United States District Court, W.D. Washington, Seattle
WAYNE R. LAKE, et al., Plaintiffs,
MTC FINANCIAL, INC., et al., Defendants.
ORDER GRANTING MOTION TO DISMISS PLAINTIFFS'
FIRST AMENDED COMPLAINT
L. ROBART United States District Judge.
the court is Defendant Deutsche Bank Trust Company Americas
as Trustee for the Certificate Holders of Dover Mortgage
Capital 2005-A Corporation, Grantor Trust Certificate, Series
2005-A's (“Deutsche Bank”) motion to dismiss
Plaintiffs Wayne R. Lake and Cynthia A. Lake's
(collectively, “the Lakes”) first amended
complaint. (MTD (Dkt. # 18); see also FAC (Dkt. #
17).) The court has considered the motion, the Lakes'
response (Resp. (Dkt. # 19)), Deutsche Bank's reply
(Reply (Dkt. # 20)), the relevant portions of the record, and
the applicable law. Considering itself fully advised,
court grants Deutsche Bank's motion and dismisses the
Lakes' first amended complaint with prejudice and without
leave to amend.
case arises out of foreclosure proceedings related to the
Lakes' residential property, which is located at 18214
25th Avenue Northeast, Lake Forest Park, Washington 98155
(“the Property”). (See, e.g., FAC
¶¶ 3, 13, 32 (“[Deutsche Bank] made false
representations that it had rights to foreclose against the
[Lakes'] residential property under the provisions of a
deed of trust that is recorded against the title of the
[Lakes'] property in King County.”), 33.) In
October 2002, the Lakes took out a loan for $145, 000.00,
which is secured by a deed of trust on the Property.
(Id. ¶¶ 3, 7; Compl. (Dkt. # 1) at 9, Ex.
A at 15; Resp. at 1.) The deed of trust secured a
promissory note that was payable to Bank of America, N.A.
(“BANA”). (FAC ¶ 7; Resp. at 1.) The
original trustee on the deed of trust was “PRLAP,
INC.” (FAC ¶ 7; Resp. at 1.)
2010, BANA recorded an assignment of the deed of trust to
Deutsche Bank (“May 2010 Assignment”). (Gibbons
Decl. (Dkt. # 9) ¶ 3, Ex. A.) In their first amended
complaint, the Lakes acknowledge the existence of the May
2010 Assignment but question its validity. (FAC ¶ 16
(“An assignment of the deed of trust was purportedly
executed on May 4, 2010 . . . which purports to assign the
note and deed of trust to [Deutsche Bank].”) see
also Compl. at 9; Resp. at 2.) The first amended
complaint also acknowledges that the May 2010 Assignment
“was recorded on May 6, 2010[, ] in King County.”
(FAC ¶ 16; see Resp. at 2.) The first
amended complaint alleges that “‘G. Hernandez,
' Assistant Secretary for [BANA], ” signed the May
2010 Assignment on behalf of BANA and that he or she
“is a documented ‘robo-signer'. . . [who] did
not review or investigate the information in the document he
or she signed.” (FAC ¶ 16; see Resp. at
6, 2010, Deutsche Bank recorded an Appointment of Successor
Trustee, naming ReconTrust Company, N.A.
(“ReconTrust”) as the successor trustee. (Gibbons
Decl. ¶ 4, Ex. B.) On July 2, 2015, Deutsche Bank
recorded another Appointment of Successor Trustee, naming MTC
Financial Inc. dba Trustee Corps (“MTC”) as the
successor trustee. (Id. ¶ 5, Ex. C.) On October
30, 2015, MTC recorded a Notice of Trustee's Sale
scheduling a sale for March 11, 2016, and stating that the
Lakes were $133, 890.81 in arrears on their loan payments.
(Id. ¶ 6, Ex. D; see also Compl. Ex. A
at 37-40.) The March 11, 2016, sale did not take place, and
MTC recorded a second Notice of Trustee's sale on May 24,
2016, scheduling a sale date for September 23, 2016, and
stating that the Lakes were $142, 622.36 in arrears on their
payments. (Gibbons Decl. ¶ 7, Ex. E; see also
Compl. Ex. A at 25-28.) On July 6, 2016, MTC recorded a
notice that discontinued the September 23, 2016, sale.
(Gibbons Decl. ¶ 8, Ex. F.)
their first amended complaint, the Lakes allege that (1)
Deutsche Bank is falsely representing that it is the holder
of the Lakes' note and (2) Deutsche Bank had no right to
foreclose on the Lakes' residential property under the
deed of trust. (FAC ¶¶ 31-34.) The Lakes further
allege that BANA “continue[s] to enforce the same
interests that it allegedly had before the purported
assignment by acting as the lender and communicating with
Plaintiffs as late as June 29, 2016, ” and that
“[a]t no time did [BANA] ever identify itself as the
servicer of [their] loan.” (Id. ¶¶
18-19.) This latter allegation, however, is contradicted by
documents the Lakes attached to their original complaint. For
example, in letters to the Lakes dated November 8, 2012, May
6, 2013, June 20, 2014, and December 5, 2014, BANA informed
the Lakes they were in default on their loan, and in each of
those letters, BANA specifically identified itself as the
servicer of the Lakes' loan. (Compl. Ex. A at 134
(“[BANA] services the mortgage loan on your property .
. . .”), 137 (same), 140 (“[BANA] services your
mortgage loan.”), 143 (same).
Lakes filed their original complaint on September 20, 2016.
(See Compl.) In that complaint, the Lakes alleged
two claims against Deutsche Bank: (1) breach of a
“License Agreement” (see Id. at 17, Ex.
B) and (2) violation of the Fair Debt Collection Practices
Act (“FDCPA”), 15 U.S.C. § 1962 et
seq. (see Compl. at 13). On April 11, 2017, the
court granted Deutsche Bank's motion to dismiss the
Lakes' complaint. (4/11/17 Order (Dkt. # 16).) The court
dismissed the Lakes' breach of contract claim with
prejudice and without leave to amend, but granted the Lakes
leave to amend their Section 1692f(6) FDCPA
claim. (Id. at 15-16.) On May 15, 2017,
the Lakes filed an amended complaint alleging an FDCPA claim
against Deutsche Bank. (See generally FAC.) The
Lakes' first amended complaint does not attach the
documents they included in Exhibit A to their original
complaint, but they refer to Exhibit A twice in their first
amended complaint. (See FAC ¶¶ 15, 20.)
considering a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), the court construes the complaint in the
light most favorable to the nonmoving 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.
court, however, need not accept as true a legal conclusion
presented as a factual allegation. Id. 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 Federal Rule of Civil Procedure 12(b)(6). Id.
A complaint does not survive dismissal where “it
tenders ‘naked assertion[s]' devoid of
‘further factual enhancement.'” Id.
(quoting Twombly, 550 U.S. at 557).
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