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Robertson v. GMAC Mortg. LLC

United States District Court, W.D. Washington

November 14, 2013

DUNCAN K ROBERTSON, Plaintiff,
v.
GMAC MORTGAGE LLC, et. al, Defendants

Page 1203

[Copyrighted Material Omitted]

Page 1204

For Duncan K Robertson, Plaintiff: Scott E Stafne, STAFNE TRUMBULL LLC, ARLINGTON, WA.

For GMAC Mortgage LLC, Executive Trustee Services LLC, Residential Funding Real Estate Holdings LLC, Residential Funding Company LLC, Residential Funding Corporation, HomeComings Financial LLC, Bank of New York Trust Company NA, Defendants: William G Fig, LEAD ATTORNEY, SUSSMAN SHANK, PORTLAND, OR.

For JP Morgan Chase Bank NA, Bank One National Association, Defendants: Fred B Burnside, LEAD ATTORNEY, DAVIS WRIGHT TREMAINE (SEA), SEATTLE, WA.

OPINION

Marsha J. Pechman, Chief United States District Judge.

Page 1205

ORDER GRANTING MOTIONS (DKT. NOS. 114, 115)

This matter comes before the Court on Defendants J.P. Morgan Chase and BankOne National Association's motion to dismiss. [1] (Dkt. No. 114) Defendants GMAC Mortgage, LLC, Executive Trustee Services, LLC, Residential Funding Real Estate Holdings, LLC, Residential Funding Corporation, Residential Funding Company, LLC, and Homecomings Financial, LLC (collectively, the " GMAC Defendants" ) join in the motion and also move for summary judgment on two of Plaintiff's claims. (Dkt. No. 115.) Having reviewed the motions, Plaintiff's responses (Dkt. Nos. 118, 120), the replies (Dkt. Nos. 119, 124), and all related papers, the Court GRANTS the motions.

Background

This case concerns a piece of property in Seattle, Washington, currently owned by Plaintiff Duncan Robertson. (Dkt. No. 4-1 at 4.) The relevant facts of this case begin in 1999 when the property's prior owner, Linda Nicholls, executed an adjustable rate note for $100,000 from Old Kent Mortgage Company. (Dkt. No. 64-1 at 4.) Ms. Nicholls inherited the property from her mother. To secure the note, Nicholls executed a Deed of Trust against the property in favor of Old Kent Mortgage. (Dkt. No. 51-1 at 15.) The Nicholls Deed of Trust was recorded in King County. (Id. at 2.) Since 1999, the Nicholls' Note and Deed of Trust have been assigned several times. Plaintiff has never been a party to those instruments.

In 2006, Nicholls borrowed money from Plaintiff. The loan was secured by a third-position deed of trust, which was junior to the Nicholls' Deed of Trust. (Dkt. Nos. 51-3, 51-4). Nicholls defaulted on the loan from Robertson. Robertson then foreclosed on his deed of trust. In the resulting non-judicial foreclosure sale, Robertson purchased the property. (Dkt. No. 51-2 at 2.) The Nicholls' Deed of Trust continued to encumber the property, even after Robertson's foreclosure on the junior obligation.

Robertson wanted to pay off the Nicholls' senior deed of trust obligation. Most of his claims asserted in this case involve these alleged attempts. (Dkt. No. 4-1 at 11.) Defendant Homecomings for example, told him the Nicholls' Deed of Trust and Note were not assumable. He made several offers to satisfy Nicholls' obligation, but he alleges none were accepted by Homecomings or other Defendants. (Dkt. No. 4-1 at 11.) At least two non-judicial trustee sales were scheduled, but eventually cancelled. (Dkt. No. 4-1 at 22.) Robertson is still in possession of the property.

Plaintiff initiated this case in King County asserting 12 causes of action against

Page 1206

various parties who had dealings with the Nicholls' Deed of Trust. (Dkt. No. 4-1.) Defendants removed the case to this Court. (Dkt. No. 1) Trial is scheduled for January 2014. All but two claims against GMAC remain ...


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