Big Blue Capital Partners v. Recontrust Company

FILED
NOT FOR PUBLICATION JUN 11 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BIG BLUE CAPITAL PARTNERS LLC, No. 12-35603
an Ohio limited liability company,
D.C. No. 3:12-cv-00292-MO
Plaintiff - Appellant,
v. MEMORANDUM*
RECONTRUST COMPANY, NA; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Argued and Submitted May 14, 2014
Portland, Oregon
Before: TASHIMA, IKUTA, and N.R. SMITH, Circuit Judges.
The district court dismissed the complaint filed by Big Blue Capital
Partners, which alleged that ReconTrust Company failed to follow Oregon law
when it initiated nonjudicial foreclosure proceedings against property now owned
by Big Blue. Because ReconTrust rescinded the notice of default, effectively
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
abandoning the foreclosure proceedings, Defendants contend this appeal is moot.
We agree with Defendants and dismiss the appeal. See Vegas Diamond Props.,
LLC v. FDIC, 669 F.3d 933, 936–37 (9th Cir. 2012).
Big Blue does not dispute that ReconTrust rescinded the notice of default.
Instead, Big Blue argues that the “capable of repetition, yet evading review”
exception to mootness applies. See id. However, this exception “applies only
where the named plaintiff can make a reasonable showing that he will again be
subjected to the alleged illegality.” Id. (internal quotation marks omitted). Big
Blue has not made this showing.
After ReconTrust rescinded the notice of default, the Oregon Supreme Court
substantiated allegations in Big Blue’s complaint by holding that Mortgage
Electronic Registration Systems (MERS) may not qualify as a trust deed’s
beneficiary under Oregon law. See Brandrup v. ReconTrust Co., N.A., 303 P.3d
301, 312 (Or. 2013). Defendants acknowledge the effect of this ruling, and we
may therefore conclude that plaintiffs will not again be subjected to a foreclosure
based on a notice of default that is issued by a trustee that is appointed by MERS
acting as beneficiary under a deed of trust. See Vegas Diamond Props., 669 F.3d
at 937.
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The district court’s order granting Defendants’ motion to dismiss is vacated.
See ACLU of Nev. v. Masto, 670 F.3d 1046, 1065 (9th Cir. 2012).
DISMISSED.
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