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Lemery v. Wells Fargo Bank

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

August 1, 2018

STEVEN G. LEMERY and JULIE D. LEMERY, husband and wife, Plaintiffs,
v.
WELLS FARGO BANK, et al., Defendants.

          ORDER GRANTING DEFENDANT'S SECOND MOTION TO DISMISS

          RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         This 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.

         II. BACKGROUND [1]

         The 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.

         In 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.

         In 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 amount owed.

         On 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.

         III. DISCUSSION

         A. Legal Standard

         In 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 570.

         B. Judicial Notice of Documents

         The 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.

         C. ...


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