United States District Court, W.D. Washington, Seattle
LEVI A. LAKE, Plaintiff,
PREMIER FINANCIAL SERVICES, INC. et al., Defendants.
ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO
L. ROBART United States District Judge.
the court is Defendant MTGLQ Investors, L.P.'s
(“MTGLQ”) motion to dismiss this action. (Mot.
(Dkt. # 8).) Plaintiff Levi A. Lake opposes MTGLQ's
motion. (Resp. (Dkt. # 14).) The court has considered
MTGLQ's motion, Mr. Lake's response, all submissions
filed in support of and opposition to the motion, the
relevant portions of the record, the judicially noticed
public records as described in this order, and the //
applicable law. Being fully advised,  the court GRANTS the motion
and dismisses Mr. Lake's complaint without prejudice and
with leave to amend.
case arises from a nonjudicial foreclosure. Mr. Lake seeks to
quiet title to the property in question (FAC (Dkt. # 13)
¶¶ 5.1-5.4) and a declaration that Mortgage
Electronic Registry Systems, Inc. (“MERS”) is not
a legal beneficiary under the deed of trust (id.
¶¶ 4.1-4.2.) On November 7, 2005, Mr. Lake
refinanced the existing promissory note on his home with a
loan from Defendant Premier Financial Services, Inc.
(“Premier”). (Id. ¶ 3.2.) The loan
is secured by a deed of trust encumbering Mr. Lake's
residence, a condominium in Kirkland, Washington (the
“Property”). (Id.) At the time the
parties signed the deed of trust, Mr. Lake was the borrower,
Premier was the lender, and Fidelity National Title was the
trustee. (1st McIntosh Decl. (Dkt. # 9) ¶ 2, Ex. A,
(“Deed of Trust”).) In addition, the deed of trust
lists MERS as the beneficiary, solely as nominee of the
lender and the lender's successors and heirs.
(Id.) // Despite occupying the Property, Mr. Lake
ceased payments on his loan in 2010. (FAC ¶ 3.11.) On
August 5, 2010, AmTrust Bank, as servicer of the loan,
notified Mr. Lake that he was in default and that AmTrust
would accelerate the remainder of the amount owed if Mr. Lake
did not make a payment within 30 days. (Id.) Mr.
Lake made no payments, and AmTrust accelerated the entire
amount due on September 5, 2010. (Id.)
October 25, 2010, a representative of MERS assigned the deed
of trust to New York Community Bank (“NYCB”).
(Id. ¶ 3.5.) On August 25, 2011, NYCB assigned
the deed of trust to Nationstar Mortgage LLC
(“Nationstar”). (Id. ¶ 3.6.) The
assignment to Nationstar was recorded in King County on
October 20, 2011. (Id.) Nationstar appointed Quality
Loan Service Corporation of Washington
(“Quality”) as successor trustee on December 31,
2015. (FAC ¶ 3.9.) On January 29, 2016, Quality served a
notice of default on the Property. (2nd McIntosh Decl. ¶
2, Ex. A (“Notice of Tr. Sale”) § VI.) On
January 17, 2017, Nationstar assigned the deed of trust to
MTGLQ. (FAC ¶ 3.10.) On April 18, 2017, MTGLQ recorded a
notice of trustee's sale on April 18, which scheduled a
sale of the Property for August 25, 2017. (Notice of Tr. Sale
Lake filed this action in King County Superior Court on March
15, 2017. (See Compl. (Dkt. # 1-1).) MTGLQ removed
the action to this court on March 29, 2017. (Not. of Rem.
(Dkt. # 1).) On March 30, 2017, MTGLQ filed its motion to
dismiss the complaint. (See Mot.) On April 17, 2017,
Mr. Lake filed an amended complaint (see
and responded to the motion to dismiss (see
Lake alleges that any claims to enforce the loan are
time-barred. (FAC ¶¶ 5.3-5.4.) MTGLQ contends that
the statutory notice of default issued and posted in January
2016 timely initiated the non-judicial foreclosure. (Mot. at
2 (citing Edmundson v. Bank of Am., NA, 378 P.3d
272, 277 (Wash.Ct.App. 2016)).) Mr. Lake responds that the
chain of title was imperfect and thus argues that the notice
of default did not properly initiate the foreclosure process.
(Resp. at 3-4.)
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 factual allegations 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). In
deciding a motion to dismiss, the court may consider the
pleadings, documents attached to the pleadings, documents
that are judicially noticed, and // documents that the
pleadings incorporate by reference. United States v.
Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (citing
Van Buskirk v. CNN, 284 F.3d 977, 980 (9th Cir.
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.
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). The court need not accept as true
a legal conclusion presented as a factual allegation.
Iqbal, 556 U.S. at 678. Although the pleading
standard announced by Federal Rule of Civil Procedure 8 does
not require “detailed factual allegations, ” it
demands more than “an unadorned,
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.
Id. 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).
Application of MTGLQ's Motion to Mr. ...