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Bess v. Ocwen Loan Servicing, LLC

United States District Court, Western District of Washington, Tacoma

March 16, 2015

NANCY BESS, individually, and as Personal Representative of the Estate of Gary Ray Bess, deceased, and on behalf of others similarly situated, Plaintiff,
v.
OCWEN LOAN SERVICING, LLC, et al., Defendants.

ORDER GRANTING DEFENDANT OCWEN LOAN SERVICING, LLC’S MOTION TO DISMISS AND GRANTING PLAINTIFF LEAVE TO AMEND

BENJAMIN H. SETTLE, United States District Judge

This matter comes before the Court on Defendant Ocwen Loan Servicing, LLC’s (“Ocwen”) motion to dismiss (Dkt. 6). 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 the motion and grants leave to amend for the reasons stated herein.

I. PROCEDURAL HISTORY

On November 10, 2014, Plaintiff Nancy Bess (“Bess”) filed a class action complaint against Defendants Ocwen and GMAC Mortgage, LLC (“GMAC”) in Kitsap County Superior Court. Dkt. 1, Ex. A (“Comp.”). Bess alleges the following claims: (1) common law trespass; (2) statutory trespass; (3) violations of chapter 61.24 RCW, Washington’s Deed of Trust Act (“DTA”); (4) violations of chapter 19.86 RCW, Washington’s Consumer Protection Act (“CPA”); (5) breach of contract; and (6) unjust enrichment. Id. ¶¶ 5.1–11.10. Bess brings these claims as an individual, on behalf of the purported class, and as the personal representative of the Estate of Gary Bess (“Estate”). Id. ¶ 1.1.

On January 12, 2015, Ocwen removed the case to this Court. Dkt. 1.

On January 13, 2015, Ocwen moved to dismiss all of Bess’s claims. Dkt. 6. On February 2, 2017, Bess responded. Dkt. 17. On February 6, 2015, Ocwen replied. Dkt. 18.

On February 18, 2014, Bess voluntarily dismissed the claims against GMAC. Dkt. 21.

II. FACTUAL BACKGROUND

In July 2000, Gary Bess purchased a single family residence in Port Orchard, Washington (“Bess residence”). Comp. ¶ 4.1. In 2007, Gary Bess married Nancy Bess. Id. ¶ 4.2. Gary Bess and Nancy Bess resided at the Bess residence. Id.

In November 2007, Gary Bess obtained a mortgage loan from GMAC. Id. ¶ 4.3. The loan was secured by a Deed of Trust on the Bess residence. Id. ¶ 4.4. Although Gary Bess is identified as the sole borrower on the Deed of Trust, both Gary Bess and Nancy Bess executed the Deed of Trust. Dkt. 7, Declaration of Joanne Hepburn (“Hepburn Dec.”), Ex. 1 at 2, 15.

The Deed of Trust obligates the borrower to “pay when due the principal of, and interest on, the debt evidenced by the Note and any prepayment charges and late charges due under the Note.” Id. at 5. If the borrower fails to comply with the Deed of Trust’s provisions, the lender or its successors and assigns may take certain actions to secure the property. Id. at 9. The Deed of Trust provides, in relevant part, as follows:

(a) Borrower fails to perform the covenants and agreements contained in [the Deed of Trust] . . . then Lender may do and pay for whatever is reasonable or appropriate to protect Lender’s interest in the Property and rights under [the Deed of Trust], including protecting and/or assessing the value of the Property and securing and/or repairing 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.

Id.

On May 27, 2012, Gary Bess died intestate. Id. ¶ 4.8. Nancy Bess continued to reside at the Bess residence. Id. The loan obligations became delinquent following Gary Bess’s death. Id. ¶ 4.9.

The Deed of Trust was ultimately assigned to Ocwen. Id. ¶ 4.7. On October 31, 2013, “Ocwen and/or GMAC, and/or their agents” entered the Bess residence and removed existing locks, installed new locks, placed a lock-box on the ...


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