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Bank of New York Mellon v. Seyss

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

February 13, 2017

THE BANK OF NEW YORK MELLON f/k/a THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATE HOLDERS OF THE CWALT, INC., ALTERNATIVE LOAN TRUST 2007-OA2, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-OA2, Plaintiff,
v.
MARCEL E. SEYSS and AMY J. SEYSS, husband and wife, et al., Defendants.

          ORDER OF DISMISSAL

          JOHN C. COUGHENOUR UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on the parties' supplemental memoranda on Defendants' counterclaims (Dkt. Nos. 29, 32). Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby DISMISSES the counterclaims for the reasons explained herein.

         I. BACKGROUND

         On November 30, 2015, Plaintiff Bank of New York Mellon (BNY Mellon) filed suit in Snohomish County Superior Court against Defendants Marcel Seyss and Amy Seyss and any other Defendants that may claim an interest in the property. (Dkt. No. 1-2 at 2.) BNY Mellon sought a monetary judgment and a judgment foreclosing all interest in the real property. (Id. at 8-9.) The Seysses removed this case and raised several issues that they maintained were counterclaims. (See generally Dkt. No. 1.)

         BNY Mellon then moved for summary judgment. (Dkt. No. 10.) This Court granted the motion on December 15, 2016, finding that BNY Mellon was entitled to judgment in its favor because it was the holder of the Note and Deed of Trust and was entitled to foreclose on the property after default. (Dkt. No. 22 at 3.) At that time, the Court noted that neither party had addressed the Seysses' counterclaims raised in their notice of removal. (Id. at 5.) Therefore, this Court instructed the parties to submit supplemental memoranda regarding the Seysses' counterclaims so that the Court could determine whether the case should be closed. (Id.)

         II. DISCUSSION

         A. Local Civil Rule Requirements

         As a preliminary matter, the Court reminds the Seysses that, pursuant to Local Civil Rule 10(e)(1), all filings before the Court must conform to the required format, including designated margins and font. Furthermore, when this Court instructed the parties to submit supplemental information, it expressly stated that “memoranda shall not exceed five pages each.” (Dkt. No. 22 at 5.) Pursuant to Local Civil Rule 7(e)(6), the Court may refuse to consider text not included in the page limits. While the Court acknowledges that the Seysses are proceeding without the assistance of counsel, they must still comply with these rules.

         B. Counterclaims

         The Seysses alleged five counterclaims in their answer: statute of limitations, publication of a false statement, breach of contract, wrongful foreclosure, and quiet title. (See Dkt. No. 4.) In their supplemental memorandum, the Seysses now assert seven counterclaims: notice of rescission and right to cancel, breach of contract, statute of limitations, statute of frauds, wrongful foreclosure, fraudulent conveyance, and quiet title. (See Dkt. No. 32.) However, the Court requested additional information on the previously asserted counterclaims. (Dkt. No. 22 at 5.) It did not grant the Seysses permission to raise new counterclaims. See Fed. R. Civ. P. 15(a)(2). Therefore, the Court will address only the five initial counterclaims.[1]

         Statute of Limitations

         The Seysses assert that the Note cannot be enforced because the statute of limitations has expired. (Dkt. No. 32 at 2.) However, a statute of limitations claim is an affirmative defense. Morrison v. Mahoney, 399 F.3d 1042, 1046 (9th Cir. 2005). “If a party mistakenly designates a defense as a counterclaim . . . the court must, if justice requires, treat the pleading as though it were correctly designated.” Fed.R.Civ.P. 8(c)(2). The Seysses failed to raise the issue in their response to the motion for summary judgment (Dkt. No. 17). Therefore, they waived this claim.

         Additionally, the statute of limitations claim fails on the merits. The Seysses are correct that the statute of limitations for enforcement of real estate contracts is six years in Washington. Wash. Rev. Code § 4.16.040. However, they are incorrect that the statute of limitations has expired in this case. The Note and Deed of Trust has been in default since December 1, 2009. (Dkt. No. 14 at 4.) BNY Mellon brought suit on November 30, 2015, within the statute of limitations. (Dkt. No. 1-2 at 2.)

         Publication of a ...


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