IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

GARY C. GOSHA and KIT M.

GOSHA,

Plaintiffs,

v.

THE BANK OF NEW YORK MELLON

CORPORATION fka THE BANK OF

NEW YORK, AS TRUSTEE (CWALT

2005-72), Delaware 

Corporation; BANK OF AMERICA

N.A., a Delaware Corporation;

BAYVIEW LOAN SERVICING LLC, a

Florida Corporation; CLEAR

RECON CORP, a California

Corporation,

Defendants.

3:16-CV-00073-BR

 

 

OPINION AND ORDER

GARY C. GOSHA

KIT M. GOSHA

175900 S.W. Cheyenne Way

Tualatin, OR 97062

503-522-6571 

Plaintiffs, Pro Se

1 - OPINION AND ORDER

Case 3:16-cv-00073-BR Document 133 Filed 12/13/16 Page 1 of 31
PETER J. SALMON

Aldridge Pite, LLP

4375 Jutland Dr.

Suite 200

San Diego, CA 92117

(858) 750-7600

Attorneys for Defendants Bank of New York Mellon Corp.,

Bayview Loan Servicing LLC, and Clear Recon Corp.

JAMES P. LAURICK

Kilmer Voorhees & Laurick, PC

732 N.W. 19th Ave.

Portland, OR 97209

(503-224-0055

Attorneys for Defendant Bank of America

BROWN, Judge.

This matter comes before the Court on (1) the Motion (#75)

to Dismiss Plaintiff’s Second Amended Complaint pursuant to

Federal Rule of Civil Procedure 12(b)(6) and First and Second

Requests for Judicial Notice (#76, #96) filed by Defendant Bank

of America N.A. (BANA) and (2) the Motion (#79) to Dismiss

Plaintiffs’ Second Amended Complaint pursuant to Federal Rule of

Civil Procedure 12(b)(6) filed by Defendants Bank of New York

Mellon Corp. (BONYM), Bayview Loan Servicing LLC, and Clear Recon

Corp. (CRC). 

 For the reasons that follow, the Court GRANTS Defendants’

Motions to Dismiss, GRANTS BANA’s First Request for Judicial

Notice, and DENIES BANA’s Second Request for Judicial Notice.

BACKGROUND

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For purposes of Defendants’ Motions only, the following

facts are taken from Plaintiffs’ Second Amended Complaint and are

undisputed unless otherwise noted.

On October 24, 2005, Plaintiffs obtained a loan from

America’s Wholesale Lender (AWL) in the amount of $320,000 to

refinance their home in Tualatin, Oregon. Plaintiffs signed an

Adjustable Rate Note for the loan, which identified AWL as the

lender. Plaintiffs secured the Note by signing a Deed of Trust

the same day. The Deed identified Plaintiffs as the “Borrower,”

AWL as the “Lender” and “a corporation organized and existing

under the laws of New York,” Ticor Title as the “Trustee,” and

Mortgage Electronic Registration Systems, Inc. (MERS) as the

“beneficiary” and “nominee for Lender and Lender’s successors and

assigns.” 

In December 2005 Plaintiffs received notice that the

servicing of their loan would be handled by Countrywide Home

Loans, Inc. Sometime thereafter BANA assumed the servicing of

Plaintiffs’ loan. 

From December 2005 through August 2011 Plaintiffs made

payments to Countrywide or BANA. Plaintiffs allege they became

increasingly concerned with their rising monthly payments and

wanted to “refinance or modify the loan to a fixed amount.” In

August 2011 Plaintiffs sought assistance from BANA for this

purpose. 

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In September 2011 Plaintiffs stopped making payments on the

loan. In October 2011 BANA sent Plaintiffs a “Notice of Intent

to Accelerate and Foreclose” their loan. 

In November 2011 Plaintiffs filed for Chapter 7 bankruptcy. 

In December 2011 and January 2012 Plaintiffs “wanted to

reaffirm” their loan and again sought help from BANA. 

On February 10, 2012, MERS, as nominee for AWL, assigned all

of the beneficial interest in the Deed to BONYM. On February 28,

2012, the Assignment was recorded. 

In March 2012 Plaintiffs were discharged in bankruptcy. 

In a letter dated April 24, 2013, Plaintiffs were notified

the servicing of their loan would be transferred from BANA to

Bayview effective May 16, 2013. 

On January 30, 2015, Bayview sent Plaintiffs a notice of

intent to foreclose the loan. The notice stated the foreclosure

would be conducted in the name of BONYM. 

In March 2015 Bayview asked Plaintiffs to participate in the

Oregon Foreclosure Avoidance Program (OFAP). 

In June 2015 Plaintiffs and Bayview, as the agent of BONYM,

participated in a resolution conference with the OFAP mediator. 

The parties did not reach an agreement for a foreclosureavoidance measure. The mediator issued a Certificate of

Compliance over Plaintiffs’ objection.

On April 23, 2015, Bayview prepared and executed an

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“Assignment of Deed of Trust” assigning the Deed from

“Countrywide Home Loans, Inc, dba America’s Wholesale Lender,

(Assignor)” to BONYM. The Assignment was recorded on May 1,

2015. 

On August 31, 2015, BONYM, acting through Bayview as the

loan servicer, executed an “Appointment of Successor Trustee”

appointing CRC as trustee in the place of Ticor Title. The

Appointment was recorded on September 11, 2015. 

On September 9, 2015, CRC issued a “Notice of Default and

Election to Sell” for Plaintiffs’ property. The Notice was

recorded on September 11, 2015, and Plaintiffs were served with

the Notice on September 15, 2015.

On September 16, 2015, Plaintiffs sent a letter to CRC

disputing the Notice of Default and requested copies of loanrelated documents. 

On November 10, 2015, Plaintiffs sent a “Notice of

Rescission of Loan” to Bayview. 

On January 6, 2016, Bayview responded to Plaintiffs’ Notice

and advised Plaintiffs that the period to rescind the October

2005 loan had expired.

On January 15, 2016, Plaintiffs filed their Complaint in

this Court. On May 23, 2016, Plaintiffs filed a Second Amended

Complaint in which they: (1) request a declaratory judgment

against all Defendants; (2) allege Defendants BONYM and Bayview

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Case 3:16-cv-00073-BR Document 133 Filed 12/13/16 Page 5 of 31
violated the Oregon Unlawful Trade Practices Act (OUTPA), Oregon

Revised Statutes, Chapter 646; (3) allege all Defendants violated

the Racketeer Influenced and Corrupt Organizations Act (RICO), 18

U.S.C. §§ 1961, et seq.; (4) allege all Defendants violated

Oregon Racketeer Influenced and Corrupt Organizations Act

(ORICO), Oregon Revised Statutes, §§ 166.175 to 166.735; 

(5) allege Defendants BANA and BONYM violated the Consumer Credit

Protection Act (CCPA), 15 U.S.C. §§ 1601, et seq.; and (6) allege 

promissory estoppel applies against BANA.

On June 6, 2016, Defendants filed their Motions to Dismiss

all of Plaintiffs’ claims for failure to state a claim. BANA

also seeks judicial notice of certain documents tendered in

support of its Motion. Plaintiffs filed their Responses to the

Motions to Dismiss on June 30, 2016, and Defendants filed their

respective Replies on July 20, 2016. Following requests by

Plaintiffs to supplement the record and the resolution of

discovery issues, the Court took this matter under advisement on

October 10, 2016.

STANDARDS

To survive a motion to dismiss a complaint must contain

sufficient factual matter, accepted as true, to “state a claim

for relief that is plausible on its face.” Bell Atlantic v.

Twombly, 550 U.S. 544, 545 (2007). A claim has facial

6 - OPINION AND ORDER

Case 3:16-cv-00073-BR Document 133 Filed 12/13/16 Page 6 of 31
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.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009)(quoting Twombly, 550 U.S. at 546). When a

complaint is based on facts that are “merely consistent with” a

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

possibility and plausibility of entitlement to relief.” Iqbal,

556 U.S. at 678 (citing Twombly, 550 U.S. at 557). 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 Federal Rule of Civil Procedure 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.

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“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." Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th

Cir. 2007)(citing Jacobson v. Schwarzenegger, 357 F. Supp. 2d

1198, 1204 (C.D. Cal. 2004)). 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." Id. (quoting Parrino v. FHP,

Inc., 146 F.3d 699,706 (9th Cir. 1998), superseded on other

grounds as stated in Abrego v. Dow Chem. Co., 443 F.3d 676 (9th

Cir. 2006)).

A pro se plaintiff's complaint "must be held to less

stringent standards than formal pleadings drafted by lawyers." 

Erickson v. Pardus, 551 U.S. 89, 94 (2007). Thus, the court must

construe pro se filings liberally. If a plaintiff fails to state

a claim, "[l]eave to amend should be granted unless the pleading

'could not possibly be cured by the allegation of other facts,'

and should be granted more liberally to pro se plaintiffs." 

Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003)(quoting

Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000)).

DISCUSSION

8 - OPINION AND ORDER

Case 3:16-cv-00073-BR Document 133 Filed 12/13/16 Page 8 of 31
At the heart of this matter is Plaintiffs’ assertion that

AWL, the original lender named on the Deed and Note, is not a

legal entity and was not authorized to do business in the State

of Oregon at the time of Plaintiffs’ loan. Based on that

assertion, Plaintiffs contend the Deed and Note are void and

unenforceable, that Defendants are precluded from pursuing any

foreclosure action against Plaintiffs, that Plaintiffs are

entitled to possession of their property free and clear of any

liens asserted by Defendants, and that Plaintiffs are entitled to

the return of all loan payments made by them.

I. BANA’s Requests for Judicial Notice

BANA asks the Court to take judicial notice pursuant to

Federal Rule of Evidence 201 of documents regarding the status of

AWL submitted in support of its Motion to Dismiss. 

Plaintiffs, in turn, contend the Court should not take

judicial notice of these documents because they do not meet the

requirements of Rule 201, the documents are irrelevant and

inadmissable, and notice of these documents violate the parole

evidence rule for contract interpretation. 

A. Standards

The court may take judicial notice of adjudicative

facts “capable of accurate and ready determination by resort to

sources who accuracy cannot reasonably be questioned.” Fed. R.

Evid. 201(b). On a motion to dismiss the court may also take

9 - OPINION AND ORDER

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judicial notice of public records outside of the pleadings. 

Dreiling v. American Exp. Co., 458 F.3d 942, 946 n.2 (9th Cir.

2006)(citing MGIC Idem. Corp. V. Weisman, 803 F.2d 500, 504 (9th

Cir. 1986)). 

Pursuant to the “doctrine of incorporation,” a court

may also consider as evidence on a motion to dismiss those

“documents whose contents are alleged in a complaint and whose

authenticity no party questions, but which are not physically

attached to the pleading.” Branch v. Tunnell, 14 F.3d 449, 453-

54 (9th Cir. 1994). The Ninth Circuit in Knievel v. ESPN

extended this principle to situations in which “the plaintiff’s

claim depends on the contents of a document, the defendant

attaches the documents to its motion to dismiss, and the parties

do not dispute the authenticity of the document, even though the

plaintiff does not explicitly allege the contents of that

document in the complaint.” 393 F.3d 1068, 1076 (9th Cir. 2005).

B. First Request for Judicial Notice (#76).

BANA requests the Court to take judicial notice of

“Business Entity Data” for AWL and Countrywide from the Oregon

Secretary of State Corporation Division database. According to

BANA, these records show AWL was the assumed business name for

Countrywide, and Countrywide was registered to do business in

Oregon at the time the Deed and Note for Plaintiffs’ loan were

executed. 

10 - OPINION AND ORDER

Case 3:16-cv-00073-BR Document 133 Filed 12/13/16 Page 10 of 31
The Business Entity Data from the Oregon Secretary of

State regarding AWL and Countrywide are public records that can

be readily determined as accurate.

On this record, therefore, the Court grants BANA’s

Request (#76) and takes judicial notice of these documents. 

C. Second Request for Judicial Notice (#96).

BANA requests the Court to take judicial notice of the

“Loan Application Disclosure Acknowledgment” signed by Plaintiffs

on October 25, 2005; a letter from Plaintiffs dated June 22,

2012; and the California state appellate court opinion in

Vildosola v. Countrywide Home Loans, Inc., No. D066094, 2015 WL

5258687 (Cal. Ct. App., Sept. 10, 2015). 

BANA contends the Disclosure Acknowledgment and letter

refute Plaintiffs’ assertion that they did not know Countrywide

was the lender on their loan.

In any event, the Loan Application Disclosure

Acknowledgment and Plaintiffs’ letter dated June 22, 2012, are

not public records, are not referenced in Plaintiffs’ Second

Amended Complaint, and are not “undisputed” as to their

authenticity. In addition, Plaintiffs’ claims do not “depend” on

those documents. 

The Vildosola opinion, however, is a public record, and

the Court considers it to the same extent that the Court

considers any other legal authority cited by a party. 

11 - OPINION AND ORDER

Case 3:16-cv-00073-BR Document 133 Filed 12/13/16 Page 11 of 31
On this record the Court denies BANA’s Request (#96) as

to these documents. 

II. Defendants’ Motions to Dismiss Plaintiffs’ Second Amended

Complaint

Defendants contend Plaintiffs fail to state a claim in their

Second Amended Complaint, and therefore, the Court should dismiss

Plaintiffs’ Second Amended Complaint as a matter of law.

A. AWL’s Status as a Legal Entity

As noted, at the heart of Plaintiffs’ claims are their

assertions that AWL did not exist as a legal entity when the Deed

and Note were executed and that AWL was not registered to do

business in Oregon at the time of the loan. Thus, Plaintiffs

contend the Deed and all subsequent assignments are void and

unenforceable. 

To support their position, Plaintiffs attach 

to their Second Amended Complaint a name search from the New 

York State Division of Corporations showing an entity named

“America’s Wholesale Lender, Inc.” was registered in New York on

December 16, 2008, which was three years after the execution of

Plaintiffs’ loan in 2005. Moreover, neither the Deed nor the

Note indicates Plaintiffs intended “America’s Wholesale Lender,

Inc.” to be the lender rather than “America’s Wholesale Lender”

(referred to as AWL herein) when they signed the Deed and Note in

2005.

Defendants, as noted, have shown AWL was the registered

12 - OPINION AND ORDER

Case 3:16-cv-00073-BR Document 133 Filed 12/13/16 Page 12 of 31
assumed business name of Countrywide Home Loans, Inc., and the

Deed and Note signed by Plaintiffs unambiguously identify the

lender as AWL. 

The Court has taken judicial notice of business records

from the Oregon Secretary of State submitted by BANA that show

AWL was the registered assumed business name for Countrywide at

the time of Plaintiffs’ loan in October 2005, and Countrywide, a

New York corporation, was registered in 2005 to do business in

Oregon. Based on these documents, the Court concludes the

identity of AWL in the Deed and Note is not ambiguous, that AWL

was the assumed business name for Countrywide at the time, that

AWL was a legal entity at the time of this transaction, and that

AWL was authorized to do business in Oregon because it was the

assumed business name for Countrywide.

B. Plaintiffs’ First Claim for Declaratory Judgment.

In their First Claim for Declaratory Judgment as to all

Defendants, Plaintiffs seek a judicial determination that the

Deed with AWL is void, that all of the subsequent assignments of

the Deed are void, that BONYM and Bayview do not have the

authority to foreclose on Plaintiffs’ property, and that

Plaintiffs are entitled to possession of the property free and

clear of any liens. 

Plaintiffs’ request for a declaratory judgment is, as

noted, premised on Plaintiffs’ contention that the Deed in

13 - OPINION AND ORDER

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question is void because AWL was not a legal entity at the time

and was not authorized to do business in Oregon. Plaintiffs,

therefore, assert the subsequent assignments of the Deed by MERS

to BONYM in February 2012 and by Countrywide to BONYM in 2015 are

invalid, and, thus, BONYM and Bayview do not have any authority

to foreclose on the loan. Plaintiffs also contend any Note held

by BONYM was forged because Plaintiffs have received copies of

the Note that reflect it was not properly endorsed to BONYM. 

Plaintiffs also contend any assignments of the Deed are invalid

because the Deed and Note themselves are both invalid. 

Defendants contend Plaintiffs fail to state a claim for

declaratory relief because the Deed and Note are not invalid. 

Defendants argue BONYM’s status as beneficiary derives from its

status as the note-holder and even if the assignment from MERS to

BONYM was ineffective, the subsequent recorded assignment from

Countrywide to BONYM was valid. Defendants also argue the

forgery issue regarding the Note is a “red herring.” Defendants

further contend Plaintiffs do not have standing to challenge the

assignments of the Deed. 

1. Declaratory Judgment

The Declaratory Judgment Act provides: “In a case of

actual controversy within its jurisdiction . . . any court of the

United States . . . may declare the rights and other legal

relations of any interested party seeking such declaration,

14 - OPINION AND ORDER

Case 3:16-cv-00073-BR Document 133 Filed 12/13/16 Page 14 of 31
whether or not further relief is or could be sought.” 28 U.S.C.

§ 2201(a). The phrase “a case of actual controversy” refers to

the types of “cases” and “controversies” justiciable under

Article III of the United States Constitution. MedImmune, Inc.

v. Genentech, Inc., 549 U.S. 118, 127 (2007). The Declaratory

Judgment Act does not create a stand-alone cause of action. See

Franchise Tax Bd. Of State of Cal. v. Constr. Laborers Vacation

Trust for S. California, 463 U.S. 1, 15 (1983)(“‘[T]he operation

of the Declaratory Judgment Act is procedural only.’”)(quoting

Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667 (1950)).

See also Graham v. U.S. Bank, Nat’l Assn., No. 3:15-cv-0990-AC,

2015 WL 10322087, at *13 (D. Or. Dec. 2, 2015)(“The Declaratory

Judgment Act . . . does not create a cause of action; instead, it

creates a remedy for existing causes of action.”). 

In MedImmune the Supreme Court summarized the

difference “between those declaratory-judgment actions that

satisfy the case-or-controversy requirement and those that do

not” as follows: “Basically, the question in each case is

whether the facts alleged, under all the circumstances, show that

there is a substantial controversy, between parties having

adverse legal interests, of sufficient immediacy and reality to

warrant the issuance of a declaratory judgment.” 549 U.S. at

127. The Court also described a dispute that satisfies the caseor-controversy requirement as one that is “definite and concrete,

15 - OPINION AND ORDER

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touching the legal relations of parties having adverse legal

interests” to the degree that the dispute is “‘real and

substantial’” and “admi[ts] of specific relief through a decree

of a conclusive character, as distinguished from an opinion

advising what the law would be upon a hypothetical state of

facts.” Id. (quotation omitted).

2. Analysis

The Oregon Supreme Court in Brandrup v. ReconTrust Co.,

N.A. held for purposes of the Oregon Trust Deed Act, “the

‘beneficiary’ is the lender to whom the obligation that the trust

deed secures is owed or the lender’s successor in interest.” 353

Or. 668, 689 (2013). The court held “an entity like MERS, which

is not a lender, may not be a trust deed’s ‘beneficiary,’ unless

it is the lender’s successor in interest.” Id. The Oregon

Supreme Court in Niday v. GMAC Mortgage, LLC, held, however, even

though MERS cannot act as a beneficiary in its own right, it may

establish that it was the beneficiary’s agent and able to act in

that capacity. 353 Or. 648, 658 (2013).

In Christie v. Bank of New York Mellon, N.A., the

plaintiff alleged the “unauthorized and inauthentic” assignments

of her loan rendered the Note and Deed of Trust void and

precluded the defendants from collecting the debt. The Ninth

Circuit concluded the district court properly dismissed the

plaintiff’s claim for declaratory relief and held the plaintiff

16 - OPINION AND ORDER

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did not have standing to challenge irregularities in the

assignment of her Note or Deed of Trust because those instruments

are negotiable and her obligations thereunder remained unchanged

even if her creditor changed. 617 F. App’x. 680, 681 (9th Cir.

2015). The court also concluded the plaintiff did not “have

standing to challenge the late assignment of her loan to the

CWALT Trust under New York law since [plaintiff] is not an

intended beneficiary of the CWALT Trust. Id. at 682.

Here this Court has concluded AWL was a legal entity at

the time of the loan, and, therefore, the Deed executed between

AWL and Plaintiffs is not invalid as Plaintiffs allege. Although

it could be argued that MERS did not have the authority to assign

the Deed in 2012, the subsequent assignment by Countrywide to

BONYM in 2015 was properly recorded prior to any foreclosure

action by BONYM or Bayview. The Court also notes Plaintiffs lack

standing to challenge the assignments of the Deed because they

were not the intended beneficiaries of the assignment.

On this record the Court concludes, therefore, that

Plaintiffs have failed to state a claim for declaratory relief

that is plausible on its face, and, accordingly, the Court grants

Defendants’ Motions to Dismiss Plaintiffs’ First Claim.

C. Plaintiffs’ Second Claim for Violation of Oregon’s

Unlawful Trade Practices Act (OUTPA).

Plaintiffs bring their Second Claim for violation of

OUTPA against Defendants BONYM and Bayview only. Plaintiffs

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allege BONYM and Bayview violated § 646.607 and § 646.608 by

omitting material facts and making false representations in their 

January 30, 2015, Intent to Foreclose letter; omitting material

facts, making false statements, and failing to produce or

producing incomplete or false documents in the OFAP process;

seeking to enforce the Note and Deed knowing they were void;

seeking to enforce the April 2015 Assignment of Trust Deed

knowing it was forged; recording a Substitution of Trustee and 

Notice of Default and Sale when BONYM, Bayview, and CRC1 were not

legally entitled to do so; and engaging in allegedly criminal

misconduct. 

BONYM and Bayview contend there is not a private right

of action under § 646.607 and that Plaintiffs fail to allege

facts sufficient to constitute a claim under § 646.608.

1. Section 646.607

Section 646.607(1) provides a person engages in an

unlawful trade practice if the person “employs any unconscionable

tactic in connection with selling, renting or disposing of real

estate, goods or services, or collecting or enforcing an

obligation.” Oregon Revised Statute § 86.741(3) provides

violation of the provisions of the OFAP process, Oregon Revised

1 Although Plaintiffs allege the appointment of CRC as

successor trustee was improper and invalid, they do not set out

facts that specifically support the allegation that CRC violated

OUTPA.

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Statutes, § 86.726, et seq., constitutes unlawful practices under

§ 646.607.

The Oregon state appellate court has held claims under

Oregon Revised Statute § 646.607 may be prosecuted only by the

State of Oregon, and Oregon law “does not create a private right

of action for violations of ORS 646.607.” Norton v. Nelson, 2525

Or. App. 611, 619-20 (2012). 

The Court concludes, accordingly, that Plaintiffs’

claim against BONYM and Bayview for violations of § 646.607,

including alleged violations of the OFAP process, fails to state

a claim.

2. Section 646.608

Section 646.608 specifies unlawful trade practices

other than those set out in § 646.607 and includes the following

conduct alleged in Plaintiffs’ Second Amended Complaint: the use

of “deceptive representations in connection with real estate,

goods or services” (¶(1)(d)); making “false or misleading

representations concerning credit availability or the nature of

the transaction or obligation incurred” (¶(1)(k)); and “any other

unfair or deceptive conduct in trade or commerce” (¶(1)(u)).

In their Second Claim Plaintiffs’ allegations again are

based on their contention that AWL was not a legal entity at the

time; that the Deed and Note, therefore, are void; and, as a

result, that subsequent foreclosure documents are invalid. 

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Moreover, Plaintiffs contend Bayview omitted material facts or

made false statements in its January 30, 2015, Notice of Intent

to Foreclose by failing to name the lender and noteholder

specifically.

As noted, the Court has concluded Plaintiffs’

allegations fail to establish that AWL is not a legal entity or 

that the Deed and Note at issue are invalid. Thus, to the extent

that Plaintiffs’ allegations are premised on the theory that AWL

was not a legal entity at the time of the loan and that all

subsequent transactions were invalid, such allegations do not

have any merit and, therefore, do not adequately state a claim

that Defendants BONYM and Bayview violated § 646.608. 

On this record the Court concludes Plaintiffs’ Second

Claim that Defendants BONYM and Bayview violated the provisions

of OUTPA is not plausible on its face, and, accordingly, the

Court grants the Motion to Dismiss of Defendants BONYM and

Bayview as to Plaintiffs’ Second Claim.

D. Plaintiffs’ Third Claim for Violation of RICO.

Plaintiffs bring their Third Claim against all

Defendants for violation of RICO, 18 U.S.C. § 1962(c). 

Plaintiffs’ Third Claim is based on the premise that the Note,

Deed, Assignment of Deed, Appointment of Successor Trustee, and

Notice of Default are void and/or forgeries.

Defendants, in turn, contend Plaintiffs cannot maintain

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a RICO claim because the loan documents are valid and

enforceable, there is not a private right of action for mail

fraud, and Plaintiffs fail to allege the elements required to

state a RICO claim.

1. RICO

To establish a prima facie claim under RICO, a

plaintiff must allege: (1) a substantive predicate violation of

18 U.S.C. § 1962, (2) injury to his or her business or property,

and (3) a causal connection between the racketeering activity and

the injury. See Miller v. Yokohama Tire Corp., 358 F.3d 616, 620

(9th Cir. 2004). "To state a claim under § 1962(c), a plaintiff

must allege '(1) conduct (2) of an enterprise (3) through a

pattern (4) of racketeering activity.'" Odom v. Microsoft, 486

F.3d 541, 547 (9th Cir. 2007)(quoting Sedima, S.P.R.L. v. Imrex

Corp., 473 U.S. 479, 496 (1985)). “Racketeering activity”

includes specific predicate acts such as mail fraud or wire

fraud. 18 U.S.C. § 1961(1). To establish a “pattern of

racketeering activity” a plaintiff must allege the existence of

at least two predicate acts. 18 U.S.C. § 1961(5). When those

acts are predicated on fraud, the allegations must “detail with

particularity the time, place, and manner of each act of fraud,

plus the role of each defendant in each scheme.” Lancaster

Community Hosp. v. Antelope Valley Hosp. Dist., 940 F.2d 397, 405

(9th Cir. 1991). See also Sanford v. MemberWorks, Inc., 625 

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Case 3:16-cv-00073-BR Document 133 Filed 12/13/16 Page 21 of 31
F.3d 550, 558 (9th Cir. 2010).

2. Analysis

As noted, Plaintiffs contend Defendants violated RICO

when they attempted to foreclose on Plaintiffs’ property in

reliance on documents that were void and that Defendants’

foreclosure activities based on those documents constitute mail

and wire fraud.

Courts have concluded mail-and-wire fraud statutes do

not confer a private right of action. See, e.g., Idowu v.

Astheimer, No. C 10-02672, 2011 WL 89965, at *2 (N.D. Cal. 

Jan. 11, 2011)(“mail and wire fraud statutes do not confer a

private right of action.”)(citations omitted). See also Wilcox

v. First Interstate Bank, 815 F.2d 522, 533, n.1 (9th Cir.

1987)(“there is no private right or action for mail fraud under

18 U.S.C. § 1341")(Boochever, J., dissenting)). 

Even if a private right of action exists, Plaintiffs’

Third Claim is premised on the invalidity of the Deed, Note, and

subsequent documents relating to the foreclosure of their

property. As noted, the Court has concluded any claim based on

the alleged “invalidity” of the Deed and Note is without merit.

On this record the Court concludes Plaintiffs’ Third

Claim fails to state a claim that is plausible on its face, and,

accordingly, the Court grants Defendants’ Motions to Dismiss as

to Plaintiffs’ Third Claim.

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E. Plaintiffs’ Fourth Claim for Violation of ORICO.

Plaintiffs bring their Fourth Claim against all

Defendants for violation of ORICO, Oregon Revised Statute 

§ 166.715. Similar to their Third Claim, Plaintiffs bring this

ORICO claim as to Defendants’ foreclosure activities that were

allegedly based on invalid and/or forged documents.

As noted, the Court has concluded any claim based on

the alleged “invalidity” of the Deed and Note is without merit.

On this record the Court concludes Plaintiffs’ Fourth

claim fails to state a claim that is plausible on its face, and,

accordingly, the Court grants Defendants’ Motions to Dismiss as

to Plaintiffs’ Fourth Claim.

F. Plaintiffs’ Fifth Claim for Violation of the Consumer

Credit Protection Act.

Plaintiffs bring their Fifth Claim for violation of the

Consumer Credit Protection Act, 15 U.S.C. § 1601, against

Defendants BANA and BONYM only. Plaintiffs contend BANA violated

the requirements of 15 U.S.C. § 1641(g)(1) when it failed to

notify Plaintiffs within 30 days that it assigned the Deed to

BONYM on April 23, 2015. Second Am. Compl. at ¶ 166. Plaintiffs

further contend BONYM violated § 1641(g)(1) when it failed to

notify Plaintiffs “that ownership of the Loan had been

transferred from [BONYM] to BANA as declared in Bayview’s 

October 6, 2015 letter to Plaintiffs.” Second Am. Compl. at 

¶ 169. 

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Case 3:16-cv-00073-BR Document 133 Filed 12/13/16 Page 23 of 31
 BANA argues it was not the named creditor in the 

April 23, 2015, assignment, and, therefore, it did not have any 

obligation to notify Plaintiffs of such assignment. Plaintiffs

concede in their Response that the allegations in their Fifth

Claim are insufficient as to BANA and seek leave to amend their

Fifth Claim to assert BANA failed to notify Plaintiffs that BANA

was the owner of the loan as indicated in Bayview’s letter of

October 6, 2015. 

BONYM contends Plaintiffs’ allegations in their Second

Amended Complaint that acknowledge BONYM was owner of the loan

from origination undermines Plaintiffs’ argument that BONYM

failed to give notice of a transfer to the “true” owner. 

Moreover, Bayview’s letter of October 6, 2015, clearly identified

BONYM as the owner of the loan. Plaintiffs concede in their

Response that the allegations in their Fifth Claim are

insufficient as to BONYM and seek leave to amend their Fifth

Claim to assert BONYM failed to notify Plaintiffs that the loan

had been transferred to BONYM within 30 days of the transaction

on April 23, 2015.

1. Consumer Credit Protection Act

The Consumer Credit Protection Act requires, in

addition to other disclosures, that “not later than 30 days after

the date on which a mortgage loan is sold or otherwise

transferred or assigned to a third party, the creditor that is

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Case 3:16-cv-00073-BR Document 133 Filed 12/13/16 Page 24 of 31
the new owner or assignee of the debt shall notify the borrower

in writing of such transfer.” 15 U.S.C. § 1641(g)(1).

2. Analysis

Based on Plaintiffs’ concessions, the Court concludes

Plaintiffs fail to state a claim against BANA and BONYM for

violation of the Consumer Credit Protection Act that is plausible

on its face. 

The issue remains, however, whether Plaintiffs’

proposed amendments to their Fifth Claim would be sufficient to

state a claim for relief. BANA contends Plaintiffs’ proposed

amendment as to BANA would be insufficient as the statute

requires the actual new creditor rather than the entity that the

borrower believes is the new creditor to provide the notice of

transfer. BONYM contends Plaintiffs should not be allowed a

third opportunity to amend their Complaint because Plaintiffs

alleged BONYM has owned the loan since its origination, which is

inconsistent with Plaintiffs’ proposed amendment. See Second Am.

Compl. at ¶¶ 51-57. 

On this record the Court concludes Plaintiffs’ proposed

amendment of their Fifth Claim as to BANA would not cure the

deficiencies in light of the fact that BANA was not the new

creditor under either the April 2015 assignment nor according to

Bayview’s letter of October 2015.

The Court also concludes Plaintiffs’ proposed amendment

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Case 3:16-cv-00073-BR Document 133 Filed 12/13/16 Page 25 of 31
of their Fifth Claim as to BONYM would not cure the deficiencies. 

Plaintiffs continue to allege the damages they suffered were the

“payments made to a non-existent Lender” as a result of BONYM’s

failure to notify them it was the new creditor as a result of the

April 2015 assignment. The Court has determined AWL was a

legitimate entity at the time that the Deed and Note were

executed in 2005 and that Plaintiffs lack standing to challenge

the subsequent assignments of the Deed. Plaintiffs, therefore,

have not stated any grounds to support an award of damages

proximately caused by any alleged failure of BONYM to notify them

of the transfer. 

On this record the Court concludes Plaintiffs fail to

state a claim against Defendants BANA and BONYM for violation of

the Consumer Credit Protection Act, and, therefore, any further

amendment would be futile.

G. Plaintiffs’ Sixth Claim for Promissory Estoppel.

Plaintiffs bring their Sixth Claim for promissory

estoppel against Defendant BANA only. Plaintiffs allege BANA

made false and misleading representations “that help was

available if [Plaintiffs’] Loan was in default, but not if it was

current,” and these statements were made “in an effort to get the

Plaintiffs to default on their Loan, and keep them in default so

[BANA] could accrue and collect additional fees associated with

defaulted loans and their liquidation.” Relying on these

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Case 3:16-cv-00073-BR Document 133 Filed 12/13/16 Page 26 of 31
misrepresentations, Plaintiffs stopped making payments on their

loan “so they could get help.”

BANA contends Plaintiffs’ allegations fail to allege

clear, definite, unambiguous, and essential terms constituting a

“promise.” 

1. Promissory Estoppel

In order to state a claim for promissory estoppel, a 

plaintiff must allege a promise was made. Rick Franklin Corp. v.

State ex. rel. Dep't of Transp., 207 Or. App. 183, 190 (2006). 

See also Barnes v. Yahoo! Inc., 570 F.3d 1096, 1106 (9th Cir.

2009) (citation omitted). Oregon law does not require a

“definite” promise to allow recovery under the theory of

promissory estoppel. See Neiss v. Ehlers, 135 Or. App. 218, 228

(1995)(“In our view, the better reasoning supports the conclusion

that promissory estoppel can apply, under appropriate

circumstances, to promises that are indefinite or incomplete,

including agreements to agree.”). The plaintiff must, however, 

allege a promise that reasonably would have been expected to

“induce action or forbearance on the part of the promisee.” 

Cocchiara v. Lithia Motors, Inc., 353 Or. 282, 291 (2013). 

2. Analysis

Here Plaintiffs allege in their Second Amended

Complaint that BANA offered Plaintiffs a loan modification in

August 2012, but BANA would not provide “detailed financial

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Case 3:16-cv-00073-BR Document 133 Filed 12/13/16 Page 27 of 31
accounting” of the modification or the terms and conditions. 

Plaintiffs, therefore, refused the offer because they were unable

to determine whether the proposed modification would violate the

terms of their bankruptcy. Plaintiffs do not allege they

“agreed” to any loan modification, but only that BANA “falsely

misrepresented” that “help was available if” their loan was in

default. Even viewing Plaintiffs’ allegations as true, the Court

notes BANA’s alleged statement does not constitute a “promise”

that could “reasonably have been acted on or foreseen as an

inducement to action.” See Neiss, 135 Or. App. at 229. 

On this record the Court concludes Plaintiffs fail to

state a claim for promissory estoppel that is plausible on its

face, and, accordingly, the Court grants BANA’s Motion to Dismiss

Plaintiffs’ Fifth Claim against it.

III. Leave to Amend Complaint.

Federal Rule of Civil Procedure 15(a) provides a party may

amend a pleading after a responsive pleading has been filed only

by leave of court unless the opposing party consents to the

amendment. Rule 15(a), however, also provides leave to amend

“shall be freely given when justice so requires.” This policy is

to be applied with “extreme liberality.” Moss v. United States

Secret Serv., 572 F.3d 962, 972 (9th Cir. 2009).

The Supreme Court has recognized several factors that a

district court should consider when determining whether justice

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Case 3:16-cv-00073-BR Document 133 Filed 12/13/16 Page 28 of 31
requires the court to grant leave to amend. Those factors

include

undue delay, bad faith or dilatory motive on the part

of the movant, repeated failure to cure deficiencies by

amendments previously allowed, undue prejudice to the

opposing party by virtue of allowance of the amendment,

futility of the amendment.

Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th

Cir. 2003)(quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). 

The factor that carries the greatest weight is whether the

amendment will prejudice the opposing party. Id. “Absent

prejudice or a strong showing of any of the remaining Foman

factors, there exists a presumption under Rule 15(a) in favor of

granting leave to amend.” Id. “Delay alone is insufficient to

justify denial of leave to amend; the party opposing amendment

must also show that the amendment sought is futile, in bad faith

or will cause undue prejudice to the opposing party.” Jones v.

Bates, 127 F.3d 839, 847 n.8 (9th Cir.1997)(citing United States

v. Webb, 655 F.2d 977, 980 (9th Cir. 1981)). See also Quantum

Tech. Partners II, L.P. v. Altman Browning and Co., No. 08-CV376-BR, 2009 WL 1795574, at *19 (D. Or. June 23, 2009)(same). 

The party who opposes amendment bears the burden to show

prejudice. Eminence Capital, 316 F.3d at 1052 (citing DCD

Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987)).

Further amendment to a complaint is futile if “‘no set of

facts can be proved under the amendment . . . that would

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Case 3:16-cv-00073-BR Document 133 Filed 12/13/16 Page 29 of 31
constitute a valid and sufficient claim.’” Sweaney v. Ada Cnty.,

Idaho, 119 F.3d 1385, 1393 (9th Cir. 1997)(quoting Miller v.

Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988)). See

also Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th

Cir. 2008)(proposed amendment to a complaint is futile when the

“complaint could not be saved by any amendment.”). A plaintiff

should be afforded an opportunity to test his claim on the merits

unless it appears beyond doubt that the proposed amended

complaint would be dismissed for failure to state a claim under

Federal Rule Civil Procedure 12(b)(6). See Miller, 845 F.2d at

214. See also AmerisourceBergen Corp. v. Dialysist W., Inc., 465

F.3d 946, 957 (9th Cir. 2006).

Here the Court concludes it would be futile to grant 

Plaintiffs leave to amend their Complaint after already having

had three opportunities to state a cognizable claim. As noted,

the premise at the heart of each of Plaintiffs’ claims is that

AWL, the original lender named on the Deed and Note executed by

Plaintiffs over ten years ago, is not a legal entity and was not

authorized to do business in the State of Oregon at the time of

Plaintiffs’ loan. Based on that premise, Plaintiffs allege the

Deed and Note signed by them are void; all subsequent activity

related to the transfer, assignment, and handling of their loan

is invalid; Plaintiffs are entitled to ownership of the property

free and clear; and all payments made by Plaintiffs should be

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Case 3:16-cv-00073-BR Document 133 Filed 12/13/16 Page 30 of 31
refunded to them. 

As noted, the Court has taken judicial notice of facts that

refute the premise of each of Plaintiffs’ claims and that

establish AWL was a legal entity and the Deed and Note are valid. 

Moreover, there is not any showing in the record that there is

any possibility that Plaintiffs could discover additional facts

that would remedy the deficiencies in Plaintiffs’ Second Amended

Complaint.

Accordingly, on this record the Court dismisses Plaintiff’s

Second Amended Complaint with prejudice.

CONCLUSION

For these reasons, the Court GRANTS Defendant BANA’s First

Request for Judicial Notice (#76) and DENIES its Second Request

for Judicial Notice (#96). The Court also GRANTS Defendants’

Motions to Dismiss (#75, #79) and DISMISSES Plaintiffs’ Second

Amended Complaint with prejudice.

IT IS SO ORDERED.

DATED this 13th day of December, 2016.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

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