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Umouyo v. Bank of America, N.A.

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

April 11, 2019

HENRY A. UMOUYO and ANIEDI H. UMOUYO, Plaintiffs,
v.
BANK OF AMERICA, N.A., Defendant.

          FINDINGS OF FACT AND CONCLUSIONS OF LAW

          THE HONORABLE RICHARD A. JONES UNITED STATES DISTRICT JUDGE.

         On September 9, 2016, Plaintiff Henry Umouyo filed this action in King County Superior Court, seeking to quiet title to the Property against Defendant Bank of America, N.A.'s (“BANA”) and others. Dkt. # 1-1. This action was then removed. Dkt. # 1. On April 16, 2018, BANA filed its Answer and Cross-Complaint, which contained a cross-claim for judicial foreclosure of the Property. Dkt. # 44 at 10. Plaintiff Henry Umouyo moved to dismiss BANA's Cross-Complaint. Dkt. # 49. While this Motion to Dismiss was pending, Plaintiff Henry Umouyo moved for and was granted leave to file an amended complaint adding Aniedi Umouyo as a Plaintiff, which was filed on September 7, 2018. Dkt. ## 53, 56, 57. On September 28, 2018, BANA filed its Answer to Plaintiffs' Amended Complaint. Dkt. # 58. On January 23, 2019, this Court denied Plaintiff Henry Umouyo's Motion to Dismiss. Dkt. # 66. Plaintiffs also filed a Motion for Summary Judgment, which was denied. Dkt. ## 59, 69.

         By oral motion on March 27, 2019, BANA moved to voluntarily dismiss its judicial foreclosure cross-claim, which this Court granted as Plaintiffs had not yet filed a responsive pleading to this claim. Dkt. # 78. The sole issue remaining for trial was Plaintiffs' quiet title claim.

         The Court heard this matter in a bench trial on April 1, 2019. Dkt. # 80. Plaintiff Henry Umouyo testified on behalf of Plainitffs, and Mark Madden from Carrington Mortgage Services LLC (“Carrington”) testified on behalf of BANA. Dkt. ## 80, 81. No. other witnesses were called. Id. Pursuant to Federal Rule of Civil Procedure 52, the Court enters the following findings of fact and conclusions of law. For purposes of organization and clarity, the Court has included some subsidiary conclusions of law with its findings of fact, and vice versa. Moreover, as the Court previously informed the parties, the Court takes judicial notice of the records filed on the public docket in this matter. Dkt. ## 17, 66; Fed.R.Evid. 201; Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001).

         For the following reasons, the Court finds that Plaintiffs have failed to meet their burden to prevail on their quiet title claim.

         I. FINDINGS OF FACT

         1) This case concerns Plaintiffs' claim to quiet title to the subject property at 11708 SE 238th St #12, Kent, WA 98031-3775 (“Property”). Trial Ex. 1.

         2) On January 10, 2008, Plaintiff Henry Umouyo took out a mortgage loan for $329, 824.00 from CTX Mortgage Company, LLC, payable in monthly installment payments of $1, 872.71, to purchase the Property. Trial Exs. 2, 3.

         3) Plaintiff's loan is secured by a Deed of Trust (“DOT”) on the Property. Trial Ex. 2. Paragraph 9(d) of the Deed of Trust requires the Lender to comply with the HUD Secretary's regulations before any foreclosure can occur. Id. at ¶ 9(d) (“This Security Instrument does not authorize acceleration or foreclosure if not permitted by regulations of the Secretary.”).

         4) The DOT was recorded on January 29, 2008, and in 2010 subsequently assigned to BAC Home Loans, Servicing LP, fka Countrywide Home Loans Servicing, LP (“BAC”). Id.; see also Dkt. # 17 at 3 (granting request for judicial notice of certain documents); King County Auditor Instrument # 20100602000169. Then, on October 24, 2011, the DOT was assigned to Bank of America, N.A. (“BANA”). See Dkt. # 17 at 3; King County Auditor Instrument # 20100602000169.

         5) In August 2009, Plaintiff stopped paying his mortgage loan. Trial Exs. 4, 5, 24.

         6) Plaintiffs have not made any payments on the loan since July 2009, and have continued to reside at the Property. Mr. Umouyo also has not set aside any money to pay the mortgage.

         7) On October 6, 2009, BANA sent Mr. Umouyo a “Notice of Intent to Accelerate, ” which informed him of a default of $7, 564.32 in missed mortgage payments and late fees. Trial Ex. 4. The Notice warned Mr. Umouyo that “if the default is not cured on or before November 5, 2009, the mortgage payments will be accelerated with the full amount remaining accelerated and becoming due and payable in full.” Id.

         8) November 5, 2009 passed, and Plaintiffs did not make any payment.

         9) On June 2, 2010, Recontrust Company, N.A was appointed as successor trustee. Trial Ex. 26.

         10) In July 2010, a Notice of Trustee's Sale was recorded in King County, which set a trustee's sale of the Property for October 29, 2010. Trial Ex. 5; see also King County Auditor Instrument # 20100729000513. The Notice of Trustee's Sale noted that Plaintiffs may avoid the sale by paying the “Total Amount Due” in Paragraph III of that document. Id. at ¶ V. Paragraph III dictated that the “Total Amount Due” was $31, 310.59, which represented the sum of (a) Plaintiffs' missed monthly payments; (b) late charges; (c) beneficiary advances; (d) suspense balance; (e) other fees; and (f) trustee's expenses. Id. at ¶ III. This amount demanded to avoid the sale did not reflect the then-outstanding amount of the debt, which was $323, 422.52, as reflected in Paragraph IV of that document. Id. at ¶ IV.

         11) The sale was postponed multiple times. On October 12, 2010, the sale was postponed to November 19, 2010. Trial Ex. 6. On November 2, 2010, the sale was postponed again to December 3, 2010. Trial Ex. 7. On November 30, 2010, the sale was postponed again to December 30, 2010. Trial Ex. 8. On December 1, 2010, the sale was again postponed to January 7, 2011. Trial Ex. 9. Finally, on December 28, 2010, the sale was again postponed to January 21, 2011. Trial Ex. 10. Each postponement notice was signed by the foreclosure officer for Recontrust. Trial Exs. 6-10.

         12) On February 12, 2011, Plaintiff Henry Umouyo discussed the debt with Springboard Consumer Credit Counseling Service. Trial Ex. 24. Springboard advised Mr. Umouyo, who at that point was 21 months behind on his mortgage payments, to reduce his monthly budget and discuss loan modification options with BANA. Id.

         13) On July 9, 2011 Plaintiff Henry Umouyo discussed loan modification options with BANA's Loan Modification Team, who then sent Mr. Umouyo a “Commitment to Modify Mortgage, ” which proposed altering the mortgage's terms to avoid foreclosure. Trial Ex. 112. The terms increased Plaintiffs' ...


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