United States District Court, W.D. Washington, Tacoma
ORDER DISMISSING COMPLAINT AND GRANTING LEAVE TO
AMEND DKT. ##7, 9
B. Leighton United States District Judge
MATTER is before the Court on Defendants U.S. ROF II Legal
Title Trust 2015-1 and U.S. PROF-2014-S2 Legal Title
Trust's Motion to Dismiss Plaintiff Kim Hankins'
Complaint [Dkt. #7] and Defendant Northwest Trustee Services,
Inc.'s Motion to Dismiss Hankins' Complaint [Dkt.
#9]. Hankins pro se sued Defendants to stop their
foreclosure of her property. She seeks (1) a declaratory
ruling that ROF Trust, PROF Trust, and NWTS cannot
non-judicially foreclose on her property in violation of the
Washington Deed of Trust Act, and (2) quiet title to the
property as against U.S. ROF and U.S. PROF because they
commenced the foreclosure process over six years after she
defaulted on her loan. See Dkt. #11 (Hankins
Response) at 3; see also Dkt. #1 (Complaint). All
Defendants argue Hankins' DTA claim is premature under
Frias v. Asset Foreclosure Services, Inc. at al.,
181 Wn.2d 412, 334 P.3d 529 (2014), and Titus v.
Wells Fargo Bank, N.A., 2016 U.S. Dist. LEXIS
26271, *10 (W.D. Wash. March 2, 2016), which explain that DTA
claims are non-justiciable unless brought after a foreclosure
sale has taken place. U.S. ROF and U.S. PROF argue the
limitations period to foreclose on Hankin's property has
not passed because they did not accelerate her loan
repayments. Hankins argues her DTA claim is timely because
she only seeks declaratory relief, and ROF Trust and PROF
Trust automatically accelerated her debt's maturation by
commencing foreclosure proceedings.
facts are undisputed. Hankins bought her Shelton, WA property
in 2006. Golf Savings Bank loaned her $238, 500.00 secured by
two deeds of trust: one for $212, 000.00 and a junior one for
$26, 500.00. Hankins defaulted on the senior loan in November
2009, and has since remained in default.
was appointed successor trustee in July 2016. NWTS issued
Hankins a notice of default a few days later and listed PROF
Trust as the senior loan's beneficiary. In August 2016,
PROF Trust informed Hankins it had sold the senior loan to
ROF Trust. NWTS recorded notice of a trustee's sale of
the property on November 22, 2016. It set a sale date of
March 24, 2017.
sued in state court in January 2017. Defendants removed the
case to this Court.
Standard of Review.
under Rule 12(b)(6) may be based on either the lack of a
cognizable legal theory or the absence of sufficient facts
alleged under a cognizable legal theory. See Balistreri
v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th
Cir. 1990). A plaintiff's complaint must allege facts to
state a claim for relief plausible on its face. See
Aschcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). A claim
has “facial plausibility” when the party seeking
relief “pleads factual content that allows the Court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. “[A]
plaintiff's obligation to provide the ‘grounds'
of his ‘entitle[ment] to relief' requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do. Factual
allegations must be enough to raise a right to relief above
the speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (citations and
footnotes omitted). This requires a plaintiff to plead
“more than an unadorned,
Iqbal, 129 S.Ct. at 1949 (citing Twombly).
12(b)(6) motion, “a district court should grant leave
to amend even if no request to amend the pleading was made,
unless it determines that the pleading could not possibly be
cured by the allegation of other facts.” Cook,
Perkiss & Liehe v. N. Cal. Collection Serv., 911
F.2d 242, 247 (9th Cir. 1990). However, where the facts are
not in dispute, and the sole issue is whether there is
liability as a matter of substantive law, the Court may deny
leave to amend. See Albrecht v. Lund, 845 F.2d 193,
195-96 (9th Cir. 1988).
identifies a number of alleged deficiencies regarding the
assignments of interests, appointments, and procedures used
to initiate a nonjudicial foreclosure under the DTA. She
claims the foreclosure is in the name of an improper
beneficiary, the deed of trust was improperly split from the
note securing her debt, the deed of trust was improperly
assigned, the trustee does not have proof that the
beneficiary is properly holding her note, the loan servicer
sent her dishonest communications about meeting prior to
foreclosure, the limitations period to foreclose on her
property has expired, and the trustee failed to investigate
these claims in good faith. Hankins seeks a declaration that
Defendants violated the DTA and an injunction. Defendants
argue Hankins' claims are premature because they are
non-justiciable until a foreclosure sale has occurred, and
one has not. They rely on Frias and Titus.
Washington law, a foreclosure sale is a prerequisite to
bringing a DTA claim.” Titus, 2016 U.S. Dist.
LEXIS 26271, at *10 (citing Frias, 334 P.3d 529).
“[T]here is no actionable, independent cause of action
for monetary damages under the DTA based on DTA violations
absent a completed foreclosure sale.” Frias,
334 P.3d at 537. A plaintiff also may not “seek
injunctive relief by complaint [under the DTA] without first
following relevant state law provisions, such as RCW
61.24.130”-the sole method to contest and enjoin a
foreclosure sale. Titus v. Wells Fargo Bank, N.A.,
No. 3:15-CV-05690-RJB, 2016 WL 807806, at *4 (W.D. Wash. Mar.
2, 2016) (citing CHD, Inc. v. Boyles, 138 Wn.App.
131, 137 (2007)).
foreclosure sale has not yet occurred, so the Court agrees
with the Defendants that Hankins' allegations they
violated the DTA are premature. Her allegations support no
plausible claim ...