United States District Court, W.D. Washington
DAVID R. GELINAS, et al., Plaintiffs,
BANK OF AMERICA, N.A., et al., Defendants.
Honorable Richard A. Jones United States District Judge
matter comes before the Court on Defendants Bank of America,
N.A. (“BANA”), HSBC Bank, USA, National
Association (“HSBC”), Mortgage Electronic
Registration Systems, Inc.'s (“MERS”) Motion
to Dismiss Plaintiffs' Complaint (collectively
“Defendants”) (Dkt. # 10) and Defendant Quality
Loan Services Corporation of Washington's
(“QLS”) Motion to Dismiss (Dkt. # 9). For the
reasons that follow, the Court GRANTS the
December 9, 2006, Plaintiffs took out a mortgage loan for
$460, 000.00 from Express Capital Lending. Dkt. # 1 ¶
17. Plaintiffs' loan is secured by a Deed of Trust
(“DOT”) on real property, which is located at
6829 Skipley Road, Snohomish, WA 98290
(“Property”). Id.; Dkt. # 11, Ex. A. The
DOT names Plaintiffs as the borrowers, Express Capital
Lending as the lender, First American Title as the trustee,
and MERS as the beneficiary. Dkt. # 11, Ex. A. On September
28, 2011, MERS recorded an Assignment of Deed of Trust and
assigned the DOT to BANA. Id., Ex. B; Dkt. # 1
¶ 19. Then, on January 10, 2013, BANA recorded an
Assignment of Deed of Trust and assigned the DOT to HSBC.
Dkt. # 11, Ex. C. On February 21, 2014, HSBC recorded an
Appointment of Successor Trustee, appointing QLS as the
successor of title. Id., Ex. D.
November 26, 2014, QLS recorded a Notice of Trustee's
Sale scheduling a sale for March 27, 2015, because Plaintiffs
were in default of their loan. Id., Ex. E. The
Notice of Trustee's Sale documented that Plaintiffs owed
$131, 936.56 on their loan payments. Id. However,
the March 2015 sale did not take place, and QLS recorded a
second Notice of Trustee's Sale on February 8, 2016.
Id., Ex. F; Dkt. # 1 ¶ 23. By then,
Plaintiffs' were $173, 599.90 in arrears. Id.
assert that they submitted a loan modification application to
BANA on June 3, 2016. Dkt. # 1 ¶ 25. Plaintiffs claim
they are in weekly communications with Ms. Angie Fortunity of
BANA's loss mitigation department and that their file is
“open and active.” Id. However, they
admit that they “have not provided all required
information requested on [their loan modification
application].” Id. ¶ 26. Plaintiffs filed
this lawsuit on August 26, 2016. Dkt. # 1.
12(b)(6) permits a court to dismiss a complaint for failure
to state a claim. The rule requires the court to assume the
truth of the complaint's factual allegations and credit
all reasonable inferences arising from those allegations.
Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007).
A court “need not accept as true conclusory allegations
that are contradicted by documents referred to in the
complaint.” Manzarek v. St. Paul Fire & Marine
Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). The
plaintiff must point to factual allegations that “state
a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 568
(2007). If the plaintiff succeeds, the complaint avoids
dismissal if there is “any set of facts consistent with
the allegations in the complaint” that would entitle
the plaintiff to relief. Id. at 563; Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009). Where a plaintiff
proceeds pro se, the court must construe his
“complaints liberally even when evaluating it under the
Iqbal standard.” Johnson v. Lucent Techs.
Inc., 653 F.3d 1000, 1011 (9th Cir. 2011) (citing
Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)).
allege six causes of action in their Complaint: (1) quiet
title, (2) violations of the Real Estate Settlement
Procedures Act (“RESPA”), 12 C.F.R. 1024.41(g),
(3) violation of the Washington Consumer Protection Act
(“CPA”), RCW ch. 19.86, (4) declaratory judgment,
(5) slander of title, and (6) violation of the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C.
§ 1692e(5). Dkt. # 1.
request that the Court take judicial notice of certain
documents. Among these documents are (1) the deed of trust
(Dkt. # 11, Ex. A; Snohomish County Auditor Instrument #
200701080572); (2) two recordings of the assignment of the
deed of trust (id., Exs. B, C; ## 201109280477,
201301100083); (3) a recorded appointment of successor
trustee (id., Ex. D; # 201402210257); and (4) two
recorded notices of trustee sale (id., Exs. E, F; ##
201411260230, 201602080244). Each of these documents is
available at http://snohomishcountywa.gov/176/Auditor.
resolving a motion to dismiss, a court typically cannot
consider evidence beyond the four corners of the complaint.
It may, however, consider certain materials, including those
subject to judicial notice, without converting the motion
into a motion for summary judgment. United States v.
Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). Under Rule
201, a court may take judicial notice of “a fact that
is not subject to reasonable dispute because it: (1) is
generally known within the trial court's territorial
jurisdiction; or (2) can be accurately and readily determined
from sources whose accuracy cannot reasonably be
questioned.” Fed.R.Evid. 201. Certain public records
qualify under the second category, including the
“records and reports of administrative bodies.”
Ritchie, 342 F.3d at 909 (quoting Interstate
Nat. Gas Co. v. S. Cal. Gas Co., 209 F.2d 380, 385 (9th
the Court takes judicial notice of the foregoing publically
recorded Snohomish County documents. The contents of these
documents are not subject to reasonable dispute, as they
“are authentic documents recorded with a governmental
agency.” Gelinas v. U.S. Bank, NA, No.
16-1468-JLR, 2017 WL 553277, at *3 (W.D. Wash. Feb. 10,
Quiet Title Claim
assert a claim for quiet title. Dkt. # 1 ¶ 23. They
allege that Defendants have no interest in the Property
because the assignment recorded on September 28, 2011 is
invalid. Id. Plaintiffs argue that if the assignment
is invalid, then the subsequently recorded documents are also
invalid. Id. They thus allege that Defendants should
be prevented from foreclosing on Plaintiffs' Property.
Id. Defendants argue that Plaintiffs' claim
fails because Plaintiffs have not paid their debt. Dkt. # 10
purpose of a quiet title action is to resolve competing
claims of ownership of real property. Kobza v.
Tripp, 105 Wash.App. 90, 95 (2001). In order for
Plaintiffs to succeed on a quiet title claim, Plaintiffs must
first allege that they “are the rightful owners of the
property, i.e., that they have satisfied their obligations
under the Deed of Trust.” Santos v. Countrywide
Home Loans, No. CIV.20902642WBS DAD, 2009 WL 3756337, at
*4 (E.D. Cal. Nov. 6, 2009) (quoting Kelley v. Mortgage
Elec. Reg. Sys., Inc., 642 F.2d 1048, 1057 (N.D. Cal.
2009)); see also Borowski v. BNC Mortgage, Inc., No.
C12-5867 RJB, 2013 WL 4522253, at *4 (W.D. Wash. Aug. 27,
2013) (stating that because plaintiff owed an outstanding
balance on his mortgage loan, he had not met the required
prerequisite for a quiet title action). In other words, to
bring a quiet title claim, Plaintiffs must first allege facts
demonstrating they have paid their outstanding debt.
have not alleged facts asserting they have paid their
outstanding debt. In their Complaint, Plaintiffs state that
“the disputed mortgage at issue” totals $493,
546.00. Dkt. # 1 at ¶ 10. The Notice of Trustee's
Sale shows that Plaintiffs owe $173, 599.90 as of February 8,
2016. (Dkt. # 11, Ex. F). In their reply brief, Plaintiffs
allege no facts asserting they have paid their outstanding
debt. Dkt. # 13.
additional basis for dismissal, Defendants argue that
Plaintiffs' claim fails because they lack standing to
challenge the validity of an assignment of their deed of
trust. Dkt. # 10 at 6. The Court agrees. In Washington,
Plaintiffs, as third parties, lack standing to challenge the
chain of their Assignment unless they can ...