United States District Court, W.D. Washington, Seattle
STEVEN G. LEMERY and JULIE D. LEMERY, husband and wife, Plaintiffs,
WELLS FARGO BANK, et al., Defendants.
ORDER GRANTING DEFENDANT'S MOTION TO
RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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.
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.
Request for Judicial Notice
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.
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 ...