Barnes v. Chase Home Fin., LLC

Citation825 F.Supp.2d 1057
Decision Date18 October 2011
Docket NumberNo. 11–CV–142–PK.,11–CV–142–PK.
PartiesTimothy BARNES, Plaintiff, v. CHASE HOME FINANCE, LLC; Chase Bank USA, N.A.; IBM Lender Business Process Services, Inc.; and John and Jane Does 1–10, Defendants.
CourtU.S. District Court — District of Oregon

825 F.Supp.2d 1057

Timothy BARNES, Plaintiff,
v.
CHASE HOME FINANCE, LLC; Chase Bank USA, N.A.; IBM Lender Business Process Services, Inc.; and John and Jane Does 1–10, Defendants.

No. 11–CV–142–PK.

United States District Court, D. Oregon.

Oct. 18, 2011.


[825 F.Supp.2d 1057]

Timothy Barnes, Independence, OR, pro se.

Michael J. Farrell, Timothy J. Fransen, Martin Bischoff Templeton Langslet & Hoffman, John M. Thomas, Routh Crabtree

[825 F.Supp.2d 1058]

Olsen, PC, Portland, OR, for Defendant.

ORDER
BROWN, District Judge.

Magistrate Judge Paul Papak issued Findings and Recommendation (# 38) on June 10, 2011, 2011 WL 4962443, in which he recommended the Court (1) grant Defendant IBM Lender Business Process Services's Motion (# 25) to Dismiss Plaintiff's claim for rescission for lack of subject-matter jurisdiction and each of Plaintiff's remaining claims for failure to state a claim and (2) deny the Motion (# 20) to Dismiss for failure to state a claim by Defendants Chase Home Finance and Chase Bank USA (Chase Defendants) as moot. Plaintiff, pro se, filed timely Objections (# 43) to the Findings and Recommendation. The matter is now before this Court pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b).

Also before the Court is Plaintiff's Motion (# 46) to Take Judicial Notice, which Plaintiff filed on July 11, 2011, after he filed his Objections to the Findings and Recommendation.

For the reasons that follow, the Court declines to adopt Magistrate Judge Papak's Findings and Recommendation and returns this matter to the Magistrate Judge for further proceedings consistent with this Order including whether to address the remaining grounds for dismissal raised by Defendants in their Motions to Dismiss that were rendered moot in the June 10, 2011, Findings and Recommendation.

BACKGROUND

On February 4, 2011, Plaintiff filed his Complaint in this Court. Plaintiff seeks relief for Defendants' alleged violations of the Truth in Lending Act (TILA), 15 U.S.C. § 1601, et seq., related to the residential-mortgage loan Plaintiff accepted from Defendant Chase Bank USA in November 2007.

The Court must construe Plaintiff's Complaint liberally. Viewing Plaintiff's Complaint in this light, Plaintiff brings the following claims against Defendants: (1) for rescission of his residential-mortgage loan under TILA § 1635(a) due to inaccuracies on the required Notice of Right to Cancel; (2) for a declaration that Plaintiff validly rescinded his home-mortgage loan and, therefore, that the security interest in Plaintiff's home that secures his residential-mortgage loan is void; (3) for injunctive relief to enjoin Defendants from initiating nonjudicial foreclosure on his residence; (4) for statutory and actual damages resulting from Defendant Chase Bank USA's allegedly deficient Notice of Right to Cancel disclosures under TILA § 1640; and (5) for statutory and actual damages for Defendants' failure to effect Plaintiff's demand for rescission.

On March 29, 2011, Chase Defendants filed their Motion (# 20) to Dismiss Plaintiff's claim for rescission as untimely.

On April 13, 2011, Defendant IBM filed its Motion (# 25) to Dismiss Plaintiff's Complaint for failure to state a claim and for lack of subject-matter jurisdiction.

On June 10, 2011, the Magistrate Judge issued Findings and Recommendation in which he recommends the Court dismiss Plaintiff's Complaint in its entirety.

On June 23, 2011, Plaintiff filed timely Objections to the Findings and Recommendation. Defendant IBM and Chase Defendants filed separate Responses to Plaintiff's Objections.

On July 11, 2011, Plaintiff filed his Motion (# 46) to Take Judicial Notice to which Chase Defendants filed a Response

[825 F.Supp.2d 1059]

opposing the Motion. Defendant IBM joined in Chase Defendants' Response.

DISCUSSION
I. Plaintiff's Motion to Take Judicial Notice.

Plaintiff requests the Court to take judicial notice of “district court and bankruptcy proceedings interpreting TILA rescission claims, the Federal Reserve Board's Official Staff Commentary § 226.23(d) Effects of Rescission, and the specific published research authorities by Elizabeth Renuart and Kathleen Keest, Truth in Lending, § 6.3.2.1 and 6.9.3 (National Consumer Law Center 6th Ed. 2007 & Supp. 2008), The Extended Right to Rescind and Damages for Rescission Violations, Id.

Although Chase Defendants object on the ground that Plaintiff's Motion is essentially another pleading in response to the Findings and Recommendation, the Court, nevertheless, considers Plaintiff's Motion solely as a request for the Court to take judicial notice of two legal opinions, regulatory commentary, and academic materials explaining the right of rescission under TILA. Plaintiff does not request the Court to notice any particular adjudicative facts.

A court properly may take judicial notice of pleadings filed in other actions. See Burbank–Glendale–Pasadena Airport Authority v. City of Burbank, 136 F.3d 1360, 1364 (9th Cir.1998) (court took judicial notice of pleadings filed in a related state-court action). The existence and content of opinions and pleadings are matters capable of accurate and ready determination by resort to official court files that cannot reasonably be questioned. See Fed.R.Evid. 201(b)(2).

Here the Court need not take judicial notice to consider these materials in their proper legal context when resolving Plaintiff's Objections to the Findings and Recommendation. Accordingly, the Court denies Plaintiff's Motion (# 46) to Take Judicial Notice.

II. Plaintiff's Objections to the Findings and Recommendation as to IBM's Motion to Dismiss.

Plaintiff objects to the Magistrate Judge's recommendation to grant Defendant IBM's Motion to Dismiss Plaintiff's claim for rescission for lack of subject-matter jurisdiction, for failure to state a claim for declaratory and injunctive relief, and for damages resulting from Defendants' alleged failure to effect Plaintiff's notice of rescission.

When any party objects to any portion of the Magistrate Judge's Findings and Recommendation, the district court must make a de novo determination of that portion of the Magistrate Judge's report. 28 U.S.C. § 636(b)(1). See also United States v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th Cir.2003)( en banc ); United States v. Bernhardt, 840 F.2d 1441, 1444 (9th Cir.1988). For those portions of the Findings and Recommendation to which the parties do not object, the Court is relieved of its obligation to review the record de novo as to this portion of the Findings and Recommendation. Reyna–Tapia, 328 F.3d at 1121.

A. Standards.
1. Motion to Dismiss.

To survive a motion to dismiss [under Rule 12(b)(6) ], a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” [ Bell Atlantic v. Twombly, 550 U.S. 554,] 570, 127 S.Ct. 1955[, 167 L.Ed.2d 929 (2007) ]. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference

[825 F.Supp.2d 1060]

that the defendant is liable for the misconduct alleged. Id. at 556, 127 S.Ct. 1955.... The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ibid. Where a complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’ ” Id. at 557, 127 S.Ct. 1955 (brackets omitted).Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). See also Bell Atlantic v. Twombly, 550 U.S. 544, 555–56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The court must accept as true the allegations in the complaint and construe them in favor of the plaintiff. Intri–Plex Tech., Inc. v. Crest Group, Inc., 499 F.3d 1048, 1050 n. 2 (9th Cir.2007). “The court need not accept as true, however, allegations that contradict facts that may be judicially noticed by the court.” Shwarz v. United States, 234 F.3d 428, 435 (9th Cir.2000) (citations omitted). The court's reliance on judicially-noticed documents does not convert a motion to dismiss into a summary-judgment motion. Intri–Plex, 499 F.3d at 1052.

“[A] complaint may survive a motion to dismiss only if, taking all well-pleaded factual allegations as true, it contains enough facts to ‘state a claim to relief that is plausible on its face.’ ” Hebbe v. Pliler, 627 F.3d 338, 341–42 (9th Cir.2010)(quoting Iqbal, 129 S.Ct. at 1949, and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). 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, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam). 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)).

2. TILA.

TILA is a consumer-protection law enacted in 1968 to ensure that consumers are able to make informed choices as to their use of credit. See 15 U.S.C. § 1601(a). As a consumer-protection statute, TILA is liberally construed in favor of consumers and is strictly enforced against creditors. Rubio v. Capital One Bank, 613 F.3d 1195, 1202 (9th Cir.2010). TILA requires creditors to make certain disclosures to borrowers, and the failure to do so gives the borrowers certain rights to rescind the loan transaction and to make claims for damages. 15 U.S.C. §§ 1635, 1640.1 Actions for damages under § 1640 are subject to a one-year statute of limitations. 15 U.S.C. § 1640(e). A borrower who has secured a loan with his primary residence has the right to...

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4 cases
  • Stanton v. Bank of Am., N.A.
    • United States
    • U.S. District Court — District of Hawaii
    • November 30, 2011
    ...otherwise complied with all other requirements of this section regarding notice.”Barnes v. Chase Home Finance, LLC, 825 F.Supp.2d 1057, 1069–70, No. 11–CV–142–PK, 2011 WL 4950111, at *13 (D.Or. Oct. 18, 2011) (emphasis and alteration in original). This Court agrees with the reasoning in Bar......
  • Baker v. Bank of Am., N.A.
    • United States
    • U.S. District Court — Eastern District of North Carolina
    • January 27, 2014
    ...Bank Nat'I Ass 'n, 896 F. Supp. 2d 455, 477-78 (D.S.C. 2012), aff'd 512 F. App'x 363 (4th Cir. 2013); Barnes v. Chase Home Fin., LLC, 825 F. Supp. 2d 1057, 1063-67 (D. Or. 2011); Briosos v. Wells Fargo Bank, 737 F. Supp. 2d 1018, 1023-27 (N.D. Cal. 2010); Johnson v. Long Beach Mortg. Loan T......
  • Hoang v. Bank of Am., N.A.
    • United States
    • U.S. District Court — Western District of Washington
    • November 16, 2017
    ...to a borrower's claim to enforce rescission against a lender who ignored his rescission notice. See, e.g., Barnes v. Chase Home Fin., LLC, 825 F. Supp. 2d 1057, 1066 (D. Or. 2011) (explaining that the application of the statute of limitations in § 1640(e) to a rescission enforcement claim i......
  • Simmons v. CitiMortgage Inc.
    • United States
    • U.S. District Court — District of Utah
    • January 3, 2014
    ...several cases in support, including: Williamson 414 v. Lafferty, 698 F.2d 767, 768-69 (5th Cir. 1983); Barnes v. Chase Home Finance, LLC, 825 F. Supp. 2d 1057, 1067 (D. Or. 2011); Aubin v. Residential Funding Co., LLC, 565 F. Supp. 2d 392 (D. Conn. 2008); New Maine National Bank v. Gendron,......

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