United States District Court, W.D. Washington, Seattle
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,
MARCEL E. SEYSS and AMY J. SEYSS, husband and wife, et al., Defendants.
ORDER OF DISMISSAL
C. COUGHENOUR UNITED STATES DISTRICT JUDGE.
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.
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.)
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.
Local Civil Rule Requirements
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.
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
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
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.)
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