IN THE UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

ANNA NGUYEN,

3:16-cv-00263-BR

Plaintiff,

OPINION AND ORDER

v.

MADISON MANAGEMENT

SERVICES, LLC,

Defendant.

JEFFREY A. LONG

Oregon Consumer Law Center

4040 S.W. Douglas Way

Lake Oswego, OR 97035

(503) 635-7773

MARC E. DANN

The Dann Law Firm Co., LPA

P.O. Box 6031040

Cleveland, OH 44103

(216) 373-0539 

Attorneys for Plaintiff

LUKASZ I. WOZNIAK

Wright, Finlay & Zak, LLP

4665 MacArthur Court

Suite 280

Newport Beach, CA 92660

(949) 477-5050 

Attorneys for Defendant

1 - ORDER

Case 3:16-cv-00263-BR Document 19 Filed 09/07/16 Page 1 of 26
BROWN, Judge.

This matter comes before the Court on Defendant Madison

Management Services, LLC’s Motion (#11) to Dismiss Plaintiff’s

First Amended Complaint pursuant to Federal Rule of Civil

Procedure 12(b)(6) for failure to state a claim. 

 For the reasons that follow, the Court GRANTS in part and

DENIES in part Defendant’s Motion to Dismiss.

BACKGROUND

The following facts, which are undisputed unless otherwise

noted, are taken from Plaintiff’s First Amended Complaint (FAC)

and the parties' materials related to Defendant’s Motion to

Dismiss. 

In 2005 Plaintiff purchased real property located at 2933

N.E. 132nd Avenue, Portland, Oregon. The property was secured by

an adjustable-rate mortgage and deed of trust in favor of Ownit

Mortgage Solutions, Inc., which is not a party to this action. 

Plaintiff’s mortgage was subsequently acquired by Kondaur Capital

Corporation, which also is not a party to this action. At some

point Plaintiff was unable to remain current on her payments. In

September 2012 Kondaur filed a foreclosure action against

Plaintiff. 

In August 2013 Kondaur transferred servicing rights on

Plaintiff’s mortgage to Defendant Madison. Kondaur mailed to

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Plaintiff a Notice of Assignment, Sale or Transfer of Servicing

Rights (Kondaur Notice) dated August 16, 2013. The Kondaur

Notice stated the transfer to Defendant was effective August 31,

2013. The Kondaur Notice reflected an address (967 US Highway

46, Suite 200, Kenvil, New Jersey) where Defendant would receive

communications and payments from Plaintiff. Plaintiff alleges

she did not receive the Kondaur Notice because it was sent to a

nonexistent address.1

On September 26, 2013, Defendant sent to Plaintiff a Notice

of Assignment, Sale or Transfer of Servicing Rights (Defendant’s

Notice) indicating it was the new service provider for

Plaintiff’s loan. Defendant’s Notice identified Bridgestar

Capital, Inc., as the new owner of Plaintiff’s mortgage. 

Defendant’s Notice stated as of October 10, 2013, Kondaur would

no longer accept payments on Plaintiff’s loan, and, although the

Notice listed a contact telephone number for Defendant, it failed

to indicate Defendant’s hours of availability. Defendant’s

Notice indicated any “qualified written request” (QWR) regarding

the servicing of the loan “must” be sent to 967 US Highway 46,

Suite 200, Kenvil, New Jersey. Plaintiff alleges she did not

receive Defendant’s Notice because it also was sent to a

nonexistent address. 

1 On April 25, 2014, Defendant provided Plaintiff’s counsel

with a copy of this Notice in response to counsel’s request.

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On September 4, 2015, Defendant provided a copy of

Defendant’s Notice to Plaintiff’s counsel in response to

counsel’s request, and Plaintiff confirms she was in default on

the loan as of September 26, 2013, the date of Defendant’s

Notice. 

In October 2013 Plaintiff retained her current attorney to

assist with the Kondaur foreclosure matter. On December 20,

2013, the state court dismissed the Kondaur foreclosure action.

Plaintiff alleges she never received from Defendant any

periodic billing statements or any notice of payment change based

on the adjustable interest rate of her mortgage from the time

Defendant became the servicer on her loan in August 2013. 

In April 2014 Bridgestar filed a foreclosure action in state

court against Plaintiff. In December 2014 Plaintiff received a

Payoff Statement from Defendant that provided the following

information regarding Plaintiff’s mortgage: Note rate of 9.625;

principal amount of $200,991.69; interest of $130,904.21

calculated to (but not including) 12/2/2014; outstanding late

charges of $9,865.52; “advances” of $309.63; and a total due of

$342,071.65.

On August 4, 2014, Plaintiff sent Defendant both a “Request

for Information Pursuant to C.F.R. § 1024.35(b)(5) and U.S.C. 

§ 1641(f)(2)” (RFI #1) and a separate “Request for Information

Pursuant to 12 C.F.R. § 1024.36" (RFI #2). 

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Case 3:16-cv-00263-BR Document 19 Filed 09/07/16 Page 4 of 26
Plaintiff sent these Requests to the address for QWRs as

directed on Defendant’s website (400 Morris Avenue, Suite 222,

Denville, New Jersey), which was a different address than the one 

reflected in Defendant’s September 26, 2013, Notice to Plaintiff.

On April 15, 2015, Plaintiff sent Defendant a “Notice of

Error under 12 C.F.R. § 1024.35(b)(11) for failure to send

written acknowledgment required by 12 C.F.R. § 1024.36(c); Notice

of Error under 12 C.F.R. § 1024.35(b)(11) for failing to respond

to borrower’s request for information pursuant to 12 C.F.R.

§ 1024.36 and 15 U.S.C. § 1641(f)(2)” (NOE #1) and a “Notice of

Error under 12 C.F.R. § 1024.35(b)(11) for failure to send

written acknowledgment required by 12 C.F.R. § 1024.36(c); Notice

of Error under 12 C.F.R. § 1024.35(b)(11) for failing to respond

to borrower’s request for information pursuant to 12 C.F.R. §

1024.36(d)” (NOE #2). 

On April 23, 2015, Defendant sent a letter to Plaintiff

regarding “[y]our letter received on 4/23/2015." Defendant’s

letter “confirmed receipt of [Plaintiff’s] letter and our

response will be forthcoming within the next 30 to 45 days after

we have completed our research.” 

Plaintiff alleges she received “undated correspondence with

no cover letter” from Defendant on May 14, 2015, which consisted

of copies of other correspondence and documents and “which may

have been a response to NOE #1 and NOE #2.”

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On July 6, 2015, Plaintiff sent Defendant another “Notice of

error pursuant to 12 C.F.R. § 1024.35(b)(11) for failure to

properly respond to a notice of error in compliance with 12

C.F.R. §1024.35(e)” (NOE #3).

On July 15, 2015, the state court dismissed the Bridgestar

foreclosure and awarded attorneys’ fees and costs to Plaintiff. 

On July 28, 2015, Defendant sent Plaintiff a letter

“regarding your letter on 7/10/2015" and stated:

Your request for information cannot be

completed at this time due to:

X Your request is duplicative of a

previous request: Regulation X

1024.35(g)(1)(i) & 1024.36(f)(1)(i)

X Your request is overbroad or unduly

burdensome: Regulation X

1024.35(g)(1)(iii)

Information requests pertain only to the

servicing of your loan as defined by

Regulation X 1024.2(b). Any request outside

of the scope of servicing of your loan will

not be acknowledged.

FAC at Ex. 20.

On August 13, 2015, Bridgestar filed another foreclosure

action2 in state court against Plaintiff. 

On August 26, 2015, Plaintiff sent Defendant another “Notice

of error pursuant to 12 C.F.R. §1024.35(b)(11) for failure to

properly respond to a notice of error in compliance with 12

2 That action remained pending at the time Plaintiff filed

her Complaint in this Court on February 12, 2016.

6 - ORDER

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C.F.R. §1024.35(e)” (NOE #4). In a letter dated September 4,

2015, Defendant acknowledged receipt of Plaintiff’s August 26,

2015, letter and stated it did not have any payment history on

Plaintiff’s mortgage because payments had never been made to

Defendant.

On February 12, 2016, Plaintiff, as noted, filed her

Complaint in this Court. 

On March 9, 2016, the state court issued its order3

 on

Bridgestar’s motion for summary judgment in the foreclosure

action. The state court concluded Bridgestar had the legal

authority to foreclose on Plaintiff’s property and that Plaintiff

was in default.

In Plaintiff’s FAC she asserts 22 separate claims against

Defendant based on Defendant’s actions or inactions in servicing

Plaintiff’s mortgage: Claims 1-11 for violation of the Real

Estate Settlement Procedures Act (RESPA), 12 U.S.C. § 2601, et

seq., as set forth in Regulation X, 12 C.F.R. § 1024.1; Claims 12

and 13 for violation of the Truth in Lending Act (TILA), 15

U.S.C. § 1601, et seq., as set forth in Regulation Z, 12 C.F.R. 

§§ 1026.20 and 1026.41; Claim 14 for violation of the Fair Debt

Collections Practices Act (FDCPA), 15 U.S.C. § 1692, et seq.;

3 Defendant submitted the state’s order as an exhibit to the 

Request for Judicial Notice (#12). Plaintiff did not object in

her Response. Accordingly, the Court takes judicial notice of

the state-court order.

7 - ORDER

Case 3:16-cv-00263-BR Document 19 Filed 09/07/16 Page 7 of 26
Claims 15 and 16 for contractual and tortious breach of the

implied covenant of good faith and fair dealing; and Claims 

17-22 for violation of the Oregon Unlawful Trade Practices Act

(UTPA), Oregon Revised Statutes § 646.605, et seq.

Defendant moves to dismiss Plaintiff’s Claims 2-22 for

failure to state a claim.

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

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

8 - ORDER

Case 3:16-cv-00263-BR Document 19 Filed 09/07/16 Page 8 of 26
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.

“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 by statute on

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

(9th Cir. 2006)).

9 - ORDER

Case 3:16-cv-00263-BR Document 19 Filed 09/07/16 Page 9 of 26
DISCUSSION

Defendant moves “for an order dismissing the First Amended

Complaint.” In its legal memorandum in support of the Motion,

however, Defendant challenges only “Claims Two through TwentyOne.” In her Response Plaintiff concedes she erroneously labeled

the claims in her FAC by “accidentally label[ing] Claim 22 as

Claim 21, where there was already a claim 21.” Thus the Court

will construe Defendant’s Motion as a challenge to Claims 2-22 of

Plaintiff’s FAC.

As set out in Defendant’s Motion, Plaintiff’s claims can be

categorized into five groups: (1) Claims 2-11 based on alleged

violations of RESPA, (2) Claims 12 and 13 based on alleged

violations of TILA, (3) Claim 14 based on alleged violations of

FDCPA, (4) Claims 15 and 16 based on alleged breach of the duty

of good faith and fair dealing, and (5) Claims 17-22 based on

alleged violations of UTPA.

I. Violations of RESPA (Claims 2-11)

In this category of Claims Plaintiff alleges Defendant

willfully and intentionally failed to acknowledge receipt or to

respond properly and completely to Plaintiff’s RFIs and NOEs in

violation of Regulation X of RESPA. 12 C.F.R. §§ 1024.35(d) and 

1024.36(c) require a mortgage servicer to acknowledge receipt of

an RFI or NOE within 5 days of receipt of such request or notice. 

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Case 3:16-cv-00263-BR Document 19 Filed 09/07/16 Page 10 of 26
The Regulations also require a servicer to respond to such

request or notice by providing information within a specified

time. 12 C.F.R. §§ 1024.35(e) and 1024.36(d). 

Defendant argues Plaintiff’s claims for violation of RESPA

do not state a claim because (1) the regulations on which

Plaintiff relies do not provide Plaintiff with a private right of

action and (2) the correspondence that Plaintiff sent to

Defendant were not sent to the address designated for a QWR. 

Plaintiff, in turn, contends she has a private right of action

under the regulations and that her notices were sent to an

address for QWRs designated by Defendant on its public website.

A. Private Right of Action

Section 6 of RESPA, codified at 12 U.S.C. § 2605,

requires a loan servicer to comply with certain disclosure

requirements when a QWR is received from the borrower. On

January 10, 2014, new regulations were enacted in the form of the

Dodd-Frank Wall Street Reform and Consumer Protection Act of

2010, Pub.L. No. 111–203, 124 Stat. 1376 (July 21, 2010), which

became known as Regulation X of RESPA4

 and codified at Title 12

4 “Congress gave the Department of Housing and Urban

Development (HUD) authority to regulate under RESPA, and HUD

promulgated the corresponding regulations known as Regulation X.

The Dodd–Frank Wall Street Reform and Consumer Protection Act

transferred the regulatory authority of RESPA from HUD to the

Consumer Financial Protection Bureau (CFPB), and CFPB later

republished Regulation X without material changes.” Edwards v.

First Am. Corp., 798 F.3d 1172, 1179 (9th Cir. 2015)(concerning

anti-kickback provision of RESPA).

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Case 3:16-cv-00263-BR Document 19 Filed 09/07/16 Page 11 of 26
C.F.R. § 1024.

Regulation X was promulgated pursuant to Section 6 of

RESPA and subject to Section 6(f), which gives borrowers a

private right of action to enforce such regulations. See 78 Fed.

Reg. at 10715 n.64. These regulations, which were promulgated by

the Agency charged with regulatory authority under RESPA rather

than by the Legislature, constitute the basis of a claim for

violation of RESPA. 

Defendant contends the regulations “on their face” do

not reference any enforcement provision. Although the Ninth

Circuit has not directly addressed this issue, Defendants rely on 

decisions from district courts in other jurisdictions to support 

its position. 

For example, in Watson v. Bank of America, N.A., No.

16cv513-GPC, 2016 WL 3552061 (S.D. Cal. June 30, 2016), the

plaintiff brought a claim for violation of Regulation X under

RESPA. The plaintiffs alleged they sent several RFIs and NOEs to

both the bank and loan servicer pursuant to Regulation X while

awaiting a decision from the bank regarding a modification of

their loan. The plaintiffs asserted the defendants violated

RESPA by failing to acknowledge receipt, failing to respond to

the plaintiffs’ requests and notices, and/or failing to respond

accurately to the plaintiffs’ requests and notices. When

addressing the defendants’ motion to dismiss for failure to state

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a claim, the court specifically analyzed each request and notice

sent by the plaintiffs for compliance with §§ 1024.35 and 1024.36

of Regulation X. The court concluded some of plaintiffs’

allegations were sufficient to state a claim while others were

not. Accordingly, the court granted in part and denied in part

the defendants’ motion to dismiss plaintiffs’ claims for

violation of Regulation X. Although the Watson court did not

address the specific issue of standing, it implicitly recognized

by its detailed analysis of each claim for compliance with the

regulations that there was a basis for asserting such claims. 

Here Plaintiff brings claims in her FAC “for violations

of the Real Estate Settlement Procedures Act, 12 U.S.C. §§ 2601,

et seq. (RESPA).” FAC at ¶ 2. In Claims 2-11 Plaintiff alleges

violations of the specific regulations as to each RFI and NOE

sent to Defendant by Plaintiff.

On this record the Court concludes Plaintiff has 

standing to assert claims for violation of these regulations.

B. Address for Notices

Defendant argues even if Plaintiff has a private right

of action pursuant to the Regulations, Plaintiff did not send her

RFIs and NOEs to the address designated by Defendant in its

Notice of Assignment, Sale, or Transfer of Servicing Rights that

was mailed to Plaintiff on September 26, 2013. As noted,

however, Plaintiff contends she never received Defendant’s Notice

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Case 3:16-cv-00263-BR Document 19 Filed 09/07/16 Page 13 of 26
because it was mailed to a nonexistent address, and Plaintiff

asserts her later mailings to Defendant were sent to an address

designated on Defendant’s website for such notices.

RESPA is a consumer-protection statute. Freeman v.

Quicken Loans, Inc., 132 S. Ct. 2034, 2038 (2012). RESPA imposes

short time-frames for mortgage servicers to respond to

potentially detailed inquiries. To aid servicers with the task

of providing consumers with timely information, RESPA's

implementing regulations allow, but do not require, servicers to

establish a designated address for QWRs. See 24 C.F.R. 

§ 3500.21(e)(1)(“By notice either included in the Notice of

Transfer or separately delivered by first-class mail, postage

prepaid, a servicer may establish a separate and exclusive office

and address for the receipt and handling of qualified written

requests.”). The final rulemaking notice for Regulation X

explained if a servicer establishes a designated QWR address,

“then the borrower must deliver its request to that office in

order for the inquiry to be a ‘qualified written request.’” Real

Estate Settlement Procedures Act, Section 6, Transfer of

Servicing of Mortgage Loans (Regulation X), 59 Fed. Reg. 65442,

65446 (Dec. 19, 1994). 

As noted, even though Defendant’s Notice designated a

specific address for such requests, that Notice was not sent to

the Plaintiff at an address where she would receive it. In any

14 - ORDER

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event, Plaintiff’s allegation that she sent her requests to the

address designated by Defendant on its website for such requests

is sufficient under Federal Rules of Civil Procedure 8 to state a

“plausible” claim at this stage of the proceedings.

On this record, therefore, the Court concludes Plaintiff has

sufficiently stated claims for relief in Claims 2-11 that are 

plausible on their face, and, accordingly, the Court denies

Defendant’s Motion to Dismiss as to Plaintiff’s Claims 2-11.

II. Violation of TILA (Claims 12 and 13)

In Claims 12 and 13 Plaintiff asserts Defendant failed to

provide disclosures related to the interest rate charged as

required by § 1026.20(c) and failed to provide periodic

statements to borrowers as required by § 1026.41 of Regulation Z

under TILA. In its Reply Defendant withdrew its argument related

specifically to § 1026.41. Defendant, however, maintains

Plaintiff does not have standing to enforce § 1026.20(c).

The enforcement of and liability under Regulation Z is set

forth in 12 C.F.R. § 1026.1(e), which states: 

Enforcement and liability. Section 108 of the Truth in

Lending Act contains the administrative enforcement

provisions for that Act. Sections 112, 113, 130, 131,

and 134 contain provisions relating to liability for

failure to comply with the requirements of the Truth in

Lending Act and the regulation. 

Emphasis added. Section 130 of TILA was codified at 15 U.S.C. 

§ 1640 and allows damages for violations of the statute

including, among others, § 1638 related to required disclosures

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in credit transactions. Paragraph (f) of § 1638 requires the

servicer to provide periodic statements to the borrower. The

statute lists the required information for those statements,

including current interest in effect for the loan, the date on

which the interest rate may next reset or adjust, and “such other

information as the Board may prescribe in regulations.” 15

U.S.C. § 1638(f)(1)(H). The language of § 1638 closely follows

the requirements of § 1026.20(c) of Regulation Z, which requires

the servicer of an adjustable-rate mortgage “to provide borrowers

with disclosures in connection with the adjustment of interest

rates pursuant to the loan contract that results in a

corresponding adjustment to the payment.” 

Based on the language of Section 130 of TILA and Regulation

Z as codified in 15 U.S.C. § 1640, the Court concludes Plaintiff

has standing to enforce the alleged violations of these

regulations as set forth in Claims 12 and 13. The Court,

therefore, denies Defendant’s Motion to Dismiss as to these

claims.

III. Violation of FDCPA (Claim 14)

In Claim 14 Plaintiff alleges Defendant violated the FDCPA

by “withhold[ing] information that [Defendant] was legally

required to provide to [Plaintiff] through monthly statements,

interest rate adjustment notices, and responses to requests for

information.” Defendant argues Plaintiff’s Complaint is

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deficient because (1) Plaintiff fails to allege facts supporting

the elements of a FDCPA action; (2) Plaintiff’s claim is barred

by the one-year statute of limitations; and (3) the

communications by Defendant were statutorily mandated

communications and unrelated to a debt collection and, therefore,

do not support a violation of FDCPA.

A. Failure to State a Claim

To state a claim under the FDCPA, a plaintiff must

allege (1) she has been the object of collection activity arising

from a consumer debt, (2) the defendant is a debt collector, 

(3) and the defendant's conduct is prohibited by the FDCPA. 

Lampshire v. Bank of Am., N.A., No. 6:12-cv-01574-AA, 2013 WL

1750479 (D. Or. April 20, 2013)(internal citations and quotes

omitted). 

In her Complaint Plaintiff alleges Defendant was a debt

collector (FAC at ¶ 14), engaged in the collection of debt “in

connection with its servicing obligations under the loan” (FAC at

¶ 307), and violated the provisions of the FDCPA in numerous ways

(FAC at ¶¶ 308-24). Defendant, however, contends Plaintiff’s

allegations that Defendant failed to communicate with her do not

constitute a violation of FDCPA. 

The plaintiffs in Morgovsky v. Creditor’s Collection

Service alleged the defendants communicated false information by

failing to report that the debt in question was disputed. No. C17 - ORDER

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92-0546-VRW, 1995 WL 316970 (N.D. Cal. May 16, 1995). The

district court found “the ‘failure to communicate that a disputed

debt is disputed’ would constitute a violation of FDCPA,” but the

court concluded the plaintiffs failed to produce evidence that

they had given proper notice of the disputed debt to the

defendant. Id., at *2.

 A claim under the FDCPA is generally stated in terms of

affirmative conduct that violates the statute. Section 1692d,

however, provides a debt collector may not engage in “any

conduct” that would harass, oppress, or abuse any person in

connection with the collection of a debt. As indicated in

Morgovsky, this could include the failure of a debt collector to

take a required action. 

On this record the Court concludes Plaintiff’s Claim 14

states a claim for relief that is plausible on its face.

B. Statute of Limitations

Defendant also argues any alleged violations that

occurred more than one year before the filing of this action are

barred by the statute of limitations. Plaintiff does not dispute

the applicable statute of limitations, but she asserts all of her

claims arose within the year before filing her Complaint.

In her FAC Plaintiff alleges Defendant failed to

identify itself as a debt collector in its initial letter of

September 26, 2013, and included false and misleading

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representations. (FAC at ¶¶ 313, 314). Those alleged violations

of the FDCPA, however, occurred more than one year before the

filing of Plaintiff’s Complaint and, therefore, are barred. 

Nevertheless, Plaintiff alleges other communications by Defendant

occurred within one year of the filing of Plaintiff’s Complaint;

that they violated the provisions of the FDCPA; and, therefore,

those communications are not time barred. Assuming these

allegations are true for the purposes of Defendant’s Motion, the

Court concludes Plaintiff’s FAC does not state a time-barred

claim.

C. Statutory Communications

Defendant also asserts their communications to

Plaintiff were statutorily mandated; unrelated to debt

collection; and, therefore, do not support a violation of FDCPA. 

In response Plaintiff argues any communication “motivated by

collection of the debt” that fails to provide required

disclosures and information or is false and misleading violates 

the FDCPA.

Plaintiff alleges Defendant did not identify itself as

a debt collector in communications dated July 28 or September 4,

2015. FAC at ¶ 315, Exs. 20, 23. Defendant’s letter to

Plaintiff dated July 28, 2015, is merely an acknowledgment of

receipt of Plaintiff’s letter requesting information and advises

Plaintiff that her request was incomplete. The September 4,

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Case 3:16-cv-00263-BR Document 19 Filed 09/07/16 Page 19 of 26
2015, letter provides in part the information that Plaintiff

requested from Defendant. 

In Santoro v. CTC Foreclosure Service the court

concluded “only communications ‘in connection with the collection

of any debt’ fall under the ambit of the [FDCPA].” 12 F. App’x 

476, 479 (9th Cir. 2001). The court found the defendant’s letter

suggesting loan work-out options and containing a statutorily

required notice of the pending foreclosure sale of property was

not a collection letter. 

On this record the Court concludes neither the July 28,

2015, nor the September 4, 2015, letter constitutes “debt

collecting” as contemplated in the statute. Accordingly, the

Court concludes Plaintiff has failed to state a claim pursuant to

the FDCPA based on the fact that Defendant did not identify

itself as a “debt collector” in these particular communications,

and the Court grants Defendant’s Motion to Dismiss as to

Plaintiff’s FDCPA Claim 14 to the extent that it is based on

activity or communications before February 12, 2015, or on the

correspondence dated July 28, 2015, and September 4, 2015. The

Court denies Defendant’s Motion to Dismiss as to the remainder of

Plaintiff’s Claim 14.

IV. Breach of Good Faith and Fair Dealing (Claims 15 and 16)

A. Implied Contractual Obligation of Good Faith and Fair

Dealing (Claim 15)

Defendant contends Plaintiff does not state a claim for

20 - ORDER

Case 3:16-cv-00263-BR Document 19 Filed 09/07/16 Page 20 of 26
breach of an implied contractual obligation of good faith and

fair dealing because there was not a contract between the

parties. Plaintiff, however, contends Defendant was acting as

the agent of the owner/assignee of her loan, and, therefore, a

contract between the parties existed.

A claim for breach of the implied contractual

obligation of good faith and fair dealing requires the existence

of a contract between the parties. Rapacki v. Chase Home Fin.

LLC, 797 F. Supp. 2d 1085, 1091 (D. Or. 2011). Here Plaintiff

alleges only that Defendant was acting in the scope of its agency

as the agent/servicer for the owner of the loan mortgage. FAC at 

¶ 329. A loan servicer, however, is not a party to a deed of

trust. Lomboy v. SCME Mortg. Bankers, No. C-09-1160-SC, 2009 WL

1457738, at *5 (N.D. Cal. May 26, 2009). Because Plaintiff does

not allege facts that establish the existence of a contract

between the parties and does not name as a party an entity with

whom Plaintiff contracted and as to whom Defendant allegedly

served as an agent, the Court concludes Plaintiff has failed to

state a claim for breach of the implied obligation of good faith

and fair dealing. The Court, therefore, grants Defendant’s

Motion to Dismiss as to Plaintiff’s Claim 15 with leave to

replead.

B. Tortious Breach of Covenant of Good Faith and Fair

Dealing (Claim 16)

To state a claim for tortious breach of the covenant of

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good faith and fair dealing Plaintiff must allege Defendant’s

conduct violated some standard of care that is not part of an

explicit or implied contractual obligation and that the

independent standard of care stems from “a particular special

relationship” between the parties. Rapacki v. Chase Home Fin.

LLC, 797 F. Supp. at 1091. A loan servicer-borrower relationship 

is not a special one. Fleshman v. Wells Fargo Bank, N.A., 27 F.

Supp. 3d 1127, 1132 (D. Or. June 17, 2014)(citing Garner v. Bank

of Am. Corp., No. 2:12-cv-02076-PMP-GWF, 2014 WL 1945142, at *7

(D. Nev. May 13, 2014)(“[a]bsent unique circumstances, lenders

and loan servicers are not in a special relationship with

borrowers”). 

Plaintiff does not allege any facts in her FAC that

establish a special relationship between herself and Defendant. 

Instead Plaintiff asserts Defendant’s duty of good faith and fair

dealing arises from Defendant’s obligation as a loan servicer to

comply with “federal law [under FDCPA, RESPA, TILA, and UTPA] and

the terms of the Note and Deed to Trust.” FAC at ¶¶ 335, 336. 

Plaintiff, however, does not cite any authority to support her

position. Although the above statutes may give rise to claims

for violation of an entity’s statutory duties, there is not any

authority that specifically indicates such violations would give

rise to a claim of tortious breach of good faith and fair

dealing. 

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Accordingly, on this record the Court grants

Defendant’s Motion to Dismiss Plaintiff’s Claim 16.

V. Violations of UTPA (Claims 17-22)

Finally, Plaintiff asserts in Claims 17-22 that Defendant

violated Oregon’s Unlawful Trade Practices Act. Plaintiff

contends Defendant’s violation of RESPA also constitutes a 

violation of UTPA because Defendant failed to respond to each of

Plaintiff’s NOEs, failed to acknowledge receipt of NOE #3, and 

failed to deal with Plaintiff in good faith.

Defendant, in turn, argues Claims 17-22 fail on the grounds

that (1) Defendant did not violate RESPA, (2) Plaintiff lacks

standing to pursue her claims under UTPA, and (3) Plaintiff’s

claims are barred by the one-year statute of limitations.

A. Violations of RESPA

The Court concluded in Section I that Plaintiff

adequately pleaded a claim under RESPA. The Court concludes,

therefore, Plaintiff has adequately pleaded claims for violation

of UTPA to the extent that those claims arise from RESPA

violations.

B. Lack of Standing

Defendant contends Plaintiff lacks standing to pursue

her claims under UTPA because the loan that is the basis of this

action was obtained in 2005 and the provisions of UTPA were not

made applicable to “loans and extensions of credit” until 2010.

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Case 3:16-cv-00263-BR Document 19 Filed 09/07/16 Page 23 of 26
The court in Roisland v. Flagstar Bank, FSB, found 

UTPA did not apply to a claim arising under a loan obtained in

2009. 989 F. Supp. 2d 1095, 1108 (D. Or. November 26,

2013)(citing Lamm v. Amfac Mortg. Corp., 44 Or. App. 203, 204

(1980), and Haeger v. Johnson, 25 Or. App. 131, 132 (1976)). 

UTPA is inapplicable to any loan transaction that occurred before

its amendment in 2010. Mikityuk v. Northwest Trustee Svcs.,

Inc., 952 F. Supp. 2d 958, 961 (D. Or. 2013). UTPA was amended

to include “loans and extensions of credit” effective March 23,

2010. Or. Rev. Stat. § 646.605(6), as amended by Or. Laws. Spec.

Sess. Ch. 94 § 1 (2010). 

Regardless, Plaintiff’s UTPA claim arises from the loan

she received and the deed of trust granted in 2005, which is

before the effective date of these amendments. The Court,

therefore, concludes on this record that Plaintiff cannot state

a claim for violation of UTPA based on her loan of 2005. 

Accordingly, the Court grants Defendant’s Motion to Dismiss

Claims 17-22.

Defendant also argues Plaintiff cannot establish an

ascertainable loss to support her UTPA claim. Inasmuch as the

Court has concluded Plaintiff cannot assert a claim under UTPA

due to the timing of Plaintiff’s loan, the Court need not address

this issue.

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C. Statute of Limitations

The statute-of-limitations issue raised by Defendant is 

moot in light of the fact that the Court has concluded Plaintiff

cannot maintain her UTPA claim.

CONCLUSION

For these reasons, the Court GRANTS in part and DENIES in

part Defendant’s Motion (#11) to Dismiss as follows:

(1) DENIED as to Claims 2-11 based on alleged violations of

RESPA;

(2) DENIED as to Claims 12 and 13 based on alleged

violations of TILA;

(3) GRANTED and DISMISSED with prejudice as to Claim 14 for

alleged violations of FDCPA only as to those allegations based on

conduct before February 12, 2015, or based on the communications

of July 28, 2015, and September 4, 2015, and DENIED as to the

remainder of Claim 14;

(4) GRANTED with leave to replead as to Claim 15 based on

alleged contractual breach of the duty of good faith and fair

dealing and GRANTED as to Claim 16 based on alleged tortious

breach of the duty of good faith and fair dealing and DISMISSED

with prejudice; 

(5) GRANTED as to Claims 17-22 based on alleged violations

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Case 3:16-cv-00263-BR Document 19 Filed 09/07/16 Page 25 of 26
of UTPA and DISMISSED with prejudice.

The Court GRANTS Plaintiff leave to amend her Complaint no

later than October 11, 2016, as to Claim 15 only as set out in

this Opinion and Order.

IT IS SO ORDERED.

DATED this 7th day of September, 2016.

 

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

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