IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

TIMOTHY BARNES,

Plaintiff,

v.

ROUTH CRABTREE OLSEN, PC;

JOHN THOMAS, OSB #024691;

JANAYA CARTER, OSB #032830;

SHAYDA ZAEPOOR LE, OSB 

#121547; FEDERAL NATIONAL

MORTGAGE ASSOCIATION;

SETERUS, INC.; and JOHN AND

JANE DOES 1 - 10,

Defendants.

3:15-CV-01001-BR

 

OPINION AND ORDER 

TIMOTHY BARNES

590 South Greenwood Rd.

Independence, OR 97351

(503) 585-9517 

Plaintiff, Pro Se

JANET MARIE SCHROER

1 - OPINION AND ORDER

Case 3:15-cv-01001-BR Document 26 Filed 01/07/16 Page 1 of 16
Hart Wagner, LLP

1000 S.W. Broadway

Suite 2000

Portland, OR 97205

(503) 222-4499 

Attorneys for Defendants Routh Crabtree Olsen, PC; John

Thomas; Janaya Carter; and Shayda Zaepoor Le 

COLIN P. MACKENZIE

RCO Legal, P.S.

511 S.W. 10th Ave.

Suite 400

Portland, OR 97205

(503) 459-0205 

Attorneys for Defendants Federal National Mortgage

Association and Seterus, Inc.

BROWN, Judge.

This matter comes before the Court on the Motion (#15) to

Dismiss of Defendants Routh Crabtree Olsen, John Thomas, Janaya

Carter, and Shayda Zaepoor Le (Attorney Defendants); the Motion

(#18) to Dismiss of Defendants Federal National Mortgage

Association (Fannie Mae) and Seterus, Inc.; Plaintiff Timothy

Barnes’s Motion (#25) to Take Judicial Notice; and Attorney

Defendants’ request for judicial notice contained in their Reply

in support of their Motion to Dismiss. For the reasons that

follow, the Court GRANTS Defendants’ Motions to Dismiss, GRANTS

Barnes’s Motion to Take Judicial Notice, GRANTS Attorney

Defendants’ request for judicial notice, and DISMISSES this

matter with prejudice.

BACKGROUND

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The following facts are taken from Plaintiff Timothy

Barnes’s Amended Complaint and the materials filed by the parties

related to Defendants’ Motions to Dismiss.

On November 15, 2007, Plaintiff entered into a "toxic

predatory mortgage loan . . . secured by a Deed of Trust covering

. . . Barnes’s principal dwelling.” Pl.’s Am. Compl. at ¶ 18

(emphasis omitted). At closing Plaintiff received “various

disclosure documents” that he alleges included inaccurate

information about his rescission rights.

At some point thereafter Plaintiff’s November 15, 2007, Deed

of Trust was assigned to the MERS System as nominee for Defendant

Fannie Mae.

Plaintiff alleges he "exercised and achieved rescission” on

August 4, 2010, “by sending a valid written Rescission Notice to

all known interested parties." Pl.’s Am. Compl. at ¶ 21

(emphasis omitted). 

Other Litigation

In September 2010 Plaintiff stopped making mortgage payments

as a result of which Plaintiff’s creditors considered Plaintiff

to be in default on his mortgage loan.

On February 4, 2011, Plaintiff filed an action in this Court

against various defendants including Fannie Mae. See Barnes v.

Chase Home Fin., LLC, No. 3:11-CV-00142-PK (the TILA action). 

Plaintiff alleged the defendants violated the Truth In Lending

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Case 3:15-cv-01001-BR Document 26 Filed 01/07/16 Page 3 of 16
Act (TILA), 15 U.S.C. § 1601, et seq., “in connection with their

responses (or failures to respond) to Barnes’s notice of his

intention to exercise his asserted right of rescission as to [the

November 2007] mortgage loan.” Magistrate Judge Paul Papak

construed Plaintiff’s complaint as alleging claims for 

(i) rescission of the mortgage loan, 

(ii) declaratory judgment that defendants have no

valid security interest in the subject property,

(iii) statutory and actual damages in connection

with defendants' purported failure to provide

adequate notice of his right to rescind at or

around the time the loan documents were signed,

(iv) statutory and actual damages in connection

with the Chase defendants' failure to effect

rescission of the mortgage loan following their

receipt of his notice of intent to exercise the

rescission right, and (v) injunctive relief to

enjoin the defendants from initiating or

prosecuting non-judicial foreclosure proceedings

on the property, from recording any deeds or

mortgages regarding the property, or from taking

any steps to deprive him of his ownership rights

in the property. 

Barnes v. Chase Home Fin., LLC, No. 3:11-CV-00142-PK, 2013 WL

3479491, at *1 (D. Or. July 8, 2013). The parties cross-moved

for summary judgment.

On April 10, 2013, Magistrate Judge Papak issued Findings

and Recommendation in which he recommended the Court deny

Plaintiff’s motion for summary judgment and grant the defendants’

motions for summary judgment. Specifically, Magistrate Judge 

Papak found in pertinent part that Plaintiff’s TILA rescission

claim was untimely and “Fannie Mae's obligation to rescind

Barnes’ loan was never triggered. In consequence, Plaintiff has

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no right under Section 1640(a) to statutory or actual damages

caused by Fannie Mae's failure to effect Barnes’ rescission

right.” Id., at *8-9. On July 8, 2013, this Court issued an

Order in which it adopted the Findings and Recommendation, denied

Plaintiff's motion for summary judgment, granted the defendants’

motions for summary judgment, and dismissed the matter with

prejudice. 3:11-CV-00142-PK, Order (#163).

On August 6, 2013, Plaintiff filed a Notice of Appeal of the

TILA action to the Ninth Circuit, and Plaintiff’s appeal to the

Ninth Circuit is still pending.

On June 6, 2014, Fannie Mae filed a foreclosure action in

Polk County Circuit Court (the Foreclosure Action). The Attorney

Defendants in this matter represented Fannie Mae in the

Foreclosure Action. 

In July 2014 Plaintiff filed a motion to dismiss the

Foreclosure Action on the ground of “Prior Exclusive

Jurisdiction, another pending action between the same parties for

the same cause.” Pl.’s Am. Compl., Ex. 12 at ¶ 23. 

Specifically, Plaintiff asserted the Foreclosure Action should be

dismissed because the TILA Action was “pending between the same

parties for the same cause.” Pl.’s Am. Compl., Ex. 12 at ¶ 18.

On August 12, 2014, Fannie Mae filed a response to

Plaintiff’s motion to dismiss in the Foreclosure Action and

asserted the “Prior Exclusive Jurisdiction rule of law” was not

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Case 3:15-cv-01001-BR Document 26 Filed 01/07/16 Page 5 of 16
at issue because, among other things, Plaintiff’s “rescission

claim has already been adjudicated and lost [by Plaintiff].” 

Pl.’s Am. Compl., Ex. 13 at ¶ 6.

On May 29, 2015, the Polk County Circuit Court held a

hearing on Plaintiff’s motion to dismiss and granted the motion

on the ground that the TILA Action appeal was “another action

pending.” Pl.’s Mot. to Take Judicial Notice, Ex. 2 at 7.

On July 21, 2015, the Polk Court Circuit Court entered an

order and general judgment of dismissal in which it granted

Plaintiff’s motion to dismiss and dismissed the Foreclosure

Action without prejudice.

On August 18, 2015, Fannie Mae filed a notice of appeal of

the Foreclosure Action to the Oregon Court of Appeals, and Fannie

Mae’s appeal to the Oregon Court of Appeals is still pending.

This Action 

On June 5, 2015, Plaintiff filed his pro se Complaint in

this Court against Attorney Defendants; Fannie Mae; and Seterus,

Inc., in which he alleged this Court has jurisdiction pursuant to

the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. 

§ 1692k(d). Plaintiff, however, did not include any factual

allegations to support his claim for violation of the FDCPA or

facts relating to any state-law claim. The Court, therefore,

dismissed Plaintiff’s Complaint sua sponte with leave to file an

Amended Complaint.

6 - OPINION AND ORDER

Case 3:15-cv-01001-BR Document 26 Filed 01/07/16 Page 6 of 16
On July 7, 2015, Plaintiff filed a First Amended Complaint

against Attorney Defendants, Fannie Mae, and Seterus in which he

alleges Defendants violated the FDCPA and the Oregon Unlawful

Trade Practices Act (UTPA), Oregon Revised Statute § 646.639 and

entered into a civil conspiracy when they initiated the

Foreclosure Action. Plaintiff seeks damages and injunctive

relief.

On September 2, 2015, Attorney Defendants filed a Motion to

Dismiss Plaintiff’s Amended Complaint on the grounds that

Plaintiff did not state a claim against them for violation of the

FDCPA, foreclosure on a security interest is not a debt

collection under the FDCPA, and Plaintiff’s FDCPA claim is barred

by issue preclusion/judicial estoppel. 

On September 4, 2015, Fannie Mae and Seterus filed a Motion

to Dismiss in which it joined Attorney Defendants’ arguments.

On October 8, 2015, in their Reply in support of their

Motion to Dismiss, Attorney Defendants requested the Court take

judicial notice of certain materials.

On October 20, 2015, Plaintiff also filed a Motion to take

Judicial Notice.

The Court took the parties’ Motions under advisement on

October 20, 2015.

PLAINTIFF’S MOTION (#25) TO TAKE JUDICIAL NOTICE

and ATTORNEY DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE

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Plaintiff requests the Court to take judicial notice of the

transcripts of the oral argument conducted on Plaintiff’s motion

to dismiss in the Polk County Foreclosure Action. Defendants did

not file any opposition to Plaintiff’s Motion, and, in addition,

Attorney Defendants request the Court take judicial notice of the

summons and notice that Defendants filed in the Foreclosure

Action attached to the Supplemental Declaration of Janet Schroer.

I. Standards

Federal Rule of Evidence 201 allows a court to take judicial

notice of facts that can be “accurately and readily determined

from sources whose accuracy cannot reasonably be questioned.” 

Fed. R. Evid. 201(b)(2). The court may take judicial notice of

documents that are matters of public record. See MGIC Indem.

Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986)(A district

court may take “judicial notice of matters of public record

outside the pleadings" when determining whether a complaint fails

to state a claim.).

II. Plaintiff’s Motion

As noted, Plaintiff requests the Court take judicial notice

of the transcripts of the oral argument conducted on Plaintiff’s

motion to dismiss in the Foreclosure Action. Defendants do not

oppose Plaintiff’s Motion. The transcripts are properly

authenticated and certified by the court reporter, they are

matters of public record, and their accuracy is not reasonably

8 - OPINION AND ORDER

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subject to debate. 

Accordingly, the Court GRANTS Plaintiff’s Motion and takes

judicial notice of the transcripts attached to Plaintiff’s Motion

to Take Judicial Notice.

III. Attorney Defendants’ Request

Attorney Defendants request the Court take judicial notice

of the summons and notice filed in the Foreclosure Action and

attached to the Supplemental Declaration of Janet Schroer. The

summons and notice similarly are matters of record and their

accuracy is not reasonably subject to debate. 

Accordingly, the Court GRANTS Attorney Defendants’ request

and takes judicial notice of the summons and notice filed in the

Foreclosure Action.

DEFENDANTS’ MOTIONS (#15, #18) TO DISMISS

Defendants move to dismiss Plaintiff’s FDCPA claim on the

grounds that Plaintiff did not state a claim for violation of the

FDCPA; foreclosing on a security interest is not a debt

collection under the FDCPA; or, in the alternative, Plaintiff’s

FDCPA claim is precluded by the doctrines of issue preclusion

and/or judicial estoppel. Defendants also move to dismiss

Plaintiff’s UTPA claim on the ground that Plaintiff has not

stated a claim under that statute and to dismiss Plaintiff’s

civil conspiracy claim on the ground that Plaintiff has not

9 - OPINION AND ORDER

Case 3:15-cv-01001-BR Document 26 Filed 01/07/16 Page 9 of 16
established Defendants entered into a conspiracy to violate the

law.

I. Plaintiff has not stated a claim for violation of the FDCPA.

Defendants assert Plaintiff has not and cannot state a claim

against them for violation of the FDCPA because it is undisputed

that at the time Defendants initiated the Foreclosure Action

Fannie Mae possessed a valid and binding judgment from this Court

dismissing the TILA action with prejudice on the grounds that

Plaintiff did not rescind his mortgage and Fannie Mae did not

violate TILA. Thus, according to Defendants, they did not

violate the FDCPA when they filed the Foreclosure Action because

at the time Fannie Mae possessed an enforceable judgment that

established the validity of the underlying mortgage.

Plaintiff asserts the Judgment in the TILA action was not

final because Plaintiff’s appeal is still pending, and,

therefore, the district court Judgment was not a legitimate basis

for commencing the Foreclosure Action. The Ninth Circuit,

however, has held “the preclusive effects of a lower court

judgment cannot be suspended simply by taking an appeal that

remains undecided.” Hawkins v. Risley, 984 F.2d 321, 324 (9th

Cir. 1993). See also Collins v. D.R. Horton, Inc., 505 F.3d 874,

882 (9th Cir. 2007) (“We have held that a final judgment retains

its collateral estoppel effect, if any, while pending appeal."). 

Plaintiff’s argument, therefore, is without merit.

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On this record the Court concludes Plaintiff has not

established Defendants violated the FDCPA when they initiated the

Foreclosure Action.

II. Foreclosing on a security interest is not a “debt

collection” under the FDCPA.

Defendants also move the Court to dismiss Plaintiff’s FDCPA

claims because foreclosing on a security interest is not a debt

collection within the meaning of that statute. Although the

Ninth Circuit has not considered this issue, district courts

within the Ninth Circuit, including courts in this district, have

addressed the issue and concluded “foreclosing on a property

pursuant to a deed of trust is not a debt collection within the

meaning of . . . the FDC[P]A.” Garfinkle v. JPMorgan Chase Bank,

C 11-01636 CW, 2011 WL 3157157, at *3 (N.D. Cal. July 26, 2011)

(quotation omitted). See also Garfinkle, 2011 WL 3157157, at *3

(“[A]lthough the Ninth Circuit Court of Appeals has not

considered the issue, the weight of authority supports that a

foreclosure is not a form of debt collection.”); Gamboa v.

Trustee Corps, No. 09-0007 SC, 2009 WL 656285, at *4 (N.D. Cal.

Mar. 12, 2009)(“[T]he law is clear that foreclosing on a property

pursuant to a deed of trust is not a debt collection within the

meaning of the . . . FDC[P]A”); Landayan v. Washington Mut. Bank, 

No. C–09–00916 RMW, 2009 WL 3047238, at *3 (N.D. Cal. Sept. 18,

2009)(dismissing the Plaintiff's FDCPA claim because “foreclosing

on a deed of trust does not invoke the statutory protections of

11 - OPINION AND ORDER

Case 3:15-cv-01001-BR Document 26 Filed 01/07/16 Page 11 of 16
the FDCPA”); Jozinovich v. JP Morgan Chase Bank, N.A., No.

C09–03326 TEH, 2010 WL 234895, at *6 (N.D. Cal. Jan. 14, 2010)

(“[T]he activity of foreclosing on [a] property pursuant to a

deed of trust is not the collection of a debt within the meaning

of the FDCPA.”); Izenberg v. ETS Servs., LLC, 589 F. Supp. 2d

1193, 1199 (C.D. Cal. 2008)(same); Ines v. Countrywide Home

Loans, Inc., No. 08cv1267 WQH (NLS), 2008 WL 4791863, at *2 (S.D.

Cal. Nov. 3, 2008)(same); Hulse v. Ocwen Fed. Bank, FSB, 195 F.

Supp. 2d 1188, 1204 (D. Or. 2002)(“Foreclosing on a trust deed is

distinct from the collection of the obligation to pay money.”).

The Court finds the reasoning of these cases to be

persuasive and adopts that reasoning. Accordingly, the Court

concludes foreclosing on a property pursuant to a deed of trust

and an enforceable judgment from this Court is not a debt

collection within the meaning of the FDCPA. 

III. Defendants did not violate § 1692g of the FDCPA.

Plaintiff asserts in his Response to Defendants’ Motions

that Defendants violated § 1692g of the FDCPA when they failed to

provide the required Notice of Debt within five days of filing

the Foreclosure Action. Section 1692g(a) provides in pertinent

part: 

Within five days after the initial communication

with a consumer in connection with the collection

of any debt, a debt collector shall, unless the

following information is contained in the initial

communication or the consumer has paid the debt,

send the consumer a written notice containing

12 - OPINION AND ORDER

Case 3:15-cv-01001-BR Document 26 Filed 01/07/16 Page 12 of 16
[various documents and statements].

Defendants point out, however, that § 1692g(d) provides “[a]

communication in the form of a formal pleading in a civil action

shall not be treated as an initial communication for purposes of

subsection (a) of this section.” Accordingly, commencement of

the Foreclosure Action did not constitute an initial

communication triggering the requirements of § 1692g(a).

In addition, even if § 1692g(a) applied to the filing of the

complaint in the Foreclosure Action, the record reflects

Defendants served Plaintiff with the notice required by 

§ 1692g(a) at the same time that they served Plaintiff with the

summons and complaint in the Foreclosure Action. Schroer Decl.,

Ex. A at 1-2. The Court, therefore, concludes Defendants did not

violate § 1692g.

Accordingly, the Court grants Defendants’ Motions to Dismiss

Plaintiff’s FDCPA claim.

IV. Plaintiff has not stated a claim for violation of the UTPA.

Plaintiff asserts Defendants violated § 646.639 of the UTPA

when they initiated the Foreclosure Action. The UTPA, however,

specifically provides a “debt collector who is . . . in

compliance with the requirements of the [FDCPA] shall also be

considered to be in compliance with the requirements of ORS

646.639.” Or. Rev. Stat. § 646.643. The Court already has

concluded Defendants were in compliance with the requirements of

13 - OPINION AND ORDER

Case 3:15-cv-01001-BR Document 26 Filed 01/07/16 Page 13 of 16
the FDCPA when they initiated the Foreclosure Action. The Court,

therefore, also concludes pursuant to § 646.643 that Defendants

were in compliance with the requirements of § 646.639 of the

UTPA.

Accordingly, the Court grants Defendants’ Motions to Dismiss

Plaintiff’s UTPA claim.

V. Plaintiff has not stated a claim for civil conspiracy.

Plaintiff alleges Defendants entered into a civil conspiracy

when they violated the FDCPA and/or the UTPA. 

When “several individuals conspire to commit a tort, they

may all be held liable for the tort under a civil conspiracy

theory even if one or more of the individuals did not commit all

of the requisite acts comprising the tort.” Holloway v.

Clackamas River Water, No. 3:13-CV-01878-AC, 2014 WL 6998069, at

*6 (D. Or. Sept. 9, 2014)(citing Morasch v. Hood, 232 Or. App.

392, 402 (2009)), adopted December 9, 2014. Civil conspiracy,

however, is a theory under which tortfeasors may be held liable

under a substantive cause of action rather than a separate cause

of action or ground for recovery. Holloway, 2014 WL 6998069, at

*6 (citing Granewich v. Harding, 329 Or. 47, 53 (1999)). See

also Morasch, 232 Or. App. at 402 (“civil conspiracy is not,

itself, a separate tort for which damages may be recovered;

rather it is a way [ ] in which a person may become jointly

liable for another's tortious conduct.”). “[C]onspiracy to

14 - OPINION AND ORDER

Case 3:15-cv-01001-BR Document 26 Filed 01/07/16 Page 14 of 16
commit or aiding and assisting in the commission of a tort are

two of several ways in which a person may become jointly liable

for another's tortuous conduct.” Granewich, 329 Or. at 53. 

Because civil conspiracy is not a separate cause of action

and because Plaintiff has not established Defendants violated the

FDCPA or the UTPA, the Court grants Defendants’ Motions to

Dismiss Plaintiff’s claim for civil conspiracy.

VI. Dismissal with Prejudice

The Court has concluded foreclosure on a trust deed is not a

debt collection under the FDCPA, that Defendants are in

compliance with the FDCPA, and that Defendants are not liable

under § 646.639 of the UTPA. Accordingly, there is not any basis

on which Plaintiff can assert such claims against Defendants. In

addition, because Plaintiff already has had two opportunities to

plead his claims against Defendants in this action, the Court

declines to grant Plaintiff leave to file a Second Amended

Complaint. The Court, therefore, dismisses this matter with

prejudice.

CONCLUSION

For these reasons, the Court GRANTS Attorney Defendants’

Motion (#15) to Dismiss, GRANTS the Motion (#18) to Dismiss of

Defendants Fannie Mae and Seterus, GRANTS Plaintiff’s Motion

(#25) to Take Judicial Notice, GRANTS Attorney Defendants’

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Case 3:15-cv-01001-BR Document 26 Filed 01/07/16 Page 15 of 16
request for judicial notice contained in their Reply, and

DISMISSES this matter with prejudice.

IT IS SO ORDERED.

DATED this 7th day of January, 2016.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

16 - OPINION AND ORDER

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