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Elmore v. Bank of America, N.A.

United States District Court, E.D. Washington

December 30, 2014

NATHAN F. ELMORE, an individual, and on behalf of others similarly situated, Plaintiff,
v.
BANK OF AMERICA, N.A., a Delaware corporation, Defendant

For Nathan F Elmore, an individual and on behalf of others similarly situated, Plaintiff: Clay M Gatens, LEAD ATTORNEY, Jeffers Danielson Sonn & Aylward PS, Wenatchee, WA; Michael D Daudt, LEAD ATTORNEY, Terrell Marshall Daudt & Willie PLLC, Seattle, WA.

For Bank of America NA, a Delaware corporation, Defendant: Bradley R Kutrow, LEAD ATTORNEY, McGuireWoods LLP, Charlotte, NC; Tammy L Adkins, LEAD ATTORNEY, McGuire Woods LLP, Chicago, IL; Timothy Michael Lawlor, LEAD ATTORNEY, Jody Marie McCormick, Witherspoon Kelley Davenport & Toole - SPO, Spokane, WA.

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS

JUSTIN L. QUACKENBUSH, SENIOR UNITED STATES DISTRICT JUDGE.

BEFORE THE COURT is Defendant Bank of America, N.A.'s (" BANA") Motion to Dismiss for Failure to State a Claim pursuant to Fed.R.Civ.P. 12(b)(6) (ECF No. 20). The Motion was directed to Plaintiff Nathan F. Elmore's (" Elmore") First Amended Complaint (ECF No. 16). The court heard telephonic oral arguments on December 11, 2014. H. Lee Lewis represented Elmore and Timothy M. Lawlor spoke for BANA.

I. Background

In 2005, Elmore purchased a single family home in Spokane, Washington with a loan ultimately acquired and serviced by BANA. The deed of trust included language protecting BANA interest in the property upon Elmore's breach:

If (a) Borrower fails to perform the covenants and agreements contained in this Security Instrument... or (c) Borrower has abandoned the Property, then Lender may do and pay for whatever is reasonable or appropriate to protect Lender's interest in the Property and rights under this Security Instrument, including protecting and/or assessing the value of the Property, and securing and/or protecting the Property... Securing the Property includes, but is not limited to, entering the Property to make repairs, change locks, replace or board up doors and windows, drain water from pipes, eliminate building or other code violations or dangerous conditions, and have utilities turned on or off.

In 2011 Elmore defaulted on his loan payments. On December 7, 2011, instead of foreclosing on the property, BANA approved a deed in lieu of foreclosure from Elmore which mandated that Elmore vacate the property by December 27, 2011. Along with the deed in lieu of foreclosure Elmore signed two additional agreements. The first was the " Personal Property Release" in which he relinquished all interest in personal belongings left at the property after the vacancy date. The second was the " Surrender of Possessions Agreement" which included a " hold harmless" clause:

Borrower shall hold Bank of America, N.A., its representatives, servicers, agents, successors and assigns harmless from any and all liability, loss, cost, or expense, including reasonable attorney's fees, arising out of and/or in connection with the Property.

Despite the December 27, 2011 vacancy date, Elmore did not sign these documents until January 8, 2012.

Elmore contends that at an unknown date, but before December 27, 2011, while he was in the process of moving out, BANA agents entered the property, removed at least $30, 000 worth of personal belongings, changed the locks, and installed a lock box over the door knob. Upon discovering this, Elmore allegedly contacted BANA and demanded an explanation, but never heard back. BANA charged Elmore fees related to claimed property preservation measures.

Elmore claims he was denied rightful use and enjoyment of his property and that his credit score was negatively affected. Elmore does not explain why, if the alleged actions taken by BANA occurred prior to December 27, 2011, he still signed the deed in lieu of foreclosure and the accompanying documents on January 8, 2012.

II. Legal Analysis

Elmore's First Amended Complaint raises six claims: (1) trespass; (2) intentional trespass; (3) violation of Washington's Deed of Trust Act, RCW 61.24; (4) violation of Washington's Consumer Protection Act, RCW ...


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