Schier v. Option One Mortgage Loan Trust 2007-4

• Court: District Court, E.D. Washington
• Decided: May 22, 2024
• Docket: 1:24-cv-03029
• Status: Unknown

Opinion

1 May 22, 2024 2 SEAN F. MCAVOY, CLERK 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF WASHINGTON 5 6 GUENTER: SCHIER (DECEASED No. 1:24-CV-03029-SAB 7 WASHINGTON STATE LAND OWNER 8 MISNOMERED AS SCHIER, GUENTER 9 W. SCHIER, ALSO SHOWN OF RECORD 10 AS GUENTER WERNER) “DECEDENT”); 11 KELSEY: SCHIER, (“Heir/Beneficiary), 12 Claimant, 13 v. 14 OPTION ONE MORTGAGE LOAN TRUST ORDER GRANTING 15 2007-4 ASSET-BACKED CERTIFICATES, DEFENDANTS’ MOTION TO 16 SERIES 2007-4; WELLS FARGO, DISMISS 17 NATIONAL ASSOCIATION AS TRUSTEE 18 FOR OPTION ONE MORTGAGE LOAN 19 TRUST 2007-4, ASSET-BACKED 20 CERTIFICATES, SERIES 2007-4, NEWREZ 21 MORTGAGE, LLC; PHH MORTGAGE 22 SERVICES, INC.; COVIUS d/b/a Nationwide 23 Title Clearing, LLC et al; WESTERN 24 PROGRESSIVE; NETTY BANGALA, VICE 25 PRESIDENT OF SAND CANYON 26 CORPORATION f/k/a Option One Mortgage 27 Corporation (“Robo-Signor”), 28 Defendants. 1 Before the Court are Defendants’ Motion to Dismiss Plaintiff’s Complaint, 2 ECF No. 21; Plaintiff’s Motion to Overrule or Sustane [sic], ECF No. 24, 3 Plaintiff’s Motion to Hear Motion to Dismiss ECS21 and Response to Motions to 4 Dismiss ECS 31 with Oral Argument, ECF No. 32, and Motion to Expedite, ECF 5 No. 33. The motions were heard without oral argument.1 0F 6 Plaintiff is proceeding pro se. Defendants are represented by Nicholas 7 Reynolds and Robert Wayne Norman Jr. 8 Plaintiff filed his Complaint on February 28, 2024. It appears that Plaintiff is 9 seeking to stop the foreclosure of property that had been purchased by Plaintiff’s 10 father, Guenter W. Schier. Mr. G. Shier had a mortgage that was secured by a 11 Deed of Trust. Mr. G. Schier passed away on or about January 31, 2023.2 No 1F 12 payments have been made on the mortgage loan since February 1, 2023. 13 Plaintiff is bringing the following claims: (1) violation of the federal Real Estate 14 Settlement Procedures Act; (2) violation of the Fair Credit Reporting Act; (3) 15 violation of the Fair Debt Collection Practices Act; (4) Quiet Title; (5) Permanent 16 Injunctive Relief; (6) violation of the Washington Consumer Protection Act; and 17 (7) common law fraud. 18 1 The Court has determined that oral argument is not necessary. See Local Rule 19 7(i)(3)(iii). Therefore, Plaintiff’s Motion for Oral Argument, ECF No. 32, is 20 dismissed as moot. 21 2 Plaintiff indicates that he is the “attorney-in-fact” representing the interests of the 22 Estate of Guenter W. Schier. Plaintiff does not appear to be a licensed member of 23 the Washington State Bar Association or the Federal bar. Under Local Rule 83.6, 24 Plaintiff, appearing pro se, is not permitted to represent the Estate of Guenter W. 25 Schier. See also Johns v. County of San Diego, 114 F.3d 8974, 876-877 (9th Cir. 26 1997) (explaining a non-attorney may appear pro se on his own behalf but has not 27 authority to appear as an attorney for others). 28 1 Defendants assert this Court does not possess subject matter jurisdiction 2 over this action because of Plaintiff’s lack of standing. The Court agrees. Here, 3 Defendants have shown that Plaintiff did not obtain letters of administration and no 4 personal representative of the estate was appointed by the state courts. Until an 5 estate is closed, the heirs may not treat estate real property as their own. In re 6 Estate of Jones, 152 Wash.2d 1, 14 (2004). As such, Plaintiff lacks standing to 7 bring this action on behalf of the Estate of Schier as a matter of law.3 And Plaintiff 2F 8 has no standing to bring this action on behalf of himself. 9 In addition, Plaintiff failed to properly serve Defendant Wells Fargo Bank, 10 Defendant NewRez LLC, PHH Mortgage Corporation, Defendant Western 11 Progressive, and Defendant Netty Bangala. A federal court is without personal 12 jurisdiction over a defendant unless the defendant has been served in accordance 13 with Fed. R. Civ. P. 4. S.E.C. v. Ross, 504 F.3d 1130, 1138 (9th Cir. 2007) (noting 14 that in the absence of proper service of process, the district court has no power to 15 render any judgment against the defendant’s person or property unless the 16 defendant has consented to jurisdiction or waived the lack of process). In response 17 to Defendants’ assertions that Plaintiff failed to properly serve them, Plaintiff 18 submitted Declarations of Due Diligence and Proof of Service. ECF Nos. 25-30. 19 However, these Declarations do not establish that the above-named Defendants 20 were properly served. 21 Finally, the claims for relief set forth in Plaintiff’s Complaint do not 22 adequately plead specific facts necessary to state a claim upon which relief may be 23 granted under Fed. R. Civ. P. 12(b)(6). 24 The Court grants Defendants’ Motion to Dismiss. In addition, the Court 25

26 3 The Court rejects Plaintiff’s argument that probate was not necessary because 27 both he and his father have the right to adverse possession, presumably of the 28 property that is subject to the Deed of Trust. 1|| declines to grant Plaintiff leave to amend his Complaint. Plaintiff lacks standing to bring an action on behalf of his father’s Estate. His Complaint cannot possibly be cured by allegations of additional facts. See Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). 5 Accordingly, IT IS HEREBY ORDERED: 1. Defendant’s Motion to Dismiss, ECF No. 21, is GRANTED. 2. All pending motions are denied as moot. 8 3. The Clerk of Court is directed to close the file. 9 IT IS SO ORDERED. The Clerk of Court is directed to enter this Order, forward copies to Plaintiff and counsel, and close the file. 11 DATED this 22nd day of May 2024. 12 13 14 15 byt Secta 7 Stanley A. Bastian

ig Chief United States District Judge

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ORDER GRANTING DEFENDANT MOTION TO NINSMTSS ~4