United States District Court, Western District of Washington, Seattle
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR RECONSIDERATION
Marsha J. Pechman United States District Judge
THIS MATTER comes before the Court on Plaintiff Florence Frias’s Motion for Reconsideration. (Dkt. No. 36.) Having reviewed Plaintiff’s motion, Defendants LSI Title Agency, Inc. and Asset Foreclosures Services, Inc.’s response briefs, (Dkt. Nos. 54, 55), and the related record, the Court GRANTS in part and DENIES in part Plaintiff’s motion.
Plaintiff’s complaint was removed from Snohomish County Superior Court on April 30, 2013. (Dkt. No. 1.) On May 9, 2013, Defendant LSI Title Agency, Inc. (“LSI”) filed a motion to dismiss all of Plaintiff’s claims against it. (Dkt. No. 10.) Defendant Asset Foreclosures Services, Inc. (“Asset Foreclosures”) joined in the motion as to all of Plaintiff’s claims against it. (Dkt. No. 11.) Defendants U.S. Bank, N.A. (“U.S. Bank”) and Mortgage Electronic Registration Systems, Inc. (“MERS”) joined in the motion only with respect to Plaintiff’s first cause of action, a request for preliminary injunction. (Dkt. No. 12.)
On July 26, 2013, the Court entered an Order dismissing Plaintiff’s first cause of action as to all Defendants. (Dkt. No. 34 at 1.) The Court also dismissed Plaintiff’s Deed of Trust Act (“DTA”), Consumer Protection Act (“CPA”), intentional misrepresentation, and negligent misrepresentation claims against LSI and Asset Foreclosures. (Id.) The Court dismissed Plaintiff’s DTA claim on the grounds that a plaintiff cannot recover damages under the DTA absent a completed foreclosure. (Id. at 10–11.) The Court dismissed Plaintiff’s CPA claim because Plaintiff’s property was not sold and she did not pay foreclosure fees; therefore, she failed to allege injury to her business or property as is required under the CPA. (Id. at 9–10.)
On August 9, 2013, Plaintiff filed a motion for reconsideration, citing a then recently-published opinion from the Washington Court of Appeals, Walker v. Quality Loan Serv. Corp., 176 Wn.App. 294, 313 (2013), in which the court held that “a borrower has an actionable claim against a trustee who, by acting without lawful authority or in material violation of the DTA, injures the borrower, even if no foreclosure sale occurred.” (Dkt. No. 36 at 7.) By her motion, Plaintiff asked the Court to amend its Order dismissing her DTA and CPA claims against LSI and Asset Foreclosures in light of Walker. (Id. at 12.)
Because Walker departed from precedent, this Court certified the following questions to the Washington Supreme Court:
1. Under Washington law, may a plaintiff state a claim for damages relating to a breach of duties under the Deed of Trust Act and/or failure to adhere to the statutory requirements of the Deed of Trust Act in the absence of a completed trustee’s sale of real property?
2. If a plaintiff may state a claim for damages prior to a trustee sale of real property, what principles govern his or her claim under the Consumer Protection Act and the Deed of Trust Act?
(Dkt. No. 48 at 3.) The Court stayed this matter and abstained from ruling on Plaintiff’s motion for reconsideration until the Washington Supreme Court answered these questions. (Id. at 1–2.)
As to the first question, the Washington Supreme Court answered “there is no actionable, independent cause of action for monetary damages under the DTA based on DTA violations absent a completed foreclosure sale.” (Dkt. No. 52-1 at 18–19.) As to the second question, the Washington Supreme Court answered “under the appropriate factual circumstances, DTA violations may be actionable under the CPA, even where no foreclosure sale has been completed” and that “the same principles that govern CPA claims generally apply to CPA claims based on alleged DTA violations.” (Id. at 3.) The Washington Supreme Court further noted that Plaintiff “did allege some injuries that may be compensable under the CPA.” (Id. at 20.)
Plaintiff argues the Court should allow her CPA and misrepresentation claims against LSI and Asset Foreclosures to proceed in light of the Washington Supreme Court’s Certified Opinion (“Certified Opinion”). (Dkt. No. 57.) LSI and Asset Foreclosures argue the Court should not modify its Order as to any of Plaintiff’s claims. (Dkt. Nos. 54, 55.)