United States District Court, W.D. Washington, Seattle
ORDER GRANTING DEFENDANT NORTHWEST TRUSTEE
SERVICES'S MOTION TO DISMISS
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on Defendant Northwest Trustee
Services, Inc.'s (“NWTS”) Motion to Dismiss
under Rule 12(b)(6) for failure to state a claim. Dkt. #10.
Plaintiff has failed to respond to the motion. Under this
Court's Local Civil Rules, “[e]xcept for motions
for summary judgment, if a party fails to file papers in
opposition to a motion, such failure may be considered by the
court as an admission that the motion has merit.” LCR
7(b)(2). The Court considers Plaintiff's failure to
respond to be such an admission in this case.
motion to dismiss for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6), all allegations of material
fact must be accepted as true and construed in the light most
favorable to the nonmoving party. Cahill v. Liberty Mut.
Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). However,
the Court is not required to accept as true a “legal
conclusion couched as a factual allegation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). The Complaint “must contain sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face.” Id. at 678. This
requirement is met when the plaintiff “pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. Absent facial plausibility,
Plaintiffs' claims must be dismissed. Twombly,
550 U.S. at 570.
the Court limits its Rule 12(b)(6) review to allegations of
material fact set forth in the complaint, the Court may
consider documents for which it has taken judicial notice.
See F.R.E. 201; Swartz v. KPMG LLP, 476
F.3d 756, 763 (9th Cir. 2007). Here, the Court has previously
taken judicial notice of, and continues to consider herein,
the documents set forth in support of former Defendants'
(Select Portfolio Servicing and U.S. Bank N.A.) motion to
dismiss. See Dkt. #7, Exs. 1-10. The Court also
takes judicial notice of the documents filed in support of
the instant Defendant's motion to dismiss. Dkt. #10, Exs.
A-G. The Court agrees that judicial notice of those documents
is appropriate because the documents presented are matters of
public record. Lee v. City of Los Angeles, 250 F.3d
668, 688-89 (9th Cir. 2001).
review of the record in this matter reveals the following. On
or about November 17, 2006, Plaintiff executed an Adjustable
Rate Note in the amount of $704, 000.00, payable to
Washington Mutual Bank, FA. In conjunction with the Note,
Plaintiff executed a Deed of Trust in favor of Washington
Mutual Bank, FA, and providing as collateral for the Note
certain real property located at 10011128th Ave. NE,
Kirkland, Washington 98033. See Dkt. #7, Exs. 1 and
2. The Trust Deed names Commonwealth Title as the Trustee and
grants the Trustee the power of sale in the event of default.
Id., Ex. 2. The Trust Deed was recorded on December
1, 2006 under King County Auditor's No. 20061201002540.
about November 24, 2010, JPMorgan Chase Bank, which had
acquired loans and other assets from Washington Mutual, and
as receiver for the Federal Deposit Insurance Corporation,
executed an Assignment of Deed of Trust memorializing the
assignment of the Trust Deed to the Trust. The Assignment was
recorded on December 6, 2010, as King County Auditor's
No. 20101206001250. Dkts. #7, Ex. 3 and #10, Ex. A.
2010, Plaintiff defaulted on the Loan, and the Trust
initiated a non-judicial foreclosure sale. Dkt. #7, Ex. 4.
The 2010 Notice of Trustee's Sale references the parties
to, and recording information of, the Deed of Trust and
Assignment, and set a sale date of March 25, 2011.
has been attempting to avoid foreclosure of his property ever
since, primarily through a series of nefarious tactics known
as “hijacking” bankruptcy cases in California and
South Carolina. Indeed, on March 24, 2011, the day before
the scheduled trustee's sale, Plaintiff recorded a
Quitclaim Deed to “Jon Cuddeback as trustor and Tracy
Michael Wilkinson as co-trustee of the Jon Cuddeback Family
Trust”. See, Dkt. #10, Ex. B. Because Mr.
Wilkinson had filed a bankruptcy in the Central District of
California on March 22, 2011, the trustee's sale was
postponed. On September 6, 2011, Mr. Wilkinson filed a
Declaration in his bankruptcy matter stating that he did not
know Mr. Cuddeback, he had no interest in the Property, he
did not consent to the transfer, and he never accepted the
delivery of the Quitclaim Deed. Dkt. #10, Ex. C. As a result,
the Trust obtained relief from the bankruptcy stay on
September 20, 2011.
trustee's sale was again scheduled. However, on November
30, 2011, Mr. Cuddeback recorded a second Quitclaim Deed
granting the Property to “Jon Cuddeback as Trustee and
Ganine Maria Arnold as co-trustee of the Jon Cuddeback Family
Trust”. Dkt. #10, Ex. D. Because Ms. Arnold had an open
bankruptcy case pending in the Central District of
California, the trustee's sale was again postponed.
Ms. Arnold's case was dismissed, Mr. Cuddeback filed a
third Quit Claim Deed on March 24, 2011, to “Jon
Cuddeback Trustee and Clayton Macaulay as co-trustee of the
Jon Cuddeback Family Trust”. Dkt. #10, Ex. E. Clayton
Macaulay had an open bankruptcy case in the District of South
Carolina Bankruptcy Court.
21, 2012, Plaintiff filed a petition for protection under
Chapter 13 of the bankruptcy code. Dkt. #7, Ex. 5 and Dkt. #1
at ¶ 19. That case was dismissed on October 5, 2012 as a
result of Plaintiff's failure to file required
documentation. Dkt. #7, Ex. 6.
October 30, 2015, the Trust recorded an Appointment of
Successor Trustee naming NWTS as Successor Trustee, and
vesting NWTS with the powers of the original trustee. Dkts.
#7, Ex. 7, #10, Ex. F and RCW 61.24.010(2). The Appointment
of Successor Trustee was recorded under King County
Auditor's No. 20151030001968. Dkt. #7, Ex. 7.
18, 2016, NWTS set a trustee's sale for September 16,
2016. Dkts. #7, Ex. 8 and #10, Ex. G. Plaintiff then
initiated this action on August 3, 2016. Dkt. #1. On or about
September 16, 2016, Plaintiff again filed a petition for
protection under Chapter 13 of the bankruptcy
code. Dkt. #7, Ex. 9. That case was dismissed on
October 26, 2016, for failure to file required documentation.
Id., Ex. 10.
taking the facts described above as true, and having reviewed
the arguments asserted by Defendant NWTS, the Court finds no
support for the claims alleged by Plaintiff. Plaintiff
alleges, inter alia, that NWTS is in violation of
the Real Estate Settlement Procedures Act's
(“RESPA”) loss mitigation rules apparently for an
alleged “mishandling of his loan modification
application and dual tracking regarding same.” Dkt. #1
at ¶ ¶ 11-14. Plaintiff complains that he has never
been notified of the various transfers of his loans between
companies, that he was never provided notice of a new
Trustee, and that his loan modification paperwork has been
“grossly mishandled.” Id. at ¶
¶ 16-17, 22-24 and 25-27. He also alleges that the
successor Trustee was not appointed by the “present
beneficiary” which ...