United States District Court, W.D. Washington, Tacoma
LAURA L. TIMLICK, Plaintiff,
BANK OF AMERICA, NA, et al., Defendants.
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION TO DISMISS AND GRANTING PLAINTIFF
LEAVE TO AMEND
BENJAMIN H. SETTLE United States District Judge
matter comes before the Court on Defendants Renee M. Parker
(“Parker”) and Residential Credit Solutions,
Inc.'s (“RCS”) motion to dismiss (Dkt. 27).
The Court has considered the pleadings filed in support of
and in opposition to the motion and the remainder of the file
and hereby rules as follows:
September 16, 2016, Plaintiff Laura Timlick
(“Timlick”) filed a complaint against Bank of
America, N.A. (“BANA”); RCS; The Bank of New York
Mellon (“BNYM”), f/k/a The Bank of New York;
Parker; and NWTS asserting claims for breach of a deed of
trust, breach of good faith and fair dealing, breach of
Washington's Deed of Trust Act (“DTA”),
violations of Washington's Consumer Protection Act
(“CPA”), violations of the Fair Debt Collection
Practices Act (“FDCPA”), violations of the Real
Estate Settlement Procedures Act (“RESPA”), and
outrage. Dkt. 1.
October 17, 2016, Parker and RCS filed a motion to dismiss.
Dkt. 14. On October 24, 2016, NWTS filed a motion to dismiss.
Dkt. 16. On January 17, 2017, the Court granted the motions
and granted Timlick leave to amend. Dkt. 23. On January 19,
2017, Timlick filed an amended complaint. Dkt. 25.
March 16, 2017, Parker and RCS filed a motion to dismiss.
Dkt. 27. On April 3, 2017, Timlick responded. Dkt. 28. On
April 6, 2017, Parker and RCS replied. Dkt. 29.
purchased her home for $487, 000 in October of 2005. Less
than two years later, Timlick refinanced the loan and
borrowed money from Northwest Mortgage Alliance, LLC. Dkt.
25, ¶ 11. The appraisal was done on behalf of the lender
by LandSafe Appraisal Services (“LandSafe”), a
subsidiary of defendant BANA. Id. LandSafe set
valuation of Timlick's property at $900, 000 to give her
$630, 000 in cash after refinancing. Id.
the year, BANA employed various loan servicers. Initially,
Countrywide serviced the loan. Id., ¶ 13. Then,
BAC Home Loans became the servicer. Id. In August
2013, BANA informed Timlick that RCS was the new servicer of
the loan. Id., ¶ 24. In September 2013, RCS
began to send Timlick notices that her loan was in default as
well as forms for a loan modification. Id., ¶
the process of trying to obtain a loan modification, Timlick
alleges that Defendants have violated numerous laws. Timlick
alleges that she has been assessed various fees in
conjunction with her loan being in default and NWTS has
posted notices of nonjudicial foreclosures. Timlick has filed
this action to remedy these alleged ongoing violations.
to dismiss brought under Rule 12(b)(6) of the Federal Rules
of Civil Procedure may be based on either the lack of a
cognizable legal theory or the absence of sufficient facts
alleged under such a theory. Balistreri v. Pacifica
Police Department, 901 F.2d 696, 699 (9th Cir. 1990).
Material allegations are taken as admitted and the complaint
is construed in the plaintiff's favor. Keniston v.
Roberts, 717 F.2d 1295, 1301 (9th Cir. 1983). To survive
a motion to dismiss, the complaint does not require detailed
factual allegations but must provide the grounds for
entitlement to relief and not merely a “formulaic
recitation” of the elements of a cause of action.
Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965
(2007). Plaintiffs must allege “enough facts to state a
claim to relief that is plausible on its face.”
Id. at 1974. When deciding a motion to dismiss, the
Court's consideration is limited to the pleadings.