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Hover v. GMAC Mortgage Corporation

United States District Court, W.D. Washington

October 3, 2017

LYNN DALE HOVER and MILA JEAN HOVER, Plaintiffs,
v.
GMAC MORTGAGE CORPORATION aka DITECH FINANCIAL LLC dba ditech.com, et al., Defendants.

          ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS

          RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         This matter comes before the Court on the following motions:

         1. Defendant Ditech Financial LLC's (“Ditech”) Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (Dkt. #17);

         2. Defendants Nationstar Mortgage LLC's (“Nationstar”), Mortgage Electronic Registration Systems, Inc.'s (“MERS”), and Federal National Mortgage Association's (“Federal National”) Motion to Dismiss (Dkt. #19)[1]; and

         3. Defendant Northwest Trustee Services, Inc.'s Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) (Dkt. #7).

         For the reasons discussed below, the Court GRANTS these motions.

         II. BACKGROUND

         On or about July 17, 2002, Plaintiffs obtained a $196, 000.00 Note secured by a Deed of Trust (collectively “the Loan”) to finance real property at 18005 SE 63rd Street, Issaquah, WA 98027. Dkt. #1 at ¶ 10, Exs. A, B and E at ¶ ¶ 25 and 27, Dkt. #20 at ¶ 2, Ex. A, and Dkt. #7, Ex. 1. The Deed of Trust securing the Loan to the property identifies Plaintiffs as the borrowers, GMAC Mortgage Corporation DBA ditech.com (“GMAC”) as the lender, Trans Nation Title Company as the trustee, and MERS, acting solely as nominee of the lender and lender's successors and assigns, as the beneficiary. Id. MERS subsequently assigned its interest in the Deed of Trust to Nationstar, as reflected in the Corporate Assignment of Deed of Trust recorded on August 1, 2013. Dkt. #20 at ¶ 3, Ex. B and Dkt. #7, Ex. 3.

         On or about October 1, 2014, Plaintiffs defaulted on the Loan. Dkt. #1, Ex. C.

         On or about May 28, 2015, Nationstar recorded an Appointment of Successor Trustee appointing Northwest Trustee Services, Inc. as the successor trustee. Dkt. #20 at ¶ 4, Ex. C and Dkt. #7, Ex. 4.

         On or about June 20, 2016, a Notice of Trustee's Sale was recorded with the King County, Washington Auditor. Dkt. #20 at ¶ 5, Ex. D and Dkt. #1 at ¶ 11, Ex. C. Before the scheduled sale took place, Plaintiffs filed an action in King County Superior Court against several of the same Defendants as in the instant action. Dkt. #20 at ¶ ¶ 6 and 7, Exs. E and F. The case was removed to this Court on August 8, 2016, and assigned to the Honorable James L. Robart. Case No. C16-1243JLR, Dkt. # 1. Plaintiffs essentially alleged that Defendants lacked authority to collect any payments on the loan and to foreclose because the securitization process was not disclosed and the Deed of Trust and Note were “null and void for lack of consent.” See Dkt. #1, Ex. A. at ¶ 3. Plaintiffs further alleged a claim for fraud, and asserted that the foreclosure and sale of their Property was unlawful. Case No. C16-1243JLR., Dkt. # 1, Ex. A at ¶ ¶ 6 and 7. The Complaint referenced the same Deed of Trust and Note that Plaintiffs attach to the current Complaint. Compare Case No. C16-1243JLR, Dkt. #1 at ¶ 4, Exs. A and B with Dkt. #1 (in the instant matter) at ¶ 10, Exs. A and B. Plaintiffs also reference the Notice of Trustee's Sale dated June 17, 2016, and their Debt Validation requests in both Complaints.

         On September 8, 2016, Judge Robart granted the defendants' motion to dismiss, with leave to amend the Complaint. Case No. C16-1243JLR, Dkt. #14. On October 18, 2016, Plaintiffs filed their Amended Complaint. Id., Dkt. #17. The Amended Complaint asserted a new cause of action for libel, but contained essentially the same claims as the original Complaint. Id. Judge Robart ultimately dismissed all of Plaintiffs' claims with prejudice, and entered judgment April 5, 2017. Dkts. #28, #30 and #31.

         Plaintiffs then filed a Motion to Alter/Amend the Order and Judgment. Dkts. #32 and #33. Plaintiffs also asked Judge Robart to recuse himself from their matter. Id. Judge Robart construed Plaintiffs' motion as one for reconsideration, and denied it.[2] Dkt. #34. Plaintiffs then filed a Notice of Appeal with the Ninth Circuit Court of Appeals. Dkt. #37. ...


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