Hummel v. Northwest Trustee Services, Inc.

180 F. Supp. 3d 798, 2016 U.S. Dist. LEXIS 76177, 2016 WL 3093255
CourtDistrict Court, W.D. Washington
DecidedMarch 23, 2016
DocketCASE NO. C15-255RAJ
StatusPublished
Cited by10 cases

This text of 180 F. Supp. 3d 798 (Hummel v. Northwest Trustee Services, Inc.) is published on Counsel Stack Legal Research, covering District Court, W.D. Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hummel v. Northwest Trustee Services, Inc., 180 F. Supp. 3d 798, 2016 U.S. Dist. LEXIS 76177, 2016 WL 3093255 (W.D. Wash. 2016).

Opinion

ORDER

The Honorable Richard A. Jones, United States District Court

I. INTRODUCTION

This matter comes before the Court on Defendant Northwest Trust Services, Inc.’s (“NWTS”) Motion to Dismiss (Dkt. # 54), Defendant Bank of America National Association’s (“BOA”) Motion to Dismiss (Dkt. # 56), and Defendants Select Portfolio Servicing, Inc. (“SPS”) and Mortgage Electronic Registration Systems, Inc.’s (“MERS”) Motion for Summary Judgment (Dkt. # 58). For the reasons set forth below, the Court GRANTS the Motions.

II. BACKGROUND

On November 13, 2006, Plaintiff executed a promissory note (the “Note”) for $650,000.00 payable to First Franklin, a Division of National City Bank. Plaintiffs Revised First Am. Compl. (“RFAC”) ¶ 14; Dkt. #55 (NWTS Request for Judicial Notice (“RJN”)) Ex. I.1 Plaintiff also executed a deed of trust securing repayment of the Note (the “Deed of Trust”). See RFAC ¶ 15; Dkt. # 55 (RJN) Ex. 2. The Note was secured by property located at 2536 Lake Whatcom Boulevard, Belling-ham, Washington 98229 (the “Property”). [803]*803See RFAC ¶¶ 13-14; Dkt. # 55 (RJN) Ex. 2 at 1. The Deed of Trust named Stewart Title as the trustee and MERS as a beneficiary as “nominee for Lender and Lender’s successors and assigns.” See Dkt. #55 (RJN) Ex. 2 at 2. It also permitted the lender to appoint a successor trustee at any time. See id. at 14.

Subsequently, First Franklin2 endorsed the Note to First Franklin Financial Corporation and First Franklin Financial Corporation endorsed the Note in blank.3 See Dkt. # 59-1 (Power Decl.) Ex. A at 5. MERS assigned its interest under the Deed of Trust to U.S. Bank, National Association (“U.S. Bank”), Successor Trustee to Bank of America, N.A., as Successor Trustee to the Holders of the First Franklin Loan Trust, Mortgage Loan Asset-Backed Certificates, Series 2007-FF1 (the “First Franklin Trust”). See Dkt. # 55-3 (RJN) Ex. 3 at 1. U.S. Bank later, as the holder of the Note4 and beneficiary of the Deed of Trust, executed a limited power of attorney in favor of SPS, appointing it as the servicer. See Dkt. # 59-1 (Power Deck) Ex. C.5

In December 2013, U.S. Bank executed a Declaration of Ownership, which stated that U.S. Bank “is the actual holder of the Promissory Note evidencing” Plaintiffs loan. See Dkt. #55-4 (RJN) Ex. 4.6 In [804]*804Januaiy 2014, U.S. Bank, through SPS, named NWTS as the successor trustee under the Deed of Trust by recording an appointment of successor trustee with the Whatcom County Auditor. See id. Ex. 5. On July 1, 2014, NWTS issued a Notice of Default to Plaintiff regarding the Property, indicating that Plaintiff had been in default on the Note since February 1, 2012. See id. Ex. 6. The Notice of Default identified U.S. Bank as the “Note Owner” and SPS as the “Loan Servicer.” Id. at 3. It indicated that Plaintiff was $155,176.99 in arrears. See id. at 2. Finally, on October 13, 2014, NWTS recorded a Notice of Trustee’s Sale with the Whatcom County Auditor, setting a sale date of February 13, 2015. Id. Ex. 7. The Notice referenced both the Deed of Trust and the assignment from MERS to U.S. Bank. See id. at 2.

The bases for Plaintiffs claims principally focus on allegations that First Franklin was not licensed to do business in Washington State and therefore that it had no authority to act as a lender. See RFAC ¶ 14. MERS, Plaintiff further claims, is an improper, unlicensed beneficiary and La-Salle Bank did not record the Series 2007-FF1 mortgage loan asset-backed certificate in violation of RCW 65.08.070. Id. ¶¶ 15, 17-18. Plaintiff further claims that the Note and the Deed of Trust were not properly transferred, assigned, or recorded, or done so in violation of the Pooling & Servicing Agreement (“PSA”) (see id. ¶¶ 24-25) and, as a result, that the Deed of Trust and the Note are invalid (id. ¶27). As a result, Plaintiff claims, none of the Defendants holds a secured claim against her and are somehow estopped from asserting an unsecured claim against her. See id. ¶ 37.

III. LEGAL STANDARD

a. Motion to Dismiss

Fed. R. Civ. P. 12(b)(6) permits a court to dismiss a complaint for failure to state a claim. The rule requires the court to assume the truth of the complaint’s factual allegations and credit all reasonable inferences arising from those allegations. Sanders v. Brown, 504 F.3d 903, 910 (9th Cir.2007). A court “need not accept as true conclusory allegations that are contradicted by documents referred to in the complaint.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir.2008). The plaintiff must point to factual allegations that “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 568, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). If the plaintiff succeeds, the complaint avoids dismissal if there is “any set of facts consistent with the allegations in the complaint” that would entitle the plaintiff to relief. Id. at 563, 127 S.Ct. 1955; Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

The court typically cannot consider evidence beyond the four corners of the complaint, although it may rely on a document to which the complaint refers if the document is central to the party’s claims and its authenticity is not in question. Marder v. Lopez, 450 F.3d 445, 448 (9th Cir.2006). The court may also consider evidence subject to judicial notice. Ritchie, 342 F.3d at 908.

b. Motion for Summary Judgment

Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the moving party will have the burden of [805]*805proof at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007).

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180 F. Supp. 3d 798, 2016 U.S. Dist. LEXIS 76177, 2016 WL 3093255, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hummel-v-northwest-trustee-services-inc-wawd-2016.