United States District Court, W.D. Washington, Tacoma
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS AND
TO STRIKE, STRIKING PLAINTIFFS' AMENDED COMPLAINTS,
DENYING PLAINTIFFS' MOTION FOR A TEMPORARY RESTRAINING
ORDER, AND RENOTING DEFENDANTS' MOTION FOR
BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendants “Wells
Fargo Bank National Association, Wells Fargo Bank National
Association as Trustee for Securitized Asset Backed
Receivables LLC Trust 2006-FR1 Mortgage Pass-Through
Certificates, Series 2006-FR1 (“the Trust”), and
Select Portfolio Servicing, Inc.'s
“Defendants”) motion to dismiss, Dkt. 17,
Plaintiffs Henry and Nancy Hewitt's
(“Hewitts”) amended complaint, Dkt. 20,
Defendants' motion to strike unauthorized second amended
complaint, Dkt. 22, Defendants' motion for sanctions,
Dkt. 24, the Hewitts' amended complaint, Dkt. 28, the
Hewitts' motion for a temporary restraining order, Dkt.
29, and the Hewitts' motion for order, Dkt. 30. The Court
has considered the pleadings filed in support of and in
opposition to the motions and the remainder of the file and
hereby rules as follows:
February 8, 2019, the Hewitts filed an amended complaint in
Pierce County Superior Court for the State of Washington
against Quality Loan Services (“QLS”), Wells
Fargo Bank, Select Portfolio Services, and John Does 1-10.
Dkt. 1-1. On April 11, 2019, Defendants removed the matter to
this Court. Dkt. 1. Defendants contend that the Hewitts
failed to properly name them and that they do not object to
substitution of their correct corporate names to
“ensure clarity in this proceeding.” Id.
at n.1, n.2.
30, 2019, Defendants filed a motion to dismiss requesting
that the Court dismiss the Hewitts' claims based on the
doctrine of res judicata. Dkt. 17. The Hewitts did not
respond, which the Court may consider as an admission that
the motion has merit. Local Rules W.D. Wash. LCR 7(b)(2).
12, 2019, the Hewitts filed an amended complaint. Dkt. 20. On
June 19, 2019, Defendants moved to strike the complaint. Dkt.
22. The Hewitts did not respond, which the Court may consider
as an admission that the motion has merit. Local Rules W.D.
Wash. LCR 7(b)(2).
3, 2019, Defendants moved for sanctions. Dkt. 24. On July 18,
2019, Defendants replied stating that the Hewitts had failed
to timely respond. Dkt. 26. On July 19, 2019, the Hewitts
responded, Dkt. 27, filed another amended complaint, Dkt. 28,
filed a motion for temporary restraining order, Dkt. 29, and
filed a motion for order, Dkt. 30, which is essentially the
Hewitts' proposed temporary restraining
2011, the Hewitts sued Wells Fargo Bank alleging among other
claims a wrongful foreclosure. Hewitt v. Wells Fargo
Bank, Cause No. C11-05147-BHS. The suit ended in a
settlement that voided the foreclosure and restored the deed
of trust to the Hewitts under a loan modification agreement.
Defendants assert that the Hewitts breached their obligations
under the settlement, and in 2017 the Trust initiated new
nonjudicial foreclosure proceedings. Dkt. 17 at 6.
2018, the Hewitts sued the Trust in state court alleging
numerous causes of action including breach of contract and
violations of the Washington Consumer Protection Act. Dkt.
18-3. On November 2, 2018, the Trust moved for summary
judgment on all of the Hewitts' claims. Dkt. 18-4. On
November 30, 2018, the court granted the motion and dismissed
all of the Hewitts' claims with prejudice as a matter of
law. Dkt. 18-6.
Motion to Strike
move to strike the Hewitts' amended complaint because the
Hewitts failed to either obtain the “opposing
party's written consent or the court's leave.”
Fed.R.Civ.P. 15(a)(2). The Court agrees and grants
Defendants' motion. Under the same rationale, the Court
sua sponte strikes the Hewitts' other amended
complaint, Dkt. 28.