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Tavares v. Alabama Housing Finance Authority

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

November 27, 2017

CHRISTINE TAVARES, Plaintiff,
v.
ALABAMA HOUSING FINANCE AUTHORITY, Defendant.

          ORDER GRANTING PLAINTIFF'S MOTION FOR TEMPORARY RESTRAINING ORDER AND DENYING DEFENDANT'S MOTION FOR ADDITIONAL TIME

          Marsha J. Pechman United States District Judge.

         THIS MATTER comes before the Court on Plaintiff's Motion for a Temporary Restraining Order (Dkt. No. 6) and Defendant's Motion for Additional Time to respond (Dkt. No. 12.) Having considered the motions, the responses, and all related papers, the Court DENIES Defendant's Motion for Additional Time and GRANTS Plaintiff's Motion for a Temporary Restraining Order.

         Background

         Plaintiff Christine Tavares brings suit against Defendant Alabama Housing Finance Authority d/b/a ServiSolutions (“AHFA” or “Defendant”) for unfair and discriminatory mortgage lending practices and moves for a TRO to halt the non-judicial foreclosure sale of her home in Mount Vernon, Washington. (See Dkt. No. 6.)

         In March 2014, Plaintiff and her then domestic partner (the “co-borrower”) purchased the property with an FHA Insured Loan. (Dkt. No 1 at 3-4, 12.) Plaintiff timely paid the monthly mortgage payments during the following year. (Id. at 4.) After Plaintiff and the co-borrower separated, the co-borrower continued to make payments on the property until approximately April 2016, when he began paying Plaintiff monthly child support payments instead. (Id. at 4-5.) Around this time, Plaintiff contacted Defendant to request a loan modification. (Id.) Defendant refused and informed Plaintiff she would have to default before she could make the request. (Id.) After defaulting, Plaintiff again requested a modification. (Id.) Defendant informed Plaintiff that it would require a quitclaim deed from the co-borrower and that the co-borrower's child support payments would not be included in its calculation of Plaintiff's income. (Id.)

         In May 2017, Plaintiff engaged a housing counselor to assist her in requesting a modification. (Id.) Defendant attempted to dissuade her from using a housing counselor and informed her it would no longer require a quitclaim deed from the co-borrower. (Id. at 5-6.)

         In June 2017, Plaintiff submitted a modification application. (Id. at 6.) Plaintiff alleges she had sufficient income to qualify under the FHA Home Affordable Modification Program (“HAMP”). (Id. at 6.) Defendant never responded, other than to reject Plaintiff's inclusion of the co-borrower's child support payments in her calculation of income. (Id.)

         In September 2017, Plaintiff submitted another modification application. (Id.) Defendant again denied her request. (Id. at 6-7.)

         Plaintiff contends that Defendant's failure to apply for a claim against the FHA's Mutual Mortgage Insurance Fund and its eighteen-month delay in accurately assessing her eligibility for a loan modification have (1) increased the principal and accrued interest on her loan and (2) delayed resolution past the expiration of HAMP, precluding her participation in the program. (Id. at 5, 7, 11; Dkt. No. 6 at 3.) Plaintiff asserts claims under Washington's Consumer Protection Act (“WCPA”) and the Equal Credit Opportunity Act (“ECOA”); claims for discrimination based on race, color, or national origin under 42 U.S.C. § 2000d and the Fair Housing Act; and a claim for the tort of outrage. (See Dkt. No. 1.)

         On October 27, Plaintiff filed this Motion seeking a temporary restraining order to halt the non-judicial foreclosure sale of her home, which was originally scheduled for November 17, 2017. (Dkt. No. 6 at 3.) That same day, Plaintiff served the Motion and supporting documents on North Cascade Trustee Service (“NCTS”), the trustee appointed by Defendant. (See Dkts. No. 8, 9.) On October 30, 2017, the Court issued a Minute Order directing Defendant to file any response by November 3. (Dkt. No. 10.) On October 31, Plaintiff served the Motion on Defendant at its offices in Montgomery, Alabama. (Dkt. No. 14.) Defendant did not file a response by November 3, but instead filed a Motion for Additional Time on November 9. (Dkt. No. 12.) The Court stayed the foreclosure sale and issued an Order to Show Cause regarding Defendant's request. (Dkt. No. 15.) In response, Defendant claimed it was unable to timely respond due to inadequate service of process. (See Dkt. No. 16.) In particular, Defendant claimed that Plaintiff's service on NCTS and AHFA did not satisfy the requirements of RCW 61.24.130(2) or Fed.R.Civ.P. 4(h), because neither of the individuals who accepted service were officers, managers, or registered agents authorized to do so. (Id. at 3-4.)

         Discussion

         I. Motion for Additional Time

         Defendant has not established that it is entitled to additional time to file a response to Plaintiff's Motion for a Temporary Restraining Order. Defendant and its trustee were properly served under both RCW 61.24.130(2) and Fed.R.Civ.P. 4(h). Local Rule 65(b)(1) is inapplicable because Plaintiff's Motion was not issued without notice. (See Dkt. No. 15; LCR 65(b)(1).) Defendant's failure to file a timely response appears to be the result of its own lack of diligence. Therefore, the Court DENIES Defendant's Motion for Additional Time.

         II. Temporary ...


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