United States District Court, W.D. Washington, Seattle
KEITH HUNTER, an individual, and ELAINE HUNTER, an individual, Plaintiffs,
BANK OF AMERICA, N.A.; SPECIALIZED LOAN SERVICING, LLC, a Delaware limited liability company; NATIONSTAR MORTGAGE, LLC, Delaware limited liability company; QUALITY LOAN SERVICE CORPORATION OF WASHINGTON, a Washington corporation; HSBC BANK USA, N.A., as Trustee for Merrill Lynch Mortgage Investors, Inc., Mortgage Pass-Through Certificates, MANA Series 2007-OAR2; JOHN DOES NO. 1-10, Defendants.
Honorable Richard A. Jones United States District Judge.
matter comes before the Court on Defendants' Motions to
Dismiss. Dkt. ## 5, 20. Plaintiffs oppose the motions. Dkt.
## 16, 21.
and Donald Hunter signed a promissory note to Countrywide
that is secured by a deed of trust concerning the property
located at 7022 NE 170th Street in Kenmore, Washington. Dkt.
# 1-4 (Amended Complaint) at ¶¶ 1-2. Defendant Bank
of America, N.A. (“BANA”) acquired Countrywide
and began servicing the Hunters' loan. Id. at
¶ 21. The Hunters made consistent monthly loan payments
in 2011, BANA began returning the Hunters' mortgage
payments without crediting their account. Id. at
¶ 25. The Hunters contacted BANA on several occasions to
resolve the issue. Id. at ¶¶ 28-34. BANA
did not give Hunters any clear answers or instructions, and
so the Hunters continued to send their payments to BANA.
Nevertheless, BANA continued to return the checks without
crediting the account. Id.
the Hunters arranged a meeting with Paul Mills, a vice
president and mortgage specialist at BANA. Id. at
¶ 35. Mr. Mills advised the Hunters to apply for a loan
modification. Id. at ¶ 41. Mr. Mills was so
confident that BANA would modify the loan that he told the
Hunters not to “bother [sending their mortgage
payments], you have a new mortgage coming, it's on the
underwriter's desk.” Id. at ¶ 55.
When the Hunters attempted to find out why BANA had been
returning the payments, Mr. Mills brushed off the issue as
“one department not talking to the other
department.” Id.at ¶ 43. Ultimately, BANA
sold the note and did not modify the Hunters' loan.
Id. at ¶¶ 60-61. BANA then characterized
the loan as in default. Id. at ¶ 63. The
Hunters continued to submit monthly mortgage payments in an
attempt to pay off the loan. Id. at ¶ 64.
Mortgage, LLC (“Nationstar”) began servicing the
loan in 2014. Id. at ¶ 83. Nationstar stated
that it would consider modifying the Hunters' loan.
Id. at ¶ 85. However, after the parties
participated in a foreclosure mediation, Nationstar declined
to modify the loan. Id. at ¶¶ 92-98. In
early 2015, Quality Loan Servicing Corporation of Washington
(“QLS”) began to initiate foreclosure,
identifying HSBC Bank USA N.A. (“HSBC”) as the
beneficiary. Id. at ¶¶ 88, 110.
Foreclosure proceedings are currently stayed.
Hunters filed suit in state court against BANA, Nationstar,
and HSBC, among others, for violations of the Deed of Trust
Act and Consumer Protection Act, intentional and/or negligent
infliction of emotional distress, misrepresentation, and
promissory estoppel. Defendants removed the action to this
Court and now move the Court to dismiss Plaintiffs'
Civ. P. 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).
court typically cannot consider evidence beyond the four
corners of the complaint, although it may rely on a document
to which the complaint refers if the document is central to
the party's claims and its authenticity is not in
question. Marder v. Lopez, 450 F.3d 445, 448 (9th
Cir. 2006). The court may also consider evidence subject to
judicial notice. United States v. Ritchie, 342 F.3d
903, 908 (9th Cir. 2003).
Statute of Limitations on Consumer Protection Act
claims that Plaintiffs are too late in raising their Consumer
Protection Act (CPA) claim. Dkt. # 5 at 9-10; RCW 19.86.120.
A party must bring a CPA claim within four years after the
cause of action accrues. RCW 19.86.120 (establishing a
four-year statute of limitations on CPA claims). Claims
accrue “when the plaintiff has a complete and present
cause of action, . . . that is, when the plaintiff can file
suit and obtain relief.” Wallace v. Kato, 549
U.S. 384, 388 (2007) (internal quotation marks and citations
omitted). There are, however, times when a plaintiff will not
know that her claim has accrued. In such cases, the
“discovery rule” governs, which tolls the statute
of limitations until a plaintiff knows or should know the
essential elements of her cause of action. Matter of
Estates of Hibbard, 826 P.2d 690, 694 (Wash. 1992);
see also Pruss v. Bank of Am. NA, No. C13-1447 MJP,
2013 WL 5913431, at *2 (W.D. Wash. Nov. 1, 2013)