United States District Court, W.D. Washington, Seattle
ORDER ON MOTIONS TO DISMISS
MARSHA J. PECHMAN, District Judge.
The Court, having received and reviewed:
1. Defendants Northwest Trustee Services, Inc. and Routh Crabtree Olsen PS Motion to Dismiss for Failure to State a Claim (Dkt. No. 36); Plaintiff's Response (Dkt. No. 48); Defendants Northwest Trustee Services, Inc. and Routh Crabtree Olsen PS's Reply (Dkt. No. 49); and
2. Defendants Federal Home Loan Mortgage Corporation, Mortgage Electronic Registration Systems, Inc. and MERSCORP Holdings, Inc. Motion to Dismiss (Dkt. No. 42); Defendants Federal Home Loan Mortgage Corporation, Mortgage Electronic Registration Systems, Inc. and MERSCORP Holdings, Inc. Request for Judicial Notice (Dkt. No. 43); Plaintiff's Response (Dkt. No. 44); and Defendants Federal Home Loan Mortgage Corporation, Mortgage Electronic Registration Systems, Inc. and MERSCORP Holdings, Inc. Reply (Dkt. No. 59)
and all attached declarations and exhibits, makes the following rulings:
IT IS ORDERED that the motions to dismiss are GRANTED; a portion of Plaintiff's complaint will be dismissed without leave to amend and a portion of his complaint will be dismissed with leave to amend.
IT IS FURTHER ORDERED that Plaintiff Galyean will have 10 days from the filing of this order to submit an amended complaint which complies with the rulings contained in this order.
The Court provides the following brief factual history as a background to the rulings on these motions to dismiss.
On December 28, 2007, Plaintiff Stanley Galyean ("Plaintiff") received a $320, 000 loan from lender (and Defendant) IndyMac Bank ("IndyMac") and granted a deed of trust on real property located at 3315 97th Drive SE in Everett, Washington. On January 7, 2008, the Deed of Trust was recorded in Snohomish County.
In July of 2008, IndyMac went into receivership and was taken over by the Federal Deposit Insurance Corporation ("FDIC"). Defendant IndyMac Federal Bank, FSB ("IndyMac Fed") was created as a successor bank.
In October, 2008, Plaintiff sent a letter to IndyMac Fed, stating in essence that (1) he had never consented to a financial relationship with IndyMac Fed and (2) he had sent a $320, 000 promissory note as full payment on his loan. The letter stated that failure to respond would release his loan obligation; IndyMac Fed did not respond to the letter. In December of 2008, Plaintiff ceased making payments on the loan.
On March 13, 2009, Defendant Northwest Trustee Service, Inc. ("NWTS") mailed a notice of default to Plaintiff, which Plaintiff acknowledges receiving ( see Complaint ¶ 248). On March 16, 2009, Plaintiff sent IndyMac Fed (1) "Notice and Demand for Recipient Copies of J099-OID/1899-INT/1099A to Cover Eligible Issues in Recharging Information, Account/WASE No. 08CR-1234S-A, Notice of Request to Provide Accounting Pursuant WA UCC § 9210" (Dkt. No. 1, Ex. 11); (2) "Request for Debt Validation" ( Id., Ex. 12); and (3) "Rescission of Signatures/Waiver of Benefits and Privileges/Dissolution of Adhesion Contracts/Revocation of Power(s) of Attorney as They Rela[t]e to Home Eq. Servicing Mortgage, Loan Account No. XXXXXXXXXX" ( Id., Ex. 13).
On April 6, 2009, Defendant Mortgage Electronic Registration Systems, Inc. ("MERS"), acting as a nominee for Defendant IndyMac, executed an Assignment of Deed of Trust to Defendant IndyMac Fed; that assignment was recorded in Snohomish County on April 20, 2009, the same day that IndyMac Fed appointed Northwest Trustee Services, Inc. ("NWTS") as successor trustee under the Deed of Trust. Plaintiff's complaint indicates his knowledge of the assignment and the recording of that document. (Complaint, ¶¶ 251-252.)
Four days later, NWTS mailed a Notice of Trustee's Sale to Plaintiff and posted the notice at the property in question. On April 27, 2009, NWTS recorded a Notice of Trustee's Sale. The sale was originally set for July 31, 2009, but was postponed to October 2, 2009. Plaintiff made no attempt to enjoin or restrain the sale and the property was sold to Defendant Federal Home Loan Mortgage Corporation ("FHLMC"). NWTS executed a Trustee's Deed to FHLMC and the Trustee's Deed was recorded on October 8, 2010.
On August 1, 2013, Plaintiff filed the instant lawsuit.
There are seven named defendants in this action (not counting "John Doe" defendants); three of them have not been served or made an appearance; the four defendants who are named and served have filed motions to dismiss against Plaintiff. The causes of action identified in Plaintiff's complaint are:
Count 1 Declaratory Relief
Count 2 Quiet Title Claims
Count 3 Slander of Title
Count 4 Washington Consumer Protection Act ("WCPA")
Count 5 Contract Causes of Action and Claims
Count 6 Declaratory Relief and Order in Favor of Plaintiffs for Breach of International Commercial Claim within Admiralty
Count 7 Fair Debt Collection Practices Act Violations ("FDCPA")
Count 8 Breach of Contract and Theft against IMF/FMB, NWTS, RCO, FreddieMac
Count 9 "Fair Debt Reporting Act"
Count 10 Real Estate Settlement Procedures Act ("RESPA")
Count 11 U.S. Postal Service Mail Fraud
Plaintiff Global Trust #2 is not properly before the Court
Mr. Galyean is entitled to represent himself as a plaintiff in this lawsuit. A person "may appear and act in any court as his own attorney without threat of sanction for unauthorized practice." WSBA v. Great W. Union Fed. Savings & Loan Assoc. , 91 Wn.2d 48, 56 (1978). While it is unclear what kind of entity "Global Trust #2" is, it is most certainly not a person. As an artificial entity, its interests in any court proceeding must be represented by a person acting in its behalf. Such representation is the practice of law, and of course such a representative must be a licensed attorney in good standing with the jurisdiction. RCW 2.48.170. Any corporation appearing before the court must be represented by an attorney. Lloyd Enterp's, Inc. v. Longview Plumbing & Heating Co. , 91 Wn.App. 697, 701 (1998); review denied, 137 Wn.2d 1020 (1999).
The Court cannot tell from the court file who is representing Global Trust #2, but no attorney has filed an appearance on its behalf. If Mr. Galyean is purporting to represent the entity, it is the unlicensed practice of law. At the conclusion of Plaintiffs' responsive briefing in the NWTS/RCO motion, the signature line reads "Doug Eklund, Trustee for Global Trust #2, " (Dkt. No. 48, p. 14), but Mr. Eklund has not filed an appearance on behalf of the entity, nor is there any indication that he is a lawyer.
Plaintiff Global Trust #2 is not properly before this Court, and any claim dependent upon it is subject to dismissal on jurisdictional grounds.
Count 9 (FCRA) and Count 10 (RESPA): Insufficiently plead
FRCP 9(a)(2) requires that a pleading contain "a short and plain statement of the claim showing that the pleader is entitled to relief."
After incorporating Paragraphs 1 through 266 by reference, Plaintiff's claim for a violation of the Fair Credit Reporting Act ("FCRA") only consists of the allegation that
Defendants violated numerous provisions of the [FCRA] by notifying the different credit reporting agencies and providing inaccurate negative information on Plaintiff that will be verified through discovery.
Complaint, ¶ 350. This is clearly inadequate to apprise the defendants of the basis of Plaintiff's claim and exactly which of them is alleged to have violated the FCRA. The Court cannot, however, dismiss this cause of action without permitting Plaintiff an opportunity to amend to include any factual allegations which identify the defendants with specificity and also support the allegation. And (as explained below in the statute of limitations discussion) because of the way the statute of limitations for the FCRA is structured, this claim is not subject to outright dismissal on grounds of untimeliness.
After again incorporating Paragraphs 1 through 266 by reference, Plaintiff's claim for a violation of RESPA merely states "Through discovery as to what can be proven at trial and parties to this cause of action." Complaint, ¶ 352. Dismissal under 12(b)(6) is proper whenever a complaint fails to allege sufficient facts "to support a cognizable legal theory." Shroyer v. New Cingular Wireless Services, Inc. , 622 F.3d 1035, 1041 (9th Cir. 2010). Plaintiff here alleges no facts. Additionally (as discussed below), this claim is barred by the statute of limitations.
Counts 4, 7, 9, 10 (and Deed of Trust Act violations): Statute of limitations
All but one of Plaintiff's causes of action (the FCRA count) accrued at the latest by October 2, 2009, the date of the foreclosure sale. For some of his claims, accrual may have been even earlier. As mentioned ...