United States District Court, E.D. Washington
LAURA ZAMORA JORDAN, as her separate estate, and on behalf of others similarly situated, Plaintiff,
NATIONSTAR MORTGAGE, LLC, a Delaware limited liability company, Defendant, and FEDERAL HOUSING FINANCE AGENCY, Intervenor.
ORDER GRANTING IN PART PLAINTIFF'S MOTION FOR
PARTIAL SUMMARY JUDGMENT
THE COURT is Plaintiff's Motion for Partial Summary
Judgment. ECF No. 217. This matter was submitted for
consideration with oral argument on November 15, 2017. The
Court has reviewed the motion, the record and files herein,
and is fully informed. For the reasons discussed below,
Plaintiff's Motion for Partial Summary Judgment (ECF No.
217) is GRANTED in part.
case arises from actions taken by Defendant Nationstar
Mortgage LLC (“Nationstar”) affecting Washington
homeowners' residential properties in default. ECF No.
2-4. Plaintiff and Class Representative Laura Zamora Jordan
(“Ms. Jordan”) seeks summary judgment for a
common law trespass claim,  Washington Consumer Protection
Act (CPA) claim, and damages for injury to property caused by
the lock changes. ECF No. 217.
A. Facts Relating to Ms. Jordan
April 4, 2011, Nationstar drilled out and replaced the lock
on Ms. Jordan's front door after she defaulted on her
mortgage payments. ECF Nos. 218 at ¶ 1; 227 at ¶ 1;
166-1 at 3 (Ex. 1). Nationstar admits it did not issue a
notice of default. ECF Nos. 218 at ¶ 2; 227 at 2. Ms.
Jordan called Nationstar and asked how to gain access to the
property so that she could move out her personal items. ECF
No. 3-5 at 73 (Ex. 38). Nationstar then provided Ms. Jordan
with the code to the lockbox so that she could enter her home
to obtain her items. Id. at 73-74. She asked if she
should put the key back in the lockbox after removing her
items, to which Nationstar responded yes. Id. at 74.
Ms. Jordan spent the night in her house and moved out her
items the next day. ECF No. 166-1 at 9 (Ex. 1). She testified
that she believed Nationstar wanted her out of the property
because of the lockbox and it made her feel like she needed
to move out. Id. at 8-9.
December 29, 2011, Ms. Jordan's attorney sent a letter to
Nationstar demanding the immediate return of her property,
restoration of the original locks, and compensation for
damages suffered. ECF No. 116-2 at 2 (Ex. 2). The Vice
President for Property Preservation at Nationstar, Jaime
Burgess, declared that Nationstar would instruct the vendor
to remove the lockbox and provide the sole key to the
borrower if the borrower informs the vendor or Nationstar
that the property is occupied by the borrower. Alternatively,
Mr. Burgess stated Nationstar would rekey the same door and
provide the sole key to the borrower if the borrower prefers.
ECF No. 225 at ¶¶ 1, 13. Yet, Ms. Jordan argues
that this statement is false and Nationstar refused to remove
the lockbox or provide the key to her after the December 29,
2011 letter. ECF No. 240 at ¶ 6.
Nationstar's Alleged Uniform Practice
Nationstar claimed it was entitled to enter Ms. Jordan and
Class members' homes because of “entry
provisions” in their deeds of trust allowing the lender
to enter, change the locks, and maintain the property after
default but before foreclosure. ECF Nos. 218 at ¶ 9; 227
at ¶ 9; 3-5 at 61 (Ex. 19). Plaintiff alleges that
Nationstar employed a uniform policy of rekeying properties,
Nationstar claims that a number of the Class members'
properties were not rekeyed. Nationstar concedes that it
ceased rekeying properties in July 2016. ECF Nos. 218 at
¶ 13; 227 at ¶ 13. Nationstar also performed
“property preservation” measures, which included
property inspections, rekeying and winterizing property, and
boarding up doors and windows. ECF Nos. 218 at ¶ 14; 227
at ¶ 14.
admits it has no policy requiring it to contact the borrower
immediately before rekeying the property, but asserts that
all borrowers gave Nationstar permission to enter their
property prior to foreclosure. ECF No. 227 at ¶ 16.
Nationstar maintains records of property preservation
activities and produced a list of 5, 131 properties that were
reported vacant prior to foreclosure sale. ECF Nos. 217 at
¶¶ 18-19; 227 at ¶¶ 18-19. Nationstar
charged lock-change fees totaling $535, 376 to 3, 433 loans
on the Class list and property preservation fees totaling $8,
904, 077.16 to 4, 680 of the loans on the Class list. ECF
Nos. 217 at ¶¶ 21-22; 277 at ¶¶ 21-22.
The parties dispute whether Class members' money or
property was used to pay the assessed property preservation
fees. ECF Nos. 217 at ¶ 23; 227 at ¶ 23.
April 3, 2012, Ms. Jordan filed her Complaint against
Nationstar in Chelan County Superior Court. ECF No. 2-4. Ms.
Jordan subsequently filed a First and Second Amended
Complaint seeking class action relief. ECF Nos. 2-13; 2-19.
In her Second Amended Complaint, Ms. Jordan asserted the
following causes of action: trespass; intentional trespass,
RCW 4.24.630; violation of the Consumer Protection Act, RCW
19.86 et seq.; and breach of contract. ECF No. 2-19
at 10-16. Ms. Jordan also asserted a violation of the Fair
Debt Collection Practices Act (“FDCPA”), 15
U.S.C. § 1692 et seq., but the Court dismissed
Ms. Jordan's individual FDCPA claim on August 10, 2015.
ECF Nos. 2-19 at 11; 71 at 2. On May 9, 2014, the Chelan
County Superior Court certified the Class, pursuant to
Washington Court Rules 23(a), 23(b)(1), and 23(b)(3). ECF No.
1-3 (Ex. C). Thereafter, Defendant removed the action to this
Court. ECF No. 1.
then filed a partial summary judgment motion asking the Court
to find that entry provisions are enforceable under
Washington law. ECF No. 45 at 8-9. Ms. Jordan moved for
partial summary judgment requesting the Court to find that
before a lender can lawfully act upon the entry provisions,
the lender is first required to obtain the borrower's
post-default consent or permission from a court. ECF No. 61
at 8. The Court certified both questions to the Washington
Supreme Court and stayed the case. ECF No. 72 at 3, 9-10.
7, 2016, the Washington Supreme Court entered its decision
finding the entry provisions in direct conflict with
Washington law and, therefore, unenforceable. ECF No. 89 at
5. Further, the Washington Supreme Court determined that
receivership, as defined by chapter 7.60 RCW, is not the
exclusive remedy for a lender to gain access to a
borrower's property. Id. As a result, on July
21, 2016, this Court denied the parties' cross-motions
for partial summary judgment (ECF Nos. 45 and 61), and lifted
the stay. ECF No. 80. Nationstar then moved to reconsider the
denial of its partial summary judgment motion (ECF No. 82),
which the Washington Supreme Court denied and filed its
Certificate of Finality on September 2, 2016. ECF No. 89.
September 6, 2017, this Court denied Defendant's Motion
to Decertify Class and certified a slightly redefined Class.
ECF No. 207. Ms. Jordan then filed a Motion for Partial
Summary Judgment. ECF No. 217.
judgment as to a “claim or defense-or the part of each
claim or defense” is appropriate when “there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). For purposes of summary judgment, a fact is
“material” if it might affect the outcome of the
suit under the governing law. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A material fact is
“genuine” where the evidence is such that a
reasonable jury could find in favor of the non-moving party.
Id. The moving party bears the initial burden of
showing the absence of any genuine issues of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
The burden then shifts to the non-moving party to identify
specific facts showing there is a genuine issue of material
fact. Anderson, 477 U.S. at 256.
ruling on a motion for summary judgment, the court views the
facts, as well as all rational inferences therefrom, in the
light most favorable to the non-moving party. Scott v.
Harris, 550 U.S. 372, 378 (2007). The court must only
consider admissible evidence. Orr v. Bank of America, NT
& SA, 285 F.3d 764 (9th Cir. 2002). There must be
evidence on which a jury could reasonably find for the
plaintiff and a “mere existence of a scintilla of
evidence in support of the plaintiff's position will be
insufficient.” Anderson, 477 U.S. at 252.
contends that to prevail on summary judgment, Ms. Jordan must
prove each element of every Class member's claim. ECF No.
222 at 10 (citing Tyson Foods, Inc. v. Bouaphakeo,
136 S.Ct. 1036, 1051 (2016) (Roberts, C.J., concurring)). In
Justice Robert's concurring opinion, he stated that
respondents had to establish the amount of compensable time
for each individual plaintiff to prove liability and damages.
Yet, Justice Roberts agreed with the Court that despite the
differences in time for each class member, respondents could
prove the amount of time through generalized, class-wide
proof using a study and representative evidence. Tyson
Foods, 136 S.Ct. at 1051. Nationstar misinterprets the
necessity of proving each element of each class member's
claim when the Supreme Court concluded that generalized,
class-wide proof was sufficient to establish damages.
Applicable Class Members Affected by this Motion
Court first addresses the parties' dispute as to which
Class members are included in this Motion. While Nationstar
contends that Ms. Jordan must prove every element for each
Class member, the Court finds that partial summary judgment
is appropriate for some Class members so as to narrow the
issues for trial. The Court determines that the instant
Motion only applies to those Class members who had their
locks rekeyed prior to foreclosure.
argues that at least one-third of the Class members did not
have their locks rekeyed. ECF No. 222 at 11. According to Ms.
Jordan, 3, 433 loans were charged with lock-change fees
totaling $535, 376. ECF No. 218 at ¶ 21. Nationstar
emphasizes that there were 5, 132 properties identified as
vacant and so Ms. Jordan fails to present evidence that locks
were changed on the other 1, 699 properties. ECF No. 222 at
11. In reply, Ms. Jordan asserts that Nationstar's
summary data shows it changed the locks on the homes of 3,
066 Class members while they owned their homes. ECF Nos. 237
at 9; 239 at ¶¶ 5-6.
Jordan concedes that there is a triable issue of fact for the
rest of the Class on whether their locks were changed and she
plans to present evidence at trial from Nationstar's
records proving it performed lock changes on additional
homes. ECF No. 237 at 9. Ms. Jordan further admits that any
Class member who sold or disposed of his or her property
prior to the lock change was not injured and suffered no
damage. Id. at 10. Nationstar asserted that there
were 115 such properties and Ms. Jordan's expert
segregates these properties from its calculation of damages.
Id.; 224 at ¶ 2. At oral argument, Ms. Jordan
further clarified that the Class is only seeking partial
summary judgment for those members who had their locks
changed prior to foreclosure.
asserts that there is a triable issue as to whether Ms.
Jordan and other borrowers consented to the rekeying of their
properties. ECF No. 222 at 12. Nationstar cites that, in
February 2011, Ms. Jordan told Nationstar that she did not
intend to make future payments, had no interest in keeping
the property, and wanted to foreclose. Id. Yet, Ms.
Jordan merely stated that “she had used up all her
savings. And has no intent to pay …” ECF Nos.
3-3 at 15 (Ex. 50); see 166-1 at 3 (Ex. 1). There is
no evidence that she consented to the lock change, which made
her believe she had to move out of her home. ECF No. 166-1 at
9 (Ex. 1). Additionally, Nationstar contends that other
borrowers arguably consented to Nationstar's rekeying of
their doors, such as Steven Siegfried, Stacy Powers, and
David Lalonde. ECF No. 222 at 13.
argument, Ms. Jordan asserted that the issue of consent is
not relevant to the instant motion, but should be asserted as
an affirmative defense at trial. However, borrowers who
consented to the rekeying of their homes are already excluded
from the Class definition, which states “entering a
Class member's property without notice to the Class
member; and/or without the express contemporaneous consent of
the Class member; and/or without permission of the
court…” ECF No. 207 at 26. Therefore, the
Court's ruling on this Motion only applies to those Class
members who did not consent to the rekeying of their homes,
thereby fitting within the Class definition, and at trial
Nationstar may assert evidence of any individual class
member's consent as a defense.
Nationstar argues that Ms. Jordan fails to prove that some
Class members have standing because approximately 547 Class
members filed Chapter 7 bankruptcy petitions. ECF Nos. 222 at
12; 226 at ¶ 4. Ms. Jordan concedes that it may be
appropriate to narrow the Class to exclude members who filed
for bankruptcy after a lockout and enter ...