United States District Court, W.D. Washington, Seattle
L. ROBART, UNITED STATES DISTRICT JUDGE.
the court is Plaintiff Peoples Bank's motion for summary
judgment in rem and judgment foreclosing its
preferred marine mortgage. (Mot. (Dkt. # 96); see
also Reply (Dkt. # 104) (narrowing the requested relief
due to factual developments subsequent to filing the
motion).) Defendant Salvatore Ragusa, the former owner of
in rem Defendant P/C Ambassador of the Lake, opposes
in part Peoples Bank's motion (Resp. (Dkt. # 100)), and
Plaintiff-in-Intervention Seattle Mobile Marine, LLC
(“SMM”) does not oppose the motion (Not. of
Non-Opp. (Dkt. # 103)). The court has considered the motion
and related filings, the relevant portions of the record, and
the applicable law. Considering itself fully advised,
court GRANTS Peoples Bank's motion as narrowed in its
reply brief, and FORECLOSES the preferred marine mortgage on
the Ambassador of the Lake.
case arises out of several debts Mr. Ragusa owes, at least
one of which is secured by the Ambassador of the Lake.
(See Peoples Bank Compl. (Dkt. # 1); Loosmore Decl.
(Dkt. # 98) ¶ 2, Ex. 1 (“RFAs”) at 4; Resp.
at 2.) Mr. Ragusa has two loans with Peoples Bank: Loan
Number 5045130-601 (“the 601 Loan”) and Loan
Number 5045130-602 (“the 602 Loan”). (2d Olson
Decl. (Dkt. # 105) ¶ 4.) As of July 25, 2017, Mr. Ragusa
owed Peoples Bank $130, 549.79 on the 601 Loan.
(Id.) As of June 28, 2017, Mr. Ragusa owed $25,
205.25 on the 602 Loan. (1st Olson Decl. (Dkt. # 97) ¶
2.) Mr. Ragusa admits that the Ambassador of the Lake secures
the 601 Loan and that he defaulted on that loan in August
2016. (RFAs at 4; Resp. at 2.) However, Mr. Ragusa contends
that the 602 Loan is unsecured. (RFAs at 6; Resp. at 2-4.)
24, 2017, Peoples Bank purchased the Ambassador of the Lake
at a court-ordered interlocutory sale. (Ret. of Svc. re:
Marshal's Sale (Dkt. # 94) at 1; see also
4/20/17 Order (Dkt. # 89) (ordering the interlocutory sale of
the Ambassador of the Lake).) Peoples Bank then finalized a
sale of the Ambassador of the Lake to a third-party
purchaser. (2d Olson Decl. ¶ 2.) After deducting
conservatively estimated costs of associated repairs and
storage, Peoples Bank expects to realize $123, 363.35 from
the sale. (Id. ¶ 3.) Peoples Bank now asks the
court to enter summary judgment dismissing Mr. Ragusa's
affirmative defenses and foreclosing its marine mortgage on
the Ambassador of the Lake. (Mot. at 4-10.)
Bank initially moved for summary judgment in rem and
foreclosure on the basis of the 601 Loan and the 602 Loan.
(Mot. at 4-5, 9-10.) However, when Peoples Bank sold the
Ambassador of the Lake for a net sum of less than the
outstanding balance on the 601 Loan, Peoples Bank agreed that
“the court does not need to decide whether the 602
[L]oan . . . is secured or unsecured” in order to award
the relief it seeks. (Reply at 2.) Peoples Bank also seeks
summary judgment on the affirmative defenses of failure to
serve, harassment, unclean hands, and various additional,
unspecified affirmative defenses. (Mot. at 7-8.)
judgment is appropriate if the evidence, when viewed in the
light most favorable to the non-moving party, demonstrates
“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); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Galen v. Cty. of
L.A., 477 F.3d 652, 658 (9th Cir. 2007). The moving
party bears the initial burden of showing that there is no
genuine issue of material fact and that he or she is entitled
to prevail as a matter of law. Celotex, 477 U.S. at
323. If the moving party meets his or her burden, then the
non-moving party “must make a showing sufficient to
establish a genuine dispute of material fact regarding the
existence of the essential elements of his case that he must
prove at trial” in order to withstand summary judgment.
Galen, 477 F.3d at 658. The non-moving party may
make this showing by use of affidavits, depositions, answers
to interrogatories, or requests for admissions. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
court is “required to view the facts and draw
reasonable inferences in the light most favorable to the
[non-moving] party.” Scott v. Harris, 550 U.S.
372, 378 (2007). Only disputes over the facts that might
affect the outcome of the suit under the governing law are
“material” and will properly preclude the entry
of summary judgment. Anderson, 477 U.S. at 248.
amended answer, Mr. Ragusa asserts the affirmative defenses
of improper service, harassment, and unclean hands.
(See Am. Ans. (Dkt. # 22) at 3-4.) He also
“reserves the right to amend the answer to assert Other
[sic] affirmative defenses.” (Id. at 4.)
Peoples Bank seeks summary judgment on all of Mr.
Ragusa's affirmative defenses. (Mot. at 7-8.)
Mr. Ragusa's affirmative defenses fails as a matter of
law. Peoples Bank properly served Mr. Ragusa. (Proof of Svc.
(Dkt. # 56).) There is no suggestion in the complaint
(see Peoples Bank Compl.) or evidence in the record
that Peoples Bank filed this lawsuit to harass Mr. Ragusa or
the Ambassador of the Lake, or that Peoples Bank has unclean
hands with regard to the subject of this lawsuit
(see Init. Disclosures (Dkt. # 67) (attaching Mr.
Ragusa's initial disclosures, none of which contain any
evidence pertinent to Mr. Ragusa's affirmative defenses);
Vaughn Decl. (Dkt. # 101) (attaching no evidence relevant to
Mr. Ragusa's affirmative defenses); Ragusa Decl. (Dkt. #
102) (same)). Finally, Mr. Ragusa has not asserted any
additional affirmative defenses and, after the court denied
without prejudice a previous motion for leave to amend his
answer (see 1/25/17 Order (Dkt. # 73)), Mr. Ragusa
has not sought the court's leave to amend his answer or
to assert additional defenses (see Dkt.). Peoples
Bank raises all of these deficiencies in its motion for
summary judgment (Mot. at 7-8), and Mr. Ragusa fails to
acknowledge the arguments, reference his affirmative
defenses, or point to any evidence to support any of his
affirmative defenses (see generally Resp).
withstand summary judgment, the party opposing summary
judgment “must make a showing sufficient to establish a
genuine dispute of material fact regarding the existence of
the essential elements of his case that he must prove at
trial.” Galen, 477 F.3d at 658. Because Mr.
Ragusa bears the burden of proof on each affirmative defense
and has placed no facts in the record supporting any of those