Documente Academic
Documente Profesional
Documente Cultură
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COUNTY OF SNOHOMISH
JACOB D. BRADBURN, an individual,
Plaintift
V.
NO" r t-2-08345-2
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) ) ) 21 REAL ESTATE SERVICES, INC d/b/A ) HOMESTAR LENDING, a domestic ) 22:| corporation; NATIONAL CITY MORTGAGE ) CO. d/b/ a COMMONWEALTH UNITED ) MORTGAGE COMPANY, a foreign ) corporation; STEWART TITLE, a domestic ) 24:, corporation, ) ) zs Defendants. )
chartered corporation, LINDA GREEN DOES l-10, unknown persons; and QUICKDRAW
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FIDELITY TITLE, a corporarion; l.lAlIgNAL MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, NC., a foreign corporation; BAC HOME LOANS SERVICING, LP FKP COT'NTRYWIDE BANK HOME LOANS SERVTCING LP, A foreign-entity; BANK OF AMERICA, N.A., a national bank; BANK OF AMERICAq$f qRATION, a foreign corporation; COUNTRYWIDE FINACIAI CORPORATION, a foreign corporation; COUNTRYWIDE HOME LOANS,INC., A foreign corporation; FEDERAL NATIONAL MORTGAGE ASSOCIATION, a federally
)
) ) ) ) )
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,u
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LANEPOWELLTc
TH AVENUE, SUITE 4IOO SEATTLE, WASHINGTON 9810I.2338 206.223.7 000 F AX: 206.223.7 I 07
FI
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was sold at a trustee's sale in May 2011. Four months later, Borrower filed this lawsuit
against Defendants,l raising claims attacking the underlying loan transaction, the denial of his
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Borrower claims that he never received notice of the sale, but the Notice of Trustee's
Sale and pictures
proper notice of the Trustee's Sale and, as discussed below, had a duty to take action before the sale, either by curing his default or enjoining the sale. Borrower did neither. Therefore,
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Bonower has waived all claims not preserved under RCw 61.24.r27(l).
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ln addition, Borrower's claims are unsupported by any evidence. In fact, the evidence
conclusively establishes that BAC Home Loans Servicing, LP (now Bank of America, N.A.)
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("BANA") was at all relevant times the holder of the Note and that all actions taken by
Mortgage Electronic Registration Systems, Inc. ("MERS") were done at BANA,s direction in accordance with the servicing guidelines of Federal National Mortgage Association (..Fannie
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Mae"), the owner of the Note. Accordingly, ReconTrust company, N.A. (,.ReconTrust') was
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a valid trustee and was authorized to issue a Notice of Trustee's Sale, to conduct foreclosure, md to execute a Trustee's Deed in favor of Fannie Mae. Therefore,
foreclosure was proper and there is no genuine issue
the the
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Borrower's claims, such that Defendants are entitled to summary judgment as a matter of law.
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to B-A Home Loans Si;i"g; LP (also sued erroneously--as "Countrywide Bank Fomesoans Servicing, I,;;* as..Bari of Americ3. C-q'rporafig{'), Countrywide. _Hqme_ Loans, Inc. fafso sl-.rreousty ut "Countrywide Financial Corporation'-'), and Federal Natioial tvtort!ge Association
s.ugcgss DEFENDANTS' MOTION FOR SUMMARY JUDGMENT _ 2
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l l589.041 r/5839482. I
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II.
F.'ACTUALBACKGROUND
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Deed
of
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Trust lists Jacob D. Bradburn as the borrower, HomeStar Lending as the lender, Fidelity Title
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.Id
Lorber Decl., Bradburn Deposition ("Bradburn Dep.,'), at lg:5-6, lg:14-15, l9:g-10, 3g:l-2, 39:15-19, Exs. l, 2.2 He also admits that he was not deceived about the terms of the Loan or
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concedes that he
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Following the origination of the Loan, the Note was endorsed to Countrywide Bank,
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N.A, which then endorsed the Note to Counhywide Home Loans, Inc., which subsequently
endorsed the Note in
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A (Note), B (Allonge).
The Relationshio Between BANA and Fannie Mae Immediately following origination, Countrywide Home Loans Servicing, Lp began
servicing the Loan. the Loan'
Id.,n6.
of
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Id',n7.
LP (now BANA)3 continued to service the Loan on behalf of Fannie Mae, pursuant to Fannie
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The Deposiliol of Plaintiff Jacob D. Bradbum, conducted June 1 l, 20l3,is attached to the Declaration of Abraham K. Lorber as Exhibit H.' 3 on J.rly 1,2011, BAC Home Loans servicing, Lp merged with BANA . Irt.,1[23, Ex. H to BANA Decl. Fo the sake of clarity and consistency with Borrower's refrence to the servicer as "BANA," Defendants will hereafter refer to the servicer as "BANA," regardless of the time period.
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT3
I 16589.04 I l/5839482.
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was
designed to allow BANA to take all actions necessary for the collection and enforcement
of
the Loan, including receiving and processing loan payments, communicating regarding the
Loan, and should such action be necessary, initiating foreclosure consistent with the Note,
Deed of Trust, and Fannie Mae's servicing guidelines.
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Id.,n
ll.
in their own
names, the
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behalf of Fannie Mae, pursuant to Fannie Mae's servicing guidelines. January 3,2006, Fannie Mae has been the owner of the note. ("Fannie Mae is at all times the owner of the mortgage note.,').
Since
1d.,nn7,25;Ex. Id. E, at I
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The original, wet-ink Note is currently in the possession of Defendants' attorneys. Id.,
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Id.,I
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Ex. D
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to BANA Decl' (Loan Payment History). On or about June 8,2}}g,ReconTrust, as agent for
the beneficiary under the Deed of Trust, issued a Notice of Default to Borrower by first class
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mail.
Decl."), !f 4, Ex. A to ReconTrust Decl. (Notice of Default). The Notice of Default was sent
to Borrower by first class and certified or registered mail on June 8,2009, and personally
served on him or posted in a conspicuous place on the Property on June
g
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, Z00g
Id. ,
5, Ex.
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Acting at the direction of BANA, the holder of the Note, MERS appointed ReconTrust
as the successor trustee, pursuant
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2009
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BANA Decl.,
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Again acting at BANA's direction, MERS then assigned the interest under the Deed of Trust to BANA, as reflected in a Corporation Assignment of Deed of Trust recorded on March 30, 2014. Id.,fl22,Ex.G.
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On July 29, 2010, ReconTrust recorded a Notice of Trustee's Sale, indicating total
arrears
of 522,713.95 and scheduling a sale for October 29,20rc. ReconTrust Decl., tf 6, Ex.
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B to ReconTrust Decl. Prior to and at the time of recording the first Notice of Trustee's Sale, ReconTrust had proof that Fannie Mae was the owner of the
to
ReconTrust Decl. @eclaration of Beneficiary). The sale was postponed and ReconTrust
recorded a second Notice of Trustee's Sale on February 17,2011, scheduling a sale for May
20,2011. Id., fl 8, Ex. D to ReconTrust Decl. (Second Notice of Trustee's Sale). Prior to and at the time of recording the second Notice of Trustee's Sale, ReconTrust had proof that
Fannie Mae was the owner of the
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Note.
1d., fl 9,
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ll,
Ex. E to
of Mailing), Ex. F to
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Posting); Bradburn Dep., at 46:3-5 (admitting that photographs in Declaration of Posting are
of the Property), 47:22-48:2 (admitting that Borrower has no reason to dispute statement in
Declaration
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of Posting that the Notice of Trustee's Sale was posted on the Property
on
February 18, 2011). The Second Notice of Trustee's Sale advised: "Anyone having any
objection to the sale on any grounds whatsoever to those objections
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will
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."
Borrower did not bring a lawsuit to restrain the sale and the Property was sold on May
20,20L1 to Fannie Mae, as evidenced by the Trustee's Deed, recorded on June 9,2A11. Ex.
G. to Lorber Decl. (Trustee's Deed). BANA assigned the interest under the Deed of Trust to
Fannie Mae pursuant to a Corporation Assignment of Deed of Trust recorded on June
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT5
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9,2011,
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immediately prior to the recording of the Trustee's Deed. Ex. F to Lorber Decl. (Corporation
Assignment of Deed of Trust).
Nearly fourmonths after the sale of the Property, on September 19,2011, Borrower filed this action, asserting the following claims against Defendants: (l) engaging in an.,illicit
scheme" to profit from Borrower's inability to make his loan payments (Compl. 1lI3.l-3.3; (2) violation of the Deed of Trust Act (id. ..dual rracking,,, promising a loan nn 4J-4.35); (3)
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criminal profiteering activity" (td. I116.1-6.6); (5) violation of the consumer protection Act
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of
the Note and Deed of Tru st (id. Tll 9. 1-9. I 8); (8) equitable estoppel and unjust
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enichment
(id'ffi l0.l-10.s);
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tying his requests for relief to his claims, Borrower seeks injunctive relief; declaratory relief,
and damages. Id. fl'l[
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and
pp. 49_50.
UL
ISST'E
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Are Defendants entitled to summary judgment where Borrower received notice of the foreclosure sale but did not move to enjoin the sale or cure his default and where there is no
genuine issue of material fact regarding the essential elements of his claims?
IV.
This Motion for Summary Judgment relies upon the pleadings and papers on file with
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the Court in this matter, the Declaration of Abraham K. Lorber and exhibits thereto, the Declaration of Heather Dispenza and exhibits thereto, and the Declaration
of
ReconTrust
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n6589.Mn/s839482.t
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V. ARGUMENT
A.
reasonable inferences in
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the light most favorable to the nonmoving party, no genuine issues exist as to any material fact and the moving party is entitled to judgment as a matter of law" CR 56(c); Torgerson
v"
North Pc. Ins. co., L09'wn. App. 131, 136, 34 p.3d s30 (2001). The non-rnoving parry may
not rest upon mere allegations or denials, but must instead set forth specific facts showing the existence of a genuine issue for
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of
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to support an essential element of the plaintiffs claim, the burden shifts to the
plaintiff to provide evidence sufficient to establish the existence of the challenged element of that party's case. Young v. Key pharm., Inc., ll2 wn. zd,216, zz5 & n.l, 770 p.zd rg2
(1989) (quoting Celotex Corp. v. Catrett,477 U.5.317,325 (1986). Where the plainriff fails
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an
all
other
facts
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Young, 1 12
u.s. at
322-23).
B.
govemed
by
the
borrower has reason to challenge the foreclosure of his property, RCW 61.24.130 governs the
procedure that the borrower must follow to enjoin the sale. See Brown v. Household Realty
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corp.,146 wn. App. r57,163, 189 p.3dz33 (200g), review denied,l65 wn.2d
1023 (2009).
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"This statutory procedure is 'the only means by which a grantor may preclude a sale once
foreclosure has begun with receipt of the notice of sale and foreclosure."'
/d
(quoting Cox
v.
Helenius,l03 Wn'2d 383, 388, 693 P.2d 6S3 (1985)). If a bonower fails to enjoin the sale,
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
I 16589.041 l/5839482. I
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the borrower waives any claims related to the underlying obligation and the sale itself. plein
v' Lackey, I49 Wn.2d 214, 227-28, 67 P.3d 1061 (2003) (frnding waiver even though the plaintifffiled a lawsuit seeking to enjoin the sale prior to the sale because plaintiff
the
failed
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remedies where
the party
(l)
received notice of the right to enjoin the sale, (2) had actual or constructive
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knowledge of a defense to foreclosure prior to the sale, and (3) failed to bring an action to
obtain a court order enjoining the sale." Brown,146 Wn. App.
Chase
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based on alleged fraud, violations of the Consumer Protection Act, and failure by the trustee
to materially comply with the DTA in cases of owner-occupied property. However, by its
very language, claims other than for damages ae all waived.
^gee
may not be deemed a waiver of a claim for damage^' . . .,, (emph. added)),
Additionally, to preserve its claims against the lender, the borrower must comply with
all of the following requirements of the DTA:
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The court shall.require as a condition of granting the restraining order or injt'r-rction that the applicant pay to the cterk"of/hi"court the sumsThat iould be due an the obligiion secured by the deed'of trusi ir tn. r"J of *ri *ut not being foreclose:
(a)-In the case of default in making. the periodic payment of principal, intetest, and reserves, such sums shall be pid toihe clerk of th. courtvry-tfritiv "vr. (2) No grant a restraining order or injunction to restrain a trustee's -court may sale unless the perion seeking the rsffaint gives"Ji aoyt ,oili n *litttn of the time whn,. place. wherl, and the- judg'e u.for" *t"- th" ;ppriti" rthe restraining ordr or injunction is to b'e m'ade.
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Here, Borrower waived his right to post-sale remedies under Brown because he
received notice of the sale, failed to bring an action to enjoin the sale, and failed to make
payments to the Clerk of Courr as required by RCW 61.24.130(l).
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Borrower alleges that he did not receive notice of the sale. Compl. nn232, 4.35.
However, the evidence establishes that Defendants complied with all the notice requirements
under the
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DTA. First,
Borrower flrrst class and certified or registered mail, return receipt requested, on June B, 2009
and personally served on him or posted on the Property on June
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VI. ReconTrust
recorded a The
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Notice was mailed to Borrower by first class and certified mail on February 17,2071 and was
posted in a conspicuous place on the property on February lg,
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reason
to
dispute
in Declaration of Posting that the Notice of Trustee's Sale was posted on the
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Anyone having any objections to the sale on any grounds whatsoever will be afforded an opportunity to be heard as to those objections if they bring a lawsuit to restrain the sale pursuant to RCW 61.24.130. Failure to bring such a lawsuit may result in a waiver of any proper grounds for invalidating the Trustee's Sale.
Ex. D, $ IX.
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RCV/ 61.24.A requires, as condition to a trustee's sale, "[t]hat at least thirty days before -a notice of saie shall be recorded, transmitted or served, writtn notice of default'shall be transmitted by te beneficiary or trustee to the bonower and grantor at their last known addresses by joth first-class and either registered or certified mil, return receipt requested, and the btneficiary or trustee shall cause tbe posted in a conspicuus plac on tiri pr*ir"r, a copy of the notice, or personally served on th borrower and grantor."'
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT9
I 16s89.041 l/5839482.t
to the foreclosure
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modifcation necessarily existed before the sale. Borrower must have been aware of those claims because he alleges that he "had sufficient funds in his account to cover the regular
payments
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of the obligation" and that he "believed he was current on the obligation," yet
he
acknowledges that he received the July 2009 Notice of Trustee's Sale. Compl.
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also must have believed that he had a defense to foreclosure when he received said notice.
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Moreover, Borrower admitted in his deposition that he knew of his elaims in May of 2011, prior to the foreclosure sale. Bradbum Dep., at 46:14-rg,5g:10-14.
Nevertheless, Borrower did not seek a preliminary injunction or other restraining order
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to bar the sale of the Properly as required under RCW 61.24.130 in the nearly two years that
elapsed between the first Notice
waived all but damages claims under RCW 61.24.127(lXa)-(c) (i.e., claims for damages
based on alleged fraud, violations of the Consumer Protection
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to materially comply with the DTA). Brown,146 wn. App. at 164 (,,inapplying the waiver
doctrine, a person is not required to have knowledge of the legal basis for his claim, but merely knowledge of the facts sufficient to establish the elements of a claim that could serve
as a defense
wL 64770, at *3
(W.D. Wn. Jan. 4,2013) ("Plaintif have constructive knowledge of a defense to a Trustee's
sale when, at the time
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defense."),
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Indeed, Borrower waived each of the following claims: engaging in a 'attern of criminal profiteering activity" (Compl.
!1fl
(id.nn8.l-8.3); unenforceability
equitable
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of and breach by Defendants of the Note and Deed of Trust (id. 1119.l-9.18);
estoppel
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negligence
for coming onto the Property and stealing and destroying objects on the property
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Qd.nn 11.1-11.17). In addition, while RCW 61.24.127 provides that a failure to bring an
action to enjoin foreclosure does not waive certain claims, that exception does not apply
where the claiming party is seeking remedies other than damages. .lee RCW 61.24.127(2)(b)
)
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to the following
limitations:...(b) the claim may not seek any remedy at law or in equity other than monetary
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damages."). Here, Borrower seeks injunctive and declaratory relief. .!ee Compl.
ff
12.1-
12.12. This relief is simply not available. Accordingly, Defendants are entitled to summary
judgment as
or
declaratory relief.
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Even if Bolrower had not waived certain claims, there is no genuine issue of material
fact as to such claims or as to the remainder of his claims, such that Defendants are entitled to
summary judgment as a matter of law.
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C.
single
Illicit
Scheme"
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Borrower's first cause of action for an "illicit scheme" fails where he does not offer a
fact to support his claim. Rather, Borrower alleges generally that Defendants and the
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banking industry at large committed various acts of misconduct. See generally Compl. T 3.1-
3.3'
conduct
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(participation in an
Defendants acted tortiously to the public in general. ,See Compl . n 3.2 ("the Defendants and the home residential lending, servicing, collections, and foreclosure industry, in general, wffi, and still is, engaged
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injured U.S. and Washington consumers, including himself personally), 113.3 ("[Borrower], like many others, has been injured by . . . toxic home lending practices.,,).
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any
While Borrower's frustrations are evident in his diatribe, facts are absent. Without factual allegations that Defendants committed any of these acts, and that they affected
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D.
In his
second cause
Compl' ulJ4.1-4.35. Defendants are entitled to summary judgment on this claim because there is no evidence to support Borrower's conclusory allegations. To the contrary, the
evidence shows that Defendants complied with the DTA.
1.
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Borrower alleges that neither BANA nor "other concealed defendant alleging 'beneficiary' status" was a "note holder," ,.lender," or ..holder in due course,', that BANA was not and is not licensed to do business in Washington, and that Defendants filed to follow
required procedures under the
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shows that
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BANA was and is the holder of the Note and was authorized to foreclose on behalf of the
owner of the Note, Fannie Mae, and that all required procedures were followed.
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Since 1998, the DTA has defined a "beneficiary" as "the holder of the instrument or
document evidencing the obligations secured by the deed of trust, excluding persons holding the same as security for a different obligati on." Bain v. Metro. Mortg. Grp.,
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Inc.,l75 Wn.2d
83, 98-99, 285 p.3d 34 (Z}tZ) (quoting RCW 61.24.005e)) (emphasis added). The
Washington U.C'C. defines the "Holder" of a negotiable instrument in relevant part as ,.[t]he
person in possession of a negotiable instrument that is payable
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. . . to bearer. RCW
62A.1-
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at 104. A
if it
is
indorsed
in blank.
.See
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becomes payable
specially indorsed.").
Applying the plain language of the statutes and case law cited above, the evidence
establishes that
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BANA was the holder of the Note. Following the Loan,s origination, the
Note was endorsed to Countrywide Bank, N.A, which endorsed the Note to Countrywide
Home Loans, Inc', which subsequently endorsed the Note in blank. BANA Decl., ,ll g, 9,
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT_ I2
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Exs. A, B to BANA
Decl. Since January 3,2006, when Fannie Mae became the owner of the
Note, the original, endorsed-in-blank Note has been maintained by BANA and its
predecessors
in
interest on behalf
of
to Fannie Mae's
servicing
it was the holder of the Note, BANA had the right to foreclose.
See Zalqc v.
crx
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if
Fannie Mae is the owner of the note.") (emph. in original) ; Corales v. Flagstar
Banh
l)
functionally identical circumstances where lender sold loan to Fannie Mae but then proceeded
to foreclose in its own nrme - "Thus, even if Fannie Mae has an interest in Plaintiffs' loan,
[Defendant] has the authority to enforce it.,').5
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2.
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Borrower asserts that MERS was not a lawful benef,rciary, such that its appointment of
ReconTrust
ts
successor trustee was invalid, and "any assignment of the beneficial interest to
Defendant
wrs
However, these assertions ignore the fact that MERS was acting as an agent of and at the direction of the beneficiary, BANA, the holder of the Note. In Bain, the Washington Supreme Court held that MERS cannot be a valid beneficiary
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if it
Note. Bain,
175 Wn.2d
could not decide the legal effect of MERS's acting as an unlawful beneficiary. Id. at 110-14.
In addition, the Court noted that "nothing in this opinion should be construed to
suggest an
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1|qryo*g
there is no requjrement that BANA be licensed of Fannie Mae in enforcing the Note and Deed of Trust.
alleges that BANA was and is not licensed to do business in Washington. Compl.
d w;hi"g;n
to act on
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MERS was acting as the agent of the beneficiary only because there was no evidence in either
of the cases it was reviewing showing that MERS was acting on behalf of identifiable
beneficiaries. Id. at 107.
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In the present
case,
establishes both
BANA as the
beneficiary (as the holder of the Note) and MERS acting as BANA's agent when it appointed ReconTrust as the successor trustee and when
Deed
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holder of the Note, directed MERS to appoint ReconTrust and to assign the Deed of Trust to
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in their
to
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trustee
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the power to issue the Notices of Trustee's Sale, to carry out the foreclosure sale, and to issue
Mae. In addition,
Note, BANA had the power to assign the interest under the Deed of Trust to Fannie Mae after
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the foreclosure sale. See Bain, 175 Wn.2d, at 104 ("Washington's deed
contemplates that the security instrument
of
trust
act
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1102, 1109
transfers and assignments. . . . The purpose of recording the assgnment is to put parties who subsequently purchase an interest
secured
by the property."); In re United Home Loans, Tl B.R. gg5, g9l (Bankr. w.D. Wn.
14
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1987),
assignment
assignments is for the benefit of the parties.") (intemal citations omitted). For this reason as
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well, the MERS assignment is irrelevant to BANA's authority to foreclosure through the
trustee"
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3.
Borrower asserts that "[a]ny assignment of trustee powers to ReconTrust did not
comply with RCW 61.24.010(2)" because the assignment was made by aparty other than the
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to institute
non-judicial
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discussed above, the evidence shows MERS acted as the agent of and at the direction of the
it
See
supra Section
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Borrower next asserts that "defendants Trustees Fidelity, Stewart and/or ReconTrust
breached their duties
ReconTrust's non-judicial
foreclosure
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information on one or more practices described in 2.3 of this complaint.', Compl. 4.26. fl n
and
continued a non-judicial foreclosure for the servicer when ReconTrust knew or should have
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known that BAC Home Loans was not the beneficiary andlor that proof of the beneficiary and/or
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64.21'030(7)." Id. n 4.27. These allegations are without merit and contradicted by the
evidence.
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DEFENDANTS' MOTION FOR SUMMARY JUDGMENT- I5
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'ractices described
Paragraph 2.3
of
the
Complaint alleges that "[o]ne or more parties acquired certain rights, and/or legal or equitable interests
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in [Borrower's] prior
Id. n23.
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violation of any duty of good faith not to inform Borrower of the securitization of his loan.
Moreover, this case.
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Borrowet's allegation that ReconTrust "knew or should have known that that BAC
Home Loans was not the beneficiary" is contradicted by the evidence confirming that BANA
was the holder of the Note and the beneficiary.
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of
the
DTA.
RCW
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61.24'030(7)(a) provides "[t]hat, for residential real property, before the notice of trustee's
sale is recorded, transmitted, or served, the trustee shall have proof that the beneficiary is the
owner of any promissory note or other obligation secured by the deed of trust." Here, the Declaration of Beneficiary accurately identifies Fannie Mae as the owner of the Note. Ex. C
to ReconTrust Decl.;
see
BANA Decl., fln 7, 25. While Borrower may contend that the
t9
20
Declaration does not identiff BANA, the beneficiary, as the owner of the Note, it would be
inaccurate
for the Declaration to so state because BANA was the holder of the Note. Any
2l
22
23
claimed inconsistency is the result of ambiguity in the language of RCW 61.24.Ae)(a), i.e.,
that it fails to take into account the rather common scenario where the holder of the Note and the owner of the Note are not one and the same. As noted above, the Western District has
recognized the reality that when Fannie Mae is the owner of the Note, the holder of the Note car foreclose
24
25
in its own
WL
1990728, at
*3 (granting motion
to
26
it
if Fannie Mae is
I 1589.041 r/5839482.
the owner of the note.") (emph. in original); corales, g2z F. supp. at ll0z-0g (granting
2 J
motion to dismiss in functionally identical circumstances where lender sold loan to Fannie
Mae but then proceeded to foreclose in its own name
4
5
interest in Plaintif' loan, [Defendant] has the authority to enforce it."); see also In 450
201 1)
6
7
8
'person entitled to enforce.' The converse is also true: one can be a .person entitled to enforce' without having any ownership interest in the negotiable instrument. This distinction
may not be an easy one to draw, but
9 10
11
it
Indeed,
guidelines,
t2
that the servicer hold the Note and foreclose in its own name. ReconTrust would certainly
have been familiar with that accepted practice. In addition, Borrower did not know of the
l3 t4
15
Declaration of Beneficiary until after the sale, so he can hardly claim that he relied on it or
was prejudiced by
l6
I7 l8
holder of the Note and loan servicer did so, as expressly required by the servicing guidelines of the owner of the Note. In the end, any claimed contradiction or claimed ambiguity in who
was the beneficiary is no more than a red herring. thus, was entitled to foreclose.
5.
and,
l9
20
2T
Borrower alleges that Defendants failed to follow non-judicial foreclosure procedures. Compl. Tn4-28-4.35. However, there is simply no evidence to support Borrower's conclusory allegations. To the contrary, the evidence shows that Defendants followed proper foreclosure
procedures.
22
23
24 25 26
I I 6589.041 t/5839482.1
I
/a
be recorded. First, for this section to be applicable, the deed of trust must be recorded,
contain a power of sale, and not be for property primarily used for agricultural purposes.
,See
.)
RCw
61.24.030(1), (2),
(5).
4
5
transmit a notice of default to the borrower or grantor at least thirty days before the notice of
trustee sale. RCW 61.24,030(3), nnder the deed of trust" at the
(8).
6 7
that the beneficiary is the owner of the promissory note and have a physical presence in the
state where service of process is made which includes a sheet address and telephone service.
I
9 10
RCW 6r.24.030(6)-(7).
The evidence shows that all non-judicial foreclosure requirements were followed. The
ll
t2
it
contained. a power
of sale,
and the
property was used primarily for residential purposes, not agricultural purposes. Ex. A to Lorber Decl', at
l3
L4 15
beginning in March
2009 (BANA Decl', tI 16, Ex. D to BANA Decl.), ReconTrust, as agent for the beneficiary,
sent Borrower a Notice
8,
l6
17 18
2009, and the Notice was personally served on Borower or posted in a conspicuous place on
the Property on June
was more than 30 days before the Notices of Trustee's Sale were recorded.
Exs. B, E to
t9
20
Lorber Decl. There was no pending action by the beneficiary under the Deed of Trust, and
ReconTrust had proof that Farurie Mae was the owner of the Note. ReconTrust Decl., nn7,g,
2t
22
23
Ex' C to
ReconTrust
Deci.
physical presence in
Washington'6 Therefore, BANA had the right to foreclose, and, per the power of sale in the
24 25 26
As shown in the Notices of Trustee's Sale, ReconTrust maintains a physical address and Fl".plqlq_number ^t::c-T,grygtqttol system, LBOI v/est Bay Drive rilst. 06;iptt WA 98502, Phone: (360) 351-6794;' xs. B, E to Lorber decl., at 4. rtis Ir s,im"i"ni t Pjffy.Lh-"-qhysig{ Prglgnce_ requirement. See Douglas v. ReconTrust Co.,y'.1., Case No. cl1-147sRAI, .2012 wn. Nov. itzj ir,i,irl ir,i .wL s470360, at ReconTrust satisfies the requirements of t-_l RCW et.Z+.OZO6) by mani"i"g ; ug.irt fot (continued. . .)
ffb.
t,
I 16589.04 I l/5839482.
I
2 J
1-2.
ReconTrust sold the Property to Fannie Mae on May 20,2011. Ex. F to Lorber Decl.
For all these reasons, there is no genuine issue of material fact on Borrower's claim
4
5
for violations of the Deed of Trust Act, such that Defendants are entitled to
judgment as a matter of law.
summary
6
7
E.
Borrower's Claim That Defendants Eneaeed in Dual Tracking Lacks Merit Borrower alleges that Defendants engaged in "dual tracking" when
it
allegedly
I
9
"assuled [Bonower] that his home would not be foreclosed upon while he sought a modification" while at the same time moving forward with foreclosure. Compl.nn2.-2.21,
5.2-5.4. The claim fails as a matter of law.
l0
1l
12
13
First, Bonower has no evidence of any alleged promise by BANA that his home
would not be foreclosed while he sought a modification, such as when, how, and by whom it was made. Further, the Deed of Trust expressly grants the Lender, and its successors and
assigns, the right to invoke a power
t4
15
not cured . . . Lender at its option may require immediate payment in full of all sums secured
by this Security Instrument without further demand and may invoke the power of sale and any other remedies permitted by Applicable
t6
t7
18 T9
firrtherance of loan modifcation, do not waive the Lender's right to enforce the terms of the
2A 2L
by Lender Not
Waiver. . . . Any forbearance by Lender in exercising any right or remedy . . . shall not be a
(. . . continued)
proc_ess with telephone number and a physical address in Washington): Mikhqy v. -of of Am., N.A., Case No. 2:1O-cv-01464 RAJ;20il WL 167064, at *3 (W.D. 'Wn. Jan 12, lqr,rk 2011)_.(recogni4ing information of registered agent for service of process to be evidence of compliance with RCW 61.24.030); Ramirez-Melgoze v. Countrywlde Home Loan Servicing,
22 23 24 25 26 service
IP, No. CV-10-0049-LRS, 2010 WL 4641948,-at *7 (E.D. Wn. Nov. 8, 2010) (affrming bankruptcy court ruling that existence in state of registered agent for service of process satisfies physical presence requirement of RCW 61.24.030(6)).
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT_ I9
I t6589.04 r l/5839482. I
waiver of or preclude the exercise of any right to remedy.") (emph. in original). Thus, even
assuming that Borrower was told "that his home would not be foreclosed upon while he sought a modification," he could not reasonably have relied on such a statement where the Deed of Trust he signed states that the Lender could foreclose default, which he did released
)
3
4
5
if
not.
6 7
unless
I
9
Finally, Borrower's allegations are belied by his admission that he received notice that
his request for a loan modification was denied prior to the sale. Bradbum Dep., 59:11-13,
t0
11
12
l3
t4
15
In support of his fourth cause of action for a'attem of criminal profiteering activity,,,
Borrower alleges that Defendants committed various crimes, including forgery, theft,
unlawful production and possession of payment instruments, extortionate extension of credit,
advancing money for use in an extortionate extension
16
t7
18
anyfacts, and has no evidence, showing that Defendants committed any of Compl. Therefore, there is no genuine issue of material fact on
l9
20
crimes.
See generally
this claim, and Defendants are entitled to summary judgment as a matter of law.
2t
22 23
G.
A.t
Act ("CPA"), again without alleging a single fact to support his claim.
Because
24
25
Bonower cannot establish any unfair or deceptive acts by Defendants resulting in damage to
him, Defendants are entitled to summary judgment as a matter of law on his CpA claim.
26
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT _ 20
l 16589.04 I t/5839482. I
I
2
3
(l)
an unfair or deceptive
act or practice; (2) that occurs in trade or cornmerce; (3) an impact on the public interest; (4)
injury to the plaintiff in his or her business or property; and (5) a causal link between the
unfair or deceptive act and the injury suffered. Hngman Ridge Training Stables, Inc.
v.
4
5
6 7
of
I
9
10
11
law. Micro Enhancement Intern., Inc. v. coopers & Lybrand, LLp,n 0 wn. App.4l2,43g,
40 P.3d 1206 (2002). An unfair or deceptive act or practice requires the plaintiff to prove that
the act "had the capacity to deceive a substantial portion of the public"" Burns
v.
McClinton,l35 Wn' App. 285, 302-03, 143 P.3d 630 (2006). Although the CpA does nor
require proof of actual deceit, the practice must at a minimum, be capable of deceiving.
t2
13
Holiday Resort cmty. Ass'n v. Echo Lake Assocs., LLC, 134 wn. App. 210, 226 e006).
t4
15
Implicit in the definition of deceptive "is the understanding that the practice misleads or
misrepresents something of material importance,,, Id.
t6
in support of a single
l7
18
required element of his claim. Borrower alleges, in his usual vague and conclusory fashion, twelve "unfair and deceptive practices." Compl. nn 7.4.1-7,4.12. However, these allegations
are wholly derivative of Borrower's other causes of action in his Complaint, and as discussed
t9
20
fail.
Further, to the
2t
22
23
extent the claim is based on alleged conduct relating to the origination of the loan, the claim is
bared by the statute of limitations, as the loan was originated on December 14, 2005, more
than four years before Borrower filed
suit.
,See
24 25 26
four year statute of limitations). To the extent Borrower alleges that defining MERS as a
beneficiary is a deceptiYe act, the court in Bain held that a plaintiff claiming a CpA violation must still establish that he was damaged as a result of the characterization of MERS as the
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT-2I
l I 6589.04r l/5839482. I
beneficiary. Bain,175 Wn.2d at 120 ("the mere fact MERS is listed on the deed of trust as a
beneficiary is not itself an actionable injury"); accord Zalac v. CTX Mortg. Corp.,2013 V/L
1990728, at *3 (W.D. Wn. May 13,2013)
2
3
does not
4
5
by itself constitute a per se violation of the CPA.").7 Here, Borrower has no evidence that he
was damaged by MERS' presence on the Deed of Trust.
6 7
8
H.
Borrower Cannot State a Claim for Ouiet Title Because He is in Default of His
Loan Oblisations and the Claim is Derivative of His Other Failed Claims
ln support of his
of
defendant, Fannie Mae, and other defendants, are subordinate to the interests Compl. u 8.2. Even
of [Borrower]."
l0
l1
12
13
if this claim
fails for two reasons. First, to maintain a quiet title action, a plaintiffmust first pay the outstanding debt on which the subject mortgage is based. See Evans v. BAC Home Loans Servicing LP,2OlO WL
5138394, at
14
15
*3 (W.D. Wn. Dec. 10,2010) ("Plaintiffs cannot assert an action to quiet title
against a purported lender without demonstrating they have satisfied their obligations under the Deed of Trust."). Here, Borrower fails to allege, and has no evidence, that he has paid the
l6
t7
pay.
l8
I9
20
at}),
auction because Borrower did not cure the default. Ex. G to Lorber
Decl.
Because Borrower
2t
22
23 See also Myers v. Mortgage Electronc Regstrations Sys., Inc., CaseNo. 12-35218, at 6, 8 (9th Cir. Sept. 9, 2013) (afrming dismissal of CPA claim based on MERS' being listed on deed of trust); Fletcher v. Northwest Trustee Servs., Inc., Case.No. 12-2-27475-4 SEA (King County Sept. 16, 2013) (granting summary judgment on CPA claim based on MERS' assignment of deed of trust); Bain v. Metro. Mortg. Grp., Inc., Case No. a$-z-43439-9 SEA (King County Aug. 30, 2013) (granting MERS'motion for summary judgment on all claims, including for violation of the CPA). DEFENDANTS' MOTION FOR SUMMARY JUDGMENT _22
7
24 25
26
l 16589.041 l/s839482.1
I
2
3
cannot show that the amounts owed under the Deed of Trust have been satisfied, his quiet title
claim fails.s
In addition, the quiet title claim is derivative of Borrower's other failed claims.
Therefore, there is no genuine issue of material fact on this claim, and Defendants are entitled
4
5
to summary judgment.
6 7
8
I.
Without actually noting a cognizable legal cause of action, Bonower instead simply
labels
his
seventh cause
of
to make many
9 10
11
incomprehensible, vague, and conciusory allegations regarding the Note and Deed of Trust.
These include Borrower's claims that "[Borrower] lacked the ability to freely choose to enter the contract," "[Borrower] had no bargaining power with regard to the 'uniform' provisions
of
is
T2 13
the 2005 promissory note," and "the Deed of Trust is against public policy because
designed to facilitate mass foreclosures." Compl. TT 9.3.1, 9.4,
it
t4
15
conclusory allegations that various defendants breached their duties under the Deed of Trust.
Id'
16 17
Borrower does not allege any facts, and there is no evidence, showing why he was not able to freely choose to contract. He offers no facts or legal authority stating that uniform
provisionse in a contract are illegal or improper. Further, he does not explain how the Deed
t8
19
of
20
Trust is against public policy, especially one containing uniform provisions. His conclusory allegations are also belied by his deposition testimony that he was not deceived about the
terms of the Loan, was not misled into taking out the Loan, and is not aware of any kickback
2t
22
23
24
25
26
See Bain, .I75-.Wn.2d u\1\?.("[Selkowitz] offers no authority in his opening brief for the suggestion that listing an ineligibl beneficiary on a deed of truit would rndehe deed void pnd entitle the borrower to quit title."). ' The Deed of Tmst states t the bottm of each page that it is a "Fannie Mae/Freddie Mac
23
I 16589.041 l/5839482.
I
2
3
There
breaches
is likewise no
4
5
provisions of the Deed of Trust were breached, and there is no evidence of any breach. In
fact, it was Borrower that failed to perform his obligations under the contract by defaulting on the loan. BANA Decl., J[ 16, Ex. D to BANA
Decl.
I
9
10
11
law,
See l|/illener
("If
both parties, the party claiming nonperformance of the other must establish as a matter of fact
the party's own performance.").
L2
13
J.
Defendants Are Entitled to Summarv Judement on Borrower's Equitable Estoppel and Uniust Enrichment Claims
t4
15
l.
t6
I7
Borrower alleges that Defendants facilitated "the sales of risky loans that were likely
induce
l8
t9
20
like [Borrower] to
afford." Compl.
10.2.
Borrower also claims generally that "[Bonower], like millions of other consumers, acted in
reliance upon the misrepresentation made him by his mortgage broker." Id. n
n3.
Finally, This
2l
22
23
nrc.7.
24
25
26
To the extent Borrower's claim could be construed as one for rescission based on Truth in Lending Act violations, such a claim is subject to a three-year statute of limitations. See 15 U,S.C. $ 1635( ("[a]n obligor's right of rescission shall expire three years after the date of consummation of the transaction . . . ."). The Deed of Trusi was transacted more than three years before Borrower filed suit.
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT _ 24
l0
I r6589.041 ris839482.1
I
2 J
it is time-barred
Borrower's claim is essentially one for fraud, which is subject to a three-year statute of
4
5
limitations. RCW 4.16.080(4). All of the alleged conduct that relates to loan origination,
which occurred more than three years before Borrower filed suit, is time-barred. Borrower also fails to allege facts, and has no evidence of, wrongdoing by Defendants
6 7 8 9
l0
t1
12
ll2l
(gth Cir. 2006) (quoting Santa Maria v. Pac. Bell,202 F.3d 1170,1176 (gthCir. 2000)).
of
wrongdoing
Defendants were not involved in the loan origination, and there is no evidence that those who
l3 t4
15
originated the loan acted as Defendants' agent. Moreover, Borrower did not rely on any
misrepresentations in the loan origination, as he admitted that he was not deceived about the terms of the Loan, was not misled into taking out the Loan, and is not aware of any kickback
t6
17
18
19
such statement because the Deed of Trust specifically included the power to foreclose and
stated that any acts
20
of
2t
22
23
Lorber Decl., at I l.
Accordingly, there is no genuine issue of material fact on this claim, and Defendants
are entitled to summary judgment as a matter of law.
24 25
2.
In his unjust enrichment claim, Borrower alleges only that "Defendants have
26
unjustly enriched in the amounts of money which will be proved at trial." Compl. t[ 10.8. As
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
25
I 16589.04 I I/5839482.
ct
2
J
as there
4
5
K.
Borrower alleges that "since the alleged sale," Fannie Mae has entered the Property
and committed various torts, including but not limited to, cutting a tree in
6 7
8
hall
stealing doors,
stealing new carpeting, damaging fans and closet doors, and removing other fixtures and
personal property. Compl.
flnn3-2.33.15, 11.2-11.17 All of Borrower's claims rest upon still owns the property or did at the time the Fannie Mae
9
10
11
As
discussed extensively above, Borrower did not own the Property where he failed to make the necessary payments, and the Property was sold to Fannie
t2 l3 t4
15
BANA Decl.; Ex. G Lorber Decl. Because Borrower did not own the property, he does not
have standing to assert any
are
16 17
18
I. CONCLUSION
Borrower received notice that his Property was in foreclosure nearly two years before it was
sold to Fannie Mae. Yet, Borrower failed to move to enjoin the sale of the Properly and, thus,
19
waived his claims not preserved under RCW 61.24.127(l). In addition, Bonower has no
evidence
20
2I
22
23
Defendants were authorized to foreclose based on Borrower's default and that they complied
with the DTA at all times. The litany of allegations and claims raised by Borrower are a
smoke screen
for the dearth of evidence supporting any of his claims. Because there is no
24
25 26
To establish unjust enrichment, the following requirements must be met: (1) one party must have conferred a benef,rt to the other; (2) the prty ieceiving the benefit must have knowledge of the benefit; and (3) the party receiving the-benefit must ccept or retain the benefit without paying its value. Dragtv. Dragt/DeTray, LLC,l39 Wn. App. 5-60, 576,16rP.3d473 (2007).
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT 26
ll
I 16589.041 l/5839482.
I
2
3
genuine issue
4
5
6
7
I
9
10
11
t2
13
By John S. Devlin III, WSBANo. 23988 Abraham Lorber, WSBA No.40668 Attomeys for Defendants ReconTrust Company, N.4., Mortgage Electronic Registration Systems, Inc., Bank of America, N.4., successor by merger to BAC Home Loans Servicing, LP (also sued erroneously as "Countrywide Bank Homes Loans Servicing, LP" and as "Bank of America Corporation"), Countrywide Home Loans, Inc. (also sued erroneously as "Countrywide Financial Corporation"), and Federal National Mortgage Association
f,h 4"ft-
14
15
16
17 18
19
20
2T
22
23
24 25 26
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
27
l 16589.04 I t/5839482. I
I
2
J
CERTIFICATE OF SERVICE
below,
4
5
6 7
I
9 10
i1
Mill Creek, WA 98082-1635 toddlawoffice@comcast. net Attorney for Defendant Quickdraw Real Estate Services I affrm under penalty of perjury under the laws of the State of Washington that the
foregoing is true and correct to the best of my knowledge.
t2 l3
T4 15
r6
I7
- Debi Wollin
Legal assistant to Abraham K. Lorber
l8
19
20
2l
22 23 24 25 26
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT-28
I t6589.04 l l/s839482. I