United States District Court, W.D. Washington, Tacoma
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
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:
PROCEDURAL AND FACTUAL HISTORY
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.
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.
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.
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.
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.
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.
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.