The opinion of the court was delivered by: A Benjamin H. Settle United States District Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS
This matter comes before the Court on Defendant Regional Trustee Services Corporation's ("Regional") motion to dismiss (Dkt. 64) and Quality Loan Services Corporation of Washington's ("Quality") joinder in that motion (Dkt. 67). The Court has reviewed the briefs filed in support of and in opposition to the motion and the remainder of the file and hereby grants in part and denies in part the motion for the reasons stated herein.
On July 21, 2010, Plaintiff Geoffrey Robert Lawson ("Lawson") filed his second amended complaint. Dkt. 10. On September 24, 2010, Defendants Morgan Stanley Dean Witter Capital I Inc Trust 2001-NC3, Ocwen FSB, Ocwen Financial Corporation, and Ocwen Loan Servicing, LLC filed a motion to dismiss. Dkt. 25. Quality joined in the motion to dismiss. Dkts. 27 & 28. On February 10, 2011, the Court granted in part and denied in part the motion. Dkt. 49.
On May 31, 2011, Lawson filed a Third Amended Complaint against Defendants Ocwen Loan Servicing, LLC; Ocwen FSB; Ocwen Financial Corporation; Ocwen; New Century Mortgage Corporation; Morgan Stanley Dean Witter Capital I, Inc. Trust 2001-nc3, Mortgage Pass-through Certificates, Series 2001-nc3 ("US Bank"); Regional; Quality Loan Services Corporation of Washington ("Quality"); Assignees; Affiliates and Representatives. Dkt. 62.
On July 25, 2011, Regional filed a motion to dismiss. Dkt. 64. On July 28, 2011, Quality filed a brief joining in the motion to dismiss. Dkt. 67. On August 9, 2011, Lawson responded. Dkt. 69. On August 16, 2011, Regional replied. Dkt. 71. On August 17, 2011, Quality replied. Dkt. 72.
The subject of this action is a home and property ("Property") located in Bremerton, Washington, of which Lawson claims to be the rightful owner. Dkt. 62, ¶ 43. Regional, a foreclosure services company, was engaged by Ocwen to conduct a foreclosure on the Property in the name of the then current beneficiary U.S. Bank, National Association, as Trustee under the Pooling and Servicing Agreement Dated November 1, 2001 Morgan Stanley Dean Witter Capital I Inc., Trust 2001-NC3 ("US Bank"). Dkt. 65, Exh. A. On several occasions, the sale was postponed per instructions by Ocwen past the maximum postponement dates, and as such, multiple Notices of Trustee's Sale went out each in the name of U.S. Bank. Id., Exhs. B-F.
A. Motion to Dismiss Standard
Motions to dismiss brought under Rule 12(b)(6) of the Federal Rules of Civil Procedure may be based on either the lack of a cognizable legal theory or the absence of sufficient facts alleged under such a theory. Balistreri v. Pacifica Police Department, 901 F.2d 696, 699 (9th Cir. 1990). Material allegations are taken as admitted and the complaint is construed in the plaintiff's favor. Keniston v. Roberts, 717 F.2d 1295, 1301 (9th Cir. 1983). To survive a motion to dismiss, the complaint does not require detailed factual allegations but must provide the grounds for entitlement to relief and not merely a "formulaic recitation" of the elements of a cause of action. Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1965 (2007). Plaintiffs must allege "enough facts to state a claim to relief that is plausible on its face." Id. at 1974. When deciding a motion to dismiss, the Court's consideration is limited to the pleadings. Fed. R. Civ. P. 12(d).
In Washington, there is no cause of action for "wrongful foreclosure" when no foreclosure has in fact occurred. Vawter v. Quality Loan Svc. Corp. of Wa., 707 F. Supp. 2d 1115, 1123-24 (W.D. Wash. 2010); Engel v. First Am. Tit. Ins. Co., 2010 WL 3819372 (W.D. Wash.). Absent a Trustee's sale of the property, a claim for wrongful foreclosure must be dismissed as a matter of law. Vawter, 707 F. Supp. 2d at 1124.
In this case, a trustee's sale has not occurred and the Property has not been foreclosed. Therefore, the Court grants Regional's and Quality's motions to dismiss ...