United States District Court, W.D. Washington, Seattle
DIANA NICHOLS, 100 EVERGREEN HILL RD., FAIRFIELD, CT, 06824, Plaintiff,
FEDERAL DEPOSIT INSURANCE COPORATION, A RECEIVER FOR WASHINGTON MUTUAL BANK, Defendant.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendant's Motion for
Summary Judgment.Dkt. #56. Defendant argues that all of
Plaintiff's claims arising out of a prior loan with
Washington Mutual Bank should be dismissed as a matter of
law. Id. Pro Se Plaintiff opposes the motion,
asserting that there are genuine disputes as to the material
facts of this case, and therefore judgment as a matter of law
is not appropriate. Dkt. #58. Oral argument was held on April
28, 2017. Dkt. #70. The parties held a mediation soon
thereafter. However, the matter did not resolve. Dkt. #74.
Undersigned stated during oral argument, the courts of this
District are all too familiar with the failure of Washington
Mutual Bank, and the devastating effect it had on vulnerable
home owners who were victims of its questionable loan
practices. See Dkt. #71 at 22:7-13. Plaintiff
alleges that she is one such victim. Without reaching the
same conclusion, the Court does acknowledge that Plaintiff
has suffered a number of personal hardships over the last
decade, which impacted her financially and motivated her to
enter into certain agreements and loans. While the Court is
sympathetic to Plaintiff's situation, it is also
constrained by the law in resolving the issues now before it.
Accordingly, for the reasons discussed herein, the Court
GRANTS Defendant's motion and dismisses Plaintiff's
November 22, 2014, pro se Plaintiff, Diana Nichols,
filed a Complaint against Defendant Federal Deposit Insurance
Corporation (“FDIC”) as Receiver for now-defunct
Washington Mutual Bank (“WaMu”), alleging,
inter alia, breach of contract, negligence, fair
lending violations and fraud. Dkt. #1. Plaintiff served the
FDIC in Washington, D.C., in March of 2015. Dkts. #3 and #4,
Ex. 1. According to Plaintiff, in April of 2015 she received
a letter via e-mail from an attorney at the law firm Miller,
Nash, Graham and Dunn, stating that she represented the FDIC
in the instant suit and admonishing Plaintiff for improperly
performing service. Dkt. #4 at 3. However, that attorney had
not appeared in this Court on behalf of Defendant at that
time. As a result, Plaintiff moved for default judgment
against Defendant, which the Court denied on the basis that
Plaintiff had not completed service. Dkt. #15. Plaintiff
apparently completed service at some point thereafter, and
Defendant appeared in this case and filed an Answer to the
Complaint. See Dkts. #12, #13, #14, #16, #17, #18,
#19 and #20.
is a resident of the State of Connecticut who entered into a
home mortgage loan with WaMu in July of 2005. Dkts. #1 at
¶ 1 and #57-1 at 7:19-21. She alleges that the loan was
misrepresented to her both as to the nature and to the
material terms of the loan. Dkts. #1 at ¶ 13 and #58 at
2-5. She alleges that these misrepresentations effectively
increase the amount of her loan principle over time, because
the loan has been structured such that her monthly payment
never fully covers the interest being generated on the loan.
Id. at ¶ ¶ 16-29. In other words,
Plaintiff entered into a negatively amortizing
loan. Plaintiff alleges that, as a result, she
will never fully pay off the loan. Dkt. #1 at ¶ ¶
16-29. Plaintiff also alleges that she was coerced into
consummating this loan at a particularly vulnerable time in
her life, of which the loan officer was aware. Id.
at ¶ 43. and Dkt. #58 at 2-5.
admits that Plaintiff entered into a home loan with WaMu on
or about July 13, 2005. Dkt. #20 at ¶ ¶ 1 and 12.
Defendant also admits that on September 25, 2008, the
Director of the Office of Thrift Supervision closed WaMu and
appointed the FDIC as Receiver. Id. at ¶ 3.
WAMU closed, JPMorgan Chase Bank, N.A. (“Chase”),
became the subsequent servicer of Plaintiff's loan. Dkts.
#1 at ¶ 60 and #56 at 5, fn. 21. In January 2012,
Plaintiff requested a modification of her loan under the
Making Home Affordable Program. Dkt. #57-1 at 174:-177:24 and
Ex. 28 thereto. In June 2012, Chase informed Plaintiff that
it had reviewed her request for a loan modification and
proposed a Loan Modification Agreement. Id. at
178:18-179:6 and Ex. 29 thereto. In July 2012, Plaintiff and
Chase entered into a Loan Modification Agreement, modifying
the loan originally made by WAMU. Id. at
182:8-183:25 and 187:7-23 and Exs. 30 and 31 thereto.
According to Plaintiff, she has since defaulted on the
modified payment agreement, but admits that it is still
“technically” in place. Dkt. #71 at 5:4-6. The
record indicates that payments on the loan modification
ceased in February 2013. Dkt. #69-1, Ex. B at DIANAN6000006.
and July of 2014, Plaintiff apparently sought to file a late
claim with the FDIC-Receiver. Dkt. #1 at ¶ ¶ 5-6.
On July 23, 2014, Plaintiff received a letter stating that
the FDIC had accepted her claim under the late-filed claims
exception. Id. at ¶ 7. On September 25, 2014,
Plaintiff received a letter stating that her claim had been
disallowed, and that she could file a lawsuit within 60 days
of receiving the letter. Id. at ¶ 8. The
instant lawsuit followed. Plaintiff alleges the following
claims for relief, all in relation to the original WaMu Note
and Mortgage (which was a cashout refinance of a prior loan):
1) breach of contract and the covenant of good faith and fair
dealing; 2) negligence; 3) violation of TILA and Regulation
Z; 4) Unconscionability; 5) unjust enrichment; 6) fraud in
the factum; and 7) duress. Dkts. #1 at ¶ ¶ 64-121
and #57-1, Exs. 19-20. It appears that Plaintiff seeks
monetary damages and an Order declaring the original Note
& Mortgage to be Null & Void. See Dkt. #1 at
¶ ¶ 70-72, 80, 96, 110, 113 and 121.
judgment is appropriate where “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247 (1986). In ruling on summary judgment, a
court does not weigh evidence to determine the truth of the
matter, but “only determine[s] whether there is a
genuine issue for trial.” Crane v. Conoco,
Inc., 41 F.3d 547, 549 (9th Cir. 1994) (citing
Federal Deposit Ins. Corp. v. O'Melveny &
Meyers, 969 F.2d 744, 747 (9th Cir. 1992)). Material
facts are those which might affect the outcome of the suit
under governing law. Anderson, 477 U.S. at 248.
Court must draw all reasonable inferences in favor of the
non-moving party. See O'Melveny & Meyers,
969 F.2d at 747, rev'd on other grounds, 512
U.S. 79 (1994). However, the nonmoving party must make a
“sufficient showing on an essential element of her case
with respect to which she has the burden of proof” to
survive summary judgment. Celotex Corp. v. Catrett,477 U.S. 317, 323 (1986). Further, “[t]he mere
existence of a scintilla of evidence in support of the
plaintiff's position will ...