United States District Court, E.D. Washington
DANIEL P. MELVILLE and MARY R. MELVILLE, Plaintiffs,
THE BANK OF NEW YORK MELLON CORPORATION, also known as The Bank of New York as Trustee for Citicorp Mortgage Securities Trust Series 2007-6; CHASE HOME FINANCE; JP MORGAN CHASE BANK NATIONAL ASSOCIATION; NORTHWEST TRUSTEE SERVICES, INC; and QUALITY LOAN SERVICE CORP OF WASHINGTON, Defendants.
ORDER GRANTING DEFENDANT NORTHWEST TRUSTEE SERVICES,
INC.'S MOTION FOR SUMMARY JUDGMENT AND MOTION TO WITHDRAW
ROSANNA MALOUF PETERSON UNITED STATES DISTRICT JUDGE
THE COURT is a motion for summary judgment by Northwest
Trustee Services, Inc. (“NWTS”), ECF No. 35, and
a motion to withdraw as counsel by NWTS's counsel Janaya
L. Carter, ECF No. 54. Having reviewed the filings pertaining
to both motions, the remaining record, and the relevant law,
the Court grants both motions.
Court previously granted in part and denied in part
NWTS's motion to dismiss Plaintiffs' claims against
that entity for failure to state a claim under Fed.R.Civ.P.
Rule 12(b)(6). ECF No. 30. NWTS subsequently moved for
summary judgment on the only claims remaining by Mr. Melville
and Ms. Melville under the Fair Debt Collection Practices Act
(“FDCPA”) pursuant to 15 U.S.C. § 1692f. In
moving for summary judgment, NWTS made new arguments that it
is not a “debt collector” for purposes of
liability under FDCPA's section 1692f and that Plaintiffs
cannot challenge the foreclosure of the property after it was
surrendered as part of a confirmed Chapter 13 bankruptcy
plan. ECF No. 35. NWTS also filed documents that were not
before the Court for purposes of the earlier motion to
dismiss: (1) an “Appointment of Successor
Trustee” document vesting NWTS with the powers of the
trustee that was recorded with the Spokane County Auditor on
September 3, 2013; and (2) a sworn declaration dated August
28, 2013, that Defendant JP Morgan Chase Bank, National
Association, was the holder of the note pertaining to
Plaintiffs' property. ECF Nos. 36 at 2; 38-5; 38-6.
NWTS filed its motion for summary judgment on October 12,
2017, the Court issued a notice to Plaintiffs, as pro se
litigants, regarding the need to respond to the summary
judgment to avoid potential entry of summary judgment in the
moving party's favor. ECF No. 39. The Court's notice
further explained in detail the requisite format and
components of a response to a summary judgment motion.
did not participate in the scheduling conference in this
matter on November 2, 2017. Following the conference, the
Court notified Plaintiffs in its scheduling order that a
consequence of continued non-participation or non-compliance
with Court orders could be dismissal of their lawsuit. ECF
No. 42 at 2.
letter to the Court received on November 20, 2017, Plaintiff
Mr. Melville represented that he had been particularly busy
with Plaintiffs' real estate development business and had
experienced problems receiving mail. The Court extended the
Plaintiffs' opportunity to respond to the summary
judgment motion until December 11, 2017, and directed the
Clerk's Office to provide a copy of the Court's Order
to Plaintiffs at their e-mail address in addition to their
mailing address. ECF No. 53.
Plaintiffs still did not respond to NWTS's summary
judgment motion. To date, Plaintiffs have not filed a waiver
to receive court documents electronically nor filed a motion
for leave to obtain a login and password to file documents
through the Electronic Case Filing (“ECF”)
system, which the Court encourages.
addition, counsel for NWTS, Janaya Carter, filed a motion to
withdraw as attorney for the entity on December 5, 2017,
stating that that the firm that employed her was closing all
of its offices and terminating her employment effective
December 12, 2017. ECF No. 54 at 1-2. Ms. Carter further
represented that NWTS had been informed of the consequences
of the proposed withdrawal from representation, and her
client consented to the withdrawal. Id. at 2. Ms.
Carter provided a mailing address and phone number for NWTS
“General Counsel.” Id.
resolving NWTS's earlier motion to dismiss, the Court
liberally construed Plaintiffs' complaint to claim that
NWTS violated the FDCPA by pursuing nonjudicial foreclosure
without a contemporaneous right to possession of property
claims as collateral through an enforceable security
interest. ECF No. 30 at 8; see 15 U.S.C. §
1692f(6). Specifically, the Court declined to dismiss
Plaintiffs' § 1692f(6) claims against NWTS because
no documents demonstrating that trusteeship under the Deed of
Trust had been transferred to NWTS, as NWTS alleged, were
then cognizable to the Court. Id. NWTS provided
those documents to the Court at the summary judgment stage,
ECF No. 38-6, thereby remedying the earlier impediment to
dismissal of the remaining claims against NWTS. Therefore,
the Court finds that summary judgment is appropriate.
respect to withdrawal as counsel, the Court finds that good
cause supports the Court's approval of Ms. Carter's
motion pursuant to Local Rule 83.2(d)(4).
IT IS HEREBY ORDERED:
Defendant NWTS's Motion for Summary Judgment, ECF ...