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Sergeant v. Bank of America, N.A.

United States District Court, W.D. Washington, Tacoma

September 6, 2017

JANICE SERGEANT and THOMAS SERGEANT, Plaintiffs,
v.
BANK OF AMERICA, N.A., et al., Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS AND DENYING PLAINTIFFS' MOTION TO STRIKE

          BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Defendant Bank of America, N.A.'s (“BANA”) motion to dismiss first amended complaint (“FAC”) (Dkt. 14) and Plaintiffs Janice and Thomas Sergeant's (“Sergeants”) motion to strike (Dkt. 29). The Court has considered the pleadings filed in support of and in opposition to the motions and the remainder of the file and hereby rules as follows:

         I. PROCEDURAL AND FACTUAL HISTORY

         On March 29, 2017, the Sergeants filed a complaint against BANA, Carrington Mortgage Services, LLC (“CMS”), and all others claiming an interest in the property described in the complaint. Dkt. 1.

         On May 8, 2017, BANA moved to dismiss the Sergeants' claims for a violation of the Washington State Consumer Protection Act (“CPA”), a violation of the Equal Credit Opportunity Act (“ECOA”), and the tort of outrage. Dkt. 14. On June 14, 2017, the Court granted the motion, dismissed part of the Sergeants' ECOA claim with prejudice, and granted the Sergeants leave to amend their CPA and outrage claims. Dkt. 23. In relevant part, the Court stated as follows:

The most glaring deficiency in the complaint is that it doesn't contain a short and plain statement of each claim. See Fed. R. Civ. P. 8. Instead, the complaint is 48 pages of compound factual allegations, legal conclusions, and citations to authorities. The Sergeants have also attached three declarations and over 150 pages of exhibits to the complaint. Such an unnecessary document dump does nothing but needlessly waste both the defendants and the Court's time and resources to determine whether the Sergeants have asserted the minimal factual allegations to overcome a motion to dismiss. Even so, the Sergeants are entitled to leave to amend because it is not absolutely clear that the deficiencies identified above cannot be cured by additional factual allegations.

Id. at 6-7.

         On July 7, 2017, the Sergeants filed the FAC. Dkt. 24. Instead of heeding the Court's warning regarding “[t]he most glaring deficiency, ” the Sergeants submitted a 44-page complaint containing many of the same “compound factual allegations, legal conclusions, and citations to authorities” and citing the same voluminous exhibits they submitted with the original complaint. The Sergeants' claims are based on the subsequent servicing and attempted modification of the Sergeants' refinance. In March 2009, they obtained a refinance loan secured by their home. Id. ¶ 15. Servicing of the loan and the beneficial interest in the deed of trust was assigned to BANA. Id. ¶ 16.

         In May 2010, the Sergeants voluntarily ceased to make payments to BANA. Id. ¶ 24. In May 2011, they submitted a loan modification application to BANA. Id. ¶ 26. In July 2011, BANA informed the Sergeants that it had closed their loan modification review due to the Sergeants' failure to respond to BANA's inquiries. Id. ¶ 27. The Sergeants submitted two other loan modification applications, but BANA rejected them. Id. ¶¶ 33, 35-36.

         In April 2014, the Sergeants entered into the Washington foreclosure mediation program and submitted another loan modification application on May 1, 2014. Id. ¶¶ 37- 38. On June 18, 2014, BANA again denied the Sergeants' application for a modification because their expenses exceeded their gross monthly income. Id. ¶ 39.

         In July 2014, BANA informed the Sergeants that the servicing of their loan would be transferred to CMS. In December 2015, CMS offered the Sergeants a temporary payment plan, which they rejected. Id. ¶ 51. In October 2016, the Sergeants entered into a permanent loan modification with CMS. Id. ¶¶ 57-58.

         On July 7, 2017, BANA moved to dismiss the Sergeants' CPA, ECOA, and outrage claims. Dkt. 25. On July 31, 2017, the Sergeants responded. Dkt. 27. On August 4, 2017, BANA replied. Dkt. 28. On August 4, 2017, the Sergeants filed a surreply and moved to strike BANA's reply. Dkt. 29.

         II. DISCUSSION

         A. ...


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