United States District Court, W.D. Washington, Seattle
JED W. WHITLEY, et al., Plaintiffs,
THE RITCHIE GROUP, et al., Defendant.
ORDER GRANTING DEFENDANT KROHN'S MOTION FOR
S. Lasnik, United States District Judge.
matter comes before the Court on “Defendant Gary J.
Krohn's Motion for Summary Judgment.” Dkt. # 15.
Plaintiffs, the owners of real property in Stanwood,
Washington, filed this lawsuit against the successor trustee,
Krohn, when he attempted to foreclose on a loan under the
Deed of Trust Act. Plaintiffs accuse Krohn, the lender, and
various other persons of violating the Racketeer Influenced
and Corrupt Organization Act of 1970 (“RICO”).
With regards to Krohn, the allegation is that he attempted to
enforce a fabricated deed of trust for a non-existent $350,
000 loan, thereby clouding plaintiffs' title and causing
damage. Krohn seeks summary judgment on all of the claims
asserted against him.
judgment is appropriate when, viewing the facts in the light
most favorable to the nonmoving party, there is no genuine
issue of material fact that would preclude the entry of
judgment as a matter of law. The party seeking summary
dismissal of the case “bears the initial responsibility
of informing the district court of the basis for its
motion” (Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986)) and “citing to particular parts of
materials in the record” that show the absence of a
genuine issue of material fact (Fed. R. Civ. P. 56(c)). Once
the moving party has satisfied its burden, it is entitled to
summary judgment if the non-moving party fails to designate
“specific facts showing that there is a genuine issue
for trial.” Celotex Corp., 477 U.S. at 324.
The Court will “view the evidence in the light most
favorable to the nonmoving party . . . and draw all
reasonable inferences in that party's favor.”
Krechman v. County of Riverside, 723 F.3d 1104, 1109
(9th Cir. 2013). Although the Court must reserve for the jury
genuine issues regarding credibility, the weight of the
evidence, and legitimate inferences, the “mere
existence of a scintilla of evidence in support of the
non-moving party's position will be insufficient”
to avoid judgment. City of Pomona v. SQM N. Am.
Corp., 750 F.3d 1036, 1049 (9th Cir. 2014); Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
Factual disputes whose resolution would not affect the
outcome of the suit are irrelevant to the consideration of a
motion for summary judgment. S. Cal. Darts Ass'n v.
Zaffina, 762 F.3d 921, 925 (9th Cir. 2014). In other
words, summary judgment should be granted where the nonmoving
party fails to offer evidence from which a reasonable jury
could return a verdict in its favor. Freecycle Sunnyvale
v. Freecycle Network, 626 F.3d 509, 514 (9th Cir. 2010).
the well-known standards set forth above, plaintiffs'
opposition memorandum is nothing more than a mini-treatise on
the elements of and case law interpreting RICO punctuated by
occasional footnotes indicating that “the Whitleys
argue” or “the Whitleys allege.”
See, e.g., Dkt. # 33 at 15. Counsel does
not deign to include a fact section in the memorandum, much
less identify the underlying evidence that supports the
(absent) factual assertions. Instead, counsel relies solely
on the allegations of the complaint and non-specific
references to three declarations. The allegations of the
complaint are not, of course, evidence and will not forestall
summary judgment where the allegations are controverted. Nor
is the filing of a stack of uncited documents sufficient to
establish a genuine issue of material fact. Rule 56(c)
specifically requires a party asserting that a fact is in
dispute to support that assertion by “citing to
particular parts of materials in the record . . . .”
The Court need not, and will not, scour the 385 pages
plaintiffs submitted in search of a material and triable
issue of fact. Keenan v. Allan, 91 F.3d 1275, 1279
(9th Cir. 1996); White v. McDonnell Douglas Corp.,
904 F.2d 456, 458 (8th Cir. 1990) (the court need not
“speculate on which portion of the record the nonmoving
party relies, nor is it obliged to wade through and search
the entire record for some specific facts that might support
the nonmoving party's claim”).
this case involves plaintiffs' residence, the Court has
nevertheless reviewed the declarations submitted to determine
whether there is evidence from which a reasonable jury could
find that Krohn acted with fraudulent intent in connection
with plaintiffs' loan and/or whether plaintiffs have
suffered cognizable damage. There is not. Krohn was not
involved in the drafting, signing, or recording of the 2013
deed of trust. Every document that Krohn mailed, posted,
and/or recorded in connection with the non-judicial
foreclosure process after he was appointed as successor
trustee identified the principal amount of the underlying
loan as $80, 000. There is not even the faintest inference
that Krohn participated in an artifice or scheme to defraud
plaintiffs or to collect anything more than what was actually
owed to the lender. Nor have plaintiffs established damages
arising from the recording of an incorrect deed of trust or
the prospect of having to pay back the money they borrowed
(or turn over the collateral that secured the debt).
of the foregoing reasons, plaintiffs have failed to raise a
genuine issue of fact regarding Krohn's liability under
RICO. The motion is therefore GRANTED and the
claims against Krohn are DISMISSED.
 The real property is described in the
property records as:
Lots 11 and 12, Block 23, C.D. Hillman's
Birmingham Water Front Addition to the City of Everett
Division No. 1, according to the plat thereof recorded in
volume 8 of plats, pages 21 to 23, inclusive, records of
Snohomish County, State of Washington.
 The one instance in which Krohn
reported that there was a $350, 000 deed of trust lien on the
Stanwood property was in a motion for relief from the
bankruptcy stay. Dkt. # 34-12 at 3. Whether such a statement
was material or could be construed as fraud on the bankruptcy
court is doubtful given that plaintiffs had no equity in the
property whether the lien was $350, 000 or $80, 000.
Regardless, a fraud on the bankruptcy court is not the
equivalent of a fraud on plaintiffs. As is shown by the
remainder of the bankruptcy record, plaintiffs were well
aware that they had an outstanding principal of $80, 000 that
was secured by the Stanwood property. See,
e.g., Dkt. # 34-14 at 12. Any confusion caused by
the reference to a $350, 000 secured loan in the motion was
put to rest when the lender unequivocally declared in reply
that he is owed $80, 000 in principal, that he has never
alleged or claimed that he was owed $350, 000, and that the
reference in the deed of trust was a typo or scrivener's
error. Dkt. # 16-17 at 2.
 In the declarations submitted by
plaintiffs, they and their witness state facts which may (or
may not) support a claim that Krohn violated the Deed of
Trust Act or that the lender failed to comply with state
licensing requirements or used unusual mechanisms to record
the loans. No such claims have been asserted, however. ...