Case No.: 3:15-cv-00651-PK

WELLS FARGO’S MOTION AND MEMORANDUM 

FOR JUDGMENT ON THE PLEADINGS - 1

KEESAL, YOUNG & LOGAN

1301 FIFTH AVENUE, SUITE 3300

SEATTLE, WASHINGTON 98101

(206) 622-3790

Molly J. Henry, OSB No. 140023

KEESAL, YOUNG & LOGAN

1301 Fifth Avenue, Suite 3300

Seattle, Washington 98101

Telephone: (206) 622-3790

Facsimile: (206) 343-9529

Email: molly.henry@kyl.com

Attorneys for Defendant

Wells Fargo Bank, N.A.

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

KEITH L. HAYES,

Plaintiff,

vs.

WELLS FARGO BANK, N.A.,

Defendant.

Case No. 3:15-cv-00651-PK

WELLS FARGO’S MOTION AND 

MEMORANDUM FOR JUDGMENT 

ON THE PLEADINGS

LR 7-1 CERTIFICATION

Counsel for Defendant Wells Fargo Bank, N.A. (“Defendant”) hereby certifies 

pursuant to LR 7-1 that she made good faith efforts to resolve the issues presented 

in this motion with Plaintiff, but Plaintiff refused to confer.

On April 28, 2015, I called Plaintiff to discuss the issues raised by this 

motion. Plaintiff did not pick up the phone. His voicemail indicated that he would 

be out for two weeks, but was receiving voicemail. I left a voice message indicating 

that I wished to confer on a motion to dismiss and asked Plaintiff to call me back. 

Plaintiff never returned my call.

On May 7, 2015, I again called Plaintiff to discuss the grounds for this 

motion. Plaintiff did not pick up and his voicemail continued to indicate that he 

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SEATTLE, WASHINGTON 98101

(206) 622-3790

would be out for two weeks. I left a second message for Plaintiff describing in detail 

the grounds for this motion and again asking him to call me back and confer. 

Plaintiff never returned my call.

On June 10, 2015, I called Plaintiff a third time to confer on this motion. 

Plaintiff’s voicemail continued to indicate that he would be out for two weeks. I left 

him another detailed message laying out the grounds for our proposed motion and 

asking him to call me back to confer. As of the date of filing this motion, Plaintiff 

has not returned any of my calls.

MOTION

Defendant hereby moves for judgment on the pleadings pursuant to Fed. R. 

Civ. P. 12(c). This motion is based on the files and records in this case and the 

subjoined Memorandum Supporting Motion for Judgment on the Pleadings, with 

judicially noticeable exhibits thereto.

I. INTRODUCTION

Plaintiff seeks to unwind a nonjudicial foreclosure sale that occurred nearly 

five years ago. He does not dispute that he defaulted on his loan payments. 

Moreover, he admits that he received the Notice of Default and Election to Sell 

setting the sale date for November 8, 2010. The property sold on that date. Nearly 

five years later, Plaintiff filed suit seeking damages and to unwind the foreclosure 

sale based on allegations that Wells Fargo Bank, N.A. (“Wells Fargo”) violated ORS 

86.750 and breached an unspecified term of an unspecified contract. The Court 

should enter judgment on the pleadings dismissing Plaintiff’s claims with prejudice.

First, Plaintiff’s deed of trust required him to provide Wells Fargo with 

notice and an opportunity to cure prior to bringing any action. Plaintiff’s claims 

arise out of the deed of trust, but he fails to allege compliance with the notice and 

cure provision. That is fatal to his claims. Roiseland v. Flagstar Bank, FSB, 989 F. 

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1301 FIFTH AVENUE, SUITE 3300

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Supp. 2d 1095, 1107 (D. Or. 2013); Higley v. Flagstar Bank, FSB, 910 F. Supp. 2d 

1249, 1253 (D. Or. 2012).

Second, Plaintiff’s claims are barred by ORS 86.797. Plaintiff does not 

dispute that he received notice prior to the trustee’s sale in 2010. Accordingly, the 

sale “foreclosed and terminated” Plaintiff’s interest in the property. ORS § 

86.797(1). 

Third, Plaintiff’s claims that Wells Fargo violated ORS 86.750 are barred by 

the statute of limitation in ORS 12.110 and otherwise fail to state plausible claims 

for relief.

Fourth, Plaintiff’s breach of contract claim fails because he cites no contract 

provision that he contends was breached and because he fails to allege his own 

material compliance.

II. FACTS

On October 26, 2006, Plaintiff signed a promissory note to obtain a $231,200 

loan from Wells Fargo (“Note”). Complaint ¶ 5; Ex. A.1 In order to secure his 

obligations under the Note, Plaintiff granted Wells Fargo a deed of trust (“DOT”) on 

property he purchased located at 1535 SW Clay Street #240, Portland, Oregon 

97201 (“Property”). Ex. B.

Plaintiff defaulted on his obligations under the Note by failing to make a 

payment due on March 1, 2010, and all payments due thereafter. Accordingly, on 

 1 The Court may consider documents relied on in a complaint without converting a motion 

to dismiss to one for summary judgment. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 

(9th Cir. 2001) (impliedly overruled on other grounds by Galbraith v. County of Santa 

Clara, 307 F.3d 1119 (9th Cir. 2002)). The Court can consider documents outside the 

pleadings if their authenticity is not contested and the complaint necessarily relies on 

them. Id. The Court can also take judicial notice of matters of public record, such as 

recorded documents. Id. Pursuant to Fed. R. Evid. 201, Wells Fargo respectfully requests 

that the Court take judicial notice of the promissory note, deed of trust, notice of default, 

and trustee’s deed attached hereto because they are either expressly referenced in the 

complaint or are matters of public record and therefore not subject to reasonable dispute.

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1301 FIFTH AVENUE, SUITE 3300

SEATTLE, WASHINGTON 98101

(206) 622-3790

June 30, 2010, the trustee of the DOT recorded a Notice of Default and Election to 

Sell (“Notice of Default”). Complaint ¶ 6; Ex. C. The Notice of Default recited that 

Plaintiff owed $210,275.51 on the Note. Plaintiff does not dispute his default. See 

Complaint ¶ 6. The Notice of Default set November 8, 2010, as the date of the 

trustee’s sale of the Property. Complaint ¶ 6; Ex. C.

Plaintiff does not (because he cannot) allege that he notified Wells Fargo of 

his claims and gave it the opportunity to cure prior to the sale. Moreover, Plaintiff 

took no steps to restrain the trustee’s sale. Accordingly, the trustee sold the 

property as advertised on November 8, 2010. Complaint ¶ 10. Federal National 

Mortgage Association (a/k/a Fannie Mae) purchased the property for $225,275.83. 

Ex. D. 

III. ARGUMENT

A. Legal Standard.

The standards governing a Fed. R. Civ. P. 12(c) motion for judgment on the 

pleadings are the same as those governing a Fed. R. Civ. P. 12(b)(6) motion to 

dismiss. Dworkin v. Hustler Magazine Inc., 867 F.2d 1188, 1192 (9th Cir. 1989) 

(noting that the only difference between a Fed. R. Civ. P. 12(c) motion and a 12(b)(6) 

motion is timing). 

“[A] complaint must contain sufficient factual matter, accepted as true, to 

‘state a claim to relief that is plausible on its face.’” Aschcroft v. Iqbal, 556 U.S. 662, 

678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A

claim is facially plausible only when the complaint alleges facts that allow a 

reasonable inference that the defendant would be liable for the alleged misconduct.” 

Id. at 678 (citing Twombly, 550 U.S. at 556).

“Factual allegations must be enough to raise a right to relief above the 

speculative level.” Twombly, 550 U.S. at 555 (citations omitted). This requires a 

plaintiff to plead “more than an unadorned, the-defendant-unlawfully harmed me 

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1301 FIFTH AVENUE, SUITE 3300

SEATTLE, WASHINGTON 98101

(206) 622-3790

accusation.” Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a cause 

of action, supported by mere conclusory statements, do not suffice.” Id. Similarly, 

legal assertions and conclusory statements of elements are not entitled to a 

presumption of truth. Id. at 679.

Finally, where documents relied on contradict the complaint’s allegations, the 

documents control. Stackman v. Hart Brewing, Inc., 143 F.3d 1293, 1295-96 (9th 

Cir. 1998)) (“[W]e are not required to accept as true conclusory allegations which 

are contradicted by documents referred to in the complaint.”).

B. Plaintiff Failed to Satisfy the Contractual Notice and Cure 

Requirement.

Separate and apart from the numerous deficiencies in the Complaint, the 

Court should dismiss Plaintiff’s claims for failure to comply with an agreed “notice 

and cure” requirement in the DOT. Plaintiff’s claims all arise out of his contention 

that Wells Fargo wrongfully foreclosed on the DOT. See Complaint ¶¶ 5-16 

(alleging claim for “wrongful foreclosure” and breach of the deed of trust). 

Importantly, Plaintiff does not and cannot allege that he complied with the 

prerequisite notice and cure provision.

Paragraph 20 of the DOT provides, in pertinent part:

Neither Borrower nor Lender may commence . . . any 

judicial action . . . that arises from the other party’s 

actions pursuant to this Security Instrument or that 

alleges that the other party has breached any provision of, 

or any duty owed by reason of, this Security Instrument, 

until such Borrower or Lender has notified the other 

party . . . of such alleged breach and afforded the other 

party hereto a reasonable period after the giving of such 

notice to take correction action. . . .

There can be no legitimate dispute that Plaintiff’s claims here arise from Wells 

Fargo’s actions pursuant to the DOT, or at the very least, alleged duties Wells 

Fargo owed to him by reason of the DOT. 

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1301 FIFTH AVENUE, SUITE 3300

SEATTLE, WASHINGTON 98101

(206) 622-3790

Courts have repeatedly dismissed foreclosure related claims by borrowers for 

failure to comply with identical notice and cure provisions. Roiseland, 989 F. Supp. 

2d at 1107 (dismissing breach of contract claim with prejudice due to plaintiff’s 

failure to allege compliance with identical notice and cure provision); Higley, 910 F. 

Supp. 2d at 1253 (claim that bank violated ORS 86.705 barred by plaintiff’s failure 

to allege facts showing compliance with identical notice and cure provision); Niyaz 

v. Bank of Am., 2011 U.S. Dist. LEXIS 156, at *5-6 (E.D. Va. Jan. 3, 2011) 

(complaint dismissed where borrower failed to comply with notice and cure 

requirements in deed of trust and allegations all related to actions taken pursuant 

to deed of trust). 

The notice and cure provision that Plaintiff agreed to is “intended to give the 

allegedly breaching party an opportunity to cure its breach.” Higley, 910 F. Supp. 

2d at 1253. Oregon courts enforce similar contractual grievance procedures. See, 

e.g., Brooks v. City of Beaverton, 67 Or. App. 588, 592 (1984) (“[P]laintiff’s claim is 

barred by his failure to comply with the contractual grievance procedure.”).

In Roisland v. Flagstar Bank, FSB, 989 F. Supp. 2d at 1106-1107, Judge 

Mosman of this district held that a borrower’s breach of contract claim was barred 

by a notice and cure provision in a deed of trust where the borrower failed to allege 

compliance. Although Judge Mosman dismissed Roisland’s claims for unlawful 

foreclosure, declaratory judgment, violation of the Unlawful Debt Collection 

Practices Act and quiet title on other grounds, he noted that “I expect that [these 

claims] would [also] fall under the requirements of the notice and cure provisions, 

as claims ‘arising from the other party’s actions pursuant to the Security 

Instrument.’” Id. at n.10. In other words, had they not been dismissed on other 

grounds, Judge Mosman would have dismissed Roisland’s tort claims for failure to 

comply with the notice and cure provision in his deed of trust.

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KEESAL, YOUNG & LOGAN

1301 FIFTH AVENUE, SUITE 3300

SEATTLE, WASHINGTON 98101

(206) 622-3790

Similarly, in Higley, Judge Simon found that an identical notice and cure 

provision barred a borrower’s claim that the bank violated ORS 86.735. Higley, 910 

F. Supp. 2d at 1254. Judge Simon reasoned that “[b]y failing to comply with the 

notice-and-cure provision, the Higleys deprived Flagstar of an opportunity to correct 

[the alleged violation.]” Accordingly, the court ruled that the borrowers’ claim was 

barred and dismissed it with prejudice. Id.

Although Plaintiff’s complaint is no model of clarity, he generally alleges 

three claims for relief based on allegations that Wells Fargo violated ORS 86.750 

and breached an unspecified contract in connection with the foreclosure of the DOT. 

Complaint ¶¶ 6-16. Plaintiff does not (because he cannot) allege that he provided 

Wells Fargo with the required notice under the DOT that would have allowed it to 

correct these alleged deficiencies. Because Plaintiff’s claims all arise from actions 

pursuant to the DOT, and because he failed to (and cannot) allege compliance with 

the notice and cure provision, the Court should dismiss the Complaint with 

prejudice.

C. Plaintiffs’ Claims are Barred by ORS 86.797.

Even if Plaintiff’s claims were not barred by his failure to comply with the 

notice and cure provision in the DOT, his claims otherwise fail under ORS 

86.797(1). That statute provides that “[i]f, under [the ODTA], a trustee sells 

property covered by a trust deed, the trustee’s sale forecloses and terminates the 

interest in the property that belongs to a person to which notice of the sale was 

given under ORS 86.764 and ORS 86.774 . . . .” ORS 86.797(1) (emphasis added). 

ORS 86.764 and ORS 86.774 require notice to be given, among others, to the

grantor under the Deed of Trust (i.e. the borrower) and occupants of the property 

subject to the foreclosure. ORS 86.764(2)(a); ORS 86.774(1).

Numerous courts in Oregon have held that ORS 86.797(1) (formerly found at 

ORS 86.770) bars post-sale challenges to a foreclosure where the trustee provided 

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1301 FIFTH AVENUE, SUITE 3300

SEATTLE, WASHINGTON 98101

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proper notice of the foreclosure. For example, in Mikityuk v. Northwest Tr. Servs., 

952 F. Supp. 2d 958 (D. Or. 2013), the court noted the policy reasons of “efficiency, 

certainty, and finality” weighed “against the threat of wrongful foreclosure” and 

concluded “the need for certainty and finality trumped the risks of wrongful 

foreclosure.” Mikityuk, 952 F. Supp. 2d 958 at 968. The court reasoned that “notice 

and reinstatement provisions” protected “grantors against the threat of wrongful 

foreclosure.” Id. at 970. Based on the plaintiffs’ delay of nineteen months following 

foreclosure in filing suit, the court found that “[v]oiding the sale here would 

encourage grantors who receive notice of a sale to sit on their rights, rather than 

compelling grantors to bring pre-sale challenges to a trustee’s sale.” Id.

Accordingly, the court dismissed the plaintiffs’ post-sale challenges to the 

foreclosure because their “interest in the property was ‘foreclosed and terminated’ 

pursuant to ORS 86.770(1).” Id. at 970.

Similarly, in Chen v. Bank of Am., N.A., 2013 U.S. Dist. LEXIS 106199 (D. 

Or. July 25, 2013), the plaintiff admitted to defaulting on the obligation, receiving 

prior notice of defendants’ intention to foreclose, and that the property was sold at a 

trustee’s sale. Chen, 2013 U.S. Dist. LEXIS 106199, at *1. Nevertheless, like this 

case, the plaintiff did not file the action until after the trustee’s sale and recording 

of the trustee’s deed. Id. at *1-2. The court held that ORS 86.770(1) terminated his 

interests and barred the plaintiff’s challenges to the non-judicial foreclosure sale 

based on his receipt of notice of the sale. Id. at *4 (citing ORS 86.770(1)). The court 

stated that “[t]he notice provisions . . . provide those whose property interests could 

be affected by a trustee’s sale sufficient time to act to protect those interests before 

the sale.” Id. at *4-5. Accordingly, the time to make such a challenge had “long 

passed.” Id. at *4.

Other courts have reached the same conclusion. Liu v. Northwest Trustee 

Svs., Inc., 2014 U.S. Dist. LEXIS 20946 (D. Or. Feb. 19, 2014) (claims for injunctive 

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and declaratory relief barred by ORS 86.770); Woods v. United States Bank N.A., 

2013 U.S. Dist. LEXIS 146485, at *13-14 (D. Or. Oct. 10, 2013) (“The Court adopts 

the reasoning of Mikityuk, Chen, and other decisions” and concludes that “Plaintiff’s 

claim is barred under § 86.770(1)”); Hart v. Pacific Trust Bank, 2013 U.S. Dist. 

LEXIS 128115, at *5 (D. Or. Sept. 9, 2013) (despite notice, plaintiff chose to delay 

such challenges until after the trustee’s sale and recording of the trustee’s deed, 

thus, Plaintiff’s challenges are barred, because her interest in the property was 

“foreclosed and terminated.”).

Plaintiff does not deny that he defaulted on the Note and DOT, and he admits 

that he received notice of the sale. Complaint ¶¶6-7. Like the borrowers in 

Mikityuk, Chen, and the other cases cited above, Plaintiff had sufficient time to 

raise his challenge before the sale, but he waited nearly five years after the 

trustee’s sale and recording of the trustee’s deed to raise his claims. 

Plaintiff’s interest in the Property was “foreclosed and terminated” by the 

trustee’s sale. Accordingly, ORS 86.797(1) bars Plaintiff’s post-sale challenge to the 

validity of the foreclosure.

D. Plaintiff’s Claim Under ORS 86.750 Fails.

Plaintiff’s first and third claim for relief are based on the conclusory 

allegation that Wells Fargo violated ORS 86.750 (renumbered and amended as ORS 

86.752 in 2013) by failing to consider his loan modification request prior to 

foreclosing. Complaint ¶¶ 8, 16. Plaintiff’s claim fails for two reasons. First, it is 

barred by the two year statute of limitation found in ORS 12.110. Second, even if it 

were not time barred, Plaintiff fails to allege facts to support a plausible violation of 

ORS 86.750. 

1. Plaintiff’s ORS 86.750 Claim is Time Barred.

ORS 12.110(1) provides that actions not otherwise specifically enumerated in 

the chapter must be commenced within two years. Plaintiff alleges that Wells 

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Fargo violated ORS 86.750 by “refusing” to consider the loan modification 

application that he alleges he submitted in July, 2010. Complaint ¶¶7, 8 and 16. 

At the very latest, his claim accrued when the Property sold at the nonjudicial 

foreclosure sale on November 8, 2010. Because Plaintiff did not commence his 

action until 2015—three years after the two year limitation period had run—his 

claim is time barred.

2. Plaintiff Failed to Allege a Plausible Violation of ORS 

86.750.

Plaintiff’s ORS 86.750 claim separately fails because he fails to allege a 

plausible claim. In 2010, ORS 86.750 provided that “if a grantor returns [a loan 

modification application as required by the statute] . . . the beneficiary . . . shall 

review the information the grantor provided in the form and, in good faith, shall 

process the grantor’s request. . . . [A]s soon as reasonably practicable but not later 

than 45 days after receiving the form, [the beneficiary] shall notify the grantor 

whether the beneficiary approves or denies the request or requires additional 

information.” 2009 Ore. SB 628.

Plaintiff’s Complaint contains little more than a conclusory assertion that 

“defendant failed and refused” to consider his application. Complaint ¶¶ 8, 16. The 

Complaint is void of any factual that would plausibly show Wells Fargo acted in bad 

faith. Plaintiff’s unadorned “the defendant unlawfully harmed me” conclusion is 

insufficient to put Wells Fargo on notice of any wrongdoing and therefore fails to 

state a plausible claim for relief. Iqbal, 556 U.S. at 678.

E. Plaintiff’s Breach of Contract Claim Fails.

Plaintiff’s breach of contract claim fails for two additional reasons. First, 

Plaintiff points to no specific term of any contract he alleges was breached. To state 

a plausible claim for breach of contract, Plaintiff must allege “the existence of a 

contract, its relevant terms, [his own] full performance and lack of breach, and 

[Wells Fargo’s] breach resulting in damage to [Plaintiff].” Commerce & Indust. Ins. 

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Co. v. HR Staffing, 2015 U.S. Dist. LEXIS 2501 at *4 (D. Or. Jan. 8, 2015) (citing 

Slover v. Oregon State Bd. of Clinical Soc. Workers, 144 Or. App. 565, 570 (1996)). 

No contract required Wells Fargo to modify the terms of Plaintiff’s Note and DOT. 

With no allegations showing a term of a contract and a plausible breach, Plaintiff’s 

claim fails.

Moreover, Plaintiff is barred from asserting a breach of contract claim 

against Wells Fargo because he materially breached the parties’ contract. “It is well 

established, at least as a general rule, that a plaintiff who seeks to recover under 

the terms of an express contract for defendant’s failure to perform its terms must 

plead and prove his own substantial performance or a valid excuse for his failure to 

perform.” Wasserburger v. Amer. Sci. Chem., 267 Ore. 77, 82 (1973); Su Yong Kim 

v. Chon Sik Park, 192 Ore. App. 365, 369 (2004) (“[A] party who seeks to recover 

damages on a contract must plead and prove its own performance or a valid excuse 

for its failure to perform.”). “It is also well established, at least as a general rule, 

that a breach or nonperformance of a promise by one party to a bilateral contract so 

material as to justify a refusal of the other party to perform a contractual duty, 

discharges that duty.” Wasserburger, 267 Ore. at 82.

Plaintiff does not dispute that he defaulted on his loan payments as set forth 

in the Notice of Default. His failure to make payments on time constitutes a 

material breach. Bisio v. Madenwald, 33 Ore. App. 325, 331 (1978) (“A breach is 

material if it goes to the very substance of the contract and defeats the object of the 

parties entering into the contract.”). Plaintiff’s own breach bars his breach of 

contract claim against Wells Fargo as a matter of law.

/ / 

/ / 

/ / 

/ /

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IV. CONCLUSION

For the foregoing reasons, the Court should grant Wells Fargo’s motion and 

dismiss Plaintiff’s claims with prejudice.

DATED this 11th day of June, 2015.

KEESAL, YOUNG & LOGAN

/s/ Molly J. Henry

Molly J. Henry, OSB No. 140023

Attorneys for Defendant

Wells Fargo Bank, N.A.

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CERTIFICATE OF SERVICE

I hereby certify that on the date given below, I electronically filed the 

foregoing WELLS FARGO’S MOTION AND MEMORANDUM FOR 

JUDGMENT ON THE PLEADINGS with the Clerk of the Court using the 

CM/ECF system and served upon the following person(s) via First Class U.S. Mail, 

postage prepaid:

Keith L. Hayes

POB 13676

Salem, OR 97309

Pro Se Plaintiff

DATED this 11th day of June, 2015, at Seattle, Washington.

Hillary R. Poole

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