United States District Court, W.D. Washington, Tacoma
ORDER DENYING PLAINTIFFS' MOTION FOR
BENJAMIN H. SETTLE, UNITED STATES DISTRICT JUDGE.
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
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.
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.
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.
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.
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.
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
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.
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.)” 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 ...