United States District Court, W.D. Washington, Seattle
ORDER GRANTING DEUTSCHE BANK NATIONAL TRUST
COMPANY'S MOTION FOR SUMMARY JUDGMENT
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on Defendant Deutsche Bank
National Trust Company's Motion for Summary Judgment.
Dkt. #19. Defendant moves for summary judgment on the bases
that Plaintiff lacks standing to bring his claims, the claims
are precluded under the doctrine of collateral estoppel,
Plaintiff waived his right to seek rescission of the
foreclosure at issue, and Plaintiff's claims are
time-barred. Id. Plaintiff has filed an untimely
response, which the Court has considered. Dkt. #22. Having
reviewed Defendant's motion, the records submitted in
support thereof, and the remainder of the record, the Court
now GRANTS Defendant's motion.
judgment is appropriate where “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247 (1986). In ruling on summary judgment, a
court does not weigh evidence to determine the truth of the
matter, but “only determine[s] whether there is a
genuine issue for trial.” Crane v. Conoco,
Inc., 41 F.3d 547, 549 (9th Cir. 1994) (citing
Federal Deposit Ins. Corp. v. O'Melveny &
Meyers, 969 F.2d 744, 747 (9th Cir. 1992)). Material
facts are those which might affect the outcome of the suit
under governing law. Anderson, 477 U.S. at 248.
Court must draw all reasonable inferences in favor of the
non-moving party. See O'Melveny & Meyers,
969 F.2d at 747, rev'd on other grounds, 512
U.S. 79 (1994). However, the nonmoving party must make a
“sufficient showing on an essential element of her case
with respect to which she has the burden of proof” to
survive summary judgment. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). Further, “[t]he mere
existence of a scintilla of evidence in support of the
plaintiff's position will be insufficient; there must be
evidence on which the jury could reasonably find for the
plaintiff.” Anderson, 477 U.S. at 251.
case, only Defendant has submitted a factual background to
this matter. Dkts. #19 and #20. That record supports the
following facts. On or about March 10, 2006, Mr. Schlepp
executed a Promissory Note in the principal sum of $503, 000.
See Dkt. #1 at ¶ 22. The Promissory Note was
secured by a Deed of Trust encumbering the property located
at 2804 E. Lake Sammamish Pkwy NE, Sammamish, WA 98074. Dkt.
#20, Exs. A and B. The Deed of Trust was assigned to
Defendant Deutsche Bank National Trust Company, as
beneficiary, in 2009. Id., Ex. C. The Trust then
purchased the property and acquired title via a foreclosure
sale held on December 13, 2013. Id., Ex. D. On
August 4, 2014, Mr. Schlepp filed a voluntary Chapter 13
bankruptcy petition in the United States Bankruptcy Court for
the Western District of Washington. See Case No.
14-15869-TWD. The matter was subsequently converted to a
Chapter 7 bankruptcy. Id. at Dkt. #13. On August 15,
2014, Mr. Schlepp filed an adversary proceeding against the
Trust. See Case No. 14-01327-TWD. In the Adversary
Proceeding, Mr. Schlepp asserted claims for, inter
alia, wrongful foreclosure and to quiet title. Dkt. #20,
Ex. E. The Adversary Proceeding was ultimately dismissed on
the basis that Mr. Schlepp lacked standing, since all of the
claims in the Adversary Proceeding were the property of the
bankruptcy estate. Id., Ex. F. Plaintiff then filed
the instant lawsuit, asking the Court to set aside the sale
or award him $1.5 million in damages. Dkt. #1.
reviewed the briefing submitted by Defendant, the Court
agrees with Defendant for the reasons set forth in its brief
that Plaintiff not only lacks standing to bring his claims,
but that Plaintiff has waived his right to rescission and his
claims are time-barred. Dkt. #19 at 3-8. Indeed, when Plaintiff
filed his bankruptcy matter, an estate was created that
included his interests as the debtor in his property
“as of the commencement of the case.” 11 U.S.C.
§ 541(a)(1). The bankruptcy estate necessarily includes
the claims asserted in the instant matter because the
bankruptcy matter was filed after the foreclosure sale. The
Bankruptcy Court determined the same. See Dkt. #20,
Ex. F. Those claims remain the property of the bankruptcy
estate. See 11 U.S.C. § 554(d); Cheng v. K
& S Diversified Invs., Inc., 308 B.R. 448, 461 (9th
Cir. BAP 2004), aff'd, 160 Fed.Appx. 644 (9th
Cir. 2005). Thus, Plaintiff has no standing to assert the
claims in this suit.
Plaintiff has waived his right to seek rescission. Defendant
is correct that Washington law requires a residential
homeowner to obtain an injunction before a non-judicial
foreclosure sale or else he or she waives all claims to the
property, while retaining any damages claims he or she may
have. RCW 61.24.127. Plaintiff did not take such action with
respect to the property that was foreclosed in 2013.
Plein v. Lackey, 149 Wn.2d 214, 227, 67 P.3d 1061
(2003) (“The failure to take advantage of the presale
remedies under the deed of trust act may result in waiver of
the right to object to the sale, as RCW 61.24.040(1)(f)(IX)
provides.”). Further, Washington courts have held that
a waiver of any post-sale contest occurs where a party (1)
received notice of the right to enjoin the sale, (2) had
actual or constructive knowledge of a defense to foreclosure
prior to the sale, and (3) failed to bring an action to
obtain a court order enjoining the sale. Country Express
Stores, Inc. v. Sims, 87 Wn.App. 741, 749-51, 943 P.2d
374 (1997); Steward v. Good, 51 Wn.App. 509, 515-17,
754 P.2d 150 (1988); Koegel v. Prudential Mut. Sav.
Bank, 51 Wn.App. 108, 114, 752 P.2d 385 (1988). In this
case, Plaintiff does not dispute that he received notice of
the sale, or that he had knowledge of a defense before the
property was sold. See Dkt. #22.
the Court agrees that Plaintiff's claims are time-barred.
Claims arising under the Deed of Trust Act
(“DTA”) are subject to a two-year statute of
limitations. See RCW 61.24.127(2). The foreclosure
sale took place on December 13, 2013, but the Complaint in
this matter was not filed until January 2017. To the extent
Plaintiff raises claims under the Real Estate Settlement
Procedures Act (“RESPA”), the claims are also
time-barred, as claims arising under RESPA are subject to a
three-year statute of limitations. 12 U.S.C. § 2614.
response to Defendant's arguments, Plaintiff provides no
evidence, legal authority, or legal discussion that would
raise any issue of material fact demonstrating a genuine
dispute in this matter. Instead, Plaintiff simply asserts in
conclusory manner that he “believes he has established
a genuine issue of material fact which precludes summary
judgment, ” he “believes he has standing to bring
this action, ” he “did not waive his right to set
aside the sale, ” and his “claims are not
time-barred.” Dkt. #22 at 2-3. Rather than providing
any factual record or legal authority to support these
assertions, Plaintiff states (again in conclusory manner)
that he will just amend his Complaint apparently to make
these assertions true. Id. Nothing in Plaintiff's
response provides any basis to deny summary judgment in favor
the Court hereby ORDERS:
1. Defendant Deutsche Bank National Trust Company's
Motion for Summary Judgment (Dkt. #19) is GRANTED, and
Plaintiff's claims against this Defendant are dismissed
in their entirety.
2. There being no remaining Defendants in this action, this
matter is now CLOSED.
3. The Clerk shall provide a copy of this Order by U.S. Mail
to Plaintiff at: 12212 NE 62nd ...