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Timlick v. Bank of America, NA

United States District Court, W.D. Washington, Tacoma

May 18, 2017

LAURA L. TIMLICK, Plaintiff,
v.
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

         This 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:

         I. PROCEDURAL HISTORY

         On 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.

         On 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.

         On 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.

         II. FACTUAL BACKGROUND

         Timlick 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.

         Over 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., ¶ 26.

         Throughout 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.

         III. DISCUSSION

         A. Standard

         Motions 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. Fed.R.Civ.P. 12(d).

         B. ...


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