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Hooker v Northwest Trustee Memorandum of Law 14 Oct 2010

Hooker v Northwest Trustee Memorandum of Law 14 Oct 2010

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The is defendant's memorandum of law in support of the defedant's motion to dismiss in the case Hooker v. Northwest Trustee Services, Inc. et al, Case No. 10-3111, a matter decided by the U.S. District Court for the District of Oregon. The defendants removed this case from Oregon State Court to U.S. District Court and then sought to have the case dismissed. This motion was filed on October 14, 2010. The motion is separately posted. The Judge found for the Plaintiffs Ivan and Katherine Hooker on May 25, 2011.
The is defendant's memorandum of law in support of the defedant's motion to dismiss in the case Hooker v. Northwest Trustee Services, Inc. et al, Case No. 10-3111, a matter decided by the U.S. District Court for the District of Oregon. The defendants removed this case from Oregon State Court to U.S. District Court and then sought to have the case dismissed. This motion was filed on October 14, 2010. The motion is separately posted. The Judge found for the Plaintiffs Ivan and Katherine Hooker on May 25, 2011.

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Published by: William A. Roper Jr. on May 27, 2011
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11/09/2012

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707220.0017/880231.1
PAGE 1-MEMORANDUM IN SUPPORT OF MOTION TO DISMISS
LANEPOWELL
PC
601 SW SECOND AVENUE, SUITE 2100
PORTLAND, OREGON 97204-3158503.778.2100 FAX: 503.778.2200
Stephen P. McCarthy
, OSB No. 894152mccarthys@lanepowell.com
Pilar C. French
, OSB No. 962880frenchp@lanepowell.com
LANE POWELL
PC
601 SW Second Avenue, Suite 2100Portland, Oregon 97204-3158Telephone: 503.778.2100Facsimile: 503.778.2200Attorneys for Defendants Bank of America, NA andMortgage Electronic Registration Systems, Inc.UNITED STATES DISTRICT COURTDISTRICT OF OREGONMEDFORD DIVISION
IVAN HOOKER and KATHERINEHOOKER,
Plaintiffs,v.
NORTHWEST TRUSTEE SERVICES,INC.; BANK OF AMERICA, NA;MORTGAGE ELECTRONICREGISTRATION SYSTEMS, INC.,
Defendants.Case No. 10-CV-3111-PADefendants Bank of America, NA andMortgage Electronic RegistrationSystems,Inc.’sMEMORANDUM IN SUPPORT OFMOTION TO DISMISS
I. INTRODUCTION
Defendants Bank of America, NA and Mortgage Electronic Registration Systems, Inc.(“MERS”), (collectively “Bank Defendants”), move to dismiss plaintiffs’ complaint pursuant toFederal Rules of Civil Procedure 12(b)(6), for failure to state a claim for relief, and 8(a), for failure to provide a short and plain statement of the claim showing the pleader is entitled torelief. Plaintiffs are borrowers obligated on a residential loan and trust deed. On or about
Case 1:10-cv-03111-PA Document 9 Filed 10/14/10 Page 1 of 15 Page ID#: 72
 
707220.0017/880231.1
PAGE 2-MEMORANDUM IN SUPPORT OF MOTION TO DISMISS
LANEPOWELL
PC
601 SW SECOND AVENUE, SUITE 2100
PORTLAND, OREGON 97204-3158503.778.2100 FAX: 503.778.2200
September1, 2009, plaintiffs materially defaulted on their loan obligations resulting in thecommencement of a non-judicial foreclosure by trustee Northwest Trustee Services, Inc.Plaintiffs are in gross breach of the loan agreement. They have not made a regular monthly payment for approximately 13months. Even though plaintiffs expressly agreed to permit foreclosure if they defaulted, plaintiffs claim that defendants are not permitted toforeclose. In support of that claim, plaintiffs argue that the trust deed unlawfully identifiesMERS as the “beneficiary” and nominee for GN Mortgage, LLC, the originating lender. For thereasons discussed more fully below, the Court should dismiss plaintiffs’ claims:1.Oregon’s Trust Deed Act does not prohibit MERS from being identified as the beneficiary in the trust deed.2.The publicly recorded documents relating to the non-judicial foreclosure establishthat Northwest Trustee Services, Inc. has properly instituted a non-judicial foreclosure.3.By failing to contest that they are in default or allege that they can cure thedefault, plaintiffs have failed to plead sufficient facts to show they would be entitled todeclaratory relief.4.Bank Defendants have not breached the loan agreement. In fact, plaintiffs are the breaching parties and Bank Defendants should be awarded their reasonable attorney fees for having to defend this lawsuit.
II. STATEMENT OF FACTS
1
A.Plaintiffs Entered Into a Loan Agreement With GN Mortgage, LLC.
On or about November17, 2005, in exchange for a loan of $260,000, which plaintiffsreceived, plaintiffs gave originating lender GN Mortgage, LLC an assignable promissory noteand executed a deed of trust as security. (Complaint, 2, Ex.1.) Pursuant to the terms of the
1
Defendants recite the Statement of Facts in the light most favorable to plaintiffs solely for  purposes of this motion and based on allegations alleged in plaintiffs’ Complaint and documentsthat are incorporated into the Complaint.
Case 1:10-cv-03111-PA Document 9 Filed 10/14/10 Page 2 of 15 Page ID#: 73
 
707220.0017/880231.1
PAGE 3-MEMORANDUM IN SUPPORT OF MOTION TO DISMISS
LANEPOWELL
PC
601 SW SECOND AVENUE, SUITE 2100
PORTLAND, OREGON 97204-3158503.778.2100 FAX: 503.778.2200
 promissory note and deed of trust, plaintiffs agreed to make payments as required by the note,and that if they failed to pay as promised, they would be in default. (
 Id.,
Ex.1 at pp.4, 10.)Plaintiffs further agreed that if they failed to cure the default, upon written notice, the note holder would be able to demand the total amount due. (
 Id,
Ex.1 at p.13.) Plaintiffs also agreed that if the holder of the note were forced to incur expenses, including reasonable attorney fees toenforce its rights under the note, that it could recover those expenses under the terms of the note.(
 Id,
Ex.1 at p.13.)The deed of trust executed by plaintiffs granted a security interest in the residential property commonly known as 1380 Daisy Creek Road, Jacksonville, Oregon 97350 (“theProperty”). (Complaint, Ex.1, p. 2-3.) The deed of trust was recorded in the official records of Jackson County on November23, 2005, under Record No.2005-071547. (
 Id.
, Ex.1, p1.) Thedeed of trust identifies MERS as grantee and nominee for the originating lender, GN Mortgage,LLC, plaintiffs as the borrower, and Regional Trustee Services Corp. as the Trustee.(Complaint, Ex.1, pp. 1, 2.)
B.MERS Assigns the Deed of Trust to Bank of America.
On or about May3, 2010, MERS as nominee for GN Mortgage, LLC assigned the deedof trust to Bank of America, National Association c/o Wells Fargo Bank, NA. (Complaint at ¶4and Ex.2.) On May7, 2010, the Assignment of Deed of Trust was recorded in the officialrecords of Jackson County under Record No.2010-014400. (
 Id.
)
C.Northwest Trustee Services, Inc. is Appointed Successor Trustee and Issues a Noticeof Default and Election to Sell.
On or about May3, 2010, MERS as nominee for GN Mortgage, LLC appointed Northwest Trustee Services, Inc. to serve as the successor trustee for the deed of trust.(Complaint, ¶4, Ex.3.) The Appointment of Successor Trustee was executed on May3, 2010,and recorded in the official records of Jackson County on May7, 2010 under Record No.2010-014401. (
 Id.
)
Case 1:10-cv-03111-PA Document 9 Filed 10/14/10 Page 3 of 15 Page ID#: 74

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