United States District Court, W.D. Washington, Seattle
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR
JUDGMENT ON THE PLEADINGS
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendants Ocwen Loan
Servicing, LLC's (“Ocwen”) and Deutsche
National Trust Company's (“Deutsche”) Motion
for Judgment on the Pleadings pursuant to Federal Rule of
Civil Procedure 12(c). Dkt. #25. These Defendants seek dismissal
of all claims against them with respect to alleged violations
of the Fair Debt Collection Practices Act
(“FDCPA”), the Real Estate Settlement Procedures
Act (“RESPA”), and Washington State's
Consumer Protection Act (“CPA”). Id.
Plaintiffs oppose the motion. Dkt. #26. Having reviewed the
record before it, and finding oral argument on the motion to
be unnecessary, the Court now GRANTS IN PART and DENIES IN
PART Defendants' motion. The Court further grants
Plaintiffs leave to amend as set forth below.
matter was filed by Plaintiffs Cecil and Pamela Thomas on
August 14, 2017. Dkt. #1. On August 21, 2017, Plaintiffs
filed a Motion for Temporary Restraining Order
(“TRO”). Dkt. #4. Plaintiffs allege that they are
the owners of the home and land located at 15844 48th Ave NE,
Woodinville, WA 98072. Id. Plaintiffs further allege
that they completed a Chapter 12 bankruptcy plan that
reorganized their mortgage loan, and that following
completion of the bankruptcy plan Defendant Ocwen failed to
account for payments, rejected payments, and commenced a
foreclosure due to Ocwen's own errors. Id.
Plaintiffs assert that despite the fact that they are current
on their loan, Defendants scheduled a foreclosure on their
home, which was originally to take place on August 25, 2017.
Dkt. #6 at ¶ 12.
August 22, 2017, this Court issued a TRO, restraining
Defendants, and anyone acting in concert with them, from
foreclosing on Plaintiffs' real property. Dkt. #9. The
Court then set a hearing for a preliminary injunction on
September 8, 2017. Id. Soon thereafter, Defendants
Ocwen and Deutsche appeared in this action. Dkts. #11-15. The
parties then entered into a stipulated Preliminary Injunction
Order which restrains Defendants from proceeding with a
foreclosure on Plaintiffs' property until the merits of
this case are resolved. Dkt. #22.
their Complaint, Plaintiffs allege the following factual
background to their claims:
2. Plaintiffs are husband and wife and owners of the property
commonly known as 15844 148th Ave. NE, Woodinville,
Washington (“The Property”) with a legal
description attached as Exhibit A which they occupy primarily
as their family residence and which they also maintain as the
location of their business.
3. On September 20, 2010 plaintiffs filed Chapter 12
Bankruptcy to reorganize the home loan (“The
Loan”) for which The Property was collateral.
4. At the time plaintiffs filed Chapter 12 The Loan was
serviced by OneWest Bank, FSB.
5. The Chapter 12 plan as approved by the judge required
plaintiffs to pay the bankruptcy trustee payments that she
would then forward to the lender for 60 months and upon
completion of the Chapter 12 plan plaintiffs were directed to
pay The Loan each month directly to the servicer.
6. The Chapter 12 plan stipulated to a value of $375, 000
which became the balance of The Loan.
7. Plaintiffs have paid all amounts due under the Chapter 12
plan and have also sent the payments that were due to the
lender on The Loan after the plan was complete.
8. On or about May 9, 2014 Ocwen Loan Servicing, LLC
(“Ocwen”) began servicing The Loan.
9. Deutsch Bank National Trust Co. (“Deutsch
Bank”) is the party that holds the promissory note
signed by plaintiffs and has hired or consented to the hiring
of Ocwen to service The Loan.
10. At the time Deutsh [sic] Bank employed Ocwen it had
knowledge or it should have known that Ocwen had its banking
charter revoked and that Ocwen used an accounting system that
failed to accurately account for payments and charges to
11. At the time Ocwen began servicing The Loan Ocwen alleged
The Loan was in default.
12. Plaintiffs are not nor have been in default; rather
Ocwen's accounting on The Loan is incorrect.
13. Plaintiffs have disputed the loan history with each of
the defendants in this case.
14. Despite the dispute, the defendants have indicated that
they intend to foreclose on The Property on August 9, 2017.
15. Plaintiffs have lived at The Property for 13 years and
have no other place to live.
16. If The Property is foreclosed plaintiffs would lose their
home and their fish hatchery business.
17. Plaintiffs have tendered all due payments to Ocwen;
however, Ocwen rejected the payments and sent them back.
18. Ocwen has falsely reported to the credit reporting
agencies that plaintiffs are delinquent on The Loan.
19. Ocwen knew that Ocwen's accounting system produced
inaccurate information which was sent to the plaintiffs and
the credit reporting agencies.
20. Despite knowing that Ocwen's accounting system
produced inaccurate numbers, Ocwen persisted in mailing false
statement to plaintiffs and furnishing false information
about plaintiffs and to plaintiffs, the credit reporting
agencies, the codefendants, and others.
21. Throughout 2017 plaintiffs have made written request to
Ocwen which identified the loan, the property, the plaintiffs
and indicated that the loan history was inaccurate and
requested that Ocwen correct the accounting on the loan.
22. The plaintiffs written demands to Ocwen constitute
Qualified Written Requests under the Real Estate ...