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Bigelow v. Northwest Trustee Services, Inc.

United States District Court, Western District of Washington, Tacoma

January 29, 2015

JAMES A. BIGELOW, Plaintiff,
v.
NORTHWEST TRUSTEE SERVICES, INC., et al., Defendants.

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS AND PLAINTIFF LEAVE TO AMEND

BENJAMIN H. SETTLE, United States District Judge.

This matter comes before the Court on Defendants Green Tree Servicing, LLC, (“Green Tree”) and Mortgage Electronic Registration Systems, Inc. (“MERS”) (collectively “Defendants”) motion to dismiss (Dkt. 15). The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file and hereby grants Defendants’ motion and Plaintiff James Bigelow (“Bigelow”) leave to amend the complaint for the reasons stated herein.

I. PROCEDURAL HISTORY

On October 7, 2014, Bigelow filed a complaint against Northwest Trustee Services, Inc. (“Northwest”), Green Tree, and MERS asserting causes of action for (1) violation of the Fair Debt Collections Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”), (2) violation of the Washington State Deed of Trust Act, RCW Chapter 61.24 (“DTA”), and (3) violation of the Washington Consumer Protection Act, RCW Chapter 19.86 (“CPA”). Dkt. 1.

On November 13, 2014, Bigelow filed an amended complaint against the same defendants asserting the same causes of action. Dkt. 11.

On December 2, 2014, Defendants filed a motion to dismiss. Dkt. 12. That same day, Defendants filed a request for judicial notice. Dkt. 16. On December 30, 2014, Bigelow responded. Dkt. 20. On January 2, 2015, Bigelow filed a motion to strike (Dkt. 21) and an additional response (Dkt. 22). Defendants did not reply.

II. FACTUAL BACKGROUND

On April 24, 2007, Bigelow and co-borrower Carolyn Bigelow (“Ms. Bigelow”) executed a Note in the amount of $233, 899.00 in favor of Pierce Commercial Bank. The Note was secured by a Deed of Trust encumbering property commonly known as 10018 Cascadian Avenue SE, Yelm, Washington 98597. The Deed of Trust was recorded with the Thurston County Auditor on April 27, 2007.

Defendants assert that the loan was transferred to Green Tree on April 19, 2012. The Corporate Assignment of Deed of Trust was recorded with the Thurston County Auditor on April 20, 2012. Defendants also assert that Green Tree is the holder of the Note and services the loan on behalf of the Federal National Mortgage Association.

Defendants assert that, beginning with the payment due on November 1, 2011, the borrowers defaulted under the terms of the Note and Deed of Trust by failing to perform monthly payment obligations. On May 10, 2012, Northwest sent a Notice of Default to the borrowers. After the borrowers failed to cure the default, Northwest sent a Notice of Trustee’s Sale. Bigelow filed this action shortly thereafter.

III. DISCUSSION

A. Motion to Strike

On December 2, 2014, Defendants filed a request for judicial notice requesting that the Court take judicial notice of certain documents. Dkt. 16. The documents attached to the request are as follows: (1) the Note dated April 24, 2007, as executed by Bigelow and Ms. Bigelow; (2) the Deed of Trust dated April 24, 2007, recorded in the office of the Thurston County Auditor on April 27, 2007 as Instrument No. 3922368; (3) a document entitled “Corporate Assignment of Deed of Trust” from MERS as nominee for Pierce Commercial Bank, its Successors and Assigns, to Green Tree recorded on April 20, 2012 in the official records of the Thurston County Auditor as Instrument No. 4261697; (4) a document entitled “Appointment of Successor Trustee” naming Northwest as the successor trustee, recorded on May 18, 2012 in the official records of the Thurston County Auditor as Instrument No. 4266605; (5) a document entitled “Notice of Default” dated May 10, 2012 and sent to James Bigelow a/k/a James A. Bigelow and Carolyn Bigelow a/k/a Carolyn G. Bigelow a/k/a Carolyn G. Willey a/k/a Carolyn G. Absell; (6) a document entitled “Notice of Trustee’s Sale” recorded on April 30, 2014 in the official records of the Thurston County Auditor as Instrument No. 4389907; and (7) the docket report for Bigelow’s 2014 bankruptcy. Dkt. 16, Exs. 1–7. Defendants fail to clarify why the Court should take judicial notice of these documents. Taking judicial notice results in a finding that a fact is admissible as evidence, and Defendants fail to assert why the Court should accept these documents as admissible evidence at this point in the proceeding. Therefore, the Court denies Defendants’ request to take judicial notice of these documents.

On January 2, 2015, Bigelow moved to strike all these documents for various reasons. Dkt. 22. With regard to the documents that pertain to Bigelow’s loan, property, and foreclosure proceeding, id., Exs. 1–6, Bigelow submitted these documents with his complaint. See Dkt. 1, Exs. A–M. Even if Bigelow is correct that Defendants failed to properly authenticate their version of the documents, the Court may consider documents attached to the complaint when assessing the merits of a motion to dismiss. See Hal Roach Studios, Inc. v. Richard Feiner & ...


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