Weidman v. Carrington Mortg. Servs., CASE NO. 3:19-cv-05265-RJB
| Decision Date | 04 June 2019 |
| Docket Number | CASE NO. 3:19-cv-05265-RJB |
| Court | U.S. District Court — Western District of Washington |
| Parties | BEAU A. WEIDMAN, Plaintiff, v. CARRINGTON MORTGAGE SERVICES; BANK OF NEW YORK MELLON fka THE BANK OF NEW YORK AS TRUSTEE FOR REGISTERED HOLDERS OF CWABS, INC. ASSET BACKED CERTIFICATES SERIES 2006-23; AZTEC FORECLOSURE CORPORATION OF WASHINGTON, a Washington Corporation; and DOES 1 through 10 inclusive, Defendants. |
This matter comes before the Court on Defendants Carrington Mortgage Services ("Carrington") and The Bank of New York Mellon FKA The Bank of New York as Trustee for Registered Holders of CWABS, Inc. Asset Backed Certificates Series 2006-23's ("Bank of New York") Motion to Dismiss. Dkt. 8. The Court has considered the pleadings filed regarding the motion and the remainder of the record herein.
On April 9, 2019, Plaintiff, filed this case pro se, asserting violations of federal law (including the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. ("FDCPA") and the Real Estate Settlement Procedures Act, 12 U.S.C. § 2601, et. seq. ("RESPA")) and state law in connection with a mortgage on real property commonly known as 3950 Birch Street, Washougal, Washington. Dkt. 1. Defendants Carrington and Bank of New York now move for dismissal of the claims asserted against them pursuant to Fed. R. Civ. P. 12 (b)(6). Dkt. 8. For the reasons provided below, the motion (Dkt. 8) should be granted and the claims asserted against Defendants Carrington and Bank of New York should be dismissed. The Plaintiff's motion for leave to file an amended complaint (Dkt. 9) should be granted.
In reviewing a motion to dismiss for failure to state a claim as is the case here, the court is generally limited to review of "the face of the complaint, materials incorporated into the complaint by reference," and matters of which judicial notice may be taken. In re Rigel Pharmaceuticals, Inc. Securities Litigation, 697 F.3d 869, 876 (9th Cir. 2012). In considering this motion, the moving Defendants ask the Court to take judicial notice of publicly recorded documents, documents from the Plaintiff's bankruptcy case, and documents referenced in the Plaintiff's Complaint. "A court may take judicial notice of matters of public record without converting a motion to dismiss into a motion for summary judgment, as long as the facts noticed are not subject to reasonable dispute." Id. (internal quotations omitted). The Court should grant the Defendants' request and take judicial notice of the documents found at Dkt. 8-1. The following facts that are taken from the public record and from documents referenced in Plaintiff's Complaint are filed in this case at "Dkt. 8-1" and are so referred to in this order. Factsfrom the Plaintiff's Complaint are cited as "Dkt. 1."
Plaintiff's Complaint is difficult to follow. As it relates to the current motion, Plaintiff alleges in the Complaint that on July 26, 2006, he obtained a loan on the subject property from Golf Savings Bank, A Washington Stock Bank ("Golf") by executing a Note secured by a Deed of Trust. Dkt. 1, at 6-7. The Note provides that if the Plaintiff did "not pay the full amount of each monthly payment on the date it [was] due, [he] would be in default." Dkt. 8-1, at 7. In the Deed of Trust, which was recorded with the Clark County Auditor on August 4, 2006, the Plaintiff agreed that the "Note or a partial interest in the Note (together with [the Deed of Trust]) [could] be sold one or more times without prior notice to [the Plaintiff]." Dkt. 8-1, at 13-31.
On November 11, 2011, an Assignment of Deed of Trust, assigning all interest in the Note and Deed of Trust to The Bank of New York, was recorded with the Clark County Auditor. Dkt. 8-1, at 34-35. On November 13, 2011, an Appointment of Successor Trustee, in which the Bank of New York (through its attorney in fact) appointed Northwest Trustee Services, Inc. ("Northwest Trustee") as successor trustee under the deed of trust, was recorded with the Clark County Auditor. Dkt. 8-1, at 37.
On January 12, 2016, Northwest Trustee recorded, with the Clark County Auditor, a Notice of Trustee's Sale regarding the subject property. Dkt. 8-1, at 39-43. The sale was scheduled for May 13, 2016. Id.
The day before the sale, on May 12, 2016, the Plaintiff filed for relief under Chapter 13 of the U.S. Bankruptcy Code. In re Weidman, U.S. Bankruptcy Court for the Western District of Washington case number 16-42048-PBS, Dkt. 1; filed in this case at Dkt. 8-1, at 45. On June 1, 2016 the Plaintiff filed his proposed plan with the bankruptcy court, noting that he had "listed his residence for sale" and that the sale was "expected to be a short sale, and if [he could not] obtaina short sale by August 15, 2016, [he would] amend his plan to surrender the property." Id., Dkt. 16; filed in this case at Dkt. 8-1, at 65. The bankruptcy was dismissed on September 2, 2016. Id., Dkt. 32; filed in this case at Dkt. 8-1, at 45-51.
On August 29, 2018, an Appointment of Successor Trustee was recorded with the Clark County Auditor's office, in which the Bank of New York appointed Aztec Foreclosure Corporation of Washington ("Aztec") successor trustee on the Deed of Trust. Dkt. 8-1, at 71-74. The Appointment was executed by the Bank of New York via its attorney in fact, Carrington. Id. Aztec recorded a Notice of Trustee's Sale with the Clark County Auditor on October 31, 2018, giving notice of the trustee's sale on March 8, 2019. Dkt. 8-1, at 76-81. Carrington is noted to be the loan's servicer on the Notice of Trustee's Sale. Dkt. 8-1, at 76. Aztec executed a Trustee's Deed granting the property to the Bank of New York in exchange for payment of $692,750.00 for the property. Dkt. 8-1, at 83-86. The Trustee's Deed was recorded with the Clark County Auditor on March 20, 2019. Id.
On April 9, 2019, the Plaintiff filed this case. Dkt. 1. In his Complaint, the Plaintiff maintains that "Defendant Aztec allegedly sold the Subject Property to Defendant Carrington at the Trustee Sale;" the Plaintiff maintains that this "is not true." Dkt. 1, at 7. He asserts that the property went back to the Bank of New York, and so the sale must be voided. Id.
In his first claim, "Lack of Standing/Wrongful Foreclosure," the Plaintiff alleges that the Defendants did not have the "right to foreclose on the property . . . because [they] have failed to perfect any security interest in the Property or cannot prove . . . they have a valid interest as a real party in interest to foreclose." Dkt. 1, at 8. He contends that they were not holders of the note, did not comply with "securitization requirements," and fraudulently prepared documents to foreclose. Id.
As to his FDCPA claim, the Plaintiff asserts that Defendants "knew they did not have a right to collect payments, to threaten to foreclose, and ultimately foreclose" on Plaintiff's home. Id., at 10. He maintains that they did not have standing or proof that they had the right to foreclose. Id.
Plaintiff also asserts a claim against the Bank of New York under RESPA. Dkt. 1, at 14. The Plaintiff alleges that the Bank of New York violated RESPA by failing to provide timely notice of the transfer of servicing rights. Id. He maintains that "Defendant's pattern and practices as it pertains to Plaintiff and his loan was reprehensible." Id. He further alleges that "[o]nce again, Plaintiff was harmed by Defendant [Bank of New York's] total disregard for Plaintiff's rights under RESPA." Id.
The Plaintiff seeks damages, attorneys' fees and costs. Dkt. 1, at 15. He further seeks an order declaring that the foreclosure sale is void and that title to the property be restored in his name. Id.
While not relevant to this motion, the Plaintiff also asserts a claim against Aztec for violation of "Washington State Foreclosure Act." Dkt. 1, at 11-14. Aztec has not appeared in the case and there is no evidence that it has been served with a copy of the Complaint.
In the pending motion, the Bank of New York and Carrington jointly move for dismissal of the claims against them with prejudice. Dkt. 8. They maintain that the "Lack of Standing/Wrongful Foreclosure" claim should be dismissed because the Plaintiff failed to describe the securitization of his loan (much less any irregularities in the process particularly considering the available public records), the Plaintiff cannot attack the Note's securitization, state law prohibits the declaring the sale void or putting title to the property in his name because the foreclosure sale is complete pursuant to RCW 61.24.127 (2) and so he has waived collateralattacks like this, his statements that documents are "forged" is conclusory, and because he was not a party to the assignment of Aztec as successor trustee, he has no grounds to challenge the appointment. Dkt. 8. They maintain that the FDCPA claim should be dismissed because they are not "debt collectors" under the FDCPA, and that the claim should be dismissed for failure to plead facts to support the claim. Id. They move to dismiss the RESPA claim asserted against the Bank of New York because RESPA requires the transferor servicers to notify the borrower of transfer of the servicer, and the Bank of New York is not the loan servicer. Id. They further maintain that the Plaintiff's failure to allege damage as a result of the RESPA violation also mandates dismissal. Id.
Under the rule of Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), "federal courts sitting in diversity jurisdiction apply state substantive law and federal procedural law." Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 427 (1996). In applying the relevant state law here - Washington law - the Court must apply the law as it believes the Washington Supreme Court would apply it. Gravquick A/S v. Trimble Navigation Intern. Ltd., 323 F.3d 1219, 1222 (9th Cir. 2003). "'[W]here there is no convincing evidence that...
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