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Pickering v. Bank of America Home Loans

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

May 10, 2019

STEPHANIE PICKERING and TERRY A. O’KEEFE, Plaintiffs,
v.
BANK OF AMERICA HOME LOANS; BANK OF AMERICA, N.A.; QUALITY LOAN SERVICING CORP. WASHINGTON; MORTGAGE ELECTRONIC REGISTRATION SYSTEM “MERS”; and DOES 1-10, Inclusively, Defendants.

          ORDER DENYING BANA’S MOTION TO ENFORCE SETTLEMENT AGREEMENT AND GRANTING BANA’S MOTION FOR SUMMARY JUDGMENT

          RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         This matter comes before the Court on Defendant Bank of America, N.A. (“BANA”)’s Motion to Enforce Settlement Agreement and Motion for Summary Judgment, Dkts. #91 and #93. Plaintiff Stephanie Pickering, ostensibly on behalf of both Plaintiffs, opposes these Motions.[1]Ms. Pickering also moves for discovery under Rule 56(f).[2] Dkt. #97. For the reasons set forth below, the Court DENIES BANA’s Motion to Enforce Settlement Agreement, DENIES Ms. Pickering’s Motion for discovery under Rule 56(d), and GRANTS BANA’s Motion for Summary Judgment.

         II. BACKGROUND

         A. Factual Background

         On April 24, 2009, Plaintiffs executed a note with Golf Savings Bank memorializing Plaintiffs’ refinancing of a prior loan covering real property located at 1720 S. 3rd Street in Mount Vernon, Washington. Dkt #94-1 at 2–4. The Loan was secured by a Deed of Trust identifying Plaintiffs as the borrowers and Golf Savings as the lender. Id. at 7–15.

         On July 1, 2009, BAC Home Loans Servicing, LP (“BACHLS”) sent a letter to Plaintiffs informing them that the Loan was being serviced by BACHLS and that BANA was the new creditor. See Id. at 19–20. On July 1, 2011, BACHLS merged into its parent company, BANA, which continued to service Plaintiffs’ loan. See Id. at 22–25.

         Plaintiffs began experiencing a financial hardship in 2009 and succumbed to this hardship in or around July 2011. See Dkt. #61, ¶ 8. Plaintiffs last made a payment on their Loan on March 13, 2012. See Dkt. #94 (“BANA Decl.”), ¶¶ 8, 9.

         On December 28, 2013, BANA sent Plaintiffs a letter advising that before BANA could determine Plaintiffs’ eligibility for assistance under FHA programs, both Plaintiffs were required to complete, sign, and return an enclosed Request for Mortgage Assistance (“RMA”) and provide the required documents on the Document Checklist included with the letter. Dkt #94-2 at 2–19. On January 2, 2014, Plaintiffs submitted an RMA, Hardship Affidavit and an IRS Form 4506-T, Request For Transcript Of Tax Return. Id. at 21–26.

         On January 21, 2014, BANA sent Plaintiffs a letter acknowledging receipt of the above materials and advising Plaintiffs that it was reviewing the information to confirm that all required documentation had been submitted. Id. at 28. When asked later about the financial information contained on the January 2, 2014, RMA, Plaintiff O’Keefe testified at her deposition that “[I] don’t know where this stuff came from” and that the financial information was “like made-up numbers” and that she did not remember receiving disability while the RMA suggests she did. Dkt. #95-1 at 108-10. Plaintiff O’Keefe testified that Plaintiff Pickering completed the form. Id.

         On February 20, 2014, BANA sent Plaintiffs a letter denying their loan assistance request but permitting a short sale. Dkt #94-2 at 31–36. Specifically, the letter informed Plaintiffs that they did not qualify for an FHA Formal Forbearance; an FHA Special Forbearance; an FHA Loan Modification; an FHA-HAMP Partial Claim Only; FHA-HAMP Modification Only; and/or an FHA-HAMP Modification With Partial Claim for the specific reasons set forth in the letter. Id. Plaintiffs were also advised that a deed-in-lieu of foreclosure program was not available for them. Finally, the letter informs Plaintiffs of the process for seeking a re-evaluation if they believed that BANA’s evaluation was incorrect. Id.

         On March 4, 2014, Plaintiff Pickering called and informed the BANA representative that she would be providing all new documents by March 7, 2014. Id. at 38. The next day, BANA sent Plaintiffs a letter advising them once again that they might be eligible for the FHA short sale program and that they needed to complete, sign and return the enclosed FHA authorization, acknowledgement form and third-party authorization, if applicable. Dkt. #94-3 at 2–9.

         On July 10, 2014, Plaintiffs were sent another letter advising them of the results of BANA’s evaluation of their loan assistance request. Id. at 11–15. In the July 10, 2014 letter, Plaintiffs were again advised that they did not meet the eligibility requirements for a FHA Formal Forbearance; a FHA Special Forbearance; a FHA Loan Modification; a FHA-HAMP Partial Claim Only; FHA-HAMP Modification Only; and/or an FHA-HAMP Modification With Partial Claim for the specific reasons set forth in the letter. The July 10, 2014, letter also informed Plaintiffs that they did not meet the eligibility requirements for the short sale or deed-in-lieu of foreclosure programs program offered by the owner of their Loan. The July 10, 2014 letter advised Plaintiffs that if they believed that BANA’s decision was incorrect, then they had 30 calendar days from the date of the letter to contact BANA and provide information demonstrating why the determination was in error. Id. Finally, Plaintiffs were informed that, if as of the date of the letter their Loan was delinquent (which it was), then within 30 days they had to either bring their Loan current or provide BANA with information showing that BANA’s decision was incorrect. If not, BANA would proceed with foreclosure. Id.

         On July 29, 2014, BANA sent Plaintiffs a letter advising them that BANA could not approve Plaintiffs’ request for a short sale because BANA was unable to contact Plaintiffs. Dkt #95-1 at 57.

         On September 24, 2014, BANA sent Plaintiffs a letter advising them that BANA had received their Borrower Response Package. Dkt #94-3 at 17. The next day, BANA sent Plaintiffs a letter requesting additional documents for the home loan assistance evaluation process. Id. at 20–21. Among other things, Plaintiffs Pickering and O’Keefe were asked to provide a copy of their most recently filed tax returns, a copy of their three most recent bank statements, and a completed RMA. Id. Plaintiff O’Keefe was asked to provide a copy of a disability policy benefit statement or proof of receipt of disability payments. Id. at 21.

         BANA sent a letter to Plaintiffs on March 2, 2015, advising them that their Loan would be referred for foreclosure unless their account was brought current. Id. at 35–36. Plaintiffs were advised that BANA had been unable to contact Plaintiffs or BANA had not yet received a complete initial package/borrower response package. Id.

         On May 19, 2015, BANA sent Plaintiffs a letter advising them that its records reflected that their pending application for loan assistance was incomplete and reminding them that on September 25, 2014, Plaintiffs were sent a letter listing the specific documents needed for an evaluation. Id. at 39.

         On June 9, 2015 BANA sent Plaintiffs a letter advising them that, although steps had been taken to begin the foreclosure process, it was not too late for them to get help and advising them that they could ...


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