United States District Court, W.D. Washington, Tacoma
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION TO DISMISS, GRANTING PLAINTIFF LEAVE
TO AMEND, AND DENYING PLAINTIFF'S MOTION FOR LEAVE TO
BENJAMIN H. SETTLE United States District Judge
matter comes before the Court on Defendant Wells Fargo Home
Mortgage's (“Wells Fargo”) motion to dismiss
(Dkt. 7) and Plaintiff Karri Wheeler's
(“Wheeler”) motion to amend (Dkt. 17). The Court
has considered the pleadings filed in support of and in
opposition to the motions and the remainder of the file and
hereby rules as follows:
December 20, 2017, Plaintiff Karri Wheeler
(“Wheeler”) filed a complaint against Wells Fargo
in Cowlitz County Superior Court for the State of Washington.
Dkt. 1-1 at 1-57. Wheeler asserts four causes of action
without identifying the legal basis for her claims or what
statutes were violated. Id. ¶¶ 153-172.
January 24, 2018, Wells Fargo removed the matter to this
Court asserting that the Court has diversity jurisdiction
under 28 U.S.C. § 1332. Dkt. 1, ¶ 2.
January 31, 2018, Wells Fargo moved to dismiss Wheeler's
complaint. Dkt. 7. Wells Fargo contends that Wheeler asserts
claims for violations of the Real Estate Settlement
Procedures Act (“RESPA”), 12 U.S.C. §§
2601-2617, the Washington Consumer Protection Act
(“CPA”), RCW Chapter 19.86, and the Washington
Deed of Trust Act (“DTA”), RCW Chapter 61.24.
Id. at 6-7. Wells Fargo also filed a request for the
Court to take judicial notice of various documents relating
to Wheeler's claims. Dkt. 8.
April 8, 2018, Wheeler filed an opposition to Wells
Fargo's request for judicial notice and filed a motion to
amend her complaint. Dkts. 16-17. On April 5, 2018, Wells
Fargo replied to Wheeler's opposition to judicial notice.
Dkt. 18. On April 16, 2018, Wells Fargo responded to
Wheeler's motion to amend. Dkt. 20.
April 28, 2006, Wheeler and her husband Joseph (collectively
“Wheelers”) signed a note borrowing $72, 000 from
Wells Fargo secured by a deed of trust on property located at
915 S. 7th Ave Kelso, WA. Dkt. 8, Exhs. 1-2. On May 19, 2010,
Joseph quitclaimed all interest in the property to Wheeler.
Id., Exh. 5.
February 2014, Wheeler failed to make her payments because of
financial hardship and the loan entered default. Dkt. 1-1,
¶ 11. On April 4, 2014, Wheeler filed a voluntary
bankruptcy petition seeking chapter 13 relief for
“business debts.” Dkt. 8, Exh. 6. On December 29,
2014, the quitclaim deed was filed in the Cowlitz County
Recorder's office. Id., Exh. 5.
10, 2017, Northwest Trustee Services, Inc.
(“NTS”) sent the Wheelers a notice of default.
Id., Exh 3. On August 17, 2017, NTS sent the
Wheelers a notice of trustee's sale with a scheduled sale
date of December 22, 2017. Id., Exh. 4.
January 2, 2018, Wheeler submitted an amended chapter 13
plan. Id., Exh. 8. As part of the plan, Wheeler
represented to the bankruptcy court that she would
“immediately attempt to sell real property located at:
915 S 7th, Kelso, Washington” and that the “[n]et
proceed, if any, shall be paid to the Trustee for
distribution through the plan.” Id.