IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

ELEANOR A. HULL, 

Plaintiff, 

vs. 

WELLS FARGO BANK, N.A., and 

NORTHWEST TRUSTEE SERVICES, 

INC., 

Defendants. 

Jeffrey A. Myers 

Bowles Fernandez Law LLC 

5200 S.W. Meadows Road, Suite 150 

Lake Oswego, OR 97025 

Attorney for plaintiff 

Molly J. Remy 

Keesal, Young & London 

1301 Fifth A venue, Suite 3100 

Seattle, WA 98101 

John M. Thomas 

RCO Legal, P.C. 

511 S.W. 10th Avenue, Suite 400 

Portland, OR 97205 

Attorneys for defendants 

Page 1 - OPINION AND ORDER 

Case No. 6:15-cv-01990-AA 

OPINION AND ORDER 

Case 6:15-cv-01990-AA Document 20 Filed 03/28/16 Page 1 of 13
AIKEN, Judge: 

Plaintiff Eleanor A. Hull seeks a declaratmy judgment invalidating the sale of her former 

residence at a foreclosure auction based on alleged violations of the Oregon Trust Deed Act 

("OTDA"). She also alleges defendant Wells Fargo Bank, N.A. ("Wells Fargo") breached two 

agreements to modify the terms of the loan secured by the property and committed financial abuse 

of a vulnerable person, in violation of Or. Rev. Stat. § 124.110. Defendants moved for judgment on 

the pleadings. For the reasons set forth below, defendants' motion is granted. 

BACKGROUND 

Plaintiff owned a piece of residential property located in Salem, Oregon ("the property"). 

She purchased the property with the proceeds of a loan from Wells Fargo. The loan was secured by 

a Deed of Trust ("DOT"). Shortly after origination, Wells Fargo sold the property to the Federal 

Home Loan Mortgage Corporation ("Freddie Mac"). Wells Fargo remained the loan servicer. 

In July 2009, Wells Fargo advised plaintiff she qualified for a Home Affordable Modification 

Trial Period Plan ("TPP"). A letter from Wells Fargo to plaintiff, attached as an exhibit to the 

Complaint, explains "[i]f you qualify under the federal government's Home Affordable Modification 

program and comply with the terms of the Trial Period Plan, we will modify your mortgage loan and 

you can avoid foreclosure." Doc. 1-1 at 41. The letter sets out three steps to apply for loan 

modification: (1) explain the financial hardship making it difficult to keep up with mortgage 

payments; (2) submit documentation of income; and (3) make monthly TPP payments, which are set 

at a lower rate than the regular mortgage payments. Plaintiff made three TPP payments of $1, 123 .13 

each. Comp!.~ 11. In December 2009, Wells Fargo stopped accepting TPP payments. 

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Case 6:15-cv-01990-AA Document 20 Filed 03/28/16 Page 2 of 13
In August 2010, plaintiff defaulted on her loan payments. Wells Fargo initiated nonjudicial 

foreclosure proceedings. Defendant Nmihwest Trustee Services ("NWTS") served as trustee and 

agreed to conduct the sale. 

Plaintiff alleges she sought the assistance of Consumer Credit Counseling NW, which 

negotiated an agreement in late 2011 to stop the foreclosure. Pursuant to the agreement, plaintiff 

promised to pay $3,256.59 to Wells Fargo and thereafter resume her normal payment schedule; in 

exchange, Wells Fargo "would recapitalize the arrearage onto the back end of the loan and stop the 

non-judicial foreclosure." Comp!. iJ 15. Plaintiff fmther asserts she made the required payment, but 

Wells Fargo did not stop the foreclosure proceedings. 

Plaintiff then filed for Chapter 13 bankruptcy. The bankruptcy plan, confirmed in October 

2011, required plaintiff to resume regular mortgage payments to Wells Fargo as well as make 

monthly payments to cure $21,116 in arrearages. See Doc. 11-1 at3-4 (original plan proposal); Doc. 

11-3 at 4 (order confirming plan with amendments). 1 Plaintiff immediately defaulted on her 

payments under the plan, and in December 2011 Wells Fargo moved for relief from the automatic 

stay. Plaintiff admitted defaulting and stipulated to cure the post-petition arrearages tluough an 

additional six-month payment plan. Plaintiff then defaulted on the stipulation. Based on this series 

of defaults, in April 2012 Wells Fargo sought and obtained "relief from the automatic stay to 

foreclose on, and obtain possession of, the prope1ty, to the extent permitted by applicable 

nonbankruptcy law." Doc. 11-6 at 3. 

1 The Co mi takes judicial notice of the bankruptcy court filings attached as exhibits to 

Wells Fargo's Motion for Judgment on the Pleadings. See Fauley v. Wash. Mut. Bank FA, 2014 

WL 1217852, *4 (D. Or. Mar. 21, 2014) (Because "motions and orders filed in the bankruptcy 

court are matters of public record that are beyond dispute," they meet the judicial notice 

requirements of Fed. R. Evid. 201.). 

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Case 6:15-cv-01990-AA Document 20 Filed 03/28/16 Page 3 of 13
In July 2012, plaintiff filed a post-confirmation amendment to her plan. The amendment 

removed conditions requiring payment to Walls Fargo and instead provided plaintiff would surrender 

the property to Wells Fargo. The amended plan, which became effective in November 2012, 

eliminated plaintiffs obligation to make regular m01tgage payments and also lowered her monthly 

payments to the trustee. Compare Doc. 11-3 at 4 (monthly trustee payments of $305 for twelve 

months, followed by payments of $600 for twenty-four months) with Doc. 11-7 at 3 (monthly trustee 

payments of $265 for thilty-six months). 

While her initial Chapter 13 bankruptcy was still open, plaintiff filed two more Chapter 13 

petitions. She did not disclose her open bankruptcy case or previous bankruptcy petitions in either 

filing. In Februaiy 2015, the second bankruptcy petition was dismissed tlu·ough a form order. In 

June 2015, the Bankruptcy Co mt for the District of Oregon issued an Order to Show Cause why the 

third petition "should not be dismissed with a bar to filing any petition under the Bankruptcy Code 

in any District of the United States before the later of: 1) one year, or 2) the closure of [the initial 

bankruptcy case]." Doc. 11-10 at 3. The United States Trustee responded to the Order to Show 

Cause by explaining that plaintiff, who is in her early 90s, appeared to have filed the second and 

third bankruptcy petitions on the advice of Colleagues in Law, which is based in Las Vegas, Nevada, 

and advertises itself as a "foreclosure rescue" operation. Doc. 11-11 at 3-4. Plaintiff paid 

Colleagues in Law $3,800 fortheir services. Doc. 11-11at3. The United States Trustee disclaimed 

any intent to take enforcement action against plaintiff, but recommended dismissing the third 

bankruptcy case and baning plaintiff from filing any further petitions for one year. Consistent with 

that recommendation, the bankruptcy comt dismissed the third bankruptcy case in August 2015. 

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Case 6:15-cv-01990-AA Document 20 Filed 03/28/16 Page 4 of 13
Dismissal of the third bankruptcy case and ently of the bankruptcy court's one-year bar order 

removed the bani er of the automatic stay. In September 2011, NWTS issued an Amended Trustee's 

Notice of Sale, informing plaintiff the property would be sold at auction on October 5, 2015. 

On October 1, 2015, plaintiff filed this lawsuit in Marion County Circuit comt, alleging 

violations of the OTDA, breach of contract, and financial abuse of a vulnerable person. The 

complaint seeks (1) a declaratmy judgment invalidating the foreclosure sale; (2) monetmy damages 

related to the breach of contract and financial abuse claims; and (3) costs and attorney fees. On 

October 21, 2015, defendants removed the suit to federal comt on diversity grounds. On October 

26, 2015, the prope1ty was sold at auction. Defendants now move for judgment on the pleadings. 

STANDARD 

A pmty may move for judgment on the pleadings after the pleadings are closed but early 

enough not to delay trial. Fed. R. Civ. P. 12(c). "Analysis under Rule 12(c) is substantially identical 

to analysis under Rule 12(b )( 6) because, under both rules, a court must determine whether the facts 

alleged in the complaint, taken as true, entitle the plaintiff to a legal remedy." Pat River Tribe v. 

Bureau of Land Mgmt., 793 F.3d 1147, 1155 (9th Cir. 2015) (citation and quotation marks omitted). 

Accordingly, "[a] judgment on the pleadings is properly granted when, taking all allegations in the 

pleadings as true, the moving party is entitled to judgment as a matter of law." Owens v. Kaiser 

Found. Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001) (quotation marks omitted). To survive 

a motion for judgment on the pleadings, "the non-concluso1y 'factual content' [of the complaint]," 

and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the 

plaintiff to relief." Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quoting Ashcroft 

v. Jqba/, 556 U.S. 662, 678 (2007)). "A claim has facial plausibility when the plaintiff pleads factual 

Page 5 - OPINION AND ORDER 

Case 6:15-cv-01990-AA Document 20 Filed 03/28/16 Page 5 of 13
content that allows the court to draw the reasonable inference that the defendant is liable for the 

misconduct alleged." Iqbal, 556 U.S. at 678. "[O]nce a claim has been stated adequately, it may be 

supported by showing any set of facts consistent with the allegations in the complaint." Bell Atl. 

Corp. v. Twombly, 550 U.S. 544, 563 (2007). 

DISCUSSION 

In their motions to dismiss, defendants argue plaintiff has failed to state a claim for relief and 

assert a number of affirmative defenses. Because different defenses and arguments apply to each 

claim, I will address the claims separately. 

I. Violation ofOTDA 

Plaintiff argues the foreclosure sale must be invalidated because the notice was not compliant 

with the OTDA. Specifically, she alleges it (1) listed an inco1Tect zip code for the property; and (2) 

listed Wells Fargo, rather than Freddie Mac, as the beneficiary on the DOT. Defendants contend 

plaintiff is judicially estopped from any attempt to invalidate the foreclosure because she agreed to 

surrender the property in bankruptcy comi. 

"Judicial estoppel is an equitable doctrine that precludes a party from gaining an advantage 

by asserting one position, and then later seeking an advantage by taking a clearly inconsistent 

position." Hamiltonv. State Farm Fire & Cas. Co., 270 F.3d 778, 782 (9th Cir. 2001). The doctrine 

promotes "general consideration[ s] of the orderly administration of justice and regard for the dignity 

of judicial proceedings" and "protect[ s] against a litigant playing fast and loose with the courts." Id. 

(quoting Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir. 1990)). To determine whether judicial 

estoppel applies, a comt must consider three factors. First, the "patty's later position must be clearly 

inconsistent with its earlier position." New Hampshire v. Maine, 532 U.S. 742, 750 (2001) (citations 

Page 6 - OPINION AND ORDER 

Case 6:15-cv-01990-AA Document 20 Filed 03/28/16 Page 6 of 13
and quotation marks omitted). Second, the court asks whether the party "succeeded in persuading 

a court to accept that party's earlier position," because "[a]bsent success in a prior proceeding, a 

party's later inconsistent position introduces no risk of inconsistent court detetminations, and thus 

little threat to judicial integrity." Id. at 750-51 (citations and quotation marks omitted). Third, the 

court asks "whether the paiiy seeking to asseti an inconsistent position would derive an unfair 

advantage or impose an unfair detriment on the opposing party if not es topped." Id. This list of 

factors is not "an exhaustive formula," and "[a]dditional considerations may inform the doctrine's 

applications in specific factual contexts." Id. 

In this case, the threshold question is whether plaintiffs bankrnptcy court representation that 

she intended to surrender the propetiy is clearly inconsistent with her challenge to the foreclosure 

sale under the OTDA. "The Bankruptcy Code does not define the term[] 'surrender' ... for the 

purposes of Chapter 13. Nonetheless, 'surrender' has been interpreted in this context as the debtor's 

relinquishment of his or her right to the property at issue, such that the secured creditor is free to 

accept or reject that collateral." Bank of N. Y. Mellon v. Watt, 2015 WL 1879680, *4 (D. Or. Apr. 

22, 2015). Coutis interpret "surrender" under the Bankruptcy Code to mean "voluntarily 

relinquish[ing] all rights in the propetty, including the right to possession, to the secured creditor." 

In re White, 487 F.3d 199, 207 (4th Cir. 2007); accord In re Pratt, 462F.3d14, 18-19 (lst Cir. 2006) 

(surrender means to "cede ... possessory rights in the collateral" and make it "available" to the 

secured creditor); Watt, 2015 WL 1879680 at* 5 (surrender means "cessation of [a debtor's] interest" 

in prope1ty). 

With these definitions in mind, I turn to the question of inconsistency. Neither this court nor 

the Ninth Circuit has addressed whether actively opposing foreclosure is clearly inconsistent with 

Page 7 - OPINION AND ORDER 

Case 6:15-cv-01990-AA Document 20 Filed 03/28/16 Page 7 of 13
an agreement to sun-ender property under a bankruptcy plan. However, bankruptcy courts 

addressing motions to compel compliance with sm1'ender provisions of bankruptcy plans have 

concluded active opposition to foreclosure is in-econcilable with surrender. See, e.g., In re Lapeyre, 

544 B.R. 719, 722 (Banla:. S.D. Fla. 2016); In re Metzler, 530 B.R. 894, 900 (Bmili:. M.D. Fla. 

2015). Although these courts did not directly address the "clearly inconsistent" standard for judicial 

estoppel, their discussion is on point. For example, inln re Guerra, 544 B.R. 707 (Banla:. M.D. Fla. 

2016), the court explained that where (1) a foreclosure action is already in progress when the debtor 

agrees to surrender the property; and (2) the debtor actively fights the foreclosure shortly after 

making that agreement, the debtor's behavior gives rise to an inference he or she "had no intention 

of surrendering the[] property- i.e., [the debtor] misled [the c]ourt." Id at 709. 

Plaintiff had already attempted to prevent Wells Fargo from foreclosing at the time of the 

2012 surrender amendment. Her decision to file two new bankrnptcy petitions and this lawsuit in 

an attempt to stop or invalidate the foreclosure gives rise to an inference she never intended to 

surrender the property. Accordingly, I find her agreement to the surrender amendment clearly 

inconsistent with her subsequent attempts to stop the foreclosure sale. I also find plaintiff succeeded 

in convincing the bankruptcy comt she intended to surrender the prope11y, as that comt confirmed 

the amended plan. Finally, I find plaintiff would derive an unfair advantage from her surrender 

representation if she were permitted to proceed on her OTDA claims here. As a result of her 

decision to sun·ender the prope1ty, plaintiffs trustee payments were significantly lower. Moreover, 

Wells Fargo might have objected to the amended plan had it not reasonably believed plaintiff would 

in fact smTender the property. 

Page 8 - OPINION AND ORDER 

Case 6:15-cv-01990-AA Document 20 Filed 03/28/16 Page 8 of 13
Plaintiff cannot tell the bankrnptcy court she will surrender the property and then use this 

court to block Wells Fargo from exercising its ownership rights. Under similar circumstances, 

district comis in the Ninth Circuit have found judicial estoppel applies. See Cordero v. America's 

Wholesale Lender, 2012 WL 4895869, *11 (D. Idaho Oct. 15, 2012) (finding the plaintiff judicially 

estopped from identifying defendant bank as a secured creditor in her bankruptcy schedules, then 

fighting foreclosure on the ground defendant was an unsecured creditor); Rivera v. Recontrust Co., 

NA., 2012 WL 2190710, *2 (D. Nev. Jun. 14, 2012) (applying judicial estoppel where the plaintiff 

agreed to sun·ender property in bankruptcy court and subsequently asse1ied state law claims in an 

attempt to halt foreclosure). Plaintiff is judicially estopped from asserting her OTDA claims, and 

those claims are dismissed with prejudice.2 

II. Breach of Contract 

Plaintiff next alleges Wells Fargo breached two agreements to modify the te1ms of the DOT. 

Wells Fargo argues plaintiffs breach of contract claim is barred by Oregon's statute of frauds, 

plaintiffs material breach in defaulting on the underlying loan obligation, and plaintiffs failure to 

provide notice and an oppmiunity to cure, as required by the DOT. Wells Fargo further contends 

plaintiffs breach of contract claim is inadequately pleaded. 

Oregon law requires certain types of agreements to be signed and in writing in order to be 

valid and enforceable. Or. Rev. Stat. § 41.580(1 ). Agreements "concerning real prope1iy" and 

2 Defendants argue judicial estoppel bars all the claims in this lawsuit. I disagree. 

Although plaintiffs agreement to smTender the property is clearly inconsistent with attempting to 

stop the foreclosure sale, it is not inconsistent with seeking damages in connection with 

allegations Wells Fargo broke promises to plaintiff in the months leading up to plaintiffs default. 

Similarly, there is no inconsistency between plaintiffs agreement to surrender the prope1iy and 

her financial abuse claim. Plaintiffs remaining claims seek money damages and in no way 

interfere with Wells Fargo's ownership rights in the prope1iy. 

Page 9 - OPINION AND ORDER 

Case 6:15-cv-01990-AA Document 20 Filed 03/28/16 Page 9 of 13
agreements "to modify or amend the terms under which [a] person has lent money or otherwise 

extended credit" are covered by the statute of frauds. Id § 41.580(1)(£), (h). Wells Fargo is 

therefore correct that an agreement to "hold off on conducting any foreclosure or enforcement 

proceedings" generally must be in writing to be enforceable. Nelson v. Am. Home Mtg. Servicing, 

Inc., 2013 WL 3834656, *5 (D. Or. Jul. 24, 2013) (quotation marks omitted and alterations 

normalized). However, "[fjull performance of a promise by one party removes that part of the 

contract from the operation of the statute [of frauds.]" Willamette Quarries, Inc. v. Wodtli, 781 P .2d 

1196, 1199 (Or. 1989). To the extent plaintiff alleged full performance, the statute of frauds does 

not bar her breach of contract claims. As explained in futiher detail below, pleading deficiencies 

prevent me from determining whether plaintiff has alleged full performance; thus, it is premature to 

determine whether the statute of frauds bars her breach of contract claim. 

Defendant fmiher asserts plaintiffs breach of contract claim is barred by (1) plaintiffs 

default on her mortgage payments, which constitute a material breach of the DOT; and (2) plaintiff's 

failure to provide notice and an opportunity to cure, as required by the DOT. Neither defense is 

applicable to plaintiff's claims here. Plaintiff alleges Wells Fargo breached its agreements to modifY 

the DOT, not the DOT itself. Courts regularly enforce loan modification contracts against the lender 

even when it is clear the bon-ower's default on the underlying loan agreement led to the modification. 

See, e.g., Schmelzer v. Wells Fargo Home Mtg., 2011 WL 5873058, *6 (D. Or. Nov. 21, 2011). 

Similarly, the DOT notice-and-cure provision applies to judicial actions "aris[ing] from the other 

party's actions pursuant to this Security Instrument." Doc. 1-1 at 29 (emphasis added). Plaintiff 

does not allege defendant breached the DOT, so the notice-and-cure requirement does not apply to 

her breach of contract claim. 

Page 10 - OPINION AND ORDER 

Case 6:15-cv-01990-AA Document 20 Filed 03/28/16 Page 10 of 13
Nonetheless, plaintiffs breach of contract claim must be dismissed because it is inadequately 

pleaded. To establish a breach of contract claim, a plaintiff"must allege the existence of a contract, 

its relevant terms, plaintiffs full performance and lack ofbreach[,] and defendant's breach resulting 

in damages to plaintiff." Slover v. Or. State Bd of Clinical Soc. Workers, 927 P.2d 1098, 1101 (Or. 

Ct. App. 1996) (quotation marks omitted). A lender's failure to enter into a loan modification 

agreement with a qualifying bmTOwer following successful completion ofTPP may constitute breach 

of contract. See Corvello v. Wells Fargo Bank, NA, 728 F.3d 878, 884 (9th Cir. 2013) (per curiam). 

But here, the complaint does not adequately allege what Wells Fargo promised to do, explain how 

it failed to live up to any such promise, or set out how plaintiff complied with her po11ion of the 

agreement aside from making three TPP payments. The complaint merely alleges "Wells Fargo 

cancelled Plaintiffs TPP and refused to accept further payments from Plaintiff." Comp!.~ 12. That 

is inadequate to state a claim for breach of contract under Oregon law. 

The allegations related to the second alleged loan modification also suffer from pleading 

deficiencies. Plaintiff alleges some te1ms of the modification agreement negotiated by Consumer 

Credit Counseling NW: for example, she alleges she agreed to pay $3,256.59 and thereafter resume 

normal payments, and Wells Fargo agreed to stop foreclosure proceedings and recapitalize the 

atTearage on the back end of the loan. Comp!.~ 15. But key terms are missing, including the total 

amount of arrearage. Moreover, plaintiff does not allege full performance - she alleges she made 

the initial payment but says nothing about the regular mortgage payment. Because plaintiff has 

inadequately pleaded her claim for breach of contract, and because it is unclear based on these 

pleading deficiencies whether the statute of frauds is a ban'ier to her asse11ion of that claim, 

Page 11 - OPINION AND ORDER 

Case 6:15-cv-01990-AA Document 20 Filed 03/28/16 Page 11 of 13
plaintiffs breach of contract claim is dismissed without prejudice. If plaintiff amends her breach 

of contract claim, Wells Fargo is free to reassert its statute of frauds defense. 

III. Financial Abuse of Vulnerable Person 

Plaintiff concedes Wells Fargo, a financial institution, is statutorily exempt from a claim for 

financial abuse ofa vulnerable person. See Or. Rev. Stat.§ 124.l 15(1)(a). Accordingly, plaintiffs 

financial abuse claim against Wells Fargo must be dismissed with prejudice. 

Plaintiff argues dismissal of the claim is unwarranted because NWTS is a proper defendant. 

Although I agree Oregon law permits a financial abuse claim against NWTS,3 plaintiff has 

nonetheless failed to state a claim for financial abuse. First, all the financial abuse allegations in the 

complaint refer to Wells Fargo, not NWTS. See Comp!. iJiJ 53-54. Second, the complaint does not 

allege NWTS engaged in any conduct qualifying as "wrongful" within the meaning of Or. Rev. Stat. 

§ 124.l!O(l)(a). See Church v. Woods, 77 P.3d 1150, 1153 (Or. Ct. App. 2003) ("[W]rongful" 

conduct is conduct "carried out in pursuit of an improper motive or by improper means," for example 

by "violence, threats, intimidation, deceit, misrepresentation, bribery, unfounded litigation, 

3 NWTS asserts it is also exempt from such a claim. I disagree. Section 124.l 15(l)(a) 

exempts from financial abuse claims "financial institutions." Or. Rev. Stat.§ 124.l 15(1)(a). 

The provision then cross-references Or. Rev. Stat. § 706.008, which defines "financial 

institution" as "an insured institution, an extranational institution, a credit union as defined in 

[Or. Rev. Stat. §] 723.006, and out-of-state credit union under [Or. Rev. Stat. §] 723.042 or a 

federal credit union." Id. § 706.008(9). Acknowledging it does not fit within this definition, 

NWTS attempts to incorporate the definition of"banking institution," which appears in a 

different subsection of section 706.008. See id.§ 706.008(4). "[A]n Oregon trust company" 

such as NWTS is a "banking institution" under that provision. But as the different statutmy 

definitions demonstrate, "banking institution" and "financial institution" are not synonymous. 

Section 124.115(1 )(a) exempts "financial institution[ s ]" but not "banking institution[ s ]" from 

financial abuse claims. NWTS 's remaining citations are to provisions of Oregon law 

establishing powers and qualifications of trustees; none of them exempt NWTS from being 

subject to an elder abuse claim. NWTS is not statutorily exempt. 

Page 12 - OPINION AND ORDER 

Case 6:15-cv-01990-AA Document 20 Filed 03/28/16 Page 12 of 13
defamation, ... disparaging falsehood[, or] ... undue influence.") (citations and quotation marks 

omitted). 

CONCLUSION 

Defendants' motions for judgment on the pleadings (docs. 11 and 12) are GRANTED. 

Plaintiffs first and third claims for relief, for violation of the OTDA and financial abuse, are 

dismissed with prejudice. Plaintiffs second claim for relief, for breach of contract, is dismissed 

without prejudice. Plaintiffs request for oral argument is DENIED as unnecessary. This case is 

DISMISSED. 

IT IS SO ORDERED. 

Dated this ~of March 2016. 

Ann Aiken 

United States District Judge 

Page 13 - OPINION AND ORDER 

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