IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

KATHERINE COTRELL, 

Plaintiff, 

v. 

CENTRAL MORTGAGE COMPANY, 

NORTHWEST TRUSTEE SERVICES, 

INC., 

Defendants. 

Benjamin D. Knaupp 

Garland Griffiths Knaupp 

254 N. First Avenue 

Hillsboro, OR 97124 

Attorney for plaintiff 

Lukasz I. Wozniak 

Wright, Finlay & Zak, LLP 

4665 MacArthur Court, Suite 200 

Newport Beach, CA 92660 

Case No. 3:15-cv-00844-AA 

OPINION AND ORDER 

Attorney for defendant Central Mortgage Company 

John M. Thomas 

RCO Legal, P.C. 

511 S.W. Tenth Avenue, Suite 400 

Portland, OR 97205 

Attorney for defendant Northwest Trustee Services, Inc. 

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Case 3:15-cv-00844-AA Document 15 Filed 07/30/15 Page 1 of 9
AIKEN, Chief Judge: 

Defendants Central Mortgage Company (Central) and Northwest 

Trustee Services, Inc. (NWTS) move to dismiss plaintiff Katherine 

Cotrell's complaint pursuant to Fed. R. Civ. P. 12(b) (6) . 1 

Defendants also move for judicial notice of certain publicly-filed 

documents. For the reasons set forth below, defendants' motions are 

granted. 

BACKGROUND 

In November 2005, plaintiff took out a loan in the amount of 

$560,000 to purchase a residential property in Portland, Oregon 

(Property) . Pursuant to this transaction, plaintiff executed a 

Promissory Note (Note), which was secured by a Deed of Trust (DOT). 

The DOT identified plaintiff as the borrower, Barrington Capital 

Corporation (Barrington) as the lender, Mortgage Electronic 

Registration Systems, Inc. (MERS) as the beneficiary and nominee, 

and Fidelity National Title Company of Oregon as the trustee. Under 

the DOT, plaintiff agreed to make monthly mortgage payments as 

required under the Note. Plaintiff also agreed that she would be in 

default, and subject to foreclosure, if she failed to make such 

payments. 

"Sometime during the fall of 2008," plaintiff stopped making 

1 NWTS articulates alternative bases for dismissal, including 

Fed. R. Civ. P. 12 (b) (1), Fed. R. Civ. P. 12 (b) (4), and Fed. R. 

Civ. P. 12(b) (5). Because plaintiff's complaint fails under Fed. 

R. Civ. P. 12(b) (6), and because NWTS neglected to adequately 

brief these other bases, the Court declines to address them. 

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Case 3:15-cv-00844-AA Document 15 Filed 07/30/15 Page 2 of 9
loan repayments as required by the Note and DOT. Compl. ~ 5. On 

December 31, 2008, MERS assigned the DOT, as nominee for 

Barrington, to Central. Also on December 31, 2008, Central 

appointed NWTS as successor trustee under the DOT; NWTS, in turn, 

issued and recorded a Notice of Default. Plaintiff failed to cure 

her default and, on April 20, 2009, NWTS issued and recorded 

Trustee's Notice of Sale. 

On May 6, 2009, Central purchased the Property at the 

foreclosure sale. A Trustee's Deed was recorded on May 11, 2009. 

Plaintiff vacated the Property in July 2009. 

On April 24, 2015, plaintiff filed a complaint in Multnomah 

County Circuit Court, alleging claims for wrongful foreclosure 

under the Oregon Trust Deed Act (OTDA) and trespass. On May 15, 

2015, Central removed plaintiff's case to this Court. On May 20, 

2015, Central moved to dismiss plaintiff's complaint. On July 3, 

2015, NWTS filed a separate motion to dismiss. 

STANDARD OF REVIEW 

Where the plaintiff fails to state a claim upon which relief 

can be granted, the court must dismiss the action. Fed. R. Civ. P. 

12 (b) (6). To survive a motion to dismiss, the complaint must allege 

enough facts to state a claim for relief that is plausible on its 

face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). For 

purposes of a motion to dismiss, the complaint is liberally 

construed in favor of the plaintiff and its allegations are taken 

as true. Rosen v. Walters, 719 F.2d 1422, 1424 

Page 3 - OPINION AND ORDER 

(9th Cir. 

Case 3:15-cv-00844-AA Document 15 Filed 07/30/15 Page 3 of 9
1983). 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). 

DISCUSSION 

Defendants argue that plaintiff's complaint should be 

dismissed because she is statutorily barred from challenging the 

underlying non-judicial foreclosure, which was completed nearly six 

years before this lawsuit was commenced. In addition, defendants 

contend that MERS' status as beneficiary did not invalidate the 

foreclosure. According to defendants, plaintiff's trespass claim 

fails because the DOT expressly permitted them to physically access 

the Property and a judgment of eviction was entered against 

plaintiff. 

Conversely, plaintiff asserts that "[p]ost foreclosure sale 

challenges are recognized by the Oregon [C]ourt of Appeals." Pl.'s 

Resp. to Central's Mot. Dismiss 3. Plaintiff also argues that the 

recorded documents do not establish Central's beneficial ownership 

of the Note, or defendants' right to enter the Property, such that 

her claims are sufficiently alleged to survive dismissal. 

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I. Preliminary Matters 

The Court must address two issues before reaching whether 

dismissal is warranted. 

A. Requests for Judicial Notice 

Central moves for judicial notice of the DOT, recorded in 

Multnomah County on November 9, 2005. NWTS moves for judicial 

notice of the General Judgement of Eviction it received against 

plaintiff in relation to the Property, dated July 2, 2009, from the 

Multnomah County Circuit Court. The documents at issue are part of 

the public record, such that their accuracy cannot reasonably be 

questioned. Fed. R. Evid. 201(b); Santa Monica Food Not Bombs v. 

City of Santa Monica, 450 F.3d 1022, 1025 n.2 (9th Cir. 2006). 

Indeed, plaintiff attached portions of the DOT to her complaint and 

otherwise does not dispute the authenticity of these materials. 

Defendants' requests for judicial notice are granted. 

B. Requests to Amend 

Plaintiff seeks leave to amend her complaint via her response 

briefs. Plaintiff's requests are denied because they do not comply 

with the Local Rules. LR 7-1(b); LR 15. 

II. Plaintiff's First Claim Under the OTDA 

Plaintiff alleges that NWTS "lacked any legal authority to 

foreclose on the lien against [her] property" because the nonjudicial foreclosure "did not comply with the Oregon law."Compl. 

i 14. Plaintiff also alleges that MERS "lacked any right, title or 

interest of its own in the mortgage," such that the recorded 

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assignment of the DOT failed to convey Barrington's beneficial 

interest to Central. Id. at ~ 12. Plaintiff concludes that 

defendants' wrongful actions caused her to lose her home and suffer 

monetary damages in the form of lost rent. Id. at ~ 15. 

The Court finds that plaintiff fails to state a claim upon 

which relief can be granted. Courts within this District have 

consistently found that the OTDA precludes challenges to completed 

non-judicial foreclosures where timely statutory notice was served, 

even where the plaintiff asserts procedural defects due to MERS' 

involvement. See, e.g., Mikityuk v. N.W. Tr. Servs., Inc., 952 

F.Supp.2d 958, 962-70 (D.Or. 2013); Morkal v. Fed. Home Loan Mortg. 

Corp., 2014 WL 2041364, *4 (D.Or. May 8, 2014); Mitchell v. 

Homesales, Inc., 2014 WL 1744991, *3-4 (D.Or. Apr. 30, 2014); Liu 

v. N.W. Tr. Servs., Inc., 2014 WL 657000, *3-4 (D.Or. Feb. 19, 

2014); Baricevic v. Mortg. Elec. Registration Servs., Inc., 2014 WL 

297091, *2-3 (D.Or. Jan. 24, 2014); Collette v. Sutherland, 2014 WL 

203922, *1-2 (D.Or. Jan. 15, 2014). 

Plaintiff does not dispute that: (1) she was in default at the 

time of the non-judicial foreclosure; (2) she lacked the ability to 

cure her default; (3) she received adequate statutory notice under 

the OTDA; and ( 4) the sale of the Property was completed and 

recorded years before she filed this lawsuit. Further, plaintiff's 

reliance on forcible entry and detainer proceedings, including U.S. 

Bank, NA v. Eckert, 267 Or.App. 721, 341 P.3d 173 (2014), is 

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misplaced. Eckert explicitly declined to reach the bank's argument, 

raised for the first time upon reconsideration, that the property's 

occupant was not permitted to challenge the validity of the 

underlying trustee's sale. Eckert, 267 Or.App. at 722-24. In other 

words, Eckert did not reach the issue presented here and is 

therefore not instructive. Id. Moreover, forcible entry and 

detainer proceedings are fundamentally different from wrongful 

foreclosure actions, as they are governed by a separate statutory 

scheme and serve a discrete purpose. Compare U.S. Bank Nat'l Ass'n 

v. Wright, 253 Or.App. 207, 213, 289 P.3d 361 (2012) ("[b]y its 

very nature, an action for ejectment requires the plaintiff to 

prove the nature of its legal estate in the property") (citing Or. 

Rev. Stat. §§ 105.005(1), 105.010(1); Hoover v. King, 43 Or. 281, 

284, 72 P. 880 (1903)); with Mikityuk, 952 F.Supp.2d at 962-70 

(summarizing the OTDA and Oregon case law regarding wrongful 

foreclosure actions and holding that the former version of Or. Rev. 

Stat. § 86.797 bars post-sale challenges by parties to whom proper 

notice is given, because such a bar is consistent with the OTDA's 

purpose of providing lenders an efficient and final remedy against 

defaulting borrowers). 

This is not to say that courts lack authority to set aside a 

trustee's sale "on equitable grounds, or upon any acts of bad faith 

by the trustee or creditor." Mikityuk, 952 F.Supp.2d at 970 n. 10. 

Plaintiff, however, alleges no facts implicating defendants' bad 

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faith or any other equitable concerns. She likewise provides no 

legal or factual basis for this Court to diverge from wellestablished precedent regarding post-sale wrongful foreclosure 

actions. Defendants' motions are granted as to plaintiff's first 

claim. 

III. Plaintiff's Second Claim for Trespass 

Plaintiff alleges that defendants trespassed by "unlawfully 

possessing and selling the property without legal title to the 

property because the trustee's sale was invalid." Compl. ~ 16. 

Plaintiff fails to state a claim for trespass. The DOT 

expressly authorized defendants to enter the Property upon 

plaintiff's 2008 default. Central's Mot. Jud. Notice Ex. 1, at 9; 

Compl. ~ 5; see also Verizon N.W., Inc. v. Main St. Dev., Inc., 693 

F.Supp.2d 1265, 1278 (D.Or. 2010) ("[i]f a trespasser had the 

landowner's consent to enter upon the land for a particular 

purpose, the landowner cannot maintain an action for trespass") 

( citation omitted) . Regardless, plaintiff does not allege that 

defendants entered the Property at any point and the record 

demonstrates the foreclosure sale "was held at the Multnomah County 

Courthouse." Central's Reply to Mot. Dismiss 8; Compl. Ex. 5, at 2. 

Furthermore, NWTS obtained a judgment of eviction against plaintiff 

after the non-judicial foreclosure was completed via a forcible 

entry and detainer proceeding. NWTS' Mot. Judicial Not. Ex. 1, at 

1. As noted above, plaintiff had an opportunity to raise any 

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defects inherent to the foreclosure process at that time; she 

elected not to appear and instead filed this action nearly six 

years later. Id. Defendants' motions are granted as to plaintiff's 

second claim. 

CONCLUSION 

Defendants' motions for judicial notice (doc. 8, 12) are 

GRANTED. Defendants' motions to dismiss (doc. 4, 11) are also 

GRANTED. The parties' requests for oral argument are DENIED as 

unnecessary. Any motion for leave to amend the complaint shall be 

filed within 20 days of the date of this Opinion, otherwise the 

Court will enter judgment dismissing this case. 

IT IS SO ORDERED. 

Dated this ~day of July 2015. 

Ann Aiken 

United States District Judge 

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