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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,
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
J. BRYAN UNITED STATES DISTRICT JUDGE.
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.
RELEVANT FACTS AND PROCEDURAL HISTORY
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
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
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
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
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
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