United States District Court, W.D. Washington, at Tacoma
ORDER GRANTING DEFENDANTS QUALITY LOAN SERVICE CORPORATION OF WASHINGTON AND MCCARTHY & HOLTHUS, LLP'S MOTION FOR SUMMARY JUDGMENT
ROBERT J. BRYAN, District Judge.
This matter comes before the Court on Defendants Quality Loan Service Corporation of Washington (Quality) and McCarthy & Holthus, LLP's (McCarthy) motion for summary judgment. Dkt. 48. The Court has considered the pleadings in support of and in opposition to the motion and the record herein.
INTRODUCTION AND BACKGROUND
This is a post-sale wrongful foreclosure case. The pertinent and material facts are set forth in the Court's previous two Orders Granting Wells Fargo and MERS's Motions to Dismiss. Dkt. 15 and 30. Plaintiff Timothy Dietz (Dietz) filed this action on October 30, 2013, asserting violations of the Fair Debt Collection Practices Act (FDCPA)(Counts I and IV) and violations of the Washington Deed of Trust Act (DTA)(Counts II and III). Dkt. 1. On January 3, 2014, the Court granted Wells Fargo and MERS's Motion to Dismiss the FDCPA and Washington Deed of Trust claims and dismissed Wells Fargo and MERS from the lawsuit without prejudice. Dkt. 15. Dietz then filed multiple amended complaints attempting to cure the deficiencies in his original complaint, adding causes of action for breach of contract and fraud, and naming McCarthy & Holthus LLP as new party defendant to this action. Dkts. 18 and 20. On February 11, 2014, the Court entered an order ruling that Plaintiff's Second Amended Complaint (Dkt. 20) will be considered the operative complaint. Dkt. 21.
Dietz's first cause of action in the Second Amended Complaint alleges a cause of action for violation of the FDCPA against Wells Fargo. Dkt. 20-1 pp. 10-13. MERS is not named in the FDCPA claim. Dietz's second cause of action alleges violation of the DTA. The DTA claim is directed at Quality and McCarthy and does not name Wells Fargo or MERS. Dkt. 20-1 pp. 14-15. Dietz's third cause of action alleges breach of contract against Wells Fargo. Dkt. 20-1 pp. 15-16. Dietz's fourth cause of action alleges fraud against all defendants. Dkt. 20-1 pp. 16-17.
On March 25, 2014, the Court granted Wells Fargo and MERS's motion to dismiss the amended complaint. Dkt. 30. Dietz's cause of action for violation of the FDCPA was subject to dismissal because Wells Fargo is not a debt collector under the FDCPA and there are no allegations giving rise to a cognizable violation of the FDCPA by Wells Fargo. Id. at 4. The claim of a violation of the DTA was dismissed as to Wells Fargo and MERS because they were not trustees of the deed of trust and therefore not subject to post-sale claims under the DTA. Id. at 5. The breach of contract claim was dismissed because Dietz failed to set forth a viable breach of contract claim against Wells Fargo or MERS. Id. at 5-7. Finally, Dietz's fraud conspiracy claim was dismissed because of his failure to properly plead a claim for fraud. Id. at 7-8.
The remaining Defendants to this action, Quality and McCarthy, seek summary judgment of dismissal. Dkt. 48. The following undisputed facts are material to the motion. On February 21, 2012, after Dietz's default, Wells Fargo executed an Appointment of Successor Trustee, appointing Quality as trustee under the Deed of Trust. Dkt. 15 at 3; Dkt. 10-3 at 10-12. On July 26, 2012, Quality issued a Notice of Default. Dkt. 18-3. The Notice of Default included Wells Fargo's Foreclosure Loss Mitigation Form, indicating that Dietz did not request a pre-foreclosure meet and confer. Id. On August 4, 2012, Dietz wrote a letter to Quality "contesting the validity of the debt, " and asking for a copy of the Note. Dkt. 18-4. Quality responded with a letter dated September 6, 2012, which included a copy of the Note. Dkt. 18-7. On April 17, 2013, Dietz wrote another letter to Quality. Dkt. 19-8. Similar to the previous letter, Dietz disputed the enforceability of the Note and Deed of Trust, and Wells Fargo's ability to appoint Quality as successor trustee. Dietz also alleged that signatures were "fraudulent." Dietz also asked Quality for a copy of its Beneficiary Declaration. Id. On June 4, 2013, Quality's attorneys, McCarthy, sent a responsive letter to Dietz, which included a copy of the Beneficiary Declaration. Dkt. 19-3. From August of 2012 to May of 2013, Quality issued three Notices of Sale against the Property; they are found under Cowlitz County Recorder's Nos. 3462652, 3465768, and 3480408. Dkt. 15 at 3. Prior to issuing the Notices of Sale, Quality had in its possession the Beneficiary Declaration from Wells Fargo, confirming that Wells Fargo was the "holder" of the Note. Dkt. 19-3; Dkt. 48-1; Dkt. 49. The last Notice of Sale set an auction date of the Property for September 20, 2013. On that day, the auction was held. Wells Fargo was the highest bidder by credit bid. Dietz did not file a motion to restrain the sale. On September 24, 2013, Quality issued to Wells Fargo a Trustee's Deed Upon Sale. Dkt. 7 at 44-46.
SUMMARY JUDGMENT STANDARD
Summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Rule 56(a) mandates summary judgment against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Broussard v. Univ. of Cal. at Berkeley, 192 F.3d 1252, 1258 (9th Cir. 1999).
A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). When the moving party has carried its burden under Rule 56(a) the opposing party must do more than simply show that there is some metaphysical doubt as to the material facts and come forward with specific facts showing that there is a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586-87 (1986). An issue is genuine' only if there is a sufficient evidentiary basis on which a reasonable fact finder could find for the nonmoving party, and a dispute is material' only if it could affect the outcome of the suit under the governing law. In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008). When considering the evidence on a motion for summary judgment, the court must draw all reasonable inferences on behalf of the nonmoving party. Matsushita Elec. Indus. Co., 475 U.S. at 587; Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1126 (9th Cir. 2008).
FAIR DEBT COLLECTION PRACTICES ACT
Dietz alleges a FDCPA claim. As stated in the Court's previous Orders, the FDCPA applies only to the activities of "debt collectors" as defined by that statute. 15 U.S.C. §1692a(6). See Dkt. 15 at 6; Dkt. 30 at 4. To plead a claim for violation of the FDCPA, Plaintiff must allege facts demonstrating that (1) Defendants were collecting a debt as debt collectors and that (2) Defendants' debt collection actions violated the federal statute. Jerman v. Carlisle, et. al., 559 U.S. 573 (2010). The FDCPA's definition of a debt collector "does not include the consumer's creditors, a mortgage servicing company, or any assignee of the debt, so long as the debt was not in default at the time it was assigned." Nool v. HomeQ Servicing, 653 F.Supp.2d 1047, 1053 (E.D. Cal. 2009). A claim of wrongful foreclosure is not cognizable under the FDCPA. That would exclude any FDCPA claim against Quality or McCarthy. Their only involvement with Dietz's loan was advancing the non-judicial foreclosure of the property. The Notice of Default and Notice of Sale(s) are statutorily required notices under Washington's DTA. They are not "debt collection" activities separate from the non-judicial process.
Further, even if Quality was a "debt collector", there is no basis for a claim under 15 USC § 1692f(6) (threatening non-judicial action without enforceable security). Dietz admits to signing the Note and Deed of Trust, and defaulting by reason of nonpayment. The Deed of Trust is a legally enforceable security interest against the property. Wells Fargo, as "holder" of the Note is the legal beneficiary of ...