IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

ROSA COLQUITT,

Plaintiff,

v.

MANUFACTURERS AND TRADERS

TRUST COMPANY (a Foreign

Business Corporation) doing

business as M&T BANK,

Defendant.

3:15-CV-00807-BR

 

OPINION AND ORDER 

JACOB D. BRAUNSTEIN

Clarke Balcom, PC

1312 S.W. 16th Avenue

2nd Floor

Portland, OR 97201

(503) 224-5950 

Attorneys for Plaintiff

DAVID J. ELKANICH

NELLIE Q. BARNARD

Holland & Knight, LLP

2300 US Bancorp Tower

111 S.W. Fifth Avenue

Portland, OR 97204

(503) 243-2300 

Attorneys for Defendant

1 - OPINION AND ORDER

Case 3:15-cv-00807-BR Document 25 Filed 04/01/16 Page 1 of 16
BROWN, Judge.

This matter comes before the Court on Defendant

Manufacturers and Traders Trust Company’s Motion (#20) to Dismiss

Plaintiff’s Third Amended Complaint. For the reasons that

follow, the Court GRANTS Defendant’s Motion and DISMISSES this

matter with prejudice.

BACKGROUND

The following facts are taken from Plaintiff’s Third Amended

Complaint and the parties’ filings related to Defendants’ Motion

to Dismiss.

In 2006 Plaintiff Rosa Colquitt refinanced her home with a

loan from Defendant with an interest rate of 7.5% “for the life

of the loan.” Plaintiff alleges Defendant advised her at the

time she entered into the 2006 loan that she would be entitled to

receive a “permanent loan modification with a lower interest

rate” if she made timely payments for two years.

Plaintiff made timely payments on the loan for two years. 

Plaintiff subsequently “repeatedly attempted to obtain a

permanent loan modification from Defendant that contain[ed] terms

consistent with the parties’ agreement.” Third Am. Compl. at 

¶ 15. At some point before April 2010 Plaintiff received a loan

modification from Defendant, and her interest rate was

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temporarily lowered between April 2010 and April 2013.1

In September 2012 and May 2013 Plaintiff submitted to

Defendant applications for permanent loan modifications. 

Defendant denied both applications.

In early 2013 Plaintiff 

had a [tele]phone conversation with an M&T Bank

representative about her loan and the status of

her modification. . . . During the discussion,

Defendant's representative asked Plaintiff when

Plaintiff obtained the loan originally. Plaintiff

replied, "2006." The representative then asked

Plaintiff if she was black. Plaintiff replied

that yes, she is black. Defendant's

representative then told Plaintiff that she was

not going to get a modification and that "those

loans" were being sent to foreclosure. 

Third Am. Compl. at ¶ 30.

On July 15, 2013, Defendant offered Plaintiff a repayment

plan for up to 18 months that set payments at nearly $800 per

month higher than those of her original refinance loan. 

Plaintiff “verbally rejected the repayment plan.” 

On October 7, 2013, Defendant denied Plaintiff’s application

for loan modification “due to Plaintiff's failure to make all of

the required payments under a trial payment period.”

1

 Although Plaintiff omitted the allegations related to this

loan modification from her Third Amended Complaint, Plaintiff did

not object when Defendant made reference to those allegations in

its Motion to Dismiss. In addition, in the parties’ briefs

related to Defendant’s Motion to Dismiss Plaintiff’s Second

Amended Complaint the parties agreed Defendant gave Plaintiff a

loan modification in 2010 that lowered Plaintiff’s interest rate

for three years.

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On April 4, 2014, Plaintiff received a letter from Defendant

“inviting Plaintiff to apply for a permanent loan modification.” 

Plaintiff applied for a permanent loan modification in response

to Defendant’s letter.

On September 4, 2014, Defendant denied Plaintiff's

application for a loan modification and advised Plaintiff that 

she “was allowed only one loan modification for the life of the

loan despite . . . never having given Plaintiff a loan

modification.” Third Am. Compl. at ¶ 36.2

On May 16, 2014, Northwest Trustee Services, “the

foreclosure trustee for Defendant,” initiated a nonjudicial

foreclosure on Plaintiff’s property. The sale was enjoined in

February 2015 when Plaintiff obtained a preliminary injunction.3

On September 17, 2014, Plaintiff filed an action in

Washington County Circuit Court against Defendant and Northwest

Trustee Services, Inc. According to the parties, the state court

issued a limited judgment on March 26, 2015, as to Northwest

Trustee Services pursuant to a stipulation by Plaintiff and

2

 As noted, the parties agreed in the context of Defendant’s

Motion to Dismiss Plaintiff’s Second Amended Complaint that

Defendant provided Plaintiff with a temporary loan modification

in 2010. The Court, viewing this allegation in the light most

favorable to Plaintiff, interprets this allegation as an

assertion that Defendant never gave Plaintiff a permanent loan

modification.

3 Plaintiff does not identify the court that issued a

preliminary injunction, but this Court infers the injunction was

granted by the Washington County Circuit Court.

4 - OPINION AND ORDER

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Northwest Trustee.

On May 1, 2015, Plaintiff filed a second amended complaint

in state court against only Defendant asserting claims for

unlawful discrimination in violation of Oregon Revised Statute 

§ 659A.421; unfair trade practices in violation of Oregon Revised

Statute § 646.607, et seq.; violation of the Equal Credit

Opportunity Act (ECOA), 15 U.S.C. § 1691; and violation of the

Fair Housing Act (FHA), 42 U.S.C. § 3605.

On May 11, 2015, Defendant removed the matter to this Court

on the basis of federal-question jurisdiction.

On June 10, 2015, Defendant filed a Motion to Dismiss

Plaintiff’s Second Amended Complaint on the grounds that portions

of Plaintiff’s claims are barred by the applicable statutes of

limitation and that Plaintiff failed to state claims for relief. 

On October 9, 2015, the Court issued an Opinion and Order in

which it granted Defendant’s Motion to Dismiss Plaintiff’s Second

Amended Complaint. Specifically, the Court dismissed the

following claims with prejudice as untimely: (1) Plaintiff’s

claims for violation of Oregon Revised Statute § 659A.421 and the

FHA to the extent that those claims involved the 2006 loan

origination and Plaintiff’s modification applications denied

before September 17, 2012; (2) Plaintiff’s claim for violation of

the Oregon UTPA to the extent that claim involved the 2006 loan

origination and/or Plaintiff’s modification applications that

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Defendant denied before September 17, 2013; and (3) Plaintiff’s

claim for violation of the ECOA to the extent that claim involved

the 2006 loan origination and Plaintiff’s modification

applications denied before September 17, 2009. The Court

dismissed the remainder of Plaintiff’s claims for failure to

state a claim and granted Plaintiff leave to file a Third Amended

Complaint to cure the deficiencies in those claims set out in the

Court’s Opinion and Order.

On November 18, 2015, Plaintiff filed a Third Amended

Complaint.

On December 14, 2015, Defendant filed a Motion to Dismiss

Plaintiff’s Third Amended Complaint. The Court took Defendant’s

Motion under advisement on January 21, 2016.

STANDARDS

To survive a motion to dismiss, a complaint must

contain sufficient factual matter, accepted as

true, to “state a claim to relief that is

plausible on its face.” [Bell Atlantic v.

Twombly, 550 U.S. 554,] 570, 127 S. Ct. 1955. A

claim has facial plausibility when the plaintiff

pleads factual content that allows the court to

draw the reasonable inference that the defendant

is liable for the misconduct alleged. Id. at 556.

. . . The plausibility standard is not akin to a

“probability requirement,” but it asks for more

than a sheer possibility that a defendant has

acted unlawfully. Ibid. Where a complaint pleads

facts that are “merely consistent with” a

defendant's liability, it “stops short of the line

between possibility and plausibility of

‘entitlement to relief.’” Id. at 557, 127 S. Ct.

1955 (brackets omitted).

6 - OPINION AND ORDER

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Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). See also Bell

Atlantic, 550 U.S. at 555-56. The court must accept as true the

allegations in the complaint and construe them in favor of the

plaintiff. Din v. Kerry, 718 F.3d 856, 859 (9th Cir. 2013). 

The pleading standard under Federal Rule of Civil Procedure

8 “does not require ‘detailed factual allegations,’ but it

demands more than an unadorned, the-defendant-unlawfully-harmedme accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550

U.S. at 555). See also Fed. R. Civ. P. 8(a)(2). “A pleading

that offers ‘labels and conclusions’ or ‘a formulaic recitation

of the elements of a cause of action will not do.’” Id. (citing

Twombly, 550 U.S. at 555). A complaint also does not suffice if

it tenders “naked assertion[s]” devoid of “further factual

enhancement.” Id. at 557.

"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." Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir.

2012)(citation omitted). A court, however, "may consider a

writing referenced in a complaint but not explicitly incorporated

therein if the complaint relies on the document and its

authenticity is unquestioned." Swartz v. KPMG LLP, 476 F.3d 756,

763 (9th Cir. 2007)(citation omitted).

7 - OPINION AND ORDER

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DISCUSSION

As noted, Defendant moves to dismiss all of Plaintiff’s

claims on the ground that Plaintiff fails to state claims for

violation of § 659A.421(3), the FHA, Oregon UTPA, and the ECOA.

I. Plaintiff’s claims for violation of § 659A.421(3) and the

FHA.

Oregon Revised Statute § 659A.421(3)(a) provides in

pertinent part: “A person whose business includes engaging in

residential real estate related transactions may not discriminate

against any person in making a transaction available, or in the

terms or conditions of the transaction, because of race.” 

Section 3605(a) of the FHA provides in pertinent part: “It shall

be unlawful for any person or other entity whose business

includes engaging in residential real estate-related transactions

to discriminate against any person in making available such a

transaction, or in the terms or conditions of such a transaction,

because of race.” There is not any Oregon appellate decision

interpreting Oregon Revised Statute § 659A.421(3). This Court,

therefore, looks to federal authority related to the FHA and

other federal discrimination statutes to interpret

§ 659A.421(3)(a). 

To state a prima facie claim for disparate treatment under

the FHA and § 659A.421(3), Plaintiff must allege: 

(1) [she was] a member of a protected class; 

(2) [she] attempted to engage in a “real estaterelated transaction” with [Defendant], and met 

8 - OPINION AND ORDER

Case 3:15-cv-00807-BR Document 25 Filed 04/01/16 Page 8 of 16
all relevant qualifications for doing so; 

(3) [Defendant] refused to transact business with

[Plaintiff] despite [her] qualifications; and 

(4) [Defendant] continued to engage in that type

of transaction with other parties with similar

qualifications.

Bojorquez v. Wells Fargo Bank, NA, No. 6:12–CV–02077–AA, 2013 WL

6055258, at *6 (D. Or. Nov. 7, 2013)(quotation omitted). 

Plaintiff must also plead Defendant refused to transact business

with Plaintiff because of her race. Id.

As noted, in her Second Amended Complaint Plaintiff alleged

Defendant violated § 659A.421(3) when it “discriminated against

Plaintiff in making a transaction available, or in the terms or

conditions of the transaction, because of Plaintiff's race.” 

Second Am. Compl. at ¶ 27. Plaintiff alleged in her Second

Amended Complaint that Defendant violated § 3605 of the FHA when

it refused “to give loan terms for which Plaintiff was qualified

and other discriminatory conduct continuing as late as September

4, 2014.” Second Am. Compl. at ¶ 47. Plaintiff also alleged she

had a telephone exchange with Defendant’s representative in the

first half of 2013 in which the representative asked Plaintiff if

she was black and then told her that she was “not going to get a

modification and that those loans were being sent to

foreclosure.” 

In its October 9, 2015, Opinion and Order the Court noted it

was questionable whether Plaintiff’s single allegation of the

telephone conversation in which Defendant’s representative asked

9 - OPINION AND ORDER

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her if she was black was sufficient to support Plaintiff’s claim

that Defendant refused to offer Plaintiff a loan modification

from February 2013 through September 2014 on that basis. The

Court concluded, however, that even if it accepted that

allegation as sufficient, Plaintiff’s Second Amended Complaint,

viewed in the light most favorable to Plaintiff, did not contain

any allegation that Plaintiff “met all relevant qualifications”

for a loan modification or that Defendant “continued to engage in

that type of transaction with other parties with similar

qualifications.” The Court notes Plaintiff made those kinds of

allegations related to the 2006 loan origination, but that

portion of her claim was foreclosed as untimely and the

allegations related to that transaction were not repeated as to

Plaintiff’s requests for subsequent loan modifications. 

Moreover, with respect to the offer by Defendant for a repayment

plan that has payments “almost $800 per month higher than those

of her original loan,” the Court noted Plaintiff failed to plead

that she “met all relevant qualifications” for a lower repayment

interest rate or a lower payment amount or that Defendant offered

lower repayment interest rates or payment amounts to other

parties with similar qualifications. 

In her Third Amended Complaint Plaintiff does not include

any additional factual allegations relating to her qualifications

for a loan modification or to Defendant’s conduct in those kinds

10 - OPINION AND ORDER

Case 3:15-cv-00807-BR Document 25 Filed 04/01/16 Page 10 of 16
of transactions with other parties with similar qualifications to

give rise to an inference that Defendant denied her loan

modifications on the basis of her race. Moreover, the question

remains as to whether Plaintiff’s single allegation of the

telephone conversation in which Defendant’s representative asked

her if she was black is sufficient to support Plaintiff’s claim

that Defendant refused to offer Plaintiff a loan modification

from February 2013 through September 2014 on that basis. Even if

that allegation was sufficient, however, Plaintiff still fails to

support her allegations sufficiently as to her qualifications for

a loan modification during the relevant period. Although

Plaintiff alleges “on information and belief” that she was

qualified for a loan modification, Plaintiff does not allege

sufficient facts for the Court to infer without speculating that

she qualified for such a loan modification; for example,

Plaintiff does not allege any facts regarding her debt level, her

income, the amount of her loan payments, or other financial

information at the time of her various applications for loan

modifications. The Court, therefore, cannot infer Plaintiff was

qualified for a loan modification or that people with

qualifications similar to Plaintiff received loan modifications. 

Accordingly, the Court concludes Plaintiff has failed to state

claims for violation of Oregon Revised Statute § 659A.421(3) and

§ 3605 of the FHA.

11 - OPINION AND ORDER

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Accordingly, the Court grants Defendant’s Motion to Dismiss

Plaintiff’s claims for violation of Oregon Revised Statute 

§ 659A.421(3) and § 3605 of the FHA. Because Plaintiff

previously was given the opportunity to replead her claims with

sufficiency and has failed to do so, the Court declines to permit

Plaintiff to replead these claims again and dismisses them with

prejudice. 

II. Plaintiff’s UTPA claim.

The UTPA allows a private right of action for persons who

have suffered an “ascertainable loss of money or property, real

or personal, as a result of another person's willful use or

employment of a method, act or practice declared unlawful under

ORS 646.608.” Or. Rev. Stat. § 646.638(1).

To state a claim under the UTPA Plaintiff must allege: 

(1) a violation of § 646.608(1), (2) causation, (3) damages, and

(4) willfulness by Defendant. See Fleshman v. Wells Fargo Bank,

N.A., 27 F. Supp. 3d 1127, 1139 (D. Or. 2014). See also Feitler

v. Animation Celection, Inc., 170 Or. App. 702, 708 (2000). In

its October 9, 2015, Opinion and Order the Court noted Plaintiff

failed to identify which of the 77 possible sections of 

§ 646.608(1) that Defendant allegedly violated and failed to

specifically plead willfulness by Defendant. The Court noted

“[a] willful violation occurs when the person committing the

violation knew or should have known that the conduct of the

12 - OPINION AND ORDER

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person was a violation.” Or. Rev. Stat. § 646.605(10).

In her Third Amended Complaint Plaintiff alleges Defendant

failed to deal with her in good faith in violation of Oregon

Revised Statute § 646.608(1)(u), which provides: “A person

engages in an unlawful practice if in the course of the person's

business . . . the person . . . [e]ngages in any other unfair or

deceptive conduct in trade or commerce.” Although Plaintiff

alleges Defendant “willfully made false and misleading

representations concerning credit availability and the nature of

the transaction when it denied each of Plaintiff’s applications

for loan modification,” she fails to allege any specific facts as

to how Defendant failed to deal with her in good faith. 

Plaintiff also does not identify with any specificity what

statements made by Defendant were false and misleading. In

addition, Plaintiff does not include any allegations from which

the Court could infer Defendant “knew or should have known [its

conduct] was a violation” of the UTPA. 

Finally, Plaintiff does not allege sufficient facts to

support the element of causation, which requires a plaintiff to

plead “sufficient detail to put Defendant on notice of the causal

relationship between a particular alleged unfair business

practice and the ascertainable loss and damages incurred as a

result of that particular conduct.” Fleshman v. Wells Fargo

Bank, N.A., 27 F. Supp. 3d 1127, 1141 (D. Or. 2014). 

13 - OPINION AND ORDER

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Accordingly, the Court grants Defendant’s Motion to

Dismiss Plaintiff’s UTPA claim. Because Plaintiff previously was

given the opportunity to replead her UTPA claim with sufficiency

and has failed to do so, the Court declines to permit Plaintiff

to replead that claim again and dismisses it with prejudice.

III. Plaintiff’s ECOA claim.

15 U.S.C. § 1691(a)(1) prohibits a creditor from

discriminating against any applicant “with respect to any aspect

of a credit transaction on the basis of race.” To state a claim

for violation of the ECOA Plaintiff must allege she “(1) is a

member of a protected class; (2) applied for credit; (3) was

qualified for credit; and (4) was denied credit, despite being

qualified.” Blair v. Bank of Am., N.A., No. 10–CV–946–SI, 2012

WL 860411, at *12 (D. Or. Mar. 13, 2012)(citation omitted). 

In is October 9, 2015, Opinion and Order the Court concluded

Plaintiff failed to allege in her Second Amended Complaint that

she was qualified to receive loan modifications from February

2013 through September 2014 or to allege any facts from which the

Court could infer Plaintiff was qualified to receive such

modifications. The only factual allegations in Plaintiff’s

Second Amended Complaint related to Plaintiff’s creditworthiness

based on her credit score, income, and employment at the time of

the 2006 loan origination. Plaintiff’s Second Amended Complaint,

however, did not contain any factual allegations related to

14 - OPINION AND ORDER

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factors that might establish Plaintiff’s the creditworthiness at

the time of her modification applications. As noted, Plaintiff

received a loan modification from April 2010 to April 2013 that

temporarily reduced the interest rate on her loan. Accordingly,

the Court cannot infer Plaintiff was denied credit during that

time. 

In her Third Amended Complaint Plaintiff still fails to make

any factual allegations as to factors that might establish the

creditworthiness of Plaintiff at the time of her modification

applications as set out above. For the reasons noted earlier,

the Court concludes Plaintiff’s bare assertion that she was

qualified “on information and belief” is insufficient to state a

claim under the ECOA. Moreover, Plaintiff has not alleged facts

as to the financial information that she provided to Defendant

such as income, debt level, credit score, or other information

relevant to her creditworthiness at the time of her loanmodification applications. The Court, therefore, concludes

Plaintiff has not stated a claim for violation of the ECOA.

Accordingly, the Court grants Defendant’s Motion to Dismiss

Plaintiff’s ECOA claim. Because Plaintiff previously was given

the opportunity to replead her ECOA claim with sufficiency and

has failed to do so, the Court declines to permit Plaintiff to

replead that claim again and dismisses it with prejudice. 

15 - OPINION AND ORDER

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CONCLUSION

For these reasons, the Court GRANTS Defendant’s Motion (#20)

to Dismiss Plaintiff’s Third Amended Complaint and DISMISSES this

matter with prejudice. 

IT IS SO ORDERED.

DATED this 1st day of April, 2016.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

16 - OPINION AND ORDER

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