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Thacker v. The Bank of New York Mellon

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

April 22, 2019

DAVID BARTON THACKER, an unmarried man, Plaintiff,
v.
THE BANK OF NEW YORK MELLON, f/k/a THE BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF THE CWALT, INC., ALTERNATIVE LOAN TRUST 2007-24, MORTGAGE PASSTHROUGH CERTIFICATE, SERIES 2007-24 a national association, and BAYVIEW LOAN SERVICING, LLC,

          ORDER ON MOTION FOR ATTORNEYS' FEES

          ROBERT J. BRYAN UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on the Defendants' Motion for Attorneys' Fees. Dkt. 31. The Court has considered the pleadings filed in support of and in opposition to the motion and the file herein.

         I. RELEVANT FACTS AND PROCEDURAL HISTORY

         A. FACTS

         The background facts are in the March 13, 2019 Order (Dkt. 26, at 1-5) and are repeated here for ease of reference.

On June 13, 2007, Plaintiff David Thacker and his then wife, Melody Thacker, borrowed $432, 000 from SJ Lending, LP DBA Community One Financial, Ltd., to purchase a house at 4312 102nd Avenue East, Edgewood, WA. Dkt. 24-1, at 3-7. (Ms. Thacker and Mr. Thacker divorced on September 25, 2017 and Ms. Thacker signed a Quit Claim Deed conveying her interest in the property to Mr. Thacker on July 12, 2018. Dkts. 1-1, at 5-7 and 20-1, at 2. Mr. Thacker is the only Plaintiff in this case. Even where both the Thackers acted - signed a document, etc. this case will only refer to “Plaintiff.”) The loan was secured by a Deed of Trust; the Mortgage Electronic Registrations Systems., Inc. (“MERS”) was listed as beneficiary. Dkt. 24-1, at 9-24. In September 2008, the Plaintiff defaulted on the loan. Dkt. 1, at 3.
On October 17, 2008, the then loan servicer, Countrywide Home Loans Servicing, LP, sent the first of several “Notice of Intent to Accelerate” the subject loan. Dkt. 16, at 7. In this notice, Countrywide indicated that the Plaintiff missed the September, October and November 2008 payments, was in default in the amount of $6, 557.90, and had until November 16, 2008 to cure the default. Id. The notice continued, “if the default is not cured on or before November 16, 2008, the mortgage payments will be accelerated with the full amount remaining accelerated and becoming due and payable in full, and foreclosure proceedings will be initiated at that time.” Id. The Plaintiff did not cure the default.
Non-judicial foreclosure proceedings began and on January 28, 2009, a Notice of Trustee's Sale was recorded in the Pierce County Auditor's Office. Dkt. 1-1, at 17-22. The sale did not occur.
On March 23, 2010, MERS assigned its beneficial interest in the Deed of Trust to Defendant The Bank of New York Mellon FKA The Bank of New York, as trustee for the Certificateholders CWALT, Inc., Alternative Loan Trust 2007-24 Mortgage Pass-Through Certificates, Series 2007-24 (“Bank”). Dkt. 17, at 24. A second Notice of Trustee's Sale was recorded, setting the sale date for July 2, 2010. Dkt. 1-1, at 23-28.
On July 7, 2010, Plaintiff filed for debt relief under Chapter 7 of the U.S. Bankruptcy Code. In re Thacker, U.S. Bankruptcy Court for the Western District of Washington case number 10-45499-BDL; filed in this case at Dkt. 18, at 5-7. The loan was listed in the schedules. Id. To the extent the Plaintiff had personal liability on the note, the debt was discharged on November 12, 2010. Id., filed in this case at Dkt. 18, at 10. The last missed loan payment before the discharge was November 1, 2010. Id., filed in this case at Dkt. 1, at 4. Bankruptcy proceedings were closed on February 2, 2011. In re Thacker, U.S. Bankruptcy Court for the Western District of Washington case number 10-45499-BDL.
A third Notice of Trustee's Sale was recorded on May 25, 2011, with a sale date of August 26, 2011. Dkt. 24-1, at 71-76.
Ninety-two days later, on August 25, 2011, the Plaintiff filed for debt relief under Chapter 13 of the U.S. Bankruptcy Code. In re Thacker, U.S. Bankruptcy Court for the Western District of Washington case number 11-46776-PBS; filed in this case at Dkt. 18, at 15-23. The Plaintiff's Chapter 13 petition was dismissed for failure to file required schedules, statements or lists. Id., filed in this case at Dkt. 18, at 25-27. On November 2, 2011, the Chapter 13 Trustee's Final Report and Account was filed and the case was closed. In re Thacker, U.S. Bankruptcy Court for the Western District of Washington case number 11-46776-PBS. This bankruptcy proceeding lasted 69 days.
By 2013, Defendant Bayview Loan Servicing, LLC (“Bayview”) was servicing the loan. See Dkt. 24-1, at 33. On February 6, 2013, it sent a Notice of Default and Intent to Accelerate to the Plaintiff, notifying him that he was in default, and notifying him that if the default was not cured, the lender intended to foreclose on the property. Id.
On October 14, 2015, Bayview sent a letter to the Plaintiff, again notifying him that the loan was in default, and informing him the lender intended to foreclose on the property unless he either cured the default or entered a “foreclosure alternative program.” Dkt. 24-1, at 38-40. As of October 14, 2015, the total delinquency was asserted to be $282, 165.04. Id.
On September 8, 2016 and again on October 8, 2016, the Plaintiff applied for a loan modification by filling out forms entitled “Making Home Affordable Program Request for Mortgage Assistance.” Dkt. 17, at 26-40. Each application included a “Hardship Affidavit, ” in which the Plaintiff “certified under the penalty of perjury” that he was “having difficulty making [the] monthly payment because of financial difficulties created by . . . household income [that] has been reduced.” Dkt. 17, at 26 and 34. The applications were denied for failure to submit the required documentation. Dkt. 17, at 42-49.
The Plaintiff again applied for a loan modification on December 15, 2016, using the same form and repeating his prior certification in the “Hardship Affidavit.” Dkt. 17, at 51-57. The application was again denied for failure to submit the required documentation. Dkt. 17, at 59-66.
The parties participated in three mediation sessions (in December 2016, January 2017 and the last one on April 24, 2017), regarding the Plaintiff's loan modification requests. Dkt. 16, at 58-61. According to the mediator, the Plaintiff engaged in a “frank and clarifying exchange of understanding” regarding the loan and modification requests at each mediation. Id. The parties agreed to a plan of action, to include another application for a loan modification. Id.
On June 22, 2017, the Plaintiff signed a “Notice of Representation and Authorization to Release Information, ” which indicated that he was represented by the law firm of Barraza Law, PLLC, and authorizing Defendant Bayview “to discuss and release to” Barraza Law, PLLC “all information regarding [the] above referenced loan, ” which is the loan that is the subject of this case. Dkt. 17, at 73. He filled out a fourth application for loan modification, using the same form and same certifications. Dkt. 17, at 77. That same day, the Plaintiff sent a letter with his application which stated:
We were seriously financially impacted in a negative way by the economic downturn of 2008. This and other factors related to our loan . . . caused us to be in this position with our mortgage.
Now that we have recovered financially and find ourselves in a position to affirmatively engage in a new mortgage through this mediation process; we request that you give us strong consideration.
In August of 2017, Bayview offered a trial loan modification conditioned on the Plaintiff making three provisional payments of $1, 733.87. Dkt. 24-1, at 112-123. The Plaintiff complied, and on November 16, 2017, Bayview offered the Plaintiff a “Loan Adjustment Agreement, ” noting that the arrears amount was $353, 060.43. Dkt. 24-1, at 125-137. The Plaintiff declined the offer, maintaining that the ...

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