Gordon Dye v. BAC HOME LOANS SERVICING, LP, a foreign limited partnership

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GORDON DYE,
Plaintiff-Appellant,
v.
BAC HOME LOANS SERVICING, LP, a
foreign limited partnership; RECONTRUST
COMPANY, NA, a federal bank,
Defendants-Appellees.
No. 12-35406
D.C. No. 3:11-cv-00911-HZ
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernandez, District Judge, Presiding
Submitted January 16, 2018**
Before: REINHARDT, TROTT, and HURWITZ, Circuit Judges.
Gordon Dye appeals pro se from the district court’s judgment dismissing his
diversity action arising out of foreclosure proceedings. We have jurisdiction under
28 U.S.C. § 1291. We review de novo a dismissal under Federal Rule of Civil
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
JAN 22 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 12-35406
Procedure 12(b)(6), Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir. 2008),
and we vacate and remand.
The district court dismissed Dye’s action with prejudice after finding, among
other things, that Mortgage Electronic Registration Systems, Inc. (“MERS”) was a
valid beneficiary of Dye’s deed of trust under Oregon law. However, after the
district court entered judgment, the Oregon Supreme Court decided, in reviewing a
deed of trust similar to Dye’s, that MERS cannot be a “beneficiary” of a deed of
trust under the Oregon Trust Deed Act, nor is MERS eligible to serve as the
beneficiary simply by being designated as such in the deed of trust. See Brandrup
v. ReconTrust Co., N.A., 303 P.3d 301, 304, 309-12 (Or. 2013) (en banc). Because
the district court did not have the benefit of Brandrup when it entered its order of
dismissal, we vacate and remand for further proceedings in light of Brandrup.
We reject as without merit appellees’ contention that Dye has “judicially
admitted” facts defeating his own claims. See Marder v. Lopez, 450 F.3d 445, 448
(9th Cir. 2006) (setting forth circumstances in which a court may consider, on a
motion to dismiss for failure to state a claim, evidence outside the contents of the
complaint).
The parties shall bear their own costs on appeal.
VACATED and REMANDED.

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