                                                                           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                           NOT FOR PUBLICATION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.


                                           2
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.


                                           3
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.


                                          4
