United States District Court, W.D. Washington, Seattle
U.S. BANK, N.A., Plaintiff,
THE GLOGOWSKI LAW FIRM, PLLC d/b/a ALLEGIANT LAW GROUP, et al., Defendants.
C. COUGHENOUR, UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Plaintiff's motion to
dismiss (Dkt. No. 13). Having thoroughly considered the
parties' briefing and the relevant record, the Court
hereby GRANTS in part and DENIES in part the motion for the
reasons explained herein.
2010, a couple (the “Borrowers”) obtained a loan
from Plaintiff U.S. Bank, secured by real property located in
Seattle (the “Property”). (Dkt. No. 1 at 1, 3.)
The Property was subject to dues from a condominium
owners' association (“COA”). (Id. at
3.) In 2011 and 2012, the Borrowers defaulted on their loan,
filed for bankruptcy, and ceased paying COA dues.
(Id.) In 2013, the COA recorded a lien against the
Property, obtained a judgment, and held a sale of the
Property in June 2014. (Id.) In August 2014,
Plaintiff, through its attorney at the time, redeemed the
Property from the COA's foreclosure sale. (Id.)
At that time, through its attorney, Plaintiff recorded a
Certificate of Redemption, but did not obtain and record a
Sheriff's Deed. (Id.) In October 2014, Plaintiff
entered into a contract with Defendant The Glogowski Law
Firm, PLLC, signed by Defendant Katrina Glogowski,
(collectively “Defendants”) to provide legal
counsel for residential mortgage default management.
(Id. at 15-25.) On May 14, 2015, Plaintiff paid all
then-delinquent COA dues. (Id. at 3.) On June 30,
2015, Plaintiff transferred the Property's file to
Defendants for Defendants to protect Plaintiff's interest
in the Property. (Id.)
to the contract, Defendants were responsible for timely
notifying Plaintiff about any claims or legal action brought
against the Property. (Id. at 4-5.) Plaintiff
contends that when Defendants received the Property's
file, which showed a Certificate of Redemption, but no
recorded Sheriff's Deed. (Id. at 5.) Plaintiff
further contends that Defendants did not advise Plaintiff
that the Borrowers' interests were already foreclosed as
part of the COA proceedings and that Plaintiff could
liquidate the Property without need for foreclosure by simply
requesting and recording a Sheriff's Deed. (Id.)
Defendants deny this allegation (Dkt. No. 11 at 3.) According
to Plaintiff, Defendants counseled it to begin foreclosure
proceedings and on August 6, 2015, at Defendants'
request, Plaintiff executed a substitution of trustee
(“SOT”) in favor of Defendant The Glogowski Law
Firm, which Defendants recorded. (Dkt. No. 1 at 5.)
Thereafter, Plaintiff alleges that Defendants took no further
action on the Property's file and did not respond to
Plaintiff's requests for an update for nearly five
months. (Id. at 5-6.) Defendants deny this
allegation (Dkt. No. 11 at 3-4.)
November 2015, the COA recorded another lien against the
Property for unpaid dues. (Dkt. No. 1 at 6.) Although it was
aware of this lien, Plaintiff contends that it did not
respond because it believed that Defendants were managing the
Property. (Id.) In December 2015, the COA obtained
an order of default and held a foreclosure sale in March
2016, which was confirmed on April 14, 2016. (Id.)
Plaintiff contends it was unaware of the order of default and
the foreclosure sale. (Id.) On April 25 and 30,
2016, Defendants attempted to serve a Notice of Default on
the Borrowers at the Property. (Id.)
summer of 2016, Plaintiff placed all loan files assigned to
Defendants on hold. (Id. at 7.) Plaintiff terminated
its relationship with Defendants on December 5, 2016 and
transferred all of Plaintiff's files away from Defendants
on January 31, 2017. (Id.) Plaintiff claims that it
later learned that its ability to redeem the Property had
expired in December 2016. (Id. at 8.) In September
2017, the Property's investor demanded Plaintiff
reimburse it for the loss of the Property by repurchasing the
original loan Plaintiff made to the Borrowers. (Id.)
brought this lawsuit, alleging that Defendants'
misconduct and breach of their duties to Plaintiff caused
Plaintiff to lose the Property and the outstanding principal
balance on the loan, and also caused Plaintiff to incur
additional attorney fees and litigation costs. (Id.)
In their answer, Defendants denied Plaintiff's
allegations of misconduct and breach. (See generally
Dkt. No. 11.) Defendants bring counterclaims for breach of
contract, unjust enrichment, and quantum meruit.
(Id. at 8-9.) In their counterclaims, Defendants
present no new factual theories-the sum of Defendants'
answer and counterclaims is that Defendants did not commit
the misconduct Plaintiff alleges, and because Plaintiff
failed to pay them, Plaintiff breached the contract. (See
generally id.) Plaintiff moves to dismiss
Defendants' counterclaims. (Dkt. No. 13.)
Federal Rule of Civil Procedure 12(b)(6)
Court may dismiss a complaint that “fail[s] to state a
claim upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state
a claim for relief that is plausible on its face.
Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). A
claim has facial plausibility 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. at 678.
plaintiff is obligated to provide grounds for his or her
entitlement to relief that amount to more than labels and
conclusions or a formulaic recitation of the elements of a
cause of action. Bell Atl. Corp. v. Twombly, 550
U.S. 544, 545 (2007). “[T]he pleading standard Rule 8
announces does not require ‘detailed factual
allegations,' but it demands more than an unadorned,
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 555).
Breach of Contract Claim
have pled sufficient factual allegations to state a claim
upon which relief can be granted with regard to only one
factual theory of Plaintiff's breach. Defendants'
counterclaim, as pled, only alleges that Defendants performed
those specific contractual duties that Plaintiff alleges in
its complaint that they did not. (See Dkt. No. 11.)
The counterclaim further alleges that Plaintiff failed to pay
Defendants for that performance. (Id. at 8.) In
other words, as pled, Defendants' counterclaim is that
they performed the terms of the contract that Plaintiff
complains they did not and Plaintiff failed to pay them for
that performance. (Id.) There are no other facts in
Defendants' counterclaim that indicate that they allege
that Plaintiff has either breached the contract at issue in
some other way or breached some other contract between the
parties. (See id.) And Defendants cannot spring a
new factual theory of breach on Plaintiff at a later
juncture. See Michael Neely v. The Boeing Co., No.
C16-1791-JCC, Dkt. No. 160 at 5 n.4 ...