FILED
NOT FOR PUBLICATION
AUG 10 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLES MORSE BARKER, III and No. 11-35841
ELMER V. DUNHAM,
D.C. No. 3:11-cv-00579-MO
Plaintiffs - Appellants,
v. MEMORANDUM*
GMAC MORTGAGE LLC; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Submitted July 30, 2015**
San Francisco, California
Before: THOMAS, Chief Judge and D.W. NELSON and LEAVY, Circuit Judges.
Charles Barker III and his father-in-law, Elmer Dunham, (collectively,
appellants) appeal pro se the district court’s dismissal of their second amended
complaint and the grant of summary judgment to defendant-appellees. We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction pursuant to 28 U.S.C. 1291, and we affirm in part, reverse in part and
remand.
1. The district court correctly concluded that appellees were not required to
produce an original or copy of the promissory notes before proceeding with
nonjudicial foreclosure. Oregon law contains no such requirement. See generally
Or. Rev. Stat. §§ 86.704–86.815; see also Reeves v. ReconTrust Co., N.A., 846 F.
Supp. 2d 1149, 1159 (D. Or. 2012) (“There is not anything in Oregon law that
require[s] presentment of the note or other proof of real party in interest or
standing, other than the deed of trust, to proceed with a non-judicial foreclosure.”)
(internal quotation marks omitted); Tabb v. One West Bank, 2010 WL 5684402, at
*5 (D. Or. Nov. 1. 2010) (noting Oregon law “does not require any party to a
trustee’s sale to produce a physical copy of the original note”).
2. The district court erred in concluding that MERS is a valid trust deed
beneficiary. When this case was pending before the district court, the state of the
law concerning MERS remained unsettled. Compare Sovereign v. Deutsche Bank,
856 F. Supp. 2d. 1203, 1212 (D. Or. 2012) (holding MERS is a valid trust deed
beneficiary under Oregon law); Reeves, 846 F. Supp. 2d at 1159–62 (D. Or. 2012)
(same); Beyer v. Bank of Am., 800 F. Supp. 2d. 1157, 1161–62 (D. Or.) (same),
vacated by 588 F. App’x 672 (9th Cir. 2014), with James v. ReconTrust Co., 845 F.
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Supp. 2d. 1145, 1165 (D. Or. 2012) (holding MERS is not a valid trust deed
beneficiary under Oregon law). The Oregon Supreme Court has subsequently held
that “[f]or the purposes of [the Oregon Trust Deed Act] . . . an entity like MERS,
which is not a lender, may not be a trust deed’s ‘beneficiary,’ unless it is a lender’s
successor in interest.” Brandrup v. ReconTrust Co., N.A., 303 P.3d 301, 304,
309–12 (Or. 2013). Because the main basis for the district court’s order rested on
the validity of MERS as a trust deed beneficiary, we remand to the district court for
reconsideration in light of Brandrup.
3. The district court properly disposed of appellants’ Real Estate Settlement
Procedures Act (RESPA) claim. Assuming without deciding that appellants’
correspondence with appellees constituted qualified written requests, it appears that
appellees complied with their duty pursuant to RESPA to respond.
4. The district court did not err in dismissing appellants’ fraud claims, as the
allegations did not comply with the heightened pleading requirements contained in
Federal Rule of Civil Procedure 9(b). Swartz v. KPMG LLP, 476 F.3d 756, 765
(9th Cir. 2007) (per curiam). However, appellants predicate their fraud and
common law fraud claims on the theory that MERS cannot serve as a valid trust
deed beneficiary. Because the Oregon Supreme Court has held definitively in
appellants’ favor on this issue, we remand the fraud claims to the district court.
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See Brandrup, 303 P.3d at 304, 309–12. Appellants shall be afforded leave to
amend their complaint.
5. In denying the motion for preliminary injunction, the district court discussed
claims alleged in the first amended complaint that the court categorized as
“allegations of general unfairness.” The district court did not enumerate which
claims fell within this general unfairness characterization but held that Barker had
“not shown how they violate the law.” The district court did not address claims of
“general unfairness” when disposing of the motions to dismiss and for summary
judgment, though the court did note that it was treating the second amended
complaint—not the first amended complaint addressed in the order denying the
motion for a preliminary injunction—as the operative pleading. Because we
cannot ascertain which claims call within the general unfairness categorization or
the basis on which the district court dismissed them or granted summary judgment
on them, we remand these claims to the district court for reconsideration.
6. Dunham has standing to pursue his claims, and Barker is not committing the
unauthorized practice of law. Barker and Dunham proceed here as co-appellants,
and both parties signed the opening and reply briefs.
AFFIRMED in part, REVERSED in part and REMANDED. Each side
shall bear its own costs.
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