United States District Court, W.D. Washington, Seattle
PENSCO TRUST COMPANY, CUSTODIAN FBO JEFFREY D. HERMANN, IRA ACCOUNT NUMBER 20005343, Plaintiff,
LORINA DELFIERRO, et al., Defendants.
ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT AND DENYING DEFENDANT'S MOTION FOR SUMMARY
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE.
matter comes before the Court on the parties' cross
Motions for Summary Judgment. Dkts. #44 and #45. Plaintiff
argues that it is entitled to judgment as a matter of law
because there are no genuine disputes as to any material
fact, and the record definitively demonstrates that it is
entitled to foreclose on Defendant Delfierro's property.
Dkt. #44. Defendant Delfierro asserts that Plaintiff lacks
standing to bring this action, and therefore the claims
should be dismissed in their entirety. Dkt. #45. For the
reasons set forth below, the Court now GRANTS Plaintiff's
motion and DENIES Defendant's motion.
filed the instant action in King County Superior Court on
November 14, 2016, seeking a judicial foreclosure on Ms.
Delfierro's residential property. Dkt. #4. On December
16, 2016, Defendant Delfierro removed the action to this
Court on the basis of diversity jurisdiction. Dkt. #1.
Defendant subsequently filed an Amended Answer in this matter
and alleged four Counterclaims against Plaintiff for: 1) Wire
Fraud under 18 U.S.C. § 1343; 2) violations of 18 U.S.C.
§ 152; 3) violations of Washington's Consumer
Protection Act; and 4) False Claims. Dkt. #31 at
Counterclaims ¶ ¶ 4.1-4.23. Although difficult to
discern from the Amended Answer, Defendant alleges as the
bases for her Counterclaims that there is no effective chain
of title with respect to her property, that certain sums of
money have not been accounted for and have been taken
fraudulently, and that certain title documents have been
improperly re-sequenced. Id. Plaintiff moved to
dismiss the Counterclaims as barred by the doctrine of
res judicata, which this Court granted. Dkt. #48.
The instant motions are now ripe for review.
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.
parties have both moved for summary judgment. However, cross
motions for summary judgment do not warrant the conclusion
that one of the motions must be granted. The Court must still
determine whether summary judgment for either party is
appropriate. See Fair Housing Council of Riverside
County, Inc. v. Riverside Two, 249 F.3d 1132, 1136-1137
(9th Cir. 2001).
moves for judgment as a matter of law on the bases that: 1)
it has standing to foreclose on the subject property; 2)
Defendant is in default on the mortgage loan; and 3) all
preconditions to foreclosure have been met. Dkt. #44. The
Court agrees that Plaintiff has provided sufficient evidence
to satisfy these assertions.
in its prior Order dismissing Defendant's Counterclaims,
the Court affirmed what the Washington state court had
already determined - Plaintiff is the beneficial owner of the
mortgage note, “with power and authority to enforce
the same.” Dkt. #48 at 5 (emphasis added).
Further, the record is clear that shortly after loan
origination, Defendant Delfierro defaulted on her obligation
to make her mortgage payments, and Ms. Delfierro does not
dispute that in her response to summary judgment. Dkt. #34.
Ex. E. As a result, Plaintiff is entitled to bring an action
to foreclose on the subject property under the terms of the
Note and the Deed of Trust.
own motion, and in response to Plaintiff's Motion for
Summary Judgment, Defendant does not discuss her default on
the mortgage loan, nor does she point to any evidence that
would raise a genuine dispute as to the fact that she has
defaulted on her payments. See Dkts. #45 and #51.
Instead, Defendant asserts that Plaintiff, as a mere
“account, ” does not have standing to bring this
action. Id. She seems to argue that Jeffrey Hermann,
as the beneficiary of the account, is the real party in
interest, but that the account itself has no ability to bring
the foreclosure claim. Dkt. #45 at 3-9. Federal Rule of Civil
Procedure 17(a) states that “An action must be
prosecuted in the ...