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Sergeant v. Bank of America, N.A.

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

September 13, 2017

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

          ORDER DENYING PLAINTIFFS' MOTION FOR RECONSIDERATION

          BENJAMIN H. SETTLE, UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on Plaintiffs Janice and Thomas Sergeant's (“Sergeants”) motion for reconsideration or, in the alternative, for certification of immediate appeal (Dkt. 34). The Court has considered the pleadings filed in support of the motion and the remainder of the file and hereby denies the motion for the reasons stated herein.

         I. PROCEDURAL HISTORY

         On March 29, 2017, the Sergeants filed a complaint against Defendant Bank of America, N.A. (“BANA”), Carrington Mortgage Services, LLC, 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.

         On July 7, 2017, the Sergeants filed a first amended complaint (“FAC”). Dkt. 24. On July 7, 2017, BANA moved to dismiss the Sergeants' CPA, ECOA, and outrage claims. Dkt. 25. On September 6, 2017, the Court granted BANA's motion in part and denied it in part dismissing the Sergeants' ECOA and outrage claims with prejudice. Dkt. 33.

         On September 12, 2017, the Sergeants filed the instant motion requesting reconsideration of the Court's dismissal of the ECOA and outrage claims or, in the alternative, certification for immediate appeal. Dkt. 34.

         II.DISCUSSION

         A. Reconsideration

         Motions for reconsideration are disfavored. The court will ordinarily deny such motions in the absence of a showing of manifest error in the prior ruling or a showing of new facts or legal authority which could not have been brought to its attention earlier with reasonable diligence. Local Rules, W.D. Wash. LCR 7(h)(1).

         In this case, the Sergeants argue that the Court committed manifest error. First, the Sergeants argue that the Court erred in dismissing their ECOA claim because it assumed the Sergeants were in default and because some courts have refused to dismiss this claim even if the party is in default. Regarding default, the Sergeants cite paragraphs fifteen to twenty of their FAC. Dkt. 34 at 2. The Court finds nothing in there paragraphs establishing that the Sergeants were not in default. Instead, the operative paragraph provides as follows:

BANA's obstinance caused Plaintiffs to seek help from people who turned out to be scam artists. The scam persuaded plaintiffs to transfer their property to a revocable trust and then make their monthly payments there instead of BANA. Under those circumstances plaintiffs ceased making payments to BANA in May 2010.

FAC ¶ 24. Thus, the Sergeants admit that they stopped making payments on their loan, which leads to the reasonable inference that they were in default. The Sergeants' motion on this issue is meritless.

         The Sergeants argue that the Court made an error of law on the ECOA claim. They cite “McMahon v. JPMorgan Chase Bank, N.A., No. 2:16-cv-1459-JAM-KJN (U.S. Dist. Ct. E.D. Cal., 2017.)”[1] claiming that the district court “[r]efused to dismiss §1691(d)(1) claim solely because of default.” Dkt. 34 at 2-3. In McMahon, the court relied upon Vasquez v. Bank of Am., N.A., 13-CV-02902-JST, 2014 WL 1614764 (N.D. Cal. Apr. 22, 2014), and MacDonald v. Wells Fargo Bank N.A., No. 14-CV-04970-HSG, 2015 WL 1886000 (N.D. Cal. Apr. 24, 2015), to support its denial of the motion to dismiss. This Court explicitly distinguished Vasquez and MacDonald because those courts failed to consider and interpret the implementing regulations of the ECOA. Dkt. 33 at 6-8. In light of the regulations, notice is not required when ...


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