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Congdon v. Wells Fargo Bank N.A.

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

July 23, 2018

BRENDA CONGDON, Plaintiffs,
v.
WELLS FARGO BANK, N.A., Defendant.

          ORDER

          The Honorable Richard A. Jones United States District Judge

         This is matter comes before the Court on Defendant Wells Fargo Bank, N.A.'s (“Wells Fargo” or “Defendant”) Motion to Dismiss, and Plaintiff Brenda Congdon's (“Ms. Congdon” or “Plaintiff”) Motion to Remand. Dkt. ## 7, 12. The Court, having considered all papers submitted in support of and in opposition to these motions, finds that Defendant's Motion to Dismiss shall be GRANTED. Plaintiff's Motion to Remand is DENIED.

         I. BACKGROUND

         Taking the factual assertions, but not legal conclusions, presented in Plaintiff's Complaint as true, Plaintiff refinanced her single-family residence in August 2007 with World Savings Bank (“WSB”). Dkt. # 1-1 at 6-7. Plaintiff and her husband fell behind on their mortgage payments and defaulted, causing Defendant to initiate foreclosure proceedings. Id. at 8. After the origination of Plaintiff's loan, Plaintiff alleges WSB sold her loan to another entity or entities. Id. Plaintiff alleges that these unknown entities were involved in the securitization of her loan into a Real Estate Mortgage Investment Conduit (REMIC 31 Trust) prior to November 2007. Id. However, Plaintiff alleges that because her Note and Deed of Trust were assigned to the REMIC 31 Trust, Defendant Wells Fargo did not acquire plaintiff's loan when it acquired Wachovia (formerly known as WSB) in October 2008. Id. at 5-7. As a result, Plaintiff claims that the trustee of the REMIC 31 Trust is the Bank of New York Mellon and not Wells Fargo. Id. at 8. Plaintiff therefore alleges that Wells Fargo is not the true beneficiary of her underlying debt obligations.

         The present matter before the Court case represents a continuation of another cause of action before Judge Lasnik, No. 2:16-cv-01629-RSL. Plaintiff filed this previous lawsuit on October 17, 2016, alleging nearly identical facts as described above. No. 2:16-cv-01629-RSL, Dkt. # 1. Plaintiff then alleged violations of the Truth in Lending Act (“TILA”), the Real Estate Settlement and Procedures Act (“RESPA”), and for breach of contract. Id. Wells Fargo filed a motion to dismiss, and Plaintiff amended her original complaint, keeping her TILA and RESPA claims, and adding claims for accounting and cancellation of instruments. Id. at Dkt. ## 8, 10. Wells Fargo again moved to dismiss Plaintiff's amended complaint. Id. at Dkt. # 19. Judge Lasnik granted Wells Fargo's motion and dismissed the TILA rescission claim with prejudice, and dismissed Plaintiff's other three claims without prejudice. Dkt. # 24. Judge Lasnik instructed Plaintiff to file a motion to amend and attach her proposed Second Amended Complaint (“SAC”) in order to cure the defects. Id. at Dkt. # 24, p. 10. Plaintiff filed her motion and her proposed SAC, attempting to cure the deficiencies in her RESPA, cancellation of instruments and accounting claims, and adding new claims for violations of the Fair Debt Collection Practices Act (“FDCPA”) and negligence. Id. at Dkt. # 25-2. Judge Lasnik rejected these claims as well, denied Plaintiff's motion to amend, and dismissed her claims with prejudice. Id., at Dkt. # 30, p. 9.

         Plaintiff then filed a motion to alter or amend the judgment dismissing her claims, and requested leave to file yet another proposed SAC. Id. at Dkt. # 32. In this second proposed SAC, Plaintiff alleged causes of action for violations of RCW 11.40.051 and RCW 4.6.040, and re-alleged her FDCPA claims and cancellation of instruments claims. Id. at Dkt. # 32-1. Plaintiff alleged that Wells Fargo violated Washington's statute of limitations for contracts, RCW 4.16.040, because it enforced the loan more than six years after her October 2010 default. Id. at Dkt. # 32-1, p. 10. Plaintiff also alleged that Wells Fargo violated RCW 11.40.051 in failing to present a claim against the Estate of Renwick Congdon, Plaintiff's husband. Id. at Dkt. # 32-1, p. 9.

         On August 24, 2017, Judge Lasnik denied Plaintiff's motion to alter or amend, finding that her proposed causes of action in the second proposed SAC had already been raised and fully adjudicated, or that they had been waived. Id. at Dkt. # 34. On September 22, 2017, Plaintiff appealed the Court's order denying her motion for leave to amend the complaint, and also the order denying her motion to alter or amend the judgment to the Ninth Circuit. Id. at Dkt. # 35. On June 25, 2018, the Ninth Circuit affirmed the judgment against Plaintiff. Id. at Dkt. # 42.

         On January 3, 2018, Plaintiff filed a complaint in Snohomish County Superior Court against Defendant. Dkt. # 1-1. Here, Plaintiff asserted three claims against Wells Fargo. Plaintiff's first two causes of action were identical to the first two causes of action in Plaintiff's second proposed SAC. Compare Dkt. # 1-1 with No. 2:16-cv-1629, Dkt. # 32-1. Plaintiff's third cause of action against Wells Fargo was for wrongful foreclosure, based on allegations that Wells Fargo was never entitled to payment of Plaintiff's loan, because the loan was securitized and Wells Fargo never obtained the loan when it obtained Wachovia's assets. Dkt. # 1-1 at 11-12.

         On March 16, 2018, Defendant removed to this Court on the basis of diversity jurisdiction. Dkt. # 1.

         II. DISCUSSION

         On March 23, 2018, Defendant filed a Motion to Dismiss Plaintiff's Complaint. Dkt. # 7. Plaintiff has not opposed this Motion. Instead, on April 23, 2018, Plaintiff filed a Motion to Remand this matter to Snohomish County Superior Court. Dkt. # 12. Defendant opposes. Dkt. # 13.

         A. The Court Grants Defendant's Unopposed Motion to Dismiss

         Defendant has moved to dismiss Plaintiff's Complaint with prejudice under Fed.R.Civ.P. 12(b)(6). Fed.R.Civ.P. 12(b)(6) permits a court to dismiss a complaint for failure to state a claim. The rule requires the court to assume the truth of the complaint's factual allegations and credit all reasonable inferences arising from those allegations. Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007). The plaintiff must point to factual allegations that “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 568 (2007). If the plaintiff succeeds, the complaint avoids dismissal if there is “any set of facts consistent with the allegations in the complaint” that would entitle the plaintiff to relief. Id. at 563; Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

         Defendant argues that Plaintiff's Complaint should be dismissed because Plaintiff's claims are barred by res judicata and collateral estoppel, and because Plaintiff's state law claims are not cognizable under Washington law. Despite acknowledging receipt of Defendant's Motion to Dismiss, [1] Plaintiff did not oppose it. The Court considers this to be “an admission that the motion ...


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