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Bigelow v. Northwest Trustee Services, Inc.

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

June 1, 2015

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

ORDER

BENJAMIN H. SETTLE, United States District Judge.

This matter comes before the Court on Plaintiff/Counter Defendant James Bigelow’s (“Bigelow”) motion to dismiss counterclaim (Dkt. 58); Defendants Renee Parker and Wright, Finlay & Zak, LLP’s (“Attorney Defendants”) motion to strike plaintiff’s complaint for Anti-Slapp violations (Dkt. 60); Defendant Northwest Trustee Services, Inc.’s (“Northwest”) motion to dismiss for failure to state a claim (Dkt. 63); Green Tree, MERS, Renee Parker, and Wright, Finlay & Zak, LLP’s motion to dismiss for failure to state a claim (Dkt. 65); Defendant Nationwide Title Clearing’s (“Nationwide”) motion to dismiss for failure to state a claim (Dkt. 86); and Defendant First American Title Insurance Company’s (“First American”) motion to dismiss (Dkt. 87). The Court has considered the pleadings filed in support of and in opposition to the motions and rules as follows:

I. PROCEDURAL HISTORY

On October 7, 2014, Bigelow filed a complaint against 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, Green Tree and MERS filed a motion to dismiss. Dkt. 12.

On January 8, 2015, Green Tree filed a third party complaint against Bigelow, Carolyn Bigelow, Wells Fargo Bank, N.A., and Oak Ridge Yelm Homeowners Association. Dkt. 26.

On January 29, 2015, the Court granted Green Tree and MERS’s motion to dismiss, ordered Bigelow to join co-borrower Ms. Bigelow as an indispensible party, and granted Bigelow leave to amend his complaint. Dkt. 35.

On February 23, 2015, Bigelow filed an amended complaint against Northwest, Green Tree, and MERS and added Defendants Wright, Finlay & Zak, LLP, Ticor Title Company, Nationwide, First American, and Renee Parker. Dkt. 44. Bigelow asserts causes of action for violation of the FDCPA, DTA, CPA, slander of title, and intentional infliction of emotional distress (“IIED”). Dkts. 44 & 44-1.

On March 11, 2015, Bigelow filed a motion to dismiss the counterclaim and third party complaint. Dkt. 58. On March 20, 2015, Green Tree responded. Dkt. 64. Bigelow did not reply.

On March 13, 2015, Attorney Defendants filed a motion to strike Bigelow’s complaint for Anti-SLAPP violations. Dkt. 60. On April 6, 2015, Bigelow responded. Dkt. 77. On April 8, 2015, Attorney Defendants filed a reply. Dkt. 79.

On March 17, 2015, Northwest filed a motion to dismiss for failure to state a claim. Dkt. 63. On April 8, 2015, Bigelow responded. Dkt. 78. On April 9, 2015, Northwest replied. Dkt. 80.

On March 20, 2015, Green Tree, MERS, and Attorney Defendants filed a motion to dismiss for failure to state a claim.[1] Dtk. 65. On April 14, 2015, Bigelow responded. Dkt. 84. On April 15, 2015, Green Tree, MERS, and Attorney Defendants replied. Dkt. 85.

On April 20, 2015, Nationwide filed a motion to dismiss for failure to state a claim. Dkt. 86. On April 27, 2015, First American filed a motion to dismiss. Dkt. 87. On May 20, 2015, Bigelow responded to both motions. Dkt. 90. On May 22, 2015, First American replied. Dkt. 91.

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 ...


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