discuss the exception to Section 41.580(1 )(h) codified at Section 

41.580(1 )(h)(A). However, it appears clear from the Rothsteins' allegations that Bayview is a 

consumer finance company subject to the licensing provisions of Or. Rev. Stat. Chapter 725, and 

this comi may properly take judicial notice that the Oregon Secretmy of State, Depmiment of 

Consumer & Business Services, Division of Finance & Corporate Securities lists Bayview as 

having held Mo1igage Lender license number ML-4883 at all times material to this litigation. 

See Fed. R. Evid. 201; see also nmlsconsumeraccess.org/EntityDetails.aspx/COMPANY/2469 

(last retrieved Jan. 7, 2015). The Section 41.580(1)(h)(A) exception is therefore likewise 

inapplicable here. 

Page 8-FINDINGS AND RECOMMENDATION 

Case 3:14-cv-01102-PK Document 21 Filed 01/09/15 Page 8 of 14
clear and unambiguous in its te1ms, that the partial performance unequivocally 

and exclusively refers to the agreement, and that there are equitable grounds for 

enforcing the agreement, then a court may enforce an oral agreement concerning 

the sale or transfer of an interest in land. 

Burgd01fv. Weston, 259 Or. App. 755, 758 (2013), citing kfukai Living Trust v. Lopez, 199 Or. 

App. 341, 345 (2005). However, those circumstances are clearly not present here. 

The doctrine of part performance 

"'is invoked in those cases where a contract is entered into in good faith, and the 

plaintiff, relying upon the contract, and in pursuance of it, takes possession of 

property with the consent of the grantor, and makes expenditures on account 

thereof, or improves the same, or changes his relation with the grantor, so that a 

refusal to carry out the contract would result in manifest fraud, injustice, or 

oppression."' Hearn v. 1Vfay et al, 207 Ore. 514, 519, 298 P.2d 177 (1956) 

(quoting Johnson v. Upper, 38 Wash. 693, 80 P. 801 (1905)). 

Oltmanns v. Lewis, 135 Or. App. 35, 38-39 (1995). In1Wclnnis v. Lind, 198 Or. App. 139 (2005), 

for example, the plaintiff argued that purported partial performance of an alleged oral agreement 

to modify a contract for a transfer of interest in real property provided equitable grounds for 

disregard of the Statute of Frauds where the plaintiff tendered a $5,000 down payment and three 

monthly mortgage payments to the defendant, the defendant dismissed a pending ejectment 

action against the defendant, and the pmties jointly hired an appraiser to dete1mine the fair 

market value of the property. See 1Wclnnis, 198 Or. App. at 151-152. Noting that the defendant 

refused tender of the down payment and that the monthly payments were less than what the 

plaintiff owed the defendant by way of monthly rent even in the absence of an agreement for 

purchase of the real property, such that the defendant was not unjustly emiched by the tendered 

payments, noting that the dismissal of the ejectment action was not detrimental to but rather 

beneficial to the plaintiff, and noting that the parties' jointly cancelled the appraisal before it 

occurred, such that the plaintiff did not incur an appraisal fee, the comt summarily rejected the 

Page 9 - FINDINGS AND RECOMMENDATION 

Case 3:14-cv-01102-PK Document 21 Filed 01/09/15 Page 9 of 14
proposition that tht; plaintiffs purported partial performance could have been "sufficient to 

remove the alleged oral agreement from the statute of frauds." Id. at 152. 

Here, nothing in the course of the paities' dealings suggests that enforcement of the 

Statute of Frauds could result in any manifest fraud, injustice, or oppression. The Rothsteins' 

purported pa1tial performance consists solely of time and effo1i spent negotiating the purported 

agreement, expressions of willingness to enter into the proposed arrangement, receipt ofletters 

regarding Bayview's supposed efforts to negotiate the arrangement with the servicer of the junior 

loan, and receipt of application materials. Still more clearly than was the case in lvfc!nnis, none 

of the plaintiffs' purpoticd patiial performance was unde1iaken in reliance on the parties' 

purported agreement or to the Rothsteins' cognizable detriment. In consequence, the Rothsteins 

cannot meet the standard for disregard of the Statute of Frauds set fmih in Oltmanns and 

lvfc!nnis. 

Finally, in the alternative, the Rothsteins assert that in advance of discovery "it would be 

premature to deny plaintiffs the oppo1iunity to determine if defendant has documents in its 

possession which suppoti plaintiffs' [breach of contract] claim[]." At oral argument in 

connection with Bayview's motion, counsel for the Rothsteins did not, when invited to do so, 

articulate with specificity how discovery might establish that the parties' purpo1ied agreement 

could be enforceable notwithstanding the Statute of Frauds; in particular counsel did not indicate 

that any discovety could establish that the patties' purpmied agreement was ever memorialized in 

a writing subscribed by Bayview. I therefore do not find that the Rothsteins' breach of contract 

claim can properly survive Bayview's motion to dismiss on the strength of the Rothsteins' 

proffered assetiion of prematurity. 

Page 10 - FINDINGS AND RECOMMENDATION 

Case 3:14-cv-01102-PK Document 21 Filed 01/09/15 Page 10 of 14
For the foregoing reasons, Bayview's motion should be granted as to the Rothsteins' 

breach of contract claim. 

II. Negligent Misrepresentation 

By and through their amended complaint, the Rothsteins expressly allege their claim of 

negligent misrepresentation in the alternative to their other claims; the gravamen of the claim is 

that "Bayview's breach of its agreement to conclude the deed in lieu agreement was either 

intentional, or negligent," and if not intentional, then negligent with respect to Bayview's 

purported "duty ... to provide plaintiffs with the contractual documents it both promised, and 

represented to plaintiffs." Under Oregon law, a patty may be found liable for economic loss 

sustained by another who reasonably relies on the patty's negligent misrepresentation. See 

Conway v. Pacific Univ., 324 Or. 231, 236 (1996). However, such liability must be predicated 

on a duty owed by the negligent actor to the injured party beyond the common law duty to 

exercise reasonable care to prevent foreseeable harm. See id. Moreover, in order to receive 

economic damages for another party's negligent misrepresentation, a "special relationship" must 

exist between the patties. See Onita Pac. Corp. v. Trs. of Bronson, 315 Or. 149, 159 (1992). 

Such a "special relationship" exists where: 

( 1) One party relinquishes control over matters, usually financial, and entrusts 

them to the other party ... ; (2) The party with control is authorized to exercise 

independent judgment; (3) in order to fmther the other party's interests; and (4) 

The relationship either is, or resembles, other relationships in which the law 

imposes a duty on patties to conduct themselves reasonably, so as to protect the 

other parties to the relationship. 

Bell v. Public Emp/es. Ref. Bd., 239 Or. App. 239, 249-250 (2010) (internal quotation marks 

omitted), quoting Onita, 315 Or. at 160. In analyzing whether such a relationship exists: 

The focus is not on the subject matter of the relationship, such as one patty's 

Page 11 - FINDINGS AND RECOMMENDATION 

Case 3:14-cv-01102-PK Document 21 Filed 01/09/15 Page 11 of 14
financial future; nor is it on whether one party, in fact, relinquished control to the 

other. The focus instead is on whether the nature of the parties' relationship 

itself allowed one patiy to exercise control in the first party's best interests. In 

other words, the law does not imply a tort duty simply because one patiy to a 

business relationship begins to dominate and to control the other party's financial 

future. Rather, the law implies a t01i duty only when that relationship is of the 

type that, by its nature, allows one party to exercise judgment on the other party's 

behalf. 

Bennett v. Farmers Ins. Co., 332 Or. 138, 161-162 (2001) (emphasis original). 

In response to Bayview's motion to dismiss, the Rothsteins expressly conceded that their 

negligent misrepresentation claim would not lie on the facts as alleged in their amended 

complaint, and conceded that the claim was therefore subject to dismissal. On that basis, the 

Rothsteins informally "move[d]" the couti for dismissal of the claim without prejudice. 

Bayview's arguments in favor of dismissal of the negligent misrepresentation claim with 

prejudice are well taken. First, the Rothsteins' allegations, interpreted in the light most favorable 

to the Rothsteins, tend to establish both that Bayview and the Rothsteins were a11ns'-length 

negotiators with regard to the purported deed-in-lieu agreement and that Bayview's relationship 

to the Rothsteins was that of "loan servicer," a role lacking authority to exercise control over a 

borrower's best interests. As such, a finder of fact could not reasonably conclude on the basis of 

the Rothsteins' allegations that the parties were in the kind of special relationship requisite to a 

negligent misrepresentation claim. 

Second, the only misrepresentation by Bayview that can reasonably be inferred from the 

Rothsteins' allegations - that Bayview would provide and (presumably) execute documents 

effecting the patiies' purported agreement - was at most a statement of intent with regard to a 

future contingency, and not a misrepresentation of any then-present state of affairs. Although it 

does not appear that the Oregon courts have weighed in on the specific question whether a 

Page 12 - FINDINGS AND RECOMMENDATION 

Case 3:14-cv-01102-PK Document 21 Filed 01/09/15 Page 12 of 14
negligent misrepresentation claim could lie on the basis of a false representation of intent 

regarding a future contingency, I agree with Baview that embrace of that proposition would 

imply that eveiy breach of contract claim could sound in tort as either an intentional or negligent 

misrepresentation, a position the Oregon courts have never adopted. 

Third, I agree with Bayview that, construing the Rothsteins' allegations in the light most 

favorable to them, their claimed damages (impaired "credit scores" and resulting "increased ... 

interest costs" in connection with the Rothsteins' recent purchase of a new home) could not have 

been caused by reliance on Bayview's alleged misprepresentation (especially in light of the fact 

that Bayview has not actually foreclosed on the senior m01tgage loan notwithstanding its position 

that it may properly do so), but rather were the direct consequence of the Rothsteins' undisputed 

default on their mortgage payments. In consequence, the Rothsteins cannot establish the 

damages element of their negligent misrepresentation claim on the basis of the facts alleged in 

their amended complaint. 

At oral argument in connection with Bayview's motion, I asked counsel for the Rothsteins 

if any set of facts could be established through discovery in suppo1t of their negligent 

misrepresentation claim, such that dismissal of the claim without prejudice could be appropriate. 

In response, counsel stated that his clients had no objection to dismissal of the claim with 

prejudice. 

Because Bayview's arguments in favor of dismissal of the negligent misrepresentation 

claim are well taken, and because the Rothsteins have stipulated that dismissal of the claim with 

prejudice is appropriate, Bayview's motion should be granted as to the Rothsteins' negligent 

misrepresentation claim, and the Rothsteins' informal motion for dismissal of that claim without 

Page 13 - FINDINGS AND RECOMMENDATION 

Case 3:14-cv-01102-PK Document 21 Filed 01/09/15 Page 13 of 14
prejudice should be disregarded. 

CONCLUSION 

For the reasons set fmth above, Bayview's motion (#16) to dismiss should be granted as 

to the Rothsteins' common-law claims of breach of contract and of negligent misrepresentation. 

SCHEDULING ORDER 

The Findings and Recommendation will be refell'ed to a district judge. Objections, if any, 

are due fomteen (14) days from service of the Findings and Recommendation. If no objections 

are filed, then the Findings and Recommendation will go under advisement on that date. 

If objections are filed, then a response is due fourteen (14) days after being served with a 

copy of the objections. When the response is due or filed, whichever date is earlier, the Findings 

and Recommendation will go under advisement. 

Dated this 9th day of January, 2015. 

Honorable Paul Papak 

United States Magistrate Judge 

Page 14 - FINDINGS AND RECOMMENDATION 

Case 3:14-cv-01102-PK Document 21 Filed 01/09/15 Page 14 of 14