United States District Court, W.D. Washington, Seattle
Honorable Richard A. Jones United States District Judge
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
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.
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.
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.
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.
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.
March 16, 2018, Defendant removed to this Court on the basis
of diversity jurisdiction. Dkt. # 1.
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.
The Court Grants Defendant's Unopposed Motion to
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).
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,
Plaintiff did not oppose it. The Court considers this to be
“an admission that the motion ...