United States District Court, W.D. Washington, Seattle
ORDER GRANTING MOTIONS TO DISMISS
L. ROBART, United States District Judge
the court are two motions: (1) Defendants Wells Fargo Bank
National Association, as Trustee for the Certificate Holders
of the MLMI Trust, Mortgage Loan Asset-Backed Certificates
Series 2005 WMC2 (“Wells Fargo”), Mortgage
Electronic Registration System (“MERS”),
Nationstar Mortgage LLC (“Nationstar”), and John
Bray's (collectively, “Moving Defendants”)
motion to dismiss (Wells MTD (Dkt. # 19)) pro se
Plaintiff Barbara Robinson's amended complaint (FAC (Dkt.
## 13-1, 13-2)); and (2) Defendant Bank of America,
N.A.'s (“BANA”) motion to dismiss Ms.
Robinson's amended complaint (2d BANA MTD (Dkt. # 22)).
addition, before the court are two documents Ms. Robinson
filed: (1) “Notice of Motion to Intervene and Order
Dismissing All Defendants Motions for Dismissal for Lack of
Standing, ” and (2) “Memorandum to Support Order
Dismissing All Defendants [sic] Motions for Dismissal for
Lack of Standing.” (See Resp. (Dkt. ## 24,
24-1).) The court liberally construes Ms. Robinson's
“motion” and memorandum as a response to
Defendants' motions to dismiss because a motion to
intervene is nonsensical when Ms. Robinson is already a party
to this lawsuit. See Fed. R. Civ. P. 24;
Blaisdell v. Frappiea, 729 F.3d 1237, 1241 (9th Cir.
2013) (“Courts in this circuit have an obligation to
give a liberal construction to the filings of pro se
court has considered Defendants' motions, Ms.
Robinson's response, all submissions filed in support of
and opposition to the motions, the relevant portions of the
record, and the applicable law. Being fully advised,
court GRANTS the motions and dismisses Ms. Robinson's
complaint with prejudice and without leave to amend.
February 16, 2005, WMC Mortgage Corp. (“WMC”)
loaned Ms. Robinson $596, 031.00 to purchase the property
located at 13540 Southeast 159th Place, Renton, Washington
98058 (“the Property”). (Varallo Decl. (Dkt. #
23) ¶ 2, Ex. A.) The loan is secured with a Deed of Trust
(“DOT”) on the Property, and the DOT is recorded
in King County. (See id.) The DOT lists Ms. Robinson
and her husband as borrowers, WMC as the lender, Bishop &
Lynch of King County as the trustee, and MERS as the
beneficiary, solely as nominee of the lender and its heirs.
January 5, 2010, a representative of MERS as nominee for WMC
recorded a Corporate Assignment of Mortgage/Deed of Trust,
which assigned the DOT to Wells Fargo, as trustee for the
securitized trust investor. (Id. ¶ 3, Ex. B.)
That same day, Wells Fargo recorded an Appointment of
Successor Trustee, which appointed Northwest Trustee
Services, Inc. (“NW Trustee”) as the trustee on
the DOT. (Id. ¶ 4, Ex. C.) On January 28, 2010,
N.W. Trustee recorded a Notice of Trustee's Sale, which
scheduled a sale of the Property in foreclosure for April 30,
2010. (Id. ¶ 5, Ex. D.) On October 3, 2011,
N.W. Trustee recorded a Notice of Discontinuance of
Trustee's Sale, which discontinued the sale of the
Property in foreclosure. (Id. ¶ 6, Ex. E.)
October 25, 2011, BANA, the servicer of the loan at that
time, and Ms. Robinson executed a Loan Modification Agreement
(“LMA”) under which Ms. Robinson's monthly
payments were modified effective August 1, 2011.
(Id. ¶ 7, Ex. F; see also Id. ¶
9, Ex. H (describing BANA as “the then-servicer of the
loan secured by the [DOT]”).) BANA recorded the LMA in
King County on October 25, 2011. (Id. ¶ 7, Ex.
August 15, 2013, BANA mistakenly recorded an Assignment of
Deed of Trust assigning any interest in the loan and DOT from
BANA to Nationstar. (Id. ¶ 8, Ex. G; see
Id. ¶ 9, Ex. H.) On May 3, 2016, BANA recorded a
Corrective Assignment of Deed of Trust to clarify that BANA
had recorded the August 15, 2013, Assignment of Deed of Trust
in error and that the original beneficiary, Wells
Fargo-rather than Nationstar- remains the beneficiary on the
DOT. (Id. ¶ 9, Ex. H.)
22, 2016, Wells Fargo recorded an Appointment of Successor
Trustee, which appointed Defendant Aztec Foreclosure
Corporation of Washington (“Aztec”) as
trustee. (Id. ¶ 10, Ex. I.) On August
15, 2016, Aztec recorded a Notice of Trustee's Sale,
which scheduled a sale of the Property for December 16, 2016.
(Id. ¶ 11, Ex. J.) Based on the record before
the court, it is unclear if the Property has been sold in
foreclosure to date. (See Compl.; FAC; 2d BANA MTD
Robinson filed this action in King County Superior Court on
December 12, 2016. (See Compl. (Dkt. # 1-1).)
Nationstar removed the action to this court on January 13,
2017. (Not. of Rem. (Dkt. # 1).) On January 20, 2017, BANA
filed its first motion to dismiss the complaint. (1st BANA
MTD (Dkt. # 7).) Ms. Robinson responded by filing a motion to
amend her complaint. (MTA (Dkt. # 13).) Moving Defendants
then filed their first motion to dismiss directed at Ms.
Robinson's proposed amended complaint. (See
Wells MTD.) On April 4, 2017, the court granted Ms.
Robinson's motion to amend her complaint and denied
BANA's first motion to dismiss as moot because BANA's
motion addressed at Ms. Robinson's original complaint.
(See 4/4/17 Order (Dkt. # 21) at 3-4.) On April 18,
2017, BANA filed its second motion to dismiss, which it
directed at Ms. Robinson's amended complaint.
(See 2d BANA MTD.) The court now considers Moving
Defendants and BANA's motions to dismiss Ms.
Robinson's amended complaint.
considering a motion to dismiss under Rule 12(b)(6), the
court construes the complaint in the light most favorable to
the non-moving party. Livid Holdings Ltd. v. Salomon
Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir. 2005).
The court must accept all well-pleaded allegations of
material fact as true and draw all reasonable inferences in
favor of the plaintiff. See Wyler Summit P'ship v.
Turner Broad. Sys., Inc., 135 F.3d 658, 661 (9th Cir.
1998). “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)); see also Telesaurus VPC, LLC v.
Power, 623 F.3d 998, 1003 (9th Cir. 2010). “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 663.
court, however, need not accept as true a legal conclusion
presented as a factual allegation. Id. at 678.
Although Federal Rule of Civil Procedure 8 does not require
“detailed factual allegations, ” it demands more
than “an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Id. (citing Twombly, 550
U.S. at 555). A pleading that offers only “labels and
conclusions or a formulaic recitation of the elements of a
cause of action” will not survive a motion to dismiss
under Rule 12(b)(6). Id. Further, a pleading may
fail to state a claim under Rule 12(b)(6) “either by
lacking a cognizable legal theory or by lacking sufficient
facts alleged under a cognizable legal theory.”
Woods v. U.S. Bank N.A., 831 F.3d 1159, 1162 (9th
Cir. 2016). Thus, a complaint must contain sufficient factual
allegations to “plausibly suggest entitlement to
relief, such that it is not unfair to require the opposing
party to be subjected to the expense of discovery and
continued litigation.” Starr v. Baca, 652 F.3d
1202, 1216 (9th Cir. 2011).
although “the allegations of [a pro se
plaintiff's] complaint, ‘however inartfully
pleaded' are held ‘to less stringent standards than
normal pleadings drafted by lawyers, '” Hughes
v. Rowe, 449 U.S. 5, 9 (1980) (quoting Haines v.
Kerner, 404 U.S. 519, 520 (1972)), a court may still
dismiss a complaint where “a liberal construction does
not remedy the palpable deficiencies in [the] complaint,
” Wallmuller v. Russell, No. C14-5121RBL-JRC,
2014 WL 2475978, at *2 (W.D. Wash. June 3, 2014).
Moving Defendants' Motion to Dismiss
Ms. Robinson's amended complaint is difficult to
understand, she appears to contend that the treatment of her
loan and the commencement of nonjudicial foreclosure
proceedings against the Property were somehow wrongful.
(See FAC.) Moving Defendants assert that Ms.
Robinson fails to allege sufficient facts or state a
cognizable legal theory to adequately underpin her claims
concerning the foreclosure process on the Property. (See