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 SECOND 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 Second Motion to
Dismiss. Dkt. #31. Plaintiffs Steven G. Lemery and Julie D.
Lemery (“The Lemerys”) oppose this Motion. Dkt.
#39. Defendant Clear Recon Corp. (“Clear Recon”)
joins in Wells Fargo's Motion. Dkt. #36. For the reasons
stated below, the Court GRANTS Defendants' Motion and
dismisses all of the Lemerys' claims with prejudice.
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 since December 2007.
September of 2014, Defendant and trustee Cal-Western
Reconveyance (“Cal-Western”) 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 Cal-Western 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 Lemerys 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 commenced another foreclosure,
allegedly without properly serving notice on the Lemerys or
their counsel. The Lemerys contend that Defendants cannot
accurately track payments or charges and they dispute the
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. Dkt. #1-1.
The Lemerys contend that Defendants' right to collect on
the note is now barred by the statute of limitations. They
also alleged violations of the Deeds of Trust Act, RCW 61.24
et seq. (“DTA”), and the state Consumer
Protection Act (“CPA”), RCW 19.86 et seq., and
sought declaratory relief. This case was removed from King
County Superior Court on October 12, 2017. Dkt. #1. The Court
dismissed the Lemerys' original claims with leave to
amend. Dkt. #24. The Lemerys filed an Amended Complaint on
April 25, 2018, with the same claims and a new claim of
negligent infliction of emotional distress against a new
Defendant, Cal-Western. Dkt. #25. The Lemerys allege that
Cal-Western “is believed to administratively
dissolved.” Id. at ¶ 4. Wells Fargo's
second Motion to Dismiss followed on May 9, 2018. Dkt. #31.
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
Judicial Notice of Documents
Court has previously found that it can take judicial notice
of certain documents filed by Wells Fargo related to the
Lemerys loan. Dkt. #24 at 3-4.