Pereschica

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

MEDFORD DIVISION

LARU PERESCHICA; RAFAEL Civ. No. 1:25-cv-00507-AA

SANDOVAL,

Plaintiffs, OPINION & ORDER

v.

HERSHNER HUNTER, LLP;

SELCO COMMUNITY CREDIT

UNION,

Defendants.

_______________________________________

AIKEN, District Judge.

This case comes before the Court on partial Motions to Dismiss and Special

Motions to Strike filed by Defendants Selco Community Credit Union (“Selco”), ECF

No. 14, and Hershner Hunter, LLP (“Hershner”), ECF No. 16. The Court concludes

that this motion is appropriate for resolution without oral argument. For the reasons

set forth below, the Motions are GRANTED.

LEGAL STANDARD

To survive a motion to dismiss under the federal pleading standards, a

pleading must contain a short and plain statement of the claim and allege “sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007)). While a pleading does not require “detailed factual allegations,”

it needs more than “a formulaic recitation of the elements of a cause of action.” Iqbal,

556 U.S. at 677-78. “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged. The plausibility standard . . . asks for more than a

sheer possibility that a defendant has acted unlawfully.” Id. at 678. Legal

conclusions without any supporting factual allegations do not need to be accepted as

true. Id.

BACKGROUND

The following recitation of facts is derived from the First Amended Complaint

(“FAC”), ECF No. 9, and the judicially noticeable exhibits attached to the Ripp

Declaration, ECF No. 15, and the Xu Declaration, ECF No. 17.1

Plaintiffs Laru Pereschica and Rafael Sandoval are in a long-term relationship

with one another and share ownership of a home (the “Property”) in Jackson County,

Oregon. FAC ¶¶ 9, 37.

Defendant Selco is a credit union. FAC ¶ 11. Mr. Sandoval owed consumer

debt to Selco. Id. Defendant Hershner is a law firm that was retained by Selco to

pursue the collection of Mr. Sandoval’s debt. Id. ¶¶ 13-16, 33.

On November 16, 2022, Selco commenced a collection action against Mr.

1 The documents in question are dockets, filings, and transcripts from the underlying state court

action, Selco Community Credit Union v. Sandoval, Case No. 22CV39304. A court may take judicial

notice of matters of public record, although not disputed facts within those records, without

converting a motion to dismiss into a motion for summary judgment. Khoja v. Orexigen

Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018). Plaintiffs do not object to the Court taking

judicial notice of the exhibits to the Ripp and Xu Declarations and cite to those exhibits in their

Response brief.

Sandoval, Selco Community Credit Union v. Sandoval, Case No. 22CV39304, in

Jackson County Circuit Court. Xu. Decl. Ex. 1, at 1. The collection action concerned

an auto loan which, after repossession of the vehicle, resulted in a deficiency of

$3,591.08, plus late fees and interest. Xu Decl. Ex. 2.

A default judgment was entered in favor of Selco on January 23, 2023, for

$5,331.37, including both the deficiency and the associated fees, costs, and pre-

judgment interest, with post-judgment interest accruing. FAC ¶ 32; Xu Decl. Ex. 3,

at 2-3.

Selco made unsuccessful efforts to collect the judgment debt via garnishment.

Xu Decl. Exs. 4, 5.

On August 30, 2024, Selco retained Nancy Cary, a Hernsher attorney, to

represent them in Case No. 22CV39304. FAC ¶ 33; Xu Decl. Ex. 6.

On August 30, 2024, Selco, through Ms. Cary, filed a Motion and Affidavit for

Order Authorizing Sale of Residential Real Property Pursuant to ORS 18.906. FAC

¶ 34; Xu Decl. Ex. 7.2 The motion sought to authorize the sale of Mr. Sandoval’s

interest in the Property and notes that the Property “is the homestead of Defendant,”

and that “Defendant has 100% interest in the property with his wife/partner, so the

homestead exemption is $50,000.00,”3 and that “the judgment was more than

$3,000.00 at the time of its entry.” Xu Decl. Ex. 7, at 3. At the time, the Property

2 The motion identifies the interest in the property to be sold as that of “Jose Rogelio Hernandez,”

but this appears to have been a scrivener’s error. The caption and the supporting documentation,

including the notices sent to Plaintiffs, correctly identify the debtor and defendant as Mr. Sandoval.

Xu Decl. Exs. 7, 8, 9.

3 The homestead exemption was increased to $150,000 on January 1, 2025. FAC ¶ 54.

was subject to a Deed of Trust to secure a mortgage of $167,767.00 and two senior

judgment liens against Mr. Sandoval for $3,694.41 and $1,888.50. Xu Decl. Ex. 7, at

14-15.

On September 20, 2024, Ms. Cary sent a Notice of Hearing to Ms. Pereschica

and to Mr. Sandoval, notifying them that a hearing was scheduled for October 14,

2024, on Selco’s request to sell the Property to satisfy the judgment against Mr.

Sandoval. FAC ¶ 37; Xu Decl. Exs. 8, 9. The Notices were sent by mail. Xu Decl. Ex.

10. After receiving the Notices, Plaintiffs sought legal counsel. Am. Compl. ¶ 50.

On October 11, 2024, Ms. Pereschica, through attorney Matthew Sutton, filed

Objections to the sale of the Property with the circuit court. Xu Decl. Ex. 11. The

Objections asserted that Selco had failed to serve the judgment debtor, Mr. Sandoval,

with the sale documents; that the Property was owned by Plaintiffs jointly with

survivorship interest in an Erickson deed arrangement;4 that the Property was

subject to a Deed of Trust; and that the Property was subject to two prior judgment

liens. Id.

On October 14, 2024, a hearing was held in Case No. 22CV39304, at which Ms.

Cary appeared for Selco and Mr. Sutton appeared for Plaintiffs. Xu Decl. Ex. 12. At

the time of the hearing, Ms. Cary represented to the circuit court that she had not

received the Objections5 but that her intention in appearing at the hearing was to

4 Erickson v. Erickson, 167 Or. 1 (1941).

5 Mr. Sutton sent the Objections to Ms. Cary via regular mail on Friday, October 11, 2024, and so Ms.

Cary had not received them prior to the hearing on Monday, October 14, 2024. Xu Decl. Exs. 11, at

16; 12, at 10-11.

request a continuance because Selco had been unable to properly serve Plaintiffs.6

Xu Decl. Ex. 12, at 4-6. Mr. Sutton stated that he was not authorized to accept service

on behalf of Plaintiffs and requested that the motion be denied. Id. at 6. The circuit

court declined to deny the motion and instead continued the matter. Id. at 6-7.

On December 10, 2024, Ms. Cary filed a Motion to Continue, seeking to

continue the case through February 28, 2025. Xu Decl. Ex. 13. In that motion, Ms.

Cary stated that Selco’s process servers had made eight attempts to serve Mr.

Sandoval with their motion to execute and, “although the process server can hear

persons inside the residence they refuse to answer the door.” Id. at 3. The motion to

continue was granted by the circuit court on December 12, 2024. Ripp Decl. Ex. 11.

On December 23, 2024, Selco sent Plaintiffs a Notice of Continued Hearing on

Sheriff’s Sale of Your Property, informing them that the hearing would be held on

February 10, 2025.7 Ripp. Decl. Exs. 12, 13. The Notice of Continued Hearing was

mailed to Plaintiffs. Ripp Decl. Ex. 14.

A hearing was held on February 10, 2025, in Case No. 22CV3930, at which Ms.

Cary told the circuit court that “[a]ccording to the server and the sheriff, [Plaintiffs

are] avoiding service,” and that she intended to file a motion for alternative service.

Xu Decl. Ex. 14, at 2. Ms. Cary requested that the case be continued and the circuit

court set the matter for March 31, 2025. Id. at 2-3.

6 Plaintiffs allege that Ms. Cary’s purpose in appearing for the hearing was “to seek relief even

though Mr. Sandoval had not been served as required by law.” FAC ¶ 51. This allegation is

contradicted by transcript, although this issue is not relevant to the resolution of the motion.

7 Like the original Notice, the December 23 Notice stated that the homestead exemption was $50,000

for jointly owned property. Ripp. Decl. Ex. 13, at 2. As previously noted, this was the homestead

exemption at the time of the Notice and the homestead exemption increased to $150,000 on January

1, 2025. FAC ¶ 54.

On February 12, 2025, Selco filed a motion for order authorizing service by

mailing and posting due to the inability of the private servers or the sheriff to serve

Plaintiffs. Xu Decl. Ex. 15. The motion was granted by the circuit court on February

21, 2024. Xu Decl. Ex. 16. Plaintiffs were served by posting on February 27, 2024.

Xu Decl. Ex. 17, at 2-5.

This federal case was filed on March 26, 2025, only days before the scheduled

date of the circuit court hearing in Case No. 22CV39304. ECF No. 1.

On March 28, 2025, Selco filed a motion in Case No. 22CV39304 withdrawing

its August 30, 2024, Motion for Order Authorizing Sale of Residential Sale and

requesting that the circuit court cancel the hearing set for March 31, 2025. Xu Decl.

Ex. 18. The circuit court granted the motion on April 3, 2025. Ripp. Decl. Ex. 20.

DISCUSSION

Plaintiff bring claims for (1) violation of the federal Fair Debt Collection

Practices Act (“FDCPA”) against Hershner; (2) violation of the Oregon Unfair Trade

Practices Act (“UTPA”) against Hershner; and (3) violation of the Oregon Unlawful

Debt Collection Practices Act (“OUDCPA”) against Hershner and Selco. Selco moves

to dismiss Plaintiffs’ OUDCPA claim under Federal Rule of Civil Procedure 12(b)(6)

and moves to strike the OUDCPA claim pursuant to Oregon’s anti-SLAPP8 statute,

ORS 31.150. Hershner moves to strike the UTPA and OUDCPA claims pursuant to

ORS 31.150 and moves in the alternative to dismiss the state law claims pursuant to

Rule 12(b)(6).

8 “Strategic Lawsuit Against Public Participation”

I. Anti-SLAPP Generally

Oregon’s anti-SLAPP statute, ORS 31.150, provides “an expedited procedure

for dismissal of certain nonmeritorious civil cases without prejudice at the pleading

state.” Neumann v. Liles, 358 Or. 706, 723 (2016). Under the statute, a defendant

may bring a special motion to strike a claim that arises out of, in relevant part, “[a]ny

oral statement made, or written statement or other document submitted, in

connection with an issue under consideration or review by a legislative, executive or

judicial body or other proceeding authorized by law.” ORS 31.150(1), (2)(a).

A court considers a special anti-SLAPP motion to strike using a two-step

burden-shifting process. Gardner v. Martino, 563 F.3d 981, 986 (9th Cir. 2009). First,

the defendant has the initial burden to show that the challenged statement is within

one of the categories of civil actions described in the anti-SLAPP statute. Id. If the

defendant satisfies its burden, the burden then shifts to the plaintiff “to establish

that there is a probability that the plaintiff will prevail on the claim by presenting

substantial evidence to support a prima facie case.” Id. (quoting ORS 31.150(3)).

The analysis at the second step differs in federal court. See Planned

Parenthood Fed’n of Am., Inc. v. Ctr. for Med. Progress, 890 F.3d 828, 833-35 (9th Cir.

2018). In federal court, when an anti-SLAPP motion to strike challenges the factual

sufficiency of a claim, the Rule 56 standard will apply and “discovery must be allowed

. . . before any decision is made by the court.” Id. However, if the motion challenges

the legal sufficiency of the claim, the motion is treated in the same manner as a

motion under Rule 12(b)(6), except that the attorney fee provisions of the anti-SLAPP

statute will apply. Id. at 834. If a defendant challenges only the legal sufficiency of

pleadings, “then the plaintiff can properly respond merely by showing the sufficiency

of pleadings, and there’s no requirement for a plaintiff to submit evidence to oppose

contrary evidence that was never presented by defendants.” Id.

“A plaintiff opposing an anti-SLAPP motion in federal court must overcome

substantive defenses that would prevent the plaintiff from properly stating a claim

under Rule 12(b)(6). Cagle v. Sattler, 761 F. Supp.3d 1357, 1364 (D. Or. 2025).

II. Defendants’ Motions are Not Barred by ORS 31.150(3)

As a preliminary matter, Plaintiffs argue that Defendants’ anti-SLAPP

motions are barred by ORS 31.150(3), which provides

A special motion to strike may not be made against a claim under this

section against a person primarily engaged in the business of selling or

leasing goods or services if the claim arises out of a communication

related to person’s sale or lease of goods or services.

ORS 31.150(3).

The parties agree that there is little guidance from the Oregon courts on the

proper interpretation of ORS 31.150(3). Plaintiffs argue that the provision should be

interpreted broadly and that commercial speech need only be indirectly related to a

defendant’s business for it to apply.

This position is contrary to the legislature’s direction that ORS 31.150 is “to be

liberally construed in favor of the exercise of the rights described in ORS 31.150(2).”

ORS 31.152(6) (emphasis added); see also Cider Riot, LLC v. Patriot Prayer USA,

LLC, 330 Or. App. 354, 359 (2024) (“In evaluating special motions to strike under

ORS 31.150, we liberally construe the statute in favor of the exercise of the rights of

expression it protects.” (internal quotation marks and citations omitted)).

A liberal construction of ORS 31.150 to protect the exercise of the rights

described in ORS 31.150(2) would counsel strongly against an expansive view of the

commercial speech exception in ORS 31.150(3). Courts interpreting California’s anti-

SLAPP statute reached a similar conclusion on that statute’s commercial speech

exception. Simpson v. Strong-Tie Co., Inc. v. Gore, 49 Cal.4th 12, 22 (2010) (“The

commercial speech exemption, like the public interest exemption is a statutory

exception to section 425.16 and should be narrowly construed.”). The Court concludes

that a liberal construction of ORS 31.150 in favor of the rights described in ORS

31.150(2) requires a narrow construction of the commercial speech exception for ORS

31.150(3).

So construed, the conduct in question does not qualify as commercial speech.

Both the OUDCPA and UTPA claims turn on the filing of motions and the mailing of

notices connected to those motions concerning the collection of a debt that had already

been reduced to judgment and did not arise out of a communication related to

Defendants’ sale or lease of goods or services. Defendants’ motions are not barred by

ORS 31.150(3).

III. The Challenged Statements Are Covered by the Anti-SLAPP

Statute

As noted, the anti-SLAPP analysis begins with a determination of whether the

challenged statement or conduct is within one of the categories covered by the anti-

SLAPP statue. Gardner, 563 F.3d at 986. In relevant part, Oregon’s anti-SLAPP

statute provides that a special motion to strike may be made against any claim in a

civil action that arises out of:

(A) Any oral statement made or written statement or other document

submitted in a legislative, executive or judicial proceeding or other

proceeding authorized by law;

(B) Any oral statement made, or written statement or other document

submitted, in connection with an issue under consideration or review

by a legislative, executive, or judicial body or other proceeding

authorized by law;

(C) Any oral statement made, or written statement or other document

presented, in a place open to the public or a public forum in

connection with an issue of public interest; or

(D) Any other conduct in furtherance of the exercise of the constitutional

right of assembly, petition or association or the constitutional right

of free speech or freedom of the press in connection with a public

issue or an issue of public interest[.]

ORS 31.150(2)(a).

To determine whether a claim arises out of conduct that comes within the scope

of protected activity, a court “examine[s] the conduct that is targeted by the claims in

the complaint.” Dep’t of Hum. Servs. v. Lindsey, 324 Or. App. 312, 318 (2023)

(internal quotation marks and citation omitted). “To ‘arise out of” the conduct

described in [ORS 31.150(2)], the act underlying the claim itself must habe been an

act in furtherance of the right to petition and not just associated with it.” Id. (internal

quotation marks and citation omitted).

Here, Plaintiffs’ OUDCPA claim alleges that Defendants “proceeded towards

selling an interest in Plaintiff’s family home without an intention of paying Mr.

Sandoval’s full homestead exemption”; threatened to sell the Mr. Sandoval’s interest

in the home; and “willfully communicated that attorney fees would be added to the

alleged debts.” FAC ¶¶ 91-95. More specifically, Plaintiffs’ claim is premised on the

filing, mailing, and eventual service of the sale motion, along with the related notices

in Case No. 22CV39304. FAC ¶¶ 34, 36, 38-41, 43-44, 46.

Plaintiffs’ UTPA claim is even more direct and is based on Hershner’s “willful

motion to sell Plaintiff’s Residence.” FAC ¶ 81.

The Oregon Court of Appeals has held that ORS 31.150(2) “plainly covers

statements made or documents submitted in connection with a case after it comes

under consideration by a court, such as, for example, pleadings filed with a court or

statements made by an attorney or a witness at a hearing.” Deep Photonics Corp. v.

LaChapelle, 282 Or. App. 533, 543-44 (2016) (internal quotation marks omitted); see

also Cagle, 761 F. Supp.3d 1357, 1363-64 (D. Or. 2025) (finding that the filing of lis

pendens was a written statement or writing made in connection with an issue under

consideration by judicial body).

The statements that give rise to the OUDCPA and UTPA claim were writings,

filings, and notices made in connection with and “arise out of” a judicial case, Case

No. 22CV39304, that was actively under consideration by the Jackson County Circuit

Court. These writings clearly fall within the bounds of ORS 31.150(2)(a). Defendants

have therefore met their burden on the first step of the anti-SLAPP analysis for both

the OUDCPA claim and the UTPA claim.

IV. Legal Sufficiency of the Claims

Having determined that the case falls within the bounds of the anti-SLAPP

statute, the Court must now address the second stage of the analysis. Because this

claim is brought in federal court and Defendants challenge only the legal sufficiency

of Plaintiffs’ state law claims, the Rule 12(b)(6) standard will apply. Planned

Parenthood, 890 F.3d at 834.

A. OUDCPA

The Amended Complaint alleges that Defendants violated three specific

provisions of the OUDPCA—ORS 646.639(2)(k), (m), and (n). FAC ¶¶ 93-95. In

relevant part, the OUDCPA provides that a debt collector engages in an unlawful

collection practice if, while attempting to collect the debt, the debt collector:

(k) Attempts or threatens to enforce a right or remedy while knowing or

having reason to know that the right or remedy does not exist, or

threatens to take any action that the debt collector in the regular course

of business does not take.

* * *

(m) Represents that an existing debt may be increased by the addition

of attorney fees, investigation fees or any other fees or charges if the fees

or charges may not legally be added to the existing debt.

(n) Collects or attempts to collect, by any means, including through legal

action, interest or other charges or fees that exceed the actual debt

unless the agreement contract or instrument that creates the debt

expressly authorizes, or a law expressly allows, the interest or other

charges or fees. A debt collector may not be held liable under this

paragraph if the debt collector shows by a preponderance of evidence

that the violation was not intentional and resulted from a bona fide error

notwithstanding the maintenance of procedures reasonably adapted to

avoid any such error. The fact that the debt collector obtains a judgment

for less than the amount sought in the complaint, or fails to obtain a

judgment at all, does not by itself constitute evidence of a violation of

this paragraph.

ORS 646.639(2)(k), (m), (n).

1. ORS 646.639(2)(k)

Plaintiffs allege that Defendants violated the ORS 646.639(2)(k) by (1)

“willfully scaring Plaintiffs into believing they would sell their family home” when it

is not Defendants’ practice to sell judgment debtors’ homes; (2) “willfully threatening

to sell the interest of a third party Jose Rogelio Hernandez in [Plaintiffs’] home

knowing no such remedy existed”; and (3) “willfully scaring Ms. Pereschica into

believing they could sell the family home although [Defendants] both knew or had

reason to know the remedy to sell the entire home did not exist.” FAC ¶¶ 92-94.

With respect to the alleged threat to sell Jose Rogelio Hernandez’s interest in

the Property, the judicially noticeable documents make it clear that the inclusion of

Hernandez in the opening section of the document is a scrivener’s error and every

other part of the document, including the caption make is clear that it was Mr.

Sandoval’s interest in the Property that was at issue. In addition, even if it were not

scrivener’s error, it is not clear how Plaintiffs would have standing to challenge a

threat to sell a third party’s non-existent interest in the Property.

In general, the claim otherwise challenges the filing of the motion to sell the

property to satisfy Mr. Sandoval’s judgment debt and the notices sent to Plaintiffs to

inform them of the motion.

The Oregon Supreme Court has held that, although sections of the OUDCPA

forbid pressuring a debtor with the threat of legal action, “no paragraph [of the

OUDCPA] suggests that actually filing a legal action is prohibited” because “filing a

legal action resolves issues surrounding the debt in a proper manner, not

duplicitously or coercively.” Porter v. Hill, 314 Or. 86, 94 (1992) (emphasis in

original); see also Manifold Bus. and Investment, Inc. v. Wroten, 116 Or. App. 573,

577 (1992) (“ORS 646.639(2)(k) is not violated by bringing a claim or action to collect

a debt that the claimant knows or has reason to know does not exist.”). The Oregon

Court of Appeals clarified that the reasoning of Porter applies “equally to all debtor-

creditor arrangements regardless of their source, or to all civil actions, regardless of

their form,” and further that “generically, the invocation of the judicial process is not

a pursuit of a ‘remedy’ proscribed by ORS 646.639(2)(k).” Manifold, 116 Or. App. at

577, n.2.

ORS 646.639(2)(k) applies to “only particular abusive methods of debt

collection” that are extrajudicial, such as when a utility company attempted to collect

a debt by terminating services or when a bank froze the debtor’s checking account in

order to enforce collection of the debtor’s debt to a different bank. Pro Car Care, Inc.

v. Johnson, 201 Or. App. 250, 257-58 (2005) (citing Isom v. P.G.E., 67 Or. App. 97

(1983) and Rowe v. Bank of the Cascades, 68 Or. App. 490 (1983)).

Here, Defendants had the right to file a motion for authorization of the sale of

residential property to satisfy a judgment debt under ORS 18.906 and that right is

expressly invoked in the caption of the motion itself. Ripp Decl. Ex. 3. The motion

also states that it seeks “an order authorizing the sale of Defendant’s [i.e., Mr.

Sandoval’s] interests in real property located at 7864 Laura Lane, White City, OR

97503.” Id. at 3. Defendants were also required by ORS 18.908 to mail a notice of

the motion to the property in a particular statutory form. ORS 18.908.

Plaintiffs’ allegation that Defendants intended to sell the home without paying

Mr. Sandoval’s full homestead exemption, FAC ¶ 91, is similarly belied by the

contents of the motion, which expressly references the homestead exemption. Ripp.

Decl. Ex. 3, at 3. Plaintiffs also assign considerable weight to the fact that the motion

and notices only identified a homestead exemption of $50,000, but the parties do not

dispute that that was the allowed homestead exemption at the time the motion was

filed in August 2024.

The Court concludes that the filing of the motion and notices were and

“invocation of the judicial process,” and so the reasoning of Porter, Manifold, and Pro

Car Care will serve to bar Plaintiffs’ claim under ORS 646.639(2)(k). Defendants’

motion to dismiss under Rule 12(b)(6) and special motion to strike under Oregon’s

anti-SLAPP statute are GRANTED and this claim is dismissed.

2. ORS 646.639(2)(m) and (n)

Plaintiffs allege that Defendants violated ORS 646.639(2)(m) and (n) by

communicating that attorney fees would be sought when there was no right to sell

either the Property or Mr. Sandoval’s interest in the Property and because there was

no right to attorney fees against Ms. Pereschica. FAC ¶ 95.

The motion to sell the Property does not, by its plain terms, seek attorney fees

from Ms. Pereschica. Rather, it asserts that Selco “should be awarded its reasonable

attorney fees and costs for pursuing this motion on the same grounds that reasonable

attorney fees and costs were allowed in the underlying judgment.” Ripp Decl. Ex. 3,

at 3 (emphasis added). The underlying judgment was against Mr. Sandoval and

included an award of attorney fees pursuant to ORS 20.082, which governs the award

of attorney fees to the prevailing party in a claim on a contract. Id. at 8. The

judgment was against Mr. Sandoval alone. There is nothing indicating that attorney

fees were ever sought against Ms. Pereschica.

Plaintiffs argue that it would be “numerically impossible” for the sale “to

generate any value for the creditor beyond the exemption.” Pl. Resp. 20. Defendants

dispute this assertion, but it is, in any event, irrelevant. The sale of the property is

a remedy expressly authorized by law. ORS 18.912(2). Relatedly, the Amended

Complaint also alleges that “it would be a bad financial decision on [Defendants’]

part” to seek to sell the Property and that “[s]uch a bad financial decision by SELCO

would be in violation of its fiduciary duties to provide for the financial well-being and

act in the best interests of the members of its credit union.” FAC ¶ 63. What return

Defendants might realize on the sale is, at this point, unknowable and irrelevant.

Furthermore, it is not at all clear that Plaintiffs would have standing to assert such

a breach of fiduciary duties.

Finally, Plaintiffs once again raise the issue of the homestead exemption

amount. As the Court previously noted, the $50,000 figure was the correct amount

for the homestead exemption in August 2024, when the motion was filed and the

notices were mailed.

The Court concludes that Plaintiffs have failed to state a claim under either

ORS 646.639(2)(m) or (n). Defendants’ motions to dismiss and special motions to

strike are GRANTED as to this claim.

B. UTPA and Litigation Privilege

As, previously noted, a plaintiff opposing an anti-SLAPP motion must

overcome substantive defenses that would prevent the plaintiff from stating a claim

under Rule 12(b)(6) and one such substantive defense is litigation privilege. Cagle,

761 F. Supp.3d at 1364.

“Oregon courts have long recognized, and enforced, an absolute privilege for

statements [made] in the course of or incident to judicial and quasi-judicial

proceedings.” Mantia v. Hanson, 190 Or. App. 412, 417 (2003). That is, parties and

their attorneys have absolute privilege for all “conduct undertaken in connection with

litigation.” Id. at 423. Litigation privilege initially arose as a bar to defamation

claims and has since been extended to bar “any tort action.” Id. at 423, 426 (internal

quotation marks and citation omitted).

“The privilege is based upon a public policy of securing to attorneys as officers

of the court the utmost freedom in their efforts to secure justice to their clients,” and

it attaches to “statements made in the proceeding itself,” including “statements in

pleadings,” Troutman v. Erlandson, 286 Or. 3, 7-8 (1979) (en banc), as well as to

“statements made in advance of litigation.” Wollam v. Brandt, 154 Or. App. 156, 163-

64 (1998) (internal quotation marks and citation omitted).

Courts in this District have found that litigation privilege applies to statutory

tort claims brought under the UTPA.9 Nyberg v. Portfolio Recovery Assocs., LLC,

Case No. 3:16-cv-00733-JR, 2024 WL 4355482, at *5-6 (April 11, 2024), findings and

recommendation adopted 2024 WL 4345734, at *3 (Sept. 27, 2024); Graham v. U.S.

Bank Nat’l Ass’n, No. 3:15-cv-0990-AC, 2015 WL 10322087, at *16 (D. Or. Dec. 2,

2015), report and recommendations adopted 2016 WL 393336 (D. Or. Feb. 1, 2016).

Here, Plaintiffs allege that Hershner violated the UTPA through its “willful

motion to sell Plaintiff’s Residence here it could not in fact be sold.” FAC ¶ 81. A

motion is plainly conduct undertaken in connection with the litigation. As such, the

claim is barred by absolute litigation privilege and Hershner’s motion to strike the

UTPA claim is GRANTED and the Court need not address Hershner’s challenge to

the legal sufficiency of the UTPA claim.

V. Attorney Fees

Defendants also seek an award of attorney fees pursuant to ORS 31.152(3),

which provides that a defendant who prevails on an anti-SLAPP special motion to

strike under ORS 31.150 “shall be awarded reasonable attorney fees and costs.” ORS

31.152(3). Here, for the reasons set forth above, Defendants have prevailed on their

special motion to strike and so are entitled to their reasonable fees and costs. See

Northon v. Rule, 637 F.3d 937, 937 (9th Cir. 2011) (holding that a prevailing party’s

9 Plaintiffs raise the Oregon Supreme Court’s decision in Gordon v. Rosenblum, 361 Or. 352 (2017) in

their challenge to Hershner’s invocation of litigation privilege. Gordon was a declaratory judgment

action challenging whether the Oregon Attorney General could pursue an enforcement action against

the plaintiff law firm for violation of the UTPA. Litigation privilege is not discussed in the case.

right to fees under Oregon’s anti-SLAPP statute was a substantive right that applied

in federal court).

Because Defendants are entitled to their fees and costs under the terms of ORS

31.152(3), the Court does not reach whether Defendants might have been entitled to

fees under ORS 646.638(3) or ORS 646.641(2).

CONCLUSION

For the reasons set forth above, Defendants’ partial Motions to Dismiss and

Special Motions to Strike, ECF Nos. 14, 16, are GRANTED and Plaintiffs’ UTPA and

OUDCPA claims are DISMISSED. Defendants are entitled to their reasonable

attorney fees and costs.

It is so ORDERED and DATED this 30th day of March 2026.

/s/Ann Aiken

ANN AIKEN

United States District Judge