Opinion
3:19-cv-00892-AC
04-07-2021
JOHNNY L. SEIB, Plaintiff, v. METROPOLITAN LIFE INSURANCE COMPANY and ALL OTHER INTERESTED PARTIES, Defendants.
FINDINGS AND RECOMMENDATION
JOHN V. ACOSTA united States Magistrate Judge
Plaintiff Johnny L. Seib (“Seib”), proceeding pro se, filed this lawsuit against defendant Metropolitan Life Insurance Company (“MetLife”) and All Other Interested Parties in state court, asserting a variety of state and federal claims arising out of his residential real estate loan. MetLife removed the action to this court and moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6). The court granted MetLife's motion in part and Seib was given leave to amend to cure the deficiencies in the complaint. Seib subsequently filed a First Amended Complaint (“FAC”). (ECF No. 18.) MetLife filed a Motion to Dismiss the FAC (ECF No. 25), in which it contends that Seib has failed to cure the deficiencies previously identified and that his new allegations fail as a matter of law. As explained below, MetLife's motion to dismiss should be granted.
Factual Background
Seib's allegations in the FAC largely track those asserted in his initial complaint. (See generally F&R at 2, ECF No. 13.) Seib asserts that in the spring of 2007, he borrowed $455,000 (the “Loan”) from Bank of America, N.A. (“BANA”) in exchange for a promissory note and a trust deed (“Deed of Trust”) on his property, commonly known as 21695 Southwest Hedges Drive, Tualatin, Oregon, 97062-8925 (“the Property”). (First Am. Compl. ¶¶ 1-3, 31-32.) On approximately October 5, 2010, BANA, appointed Recontrust Company (“Recontrust”) as Trustee to the Trust Deed. (First Am. Compl. ¶¶ 51-57 & Ex. 9.) On the same day, Recontrust recorded a Notice of Default and Election to Sell (“NODES”), which stated Seib was in default for failing to make monthly payments beginning on February 1, 2010. (Id. ¶¶ 61-69 & Ex. 11.) Recontrust rescinded the NODES on February 17, 2011, because the default was cured. (Id. ¶¶ 71-74 & Ex. 12.) On April 7, 2016, BANA assigned the Loan to Bayview Dispositions (“Bayview”). (Id. ¶¶ 82-85 & Ex. 16.) Bayview assigned the Loan to MetLife on the same day. (Id. Ex. 17.) There has been no foreclosure sale of the property and there is no pending foreclosure. (Id. ¶¶ 104-05, 126.)
Seib references various exhibits in the First Amended Complaint (“FAC”), yet no exhibits are attached to the FAC and included in ECF. Because Seib's allegations in the FAC largely track those asserted in his initial complaint, the court presumes he refers to the exhibits included with the initial complaint. The court previously took judicial notice of the deeds of trust, the assignments, and notices of default pertaining to the Property. (March F&R at 5, ECF No. 13.)
Procedural Background
On April 10, 2019, Seib filed a complaint in Washington County Circuit Court. (F&R at 2, ECF No. 13.) On June 7, 2019, MetLife removed the action to this court. In that complaint, Seib alleged claims for breach of contract, breach of the implied covenant of good faith and fair dealing, fraud, and innocent misrepresentation, and violations of Oregon's Unlawful Debt Collection Practices Act (“UDCPA”), OR. REV. STAT. §§ 646.639 et seq; the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692-1692p; and the Unlawful Trade Practices Act (“UTPA”), OR. REV. STAT. §§ 646.604 - 646.648. (Id. at 1-2.) Seib also sought injunctive relief, declaratory relief, and quiet title. (Id.) MetLife moved to dismiss Seib's Complaint with prejudice, contending that he lacked standing, failed to state a claim for relief, and that his claims are time-barred.
On March 30, 2020, the court issued a Findings and Recommendation (“March F&R”) in which it concluded that Seib had established standing to assert his claims and denied MetLife's motion to dismiss on that basis. (Id. at 6.) The court granted MetLife's motion on other grounds, concluding that Seib failed to allege any plausible claims or grounds for relief, and that some of his potential claims were time-barred. (March F&R at 31.) On May 15, 2020, Chief U.S. District Judge Marco A. Hernandez adopted the court's recommendation in full, dismissed Seib's complaint, and provided him leave to file an amended complaint. (Order, ECF No. 15.) On July 17, 2020, Seib filed his FAC. (First Am. Compl., ECF No. 18.)
In the FAC, Seib asserts the following claims: (1) breach of contract; (2) breach of the covenant of good faith and fair dealing (styled as “bad faith breach of contract”); (3) violation of the FDCPA, 15 U.S.C. §§ 1692 -1692p, and the Oregon UDCPA, OR. REV. STAT. § 646.639; (4) violation of Oregon's UTPA, OR. REV. STAT. §§ 646.604-648; (5) injunctive relief, declaratory relief, and quiet title; and (6) unjust enrichment. The allegations in Seib's FAC parrot many of the allegations in his initial complaint, with several new allegations. At bottom, Seib alleges that MetLife is not licensed to do business in Oregon, and that it benefitted from the fraud perpetrated by BANA by continuing to seek mortgage payments. (FAC ¶¶ 94, 118, 131.) Seib contends that MetLife does not have a license to act as a debt collector or lender, and thus has engaged in unfair debt collection practices. (Id. ¶¶ 129-35.) Seib argues that MetLife engaged in unlawful conduct under Or. Rev. Stat. § 646.608(1), breached its contract with him, and was unjustly enriched when it collected money from third parties, failed to apply those sums to Seib's mortgage, and continues to demand and collect mortgage payments from Seib. (Id. ¶ 133.) Seib contends that because MetLife is “absent from this state, ” any applicable statutes of limitations are tolled. (Id. ¶¶ 6, 106, 115, 128, 156, 171, 179, 186.) Lastly, Seib argues that as a result of COVID-19, “it is illegal, impracticable, impossible or commercially impracticable to enforce any mortgage and they are all barred and void by reason of the Force Majeure.” (Id. ¶ 22, see ¶¶ 107, 121, 127, 147, 161, 184.)
On August 31, 2020, MetLife filed the instant motion, seeking dismissal of Seib's claims with prejudice.
Legal Standards
I. Rule 12(b)(6)
Under Rule 12(b)(6), a party may move to dismiss a complaint for “failure to state a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). A court may dismiss “‘on the lack of cognizable legal theory or the absence of sufficient facts alleged'” under a cognizable legal theory. UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006, 1014 (9th Cir. 2013) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)). To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also CallerID4u, Inc. v. MCI Commc'ns Servs. Inc., 880 F.3d 1048, 1061 (9th Cir. 2018). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Teixeira v. Cty. of Alameda, 873 F.3d 670, 678 (9th Cir. 2017). 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. Twombly, 550 U.S. at 556; Mashiri v. Epsten Grinnell & Howell, 845 F.3d 984, 988 (9th Cir. 2017).
The court must accept as true the allegations in the complaint and construe them in favor of the plaintiff. Teixeira, 873 F.3d at 678; see also Iqbal, 556 U.S. at 679; Kwan v. SanMedica Int'l, 854 F.3d 1088, 1096 (9th Cir. 2017). “A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.” Iqbal, 556 U.S. at 678 (internal citations omitted); Kwan, 854 F.3d at 1096. To be entitled to a presumption of truth, allegations in a complaint “may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
II. Pro Se Claimants
When a plaintiff appears pro se, the court must carefully construe the pleadings and afford the plaintiff any benefit of the doubt. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002); Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). “A pro se litigant must be given leave to amend his or her complaint unless it is absolutely clear that the deficiencies of the complaint cannot be cured by amendment.” Aleman v. Amsberry, No. 2:19-cv-00922-YY, 2020 WL 2374970, at *2 (D. Or. Feb. 11, 2020), adopted 2020 WL 2341128 (May 8, 2020); see also Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (recognizing that leave to amend should be granted unless plaintiff cannot correct the defect), overruled in part on other grounds in Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014).
Discussion
MetLife moves to dismiss Seib's claims pursuant to Rule 12(b)(6). MetLife argues that the FAC contains many of the same allegations as the initial complaint, that Seib has failed to cure the deficiencies previously identified, and consequently, the action should be dismissed. MetLife contends Seib's new allegations likewise fail to state plausible claims or legal theories for relief. According to MetLife, because Seib repeatedly has failed to assert any viable claims, dismissal with prejudice is warranted. Seib responds that he has adequately cured the allegations in the complaint, the statute of limitations is tolled, and that the case should proceed to discovery.
I. Breach of Contract
A. Standards
To establish a breach of contract claim under Oregon law, a plaintiff must show: (1) the existence of a contract; (2) its relevant terms; (3) the plaintiff's full performance and lack of breach; and (4) the defendant's breach resulting in damage to the plaintiff. Schmelzer v. Wells Fargo Home Mortg., No. CV-10-1445-HZ, 2011 WL 5873058, at *4 (D. Or. Nov. 21, 2011) (citing Slover v. Or. State Bd. of Clinical Soc. Workers, 144 Or.App. 565, 570-71 (1996)). The party alleging a breach of contract “must plead and prove either substantial performance on his part or a valid excuse for his own failure to perform.” Aurora Aviation, Inc. v. AAR W. Skyways, Inc., 75 Or.App. 598, 602 (1985) (emphasis in original).
B. Seib Has Not Cured Deficiencies Previously Identified
In the March F&R, the court dismissed with prejudice any breach of contract claims premised on “Seib's 2010 default, the NODES, and 2011 recission of the NODES” as untimely. (F&R at 12-13.) The F&R was adopted in its entirety and Seib was not given leave to replead the untimely breach of contract claims. (Order, ECF No. 15.) Accordingly, any attempt by Seib to replead or resurrect such claims in the FAC is improper.
In the FAC, Plaintiff again asserts that the Deed of Trust is void because of BANA's illegal conduct. (FAC ¶ 103.) To the extent Seib is asserting a breach of contract action against MetLife premised on BANA's conduct, he again fails to state a plausible claim. To the extent Seib repeats his alleged breach of contract action premised on any conduct occurring prior to April 2016 when MetLife acquired the Deed of Trust, he again fails to plead any nonconclusory facts showing how MetLife has breached the contract. (See March F&R at 13-14) (dismissing breach of contract action). And, to the extent Seib's breach of contract claim is premised on MetLife's failure to offer a loan modification, he again fails to adequately plead the terms of the contract, when it was agreed upon, his full performance, MetLife's breach, and his damages. (See March F&R at 15.) Because Seib has failed to cure the deficiencies previously identified by asserting additional facts to support this claim, the court presumes none are forthcoming, and recommends dismissal with prejudice.
C. Seib's New Theories Fail To Assert Cognizable Legal Theories Or To Plead Sufficient Facts To Support Plausible Claims For Relief
Turning to the new allegations in the FAC, Seib's breach of contract allegations fail to assert cognizable legal theories or sufficient facts to support plausible claims for relief. Seib alleges that a breach occurs each time he makes a payment because his “mortgage has been paid in full as many as 3 to 4 times” and that his mortgage is fully satisfied. (FAC ¶ 105.) Under this theory, Seib alleges that MetLife recovered sums from third parties in the form of class action settlements and other mortgage insurance payments. (FAC ¶¶ 10, 13-18.) Seib contends that MetLife filed a $757 million lawsuit against Morgan Stanley, claiming Seib's mortgage and other mortgages were toxic, improperly securitized, and poorly managed. (Id. ¶¶ 15-16.) Seib asserts that MetLife recovered sums from the litigation, was obligated to apply the amounts recovered in the litigation from the third parties toward his Loan, and that such sums fully satisfied his Loan. (Id. ¶¶ 10-15.) According to Seib, MetLife never credited him with receipt of the funds received from the third parties, and it is in breach each time it bills and collects a payment on his Loan. (Id. ¶¶ 105-06.)
Seib's fantastical breach of contract theory is devoid of any nonconclusory facts. He fails to identify any contractual language supporting his contention that MetLife had a duty to credit his Loan with funds it received from other litigation involving third parties. He fails to plausibly plead any factual basis for his breach of contract claim premised upon MetLife's receipt of settlement funds or private mortgage insurance from unidentified third parties. Because Seib's FAC fails to allege the relevant terms of a contract and facts establishing his full performance and lack of breach, the court recommends MetLife's motion to dismiss on this basis be granted. See Aurora Aviation, 75 Or.App. at 601.
Next, Seib argues that as a result of the Covid-19 pandemic, “it is illegal, impracticable, impossible or commercially impracticable to enforce any mortgage and they are all barred and void by reason of the Force Majeure.” (FAC ¶ 22.) Seib seeks a declaration that his Loan is paid in full, and that the Deed of Trust is void due to Covid 19. (FAC ¶ 107.) In his briefing, Seib argues that the sustained Covid 19 pandemic is beyond his control and his performance under the contract is excused. (Pl.'s Opp'n Mot. Dismiss at 8-9, ECF No. 30.) Seib's contentions fail for at least six reasons.
First, Seib does not identify a force majeure clause in the Loan or Deed of Trust that plausibly could excuse his performance under any circumstances, and consequently fails to identify any force majeure clause that excuses his performance based on COVID-19. Second, Seib does not allege any facts from which the court plausibly could infer that his Loan and Deed of Trust were entered into for an illegal purpose or that they were against public policy. See Country Mut. Ins. Co. v. Gyllenberg Constr. Inc., Case No. CV-03-856-ST, 2004 WL 1490326, at *8 (“Contracts which are illegal or against public policy are unenforceable.”) (citing A-1 Sandblasting v. Baiden, 293 Or. 17, 22 (1982)); see also Hendrix v. McKee, 281 Or. 123, 128 (1978) (recognizing that if a contract's purpose is illegal or against public policy, it is unenforceable). Seib cites no authority for the proposition that a residential real estate loan is illegal or against public policy and the court declines to undertake such a fruitless search. Third, despite Seib's broad contention that COVID-19 has made it impossible or impracticable for to him fulfill his obligations under the Loan, he has failed to plead any facts to support this allegation. Indeed, elsewhere in the FAC, Seib alleges that he has continued to “perform all obligations” under the Loan. (FAC ¶ 126.) MetLife provides that as far as it is aware, Seib is not currently in default and no foreclosure is pending. (Def. Mot. Dismiss at 10.)
Fourth, Seib fails to plausibly allege how frustration of purpose applies here. Under Oregon law, “the frustration of purpose doctrine allows rescission of a contract if a party's mutually understood ‘principal purpose' in entering into the contract is ‘frustrated . . . by the occurrence of an event the non-occurrence of which was a basic assumption' of the parties.'” Confederated Tribes of Warm Springs Reserv. of Or. v. Ambac. Assurance Co., Case No. 10-130-KI, 2010 WL 4875657, at * 5-6 (D. Or. 2010) (citing Chang v. Pacificorp, 212 Or.App. 14, 22 (2007); see also RESTATEMENT (SECOND) OF CONTRACTS § 265 (1981). Recission for frustration of purpose requires Seib to show that: (1) a particular purpose was the “primary purpose” in entering into a contract; (2) that purpose was “mutually understood;” (3) that purpose was substantially “frustrated;” and (4) the “frustrating event” was the result of circumstances that the parties “mutually assumed would not occur - and, thus, the risk of the frustrating circumstance was not impliedly allocated to the party who later seeks rescission.” Id. Frustration of purpose is not available where the “frustrating event” was reasonably foreseeable. Confederated Tribes, 2010 WL 4875657, at * 6.
Seib asserts that he risks death by working during the COVID-19 pandemic, and that if he dies, he will no longer need a home, frustrating the purpose of his Loan. (Pl.'s Resp. at 11-12.) While the court is sympathetic to the risks presented by the global pandemic, Seib has not alleged how the current global pandemic was a “frustrating event” that was mutually expected not to occur, and was the “primary purpose” for entering into the Loan in the first instance. See Multibank 2009-1 Res-ADC Venture, LLC v. Pinecrest at Neskowin, LLC, Case No. 3:11-cv-853-BR, 2013 WL 1500693, at *5 (D. Or. Apr. 10, 2013) (holding nationwide banking crisis was irrelevant to frustration of purpose defense). Moreover, Seib has not demonstrated how a homeowner's potential death would frustrate the purpose of entering a residential real estate loan. Thus, frustration of purpose does not excuse Seib's obligations under the Loan. See Confederated Tribes, 2010 WL 2010 WL 4875657, at *6 (dismissing frustration of purpose defense where risk of downgraded credit was reasonably foreseeable).
Fifth, Seib's sweeping allegation that COVID-19 has voided all mortgages, including his Loan, is without any legal basis. Seib cites no controlling authority for this allegation and the court declines to undertake such a purposeless search.
Sixth and finally, Seib alleges that his breach of contract claim is not time-barred because MetLife is “absent from this jurisdiction.” (FAC ¶¶ 6, 106.) Seib alleges that MetLife is not registered to do business in Oregon, thus the statute of limitations is tolled and all of his claims are timely. (Id.) As the court previously determined, MetLife is not required to register to service Seib's Loan under Oregon law. (March F&R at 21) (citing OR. REV. STAT. § 60.701(2)(g) & (h) providing that mortgages are security interest in property and are explicitly excluded from the definition of “transacting business”). Thus, MetLife's alleged “absence from this jurisdiction” fails to toll the statute of limitations and does not provide a basis for revisiting's any of the court's prior holdings on timeliness grounds.
In summary, the court recommends that MetLife's motion to dismiss Seib's breach of contract claims be granted.
II. Breach of Implied Covenant of Good Faith and Fair Dealing
In his second claim, Seib again asserts that MetLife breached the implied covenant of good faith and fair dealing. (FAC ¶¶ 112-124.) In the March F&R, the court dismissed with prejudice as untimely Seib's implied covenant of good faith and fair dealing claims premised on BANA's actions prior to 2011. (March F&R at 17-18.) The court also dismissed any purported slander of title claim as untimely and lacking in specific details. (March F&R at 17-18.) In the FAC, Seib alleges that the statute of limitations should be tolled because MetLife has been “absent from this jurisdiction.” (FAC ¶115.) As noted, MetLife's “absence” fails to provide a legitimate legal basis for revisiting the court's previous holding on timeliness grounds.
In the March F&R, the court also determined that to the extent that Seib's second claim is premised on the 2016 assignment of the Deed of Trust from BANA to Bayview and from Bayview to MetLife, Seib was granted leave to replead because his claim may be timely, but he failed to allege any nonconclusory facts asserting such claim. (March F&R at 18.) The court granted Seib leave to plead additional facts setting forth a claim for breach of the implied covenant of good faith and fair dealing based on the 2016 assignment from Bayview to MetLife. (Id.) Despite the court's clear guidance, Seib's First Amended Complaint fails to allege any new facts that cure this deficiency.
Instead, Seib's new allegations assert that MetLife breached of the implied covenant of good faith and fair dealing because MetLife recovered sums from third parties and was required to apply such sums to his Loan (FAC ¶ 114), that MetLife's absence from the jurisdiction tolls the statute of limitations (Id. ¶ 115), that COVID-19 has voided all mortgages under the doctrines of force majeure, frustration of purpose, impossibility, or impracticability (Id. ¶ 121), and that he is entitled to a declaration that his performance under the Loan is forever excused on these grounds (Id. ¶¶ 122-23). As discussed above, Seib's new arguments are misplaced and fail to plausibly assert a claim for breach of the implied covenant of good faith and fair dealing. Because Seib has failed to cure the deficiencies previously identified concerning his second claim for breach of the implied covenant of good faith and fair dealing and his allegations remain conclusory, MetLife's motion to dismiss should be granted.
III. FDCPAandUDCPA
In claim three, Seib alleges that MetLife has violated the FDCPA and Oregon's UDPCA. 15 U.S.C. § 1692a(6); OR. REV. STAT. § 646.639. As the court discussed in the March F&R, neither the FDCPA nor Oregon's UDPCA apply to the enforcement of security interests. (March F&R at 19.) The court found that “as currently alleged, Seib has not identified any activities by MetLife or BANA that could form the basis of an FDCPA or UDPCA claim.” (March F&R at 21.) The court concluded that “MetLife is not required to be licensed in Oregon to collect Loan payments.” (Id. at 21.) Further, the court dismissed as untimely any actions forming the basis of Seib's FDCPA and UDPCA claims occurring prior to April 10, 2018. (March F&R at 22.)
In the FAC, Seib continues to assert that MetLife is violating the FDCPA and UDPCA by collecting mortgage payments on his Loan. (FAC ¶¶ 129, 131.) Despite the court's previous clear guidance in the March F&R, Seib fails to plead any nonconclusory facts that MetLife is a debt collector under the FDCPA or UDPCA and fails to remedy the previously identified deficiencies in the FAC. Swango v. Nationstar Sub1, LLC, 292 F.Supp.3d 1134, 1148 (D. Or. 2018) (holding lender was not acting as a debt collector under FDCPA when enforcing security interest in promissory note); Hulse v. Ocwen Federal Bank, FSB, 195 F.Supp.2d 1188, 1206 (D. Or. 2002) (holding foreclosing on trust deed is not debt collection under Oregon's UDPCA). And, as discussed above, Seib's contention that MetLife is “absent from the jurisdiction” does not provide a legitimate legal basis for tolling the statute of limitations. See OR. REV. STAT. §§ 60.701(2)(g), (h) (exempting enforcement of security interests in property from “transacting business” requiring licensing). Similarly, Seib's allegation that MetLife has violated the FDCPA or UDPCA by recovering sums from third parties and failing to apply those sums to his Loan is wholly without merit. (FAC ¶¶ 133-37.) Because Seib has not cured the previously identified deficiencies in the FAC, the court recommends MetLife's motion to dismiss claim three be granted.
IV. UTPA
In his fourth claim for relief, Seib asserts that MetLife violated Oregon UTPA. To state a UTPA claim, Seib must allege: (1) a violation of specific conduct enumerated in Or. Rev. Stat. § 646.608(1); (2) causation; (3) damages; and (4) willfulness by MetLife. Colquitt v. Mfrs. and Traders Trust Co., Case No. 3:15-cv-00807-BR, 2016 WL 1276095, at *5 (D. Or. Apr. 1, 2016); see also Swango, 292 F.Supp.3d at 1150 (providing that there must be a specific Oregon Administrative Rule prohibiting the conduct at issue). UTPA claims must be brought within one year after discovery of the unlawful conduct. Pearson v. Philip Morris, Inc., 358 Or. 88, 115 (2015); OR. REV. STAT. § 646.638(6). A “willful violation occurs when the person committing the violation knew or should have known that the conduct of the person was a violation.” OR. REV. STAT. § 646.605(10).
In the March F&R, the court dismissed this claim with leave to replead because Seib failed to allege a timely violation and failed to identify which of the seventy-seven sections of § 646.608(1) that MetLife allegedly violated. (March F&R at 23-24.) The court also determined that to the extent Seib's allegations were premised on conduct occurring prior to March 23, 2010, his claims were time-barred. (Id. at 24.)
In his First Amended Complaint, Seib again fails to identify a section under § 646.608(1) upon which he relies, and consequently fails to cure the previously identified deficiency. Rather, Seib broadly asserts that MetLife violates one of the numerous provisions of § 646.608(1) each time it collects a payment on his Loan because his Loan has been repaid in full three or four times. (FAC ¶¶ 149-55.) While collecting a payment that is not owed plausibly may support a UTPA violation, Seib's allegations fall short because he fails to allege that the debt is not owed, that he has performed fully under the Loan, or that his Loan payments plausibly have been forgiven under the circumstances. See, e.g., OR. REV. STAT. § 646.608(1)(s) (making false statements about the cost for real estate, goods, or services). Instead, Seib asserts that MetLife received sums from unrelated litigation with third parties and failed to apply those sums to his Loan. (FAC ¶¶ 15-16, 149-52.) Seib asserts that MetLife's failure to apply those sums to his Loan and continuing to collect payments from him that are no longer owed constitutes willful misconduct under the UTPA. (Id. ¶¶ 152-53.) Seib's argument misses the mark.
As discussed at length above, Seib presents no legal authority for the proposition that sums recovered from third parties must be applied to his Loan. Thus, Seib's allegation that MetLife violated the UTPA by continuing to collect payments on his Loan because it should have applied sums it received from third parties fails to state a plausible claim for relief. Likewise, Seib's allegation that the COVID-19 pandemic has voided or excused all obligations under all mortgages - including his Loan - under the doctrine of force majeure, is not well taken and fails to set forth a plausible UTPA claim. (FAC ¶ 147.) Finally, as discussed above, Seib's contention that MetLife is “absent from the jurisdiction” fails to provide a legitimate legal basis for tolling the statute of limitations. (FAC ¶ 156.)
In short, Seib fails to assert any plausible basis for relief under the UTPA. Because Seib previously was given the opportunity to replead his UTPA claim with sufficiency and has failed to remedy those deficiencies, the court recommends that claim four be dismissed with prejudice.
V. Injunctive Relief, Declaratory Relief, Quiet Title
In his fifth claim for relief, Seib brings claims for injunctive and declaratory relief, and seeks to quiet title in the property against all claimants. (FAC ¶¶ 159-81.) In the March F&R, the court concluded that “when no foreclosure is currently pending, a plaintiff fails to establish a case or controversy for purposes of declaratory relief.” (March F&R at 29.) The court dismissed the claim for injunctive relief on the same basis. (Id. at 30.) The court also determined that to the extent Seib was asserting a separate claim for quiet title, he did not state a claim because “he fails to allege that he has no legal remedy, or that he has fully satisfied the Loan or is ready, willing and able to tender the full amount due on the Loan.” (March F&R at 30.) Finally, the court determined that to the extent Seib was seeking to have the cloud on his title removed, he failed to plead any facts that “plausibly establish that MetLife is not the proper entity to collect mortgage payments and he includes no allegations to plausibly demonstrate that the Deed of Trust, line of credit deed of trust, NODES, or construction lien should be removed as clouds on his title.” (March F&R at 31.)
In the FAC, Seib again fails to allege that his house is in active foreclosure; accordingly, Seib is not entitled to declaratory or injunctive relief. See Kichatov v. Nationstar Mortg., Inc., Case No. 3:13-cv-00103-BR, 2013 WL 3025981, at *5 (D. Or. June 14, 2013). Turning to Seib's alleged quiet title claim, he still fails to allege that he lacks a legal remedy, or that he has paid or is ready, willing, and able to tender the full amount owing on the Loan. With respect to a claim to remove the cloud on his title, Seib fails to allege nonconclusory facts that plausibly establish MetLife is not the proper entity to collect mortgage payments or why the trust deeds and liens should be removed. In short, Seib has failed to cure the previously identified deficiencies.
Instead, Seib alleges that the clouds on his title are related to BANA's fraudulent conduct, which no longer holds an interest in his Loan. (FAC ¶¶ 167, 173.) The new allegations concerning MetLife all relate to Seib's assertion that his Loan has been paid in full three or four times over because of proceeds MetLife received resulting from litigation involving third parties. (FAC ¶¶ 168, 170, 172, 178.) As discussed above with respect to Seib's breach of contract claim, the unrelated litigation with third parties does not save his claim.
Because Seib previously was given the opportunity to replead his claims for declaratory relief, injunctive relief, and quiet title and again has failed to remedy those deficiencies, the court recommends that claim five be dismissed with prejudice.
VI. Unjust Enrichment
In the FAC, Seib brings a new claim for unjust enrichment. (FAC ¶¶ 182-190.) To state a claim for unjust enrichment, a plaintiff must allege that: (1) the plaintiff conferred a benefit on the defendant; (2) the defendant was aware that it had received a benefit; and (3) under the circumstances, it would be unjust for the defendant to retain the benefit without paying for it. Winters v. Cnty. of Clatsop, 210 Or.App. 417, 421 (2007). Here, Seib alleges that his mortgage is paid in full because MetLife has recovered sums from private mortgage insurance payments, other class actions, and other civil litigation involving third parties. (FAC ¶ 184.) Seib asserts that as a “result of the multiplicity of lawsuits, class actions, and recoveries, ” none of which were applied to his mortgage, MetLife has been unjustly enriched. (FAC ¶ 188.) Seib alleges that it is inequitable to permit MetLife to retain the benefits of those lawsuits without applying the proceeds to his account. (FAC ¶ 189.)
Seib's conclusory allegations fail to state a claim for unjust enrichment. Seib cannot establish that he conferred a benefit on MetLife. Seib does not allege that he personally was involved in any of the litigation involving the third parties. Rather, Seib simply asserts that because MetLife has recovered sums from other unrelated parties, it is unjust to require him to continue to pay his Loan. As discussed above with respect Seib's breach of contract claim, there is nothing in his Loan that requires MetLife to apply the sums received from unrelated third-party litigation toward Seib's contractual obligation. To the extent MetLife received a benefit, it was conferred by third parties - not Seib. Therefore, because Seib did not confer the benefit, he fails to state a plausible claim for unjust enrichment. Accordingly, MetLife's motion to dismiss Seib's sixth claim for relief should be granted.
VII. Leave to Amend
“Dismissal without leave to amend is proper if it is clear that the complaint could not be saved by amendment.'” Salameh v. Tarsadia Hotel, 726 F.3d 1124, 1133 (9th Cir. 2013). A district court's discretion to deny leave to amend is particularly broad where the plaintiff has previously been provided an opportunity to cure the deficiencies. Id. (citing Sisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 355 (9th Cir. 1996)).
Seib has had ample opportunity to properly plead his claims. The court explained in detail how to cure the deficiencies in the March F&R. Rather than provide additional facts to support his claims, Seib has provided strained theories unsupported by law or fact. Thus, the court concludes that additional, plausible facts are not forthcoming. Accordingly, the court recommends that Seib's First Amended Complaint be dismissed with prejudice and without leave to amend.
Conclusion
For the reasons stated above, the court recommends that MetLife's Motion to Dismiss (ECF No. 25) be GRANTED and that Seib's First Amended Complaint be DISMISSED with prejudice and without leave to amend.
Scheduling Order
This Findings and Recommendation will be referred to a U.S. District Judge Marco A. Hernandez. Objections, if any, are due within fourteen (14) days. If no objections are filed, then the Findings and Recommendation will go under advisement on that date. If objections are filed, then a response is due within fourteen (14) days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.