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Bess v. Ocwen Loan Servicing LLC

United States District Court, W.D. Washington, Tacoma

June 1, 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, Defendant.

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT 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 Plaintiff Nancy Bess’s (“Bess”) first amended complaint (Dkt. 29). 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 Ocwen’s motion and grants Bess leave to amend for the reasons stated herein.

I. PROCEDURAL HISTORY

On November 10, 2014, Bess filed a class action complaint against Ocwen in Kitsap County Superior Court. Dkt. 1, Ex. A (“Comp.”). Bess alleged 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 brought her claims as an individual and as the personal representative for 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 Bess’s claims. Dkt. 6. On March 16, 2015, the Court granted Ocwen’s motion. Dkt. 22. The Court dismissed Bess’s common law trespass, statutory trespass, DTA, and unjust enrichment claims without leave to amend. Id. at 11. The Court found that these claims could not be cured by any amendment. Id. The Court granted Bess leave to amend her breach of contract and CPA claims. Id. Finally, the Court determined that Bess lacked standing to bring claims as the personal representative for the Estate. Id. at 10.

On March 27, 2015, Bess filed her first amended complaint. Dkt. 23 (“FAC”). Bess alleges the following claims against Ocwen: (1) common law trespass; (2) statutory trespass; (3) violation of RCW 7.28.230; (4) violation of the DTA; (5) violations of the CPA; (6) breach of contract; and (7) unjust enrichment. Id. ¶¶ 5.1–13.11. Bess brings her claims as an individual and as the personal representative for the Estate. Id.¶ 1.1.

On April 9, 2015, Ocwen moved to dismiss Bess’s amended complaint. Dkt. 24. On April 27, 2015, Bess responded. Dkt. 28. On May 1, 2015, Ocwen replied. Dkt. 29.

II. FACTUAL BACKGROUND

In July 2000, Gary Bess purchased a single-family residence in Port Orchard, Washington (“Bess residence”). FAC ¶ 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 Mortgage LLC. 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:

If (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. FAC ¶ 4.9. Nancy Bess continued to reside at the Bess residence. Id. The loan obligations became delinquent ...


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