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Guethlein v. Bank of America, N.A.

United States District Court, W.D. Washington, Tacoma

February 20, 2014

GRETA LOU GUETHLEIN and GEORGE F. GUETHLEIN, individually and the marital community thereof, Plaintiffs,
BANK OF AMERICA, N.A., a Corporation licensed to do business in Washington State and NORTHWEST TRUSTEE SERVICES, INC., a Washington State Corporation, Defendants.


ROBERT J. BRYAN, District Judge.

This matter comes before the Court on Defendant Bank of America, N.A.'s motion for summary judgment. Dkt. 15. The Court has considered the pleadings in support of and in opposition to the motion and the record herein.


Plaintiffs Greta Lou Guethlein and George F. Guethlein (Guethleins) brought this action against Defendant Bank of America, N.A. (BANA)[1] following the non-judicial foreclosure sale of the Guethlein's property in Olympia, Washington. Dkt. 1-1 pp. 10-14. The Guethleins contend that BANA failed to properly set up an escrow account for unpaid taxes, and thus any default was not the Guethleins' fault. Id. The Guethleins' Verified Complaint for Injunction seeks declaratory relief and an injunction unwinding the sale and reestablishing title to the property. Id. The Verified Complaint for Injunction does not seek monetary damages. Id., Dkt. 16-1 p. 29.

BANA's motion for summary judgment concedes that there exist issues of fact concerning the escrow account. Dkt. 15 p. 1. However, BANA asserts that none of these factual issues concerning the escrow account are material to whether the Guethleins have a cause of action to set aside the foreclosure sale of their property. Dkt. 15 pp. 6-10; Dkt. 21 pp. 1-5.

On November 29, 2012, Defendant Northwest Trustee Services, Inc. executed a "Notice of Trustee's Sale" of the Guethleins' property for an alleged default of their deed of trust, scheduling the trustee's sale of the property for April 5, 2013. Dkt. 17 pp. 6-10. The Notice of Trustee's Sale states that the Guethleins could stop the sale by curing their default on the Loan by March 25, 2013. Id. at p. 8. The Notice of Trustee's Sale also states:

Anyone having any objection to the sale on any grounds whatsoever will be afforded an opportunity to be heard as to those objections if they bring a lawsuit to restrain the sale pursuant to RCW 61.24.130. Failure to bring such a lawsuit may result in waiver of any proper grounds for invalidating the Trustee's sale. Id. at p. 9.

Dkt. 17 p. 9.

On November 30, 2012, NWTS mailed the Notice of Sale by certified mail to both the Guethleins at the property mailing address and to the Guethleins' PO Box address. Dkt. 17 pp. 1-2, 11-16. Also on November 30, 2012, NWTS posted the Notice of Sale on the property. Dkt 17 pp. 2, 18. NWTS recorded the Notice of Sale in the Thurston County property records on December 4, 2012. Dkt 17 pp. 6-10.

The property was ultimately sold at a foreclosure sale on May 10, 2013. Dkt. 17 pp. 23-24. The property reverted to BANA for a sale price of $319, 600. Id. The Trustee's Deed memorializing the sale was recorded in the Thurston County property records on May 17, 2013. Id.

The Guethleins never filed a lawsuit to restrain the sale. On June 6, 2013, the Guethleins filed the instant suit in Thurston County Superior Court seeking to unwind the sale. Dkt. 1-1. BANA removed the suit to this Court on July 3, 2013. Dkt. 1.

In response to BANA's motion for summary judgment, Greta Lou Guethlein filed a declaration wherein she states that they "were not properly notified of the Notice of Trustee's Sale scheduled for April 4, 2013" and that they "never received a Notice of Trustee's Sale scheduled for May 10, 2013." Dkt. 18 pp. 4-5. However, in her deposition testimony Greta Lou Guethlein admits that she received the notice of the trustee sale through certified mail. Dkt. 16-2 pp. 21-22. She also admits that the notice of trustee sale was posted on a gate to the property, though not on the active gate. Dkt. 16-2 p. 21. The Guethleins also had retained counsel in March of 2013 for the purpose of resolving the escrow issues with BANA. Dkt. 16-2 p. 23. This law firm advised the Guethleins that the April foreclosure sale of their property had been postponed to May 10, 2013. No legal action was taken prior to the sale.


Summary judgment is appropriate only when the pleadings, depositions, answers to interrogatories, affidavits or declarations, stipulations, admissions, answers to interrogatories, and other materials in the record show that "there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In assessing a motion for summary judgment, the evidence, together with all inferences that can reasonably be drawn therefrom, must be read in the light most favorable to the party opposing the motion. Matsushita ...

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