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Nguyen v. Bank of America, N.A.

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

September 25, 2014

LAN K NGUYEN, et al., Plaintiffs,
BANK OF AMERICA NA, et al., Defendants.


MARSHA J. PECHMAN, Chief District Judge.

This matter comes before the Court on Plaintiffs Lan Nguyen and My Vo's motion for partial summary judgment against ReconTrust Company, N.A. (Dkt. No. 28.) Having reviewed the motion, response, reply, and all related papers, the Court DENIES the motion.


Plaintiffs Nguyen and Vo obtained a loan from Countrywide Bank, FSB ("Countrywide"), to refinance their Renton, Wash. home. (Dkt. No. 2 at 38.) Plaintiffs signed a Deed of Trust in favor Countrywide. ( Id. at 41.) The deed of trust named Countrywide as the lender, LS Title of Washington as the Trustee, and Defendant Mortgage Electronic Registration Systems, Inc. ("MERS") as the beneficiary. ( Id. at 41-42.)

The pending motion concerns Defendant ReconTrust Company, N.A. In 2010, two years after the refinancing, ReconTrust issued to Plaintiffs a notice of default regarding the original loan. (Dkt. No. 29 at 2.) ReconTrust claims this was done at the direction of Bank of America. (Id.) In that notice, ReconTrust notified Plaintiffs that it was "acting in its capacity as agent for the beneficiary." (Dkt. No. 5 at 37.) Shortly after, BAC Home Loans Servicing appointed ReconTrust as successor trustee under the deed of trust. (Dkt. No. 29 at 23.)

At the direction of Bank of America, ReconTrust initiated foreclosure proceedings on Plaintiffs' home. ( Id. at 3, 26.) It issued a Notice of Trustee's Sale on March 29, 2011, for a scheduled sale on July 1, 2011. ( Id. at 26.) The sale was postponed. (Dkt. No. 5 at 18). The later trustee's sale was postponed four more times. (Dkt. No. 29 at 4.) On February 1, 2012, ReconTrust issued a Notice of Discontinued Trustee Sale. ( Id. at 44.) No sale has occurred of the property.

Plaintiffs filed this case in King County Superior Court in November 2013. (Dkt. No. 1 at 2.) Plaintiffs sued Bank of America, N.A., BAC Home Loans Servicing LP, BofA Merrill Lynch Asset Holdings, Inc., ReconTrust Company, N.A.; Mortgage Electronic Registration Systems, Inc. for injunctive relief to prevent any continued nonjudicial foreclosure proceedings of the property, and asserting claims for breach of duty of good faith and fair dealing, violations of the Consumer Protection Act, misrepresentation, negligence, wrongful foreclosure/wrongful attempted foreclosure, RESPA violations, TILA violations, Mortgage Loan Servicing Statute Violations, Slander of Credit, Slander of Title, FDCPA violations, breach of contract, and negligent infliction of emotional distress. (Dkt. No. 2 at 30-33.) Defendants removed the case to this Court based on federal question and diversity jurisdiction. (Dkt. No. 1 at 2.)

Plaintiffs now moves for partial summary judgment against Defendant ReconTrust on all of its defenses, the Deed of Trust Act ("DTA") claim (wrongful foreclosure/wrongful attempted foreclosure), the Consumer Protection Act claim, and Fair Debt Collection Practices Act. (Dkt. No. 24.)


A. Legal Standard

The Court applies the familiar summary judgment standard, which requires it to draw all inferences from the admissible evidence in the light most favorable to the nonmoving party. Addisu v. Fred Meyer, Inc. , 198 F.3d 1130, 1134 (9th Cir. 2000). Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party must initially show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). The opposing party must then show a genuine issue of fact for trial. Matsushita Elect. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586 (1986). The opposing party must present probative evidence to support its claim or defense. Intel Corp. v. Hartford Accident & Indem. Co. , 952 F.2d 1551, 1558 (9th Cir. 1991). The court defers to neither party in resolving purely legal questions. See Bendixen v. Standard Ins. Co. , 185 F.3d 939, 942 (9th Cir. 1999).

B. Affirmative Defenses

Plaintiff moves to dismiss all of ReconTrust's affirmative defenses because it has not "disclosed...evidence supporting any matter constituting an avoidance or affirmative defense- in either its initial disclosures or in response to specific discovery-all affirmative defenses should be dismissed on summary judgment." (Dkt. No. 24 at 12.) Plaintiffs' blanket assertion that the documents produced by ReconTrust are insufficient is itself insufficient at summary judgment. Anheuser-Busch, Inc. v. Natural Beverage Distributors , 69 F.3d 337, 345 (9th Cir. 1995)(conclusory allegations and speculative or unsubstantiated testimony are insufficient to raise a genuine issue of fact to defeat summary judgment). Whether ...

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