United States District Court, W.D. Washington, Tacoma
BEAU A. WEIDMAN, Plaintiff,
CARRINGTON MORTGAGE SERVICES; BANK OF NEW YORK MELLON fka THE BANK OF NEW YORK AS TRUSTEE FOR REGISTERED HOLDERS OF CWABS, INC. ASSET BACKED CERTIFICATES SERIES 2006-23; AZTEC FORECLOSURE CORPORATION OF WASHINGTON, a Washington Corporation; and DOES 1 through 10 inclusive, Defendants.
ORDER ON MOTION TO DISMISS
J. BRYAN UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendants Carrington
Mortgage Services (“Carrington”) and The Bank of
New York Mellon FKA The Bank of New York as Trustee for
Registered Holders of CWABS, Inc. Asset Backed Certificates
Series 2006-23's (“Bank of New York”) Motion
to Dismiss. Dkt. 8. The Court has considered the pleadings
filed regarding the motion and the remainder of the record
April 9, 2019, Plaintiff, filed this case pro se,
asserting violations of federal law (including the Fair Debt
Collection Practices Act, 15 U.S.C. § 1692, et
seq. (“FDCPA”) and the Real Estate
Settlement Procedures Act, 12 U.S.C. § 2601, et.
seq. (“RESPA”)) and state law in connection
with a mortgage on real property commonly known as 3950 Birch
Street, Washougal, Washington. Dkt. 1. Defendants Carrington
and Bank of New York now move for dismissal of the claims
asserted against them pursuant to Fed.R.Civ.P. 12 (b)(6).
Dkt. 8. For the reasons provided below, the motion (Dkt. 8)
should be granted and the claims asserted against Defendants
Carrington and Bank of New York should be dismissed. The
Plaintiff's motion for leave to file an amended complaint
(Dkt. 9) should be granted.
FACTS, PROCEDURAL HISTORY AND PENDING
reviewing a motion to dismiss for failure to state a claim as
is the case here, the court is generally limited to review of
“the face of the complaint, materials incorporated into
the complaint by reference, ” and matters of which
judicial notice may be taken. In re Rigel
Pharmaceuticals, Inc. Securities Litigation, 697 F.3d
869, 876 (9th Cir. 2012). In considering this motion, the
moving Defendants ask the Court to take judicial notice of
publicly recorded documents, documents from the
Plaintiff's bankruptcy case, and documents referenced in
the Plaintiff's Complaint. “A court may take
judicial notice of matters of public record without
converting a motion to dismiss into a motion for summary
judgment, as long as the facts noticed are not subject to
reasonable dispute.” Id. (internal
quotations omitted). The Court should grant the
Defendants' request and take judicial notice of the
documents found at Dkt. 8-1. The following facts that are
taken from the public record and from documents referenced in
Plaintiff's Complaint are filed in this case at
“Dkt. 8-1” and are so referred to in this order.
Facts from the Plaintiff's Complaint are cited as
“Dkt. 1.” Plaintiff's Complaint is difficult
to follow. As it relates to the current motion, Plaintiff
alleges in the Complaint that on July 26, 2006, he obtained a
loan on the subject property from Golf Savings Bank, A
Washington Stock Bank (“Golf”) by executing a
Note secured by a Deed of Trust. Dkt. 1, at 6-7. The Note
provides that if the Plaintiff did “not pay the full
amount of each monthly payment on the date it [was] due, [he]
would be in default.” Dkt. 8-1, at 7. In the Deed of
Trust, which was recorded with the Clark County Auditor on
August 4, 2006, the Plaintiff agreed that the “Note or
a partial interest in the Note (together with [the Deed of
Trust]) [could] be sold one or more times without prior
notice to [the Plaintiff].” Dkt. 8-1, at 13-31.
November 11, 2011, an Assignment of Deed of Trust, assigning
all interest in the Note and Deed of Trust to The Bank of New
York, was recorded with the Clark County Auditor. Dkt. 8-1,
at 34-35. On November 13, 2011, an Appointment of Successor
Trustee, in which the Bank of New York (through its attorney
in fact) appointed Northwest Trustee Services, Inc.
(“Northwest Trustee”) as successor trustee under
the deed of trust, was recorded with the Clark County
Auditor. Dkt. 8-1, at 37.
January 12, 2016, Northwest Trustee recorded, with the Clark
County Auditor, a Notice of Trustee's Sale regarding the
subject property. Dkt. 8-1, at 39-43. The sale was scheduled
for May 13, 2016. Id.
before the sale, on May 12, 2016, the Plaintiff filed for
relief under Chapter 13 of the U.S. Bankruptcy Code. In
re Weidman, U.S. Bankruptcy Court for the Western
District of Washington case number 16-42048-PBS, Dkt. 1;
filed in this case at Dkt. 8-1, at 45. On June 1, 2016 the
Plaintiff filed his proposed plan with the bankruptcy court,
noting that he had “listed his residence for
sale” and that the sale was “expected to be a
short sale, and if [he could not] obtain a short sale by
August 15, 2016, [he would] amend his plan to surrender the
property.” Id., Dkt. 16; filed in this case at
Dkt. 8-1, at 65. The bankruptcy was dismissed on September 2,
2016. Id., Dkt. 32; filed in this case at Dkt. 8-1,
August 29, 2018, an Appointment of Successor Trustee was
recorded with the Clark County Auditor's office, in which
the Bank of New York appointed Aztec Foreclosure Corporation
of Washington (“Aztec”) successor trustee on the
Deed of Trust. Dkt. 8-1, at 71-74. The Appointment was
executed by the Bank of New York via its attorney in fact,
Carrington. Id. Aztec recorded a Notice of
Trustee's Sale with the Clark County Auditor on October
31, 2018, giving notice of the trustee's sale on March 8,
2019. Dkt. 8-1, at 76-81. Carrington is noted to be the
loan's servicer on the Notice of Trustee's Sale. Dkt.
8-1, at 76. Aztec executed a Trustee's Deed granting the
property to the Bank of New York in exchange for payment of
$692, 750.00 for the property. Dkt. 8-1, at 83-86. The
Trustee's Deed was recorded with the Clark County Auditor
on March 20, 2019. Id.
April 9, 2019, the Plaintiff filed this case. Dkt. 1. In his
Complaint, the Plaintiff maintains that “Defendant
Aztec allegedly sold the Subject Property to Defendant
Carrington at the Trustee Sale;” the Plaintiff
maintains that this “is not true.” Dkt. 1, at 7.
He asserts that the property went back to the Bank of New
York, and so the sale must be voided. Id.
first claim, “Lack of Standing/Wrongful Foreclosure,
” the Plaintiff alleges that the Defendants did not
have the “right to foreclose on the property . . .
because [they] have failed to perfect any security interest
in the Property or cannot prove . . . they have a valid
interest as a real party in interest to foreclose.”
Dkt. 1, at 8. He contends that they were not holders of the
note, did not comply with “securitization requirements,
” and fraudulently prepared documents to foreclose.
his FDCPA claim, the Plaintiff asserts that Defendants
“knew they did not have a right to collect payments, to
threaten to foreclose, and ultimately foreclose” on
Plaintiff's home. Id., at 10. He maintains that
they did not have standing or proof that they had the right
to foreclose. Id.
also asserts a claim against the Bank of New York under
RESPA. Dkt. 1, at 14. The Plaintiff alleges that the Bank of
New York violated RESPA by failing to provide timely notice
of the transfer of servicing rights. Id. He
maintains that “Defendant's pattern and practices
as it pertains to Plaintiff and his loan was
reprehensible.” Id. He further alleges that
“[o]nce again, Plaintiff was harmed by Defendant [Bank
of New York's] total disregard for Plaintiff's rights
under RESPA.” Id.
Plaintiff seeks damages, attorneys' fees and costs. Dkt.
1, at 15. He further seeks an order declaring that the
foreclosure sale is void and that ...