United States District Court, W.D. Washington
Decided: July 25, 2013.
For Florence R Frias, Plaintiff: Melissa A Huelsman, LEAD ATTORNEY, SEATTLE, WA.
For Asset Foreclosures Services, Inc., Defendant: Katrina Eve Glogowski, LEAD ATTORNEY, Kimberly Hood, LEAD ATTORNEY, GLOGOWSKI LAW FIRM PLLC, SEATTLE, WA.
For LSI Title Agency, Inc., Defendant: Brian L Lewis, LEAD ATTORNEY, Lauren E Sancken, LEAD ATTORNEY, David John Lenci, K& L GATES LLP (SEATTLE), SEATTLE, WA.
For U.S. Bank, N.A., Mortgage Electronic Registration Systems Inc, Defendants: Andrew H Salter, LEAD ATTORNEY, LYBECK MURPHY, MERCER ISLAND, WA.
ORDER DENYING MOTION TO CERTIFY, DENYING MOTION TO CONTINUE, AND GRANTING MOTIONS TO DISMISS
Marsha J. Pechman, Chief United States District Judge.
This matter comes before the Court on several motions. Defendant LSI Title Agency brings a motion to dismiss all claims against them pursuant to Fed.R.Civ.P. 12(b)(6). (Dkt. No. 10.) Defendant Asset Foreclosure Services joins the motion to dismiss. (Dkt. No. 11.) Defendants U.S. Bank and Mortgage Electronic Registrations Systems, Inc. also join with respect to the motion to dismiss the first cause of action, preliminary injunction. (Dkt. No. 12.)
Plaintiff brings a motion to certify questions to the Washington Supreme Court. (Dkt. No. 23.) She also brings a motion to stay the case pending the motion to certify questions. (Dkt. No. 22.) The Court considered all motions, responsive pleadings and related documents and GRANTS the motions to dismiss, DENIES the motion to certify questions and DENIES as MOOT the motion to stay.
Plaintiff Florence Ruth Frias brings this case against Defendants Asset Foreclosure Services, Inc. (" ASF" ), LSI Title Agency, Inc. (" LSI" ), U.S. Bank, N.A. (" U.S. Bank" ), Mortgage Foreclosure Electronic Registration Systems, Inc. (" MERS" ), and " Doe Defendants 1-20" for claims arising out of two foreclosure proceedings initiated on her residence located at 14523 South Lake Crabapple Road, Marysville, WA, in 2010 and 2011. (Dkt. No. 1 at 1.) Frias brought this case in Snohomish County Superior Court, and Defendants removed the case to this Court on grounds of diversity jurisdiction. (Id.) Frias asks in her Complaint for a temporary restraining order and preliminary injunction, and damages under the Foreclosure Fairness Act, the Consumer Protection Act, the Deed of Trust Act, and under the theory of intentional misrepresentation. (Id. at 8.)
Frias entered into a mortgage loan agreement with Defendant U.S. Bank in September of 2008. (Dkt. No. 1 at 11.) She signed a promissory note and Deed of Trust identifying U.S. Bank as the lender, and Defendant MERS as the beneficiary and nominee for the lender. (Id. at 11-12.) Before taking out the mortgage loan, Frias had knee surgery and was in physical therapy, but she discovered more knee surgeries would be necessary. (Id. at 11.) Frias began falling behind on her mortgage loan in August 2009. (Id. at 12.) She was approved for disability coverage in March 2010, bye which time she had depleted her savings. (Id.)
When she began falling behind, Frias claims she contacted representatives at U.S. Bank to apply for a loan modification program which would allow her to keep her home, but nothing resulted from these contacts. (Dkt. No. 1 at 12.) Frias alleges she received a Notice of Default on or about April 14, 2010, and a Notice of Trustee's Sale (" NOTS" ) on or about May 17, 2010 indicating her home was being foreclosed by Defendant MERS and the foreclosing trustee was LSI. (Id.) Frias alleges LSI was not appointed foreclosing trustee by the holder of the promissory note, LSI cannot be a foreclosing trustee under Washington state law, and Asset Foreclosure was the true foreclosing trustee. (Id. at 12-13.)
Asset Foreclosure recorded the NOTS in Snohomish County on May 19, 2010, but recorded a Discontinuance of Trustee's Sale on May 12, 2011. (Dkt. No. 1 at 13.) Frias continued to attempt to modify her loan, and in July of 2011 obtained a loan modification from U.S. Bank. (Id.) Frias alleges U.S. Bank informed her at this time she was not eligible for a Home Affordable Modification Program (" HAMP" )
loan because she filed for bankruptcy protection in 2010 and had received a discharge, a claim ...