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Lemery v. Wells Fargo Bank

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

March 26, 2018

STEVEN G. LEMERY and JULIE D. LEMERY, husband and wife, Plaintiffs,
v.
WELLS FARGO BANK, et al., Defendants.

          ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

          RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         This matter comes before the Court on Defendant Wells Fargo Bank, N.A. (“Wells Fargo”)'s Motion to Dismiss. Dkt. #7. Plaintiffs Steven G. Lemery and Julie D. Lemery (“The Lemerys”) oppose this Motion. Dkt. #19. For the reasons stated below, the Court GRANTS Defendants' Motion and dismisses all of the Lemerys' claims with leave to amend.

         II. BACKGROUND[1]

         The Lemerys are the owners of real property located in Duvall, Washington, which they acquired in 1994. Defendant Wells Fargo Bank, as successor in interest to World Savings Bank, acquired rights in the Promissory Note and Deed of Trust for this property, originally recorded on December 30, 1999. The Lemerys contend they have not made any payment on this Promissory Note in more than six years.

         In September of 2014, the Trustee provided the Lemerys with a Notice of Trustee Sale. Two months later, the Lemerys received a Notice of Discontinuance of Trustee Sale. Nevertheless, the sale proceeded and the Trustee recorded a Trustee's Deed in February of 2015. The Trustee, realizing its error, issued a Rescission of Trustee's Deed in March of 2015. The Lemery's contend that Defendants have not completed any foreclosure action or court proceedings within 6 years of their accrual of a cause of action under the note.

         In 2017, Defendant Clear Recon Corp. commenced another foreclosure without properly serving notice on the Lemerys or their counsel. See Dkt. #1-1 at 5. The Lemerys contend that Defendants cannot accurately track payments or charges and they dispute the amount owed.

         On September 12, 2017, the Lemerys filed a Complaint to Quiet Title for Wrongful Foreclosure and to Enjoin or Set Aside the Trustee's Sale in King County Superior Court. Id. The Lemerys contend that Defendants' right to collect on the note is now barred by the statute of limitations. They also allege violations of the Deeds of Trust Act, RCW 61.24 et seq., and the state Consumer Protection Act (“CPA”), RCW 19.86 et seq. This case was removed from King County Superior Court on October 12, 2017. Dkt. #1.

         III. DISCUSSION

         A. Legal Standard

         In making a 12(b)(6) assessment, the court accepts all facts alleged in the complaint as true, and makes all inferences in the light most favorable to the non-moving party. Baker v. Riverside County Office of Educ., 584 F.3d 821, 824 (9th Cir. 2009) (internal citations omitted). However, the court is not required to accept as true a “legal conclusion couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The complaint “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. at 678. This requirement is met when the plaintiff “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The complaint need not include detailed allegations, but it must have “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Absent facial plausibility, a plaintiff's claims must be dismissed. Id. at 570.

         B. Request for Judicial Notice

         As an initial matter, the Court will address Wells Fargo's separate request for judicial notice of 13 exhibits filed with their Motion, Dkt. #8. Wells Fargo argues that the Court can take judicial notice of “Exhibits 1 and 8 through 12 are that they are true and correct copies of official records of the King County Recorder's Office, whose authenticity is capable of accurate and ready determination.” Id. at 4 (citing Fed.R.Evid. 201(b); Castillo-Villagra v. INS, 972 F.2d 1017, 1026 (9th Cir. 1992)). Exhibit 2, the Adjustable Rate Mortgage Note dated December 22, 1999, and signed by Plaintiffs, is referred to in the complaint and is incorporated by reference. See Branch v. Tunnell, 14 F.3d 449, 453-54 (9th Cir. 1994). Wells Fargo argues that the Court can take judicial notice of Exhibits 3 through 7, as “they are true and correct copies of documents reflecting official acts of the executive branch of the United States, pursuant to Federal Rule of Evidence 201(b).” Dkt. #8 at 4-5 (citing, inter alia Hite v. Wachovia Mortgage, 2010 U.S. Dist. LEXIS 57732, at *6-9 (E.D. Cal. 2010)). Wells Fargo argues that Exhibit 13, a collection of documents related to the May 11, 2017, Notice of Trustee's Sale, can be considered by the Court because the Lemerys allege improper notice in the Complaint and mention the posting of the May 11, 2017, Notice of Trustee's Sale in a Declaration attached to the Complaint. Id. at 5.

         In their Response, the Lemerys argue that under Rule 12(b) the Court must convert this motion to one for summary judgment if matters outside the pleading are presented. Dkt. #19 at 4. The Lemerys do not respond to any of Wells Fargo's arguments for the Court to take judicial notice of these documents. Instead, they submit two declarations in support of their opposition, with several attachments. Dkts. #20 and #21. These attachments range from duplicates of documents already filed ...


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