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Tibbitt v. Bank of New York Mellon

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

July 23, 2019

GAYLEN TIBBITT, Plaintiff,
v.
BANK OF NEW YORK MELLON and QUALITY SERVICE CORP. OF WASHINGTON, Defendants.

          ORDER GRANTING DEFENDANT'S MOTION TO DISMISS, GRANTING DEFENDANT'S JOINDER IN THE MOTION, DENYING PLAINTIFF'S MOTION FOR LEAVE TO AMEND, AND GRANTING PLAINTIFF LEAVE TO AMEND AS TO ONE CLAIM

          BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Defendant Bank of New York Mellon's (“BONYM”) motion to dismiss, Dkt. 7, Defendant Quality Loan Service Corporation of Washington's (“Quality”) joinder in the motion, Dkt. 8, and Plaintiff Gaylen Tibbitt's (“Tibbitt”) motion to amend, Dkt. 11. 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:

         I. PROCEDURAL AND FACTUAL BACKGROUND

         On June 11, 2005, Tibbett executed a promissory note (the “Note”) in the amount of $211, 244.00, payable to Countrywide Home Loans, Inc. Dkt. 7-1, Exh. 1.[1] Tibbett also executed a Deed of Trust securing repayment of the Note. Id., Exh. 2. The recorded Deed of Trust encumbers real property commonly known as 13497 Tenino Drive W., Bremerton, WA 98312 (the “Property”). Id.

         In July 2005, Tibbett was notified that the Note was sold to BONYM and that Bank of America, N.A. (“BANA”) became the new loan servicer. Dkt. 1-1, ¶ 8.3. Thereafter, Tibbett commenced making loan payments to BANA. Id.

         On March 18, 2015, an Assignment of the Deed of Trust in favor of BANA was recorded with the Kitsap County Auditor. Dkt. 7-1, Exh. 3.

         In February 2016, Tibbett stopped making payments. Dkt. 1-1, ¶ 8.1.

         On May 24, 2016, an Assignment of the Deed of Trust in favor of BONYM was recorded with the Kitsap County Auditor. Dkt. 7-1, Exh. 4. On July 28, 2017, BONYM, through its attorney-in-fact, executed a “Declaration of Beneficiary” attesting to BONYM's status as actual holder of the Note. Dkt. 1-1 at 112. On July 31, 2017, an Appointment of Successor Trustee, naming Quality as Successor Trustee under the Deed of Trust was recorded with the Kitsap County Auditor. Dkt. 7-1, Exh. 5.

         On October 31, 2017, a Notice of Trustee's Sale was recorded with the Kitsap County Auditor, setting a sale date of March 9, 2018. Id., Exh. 6. This sale did not occur, and on September 25, 2018, an Amended Notice of Trustee's Sale was recorded with the Kitsap County Auditor, scheduling November 2, 2018 as a new sale date for the Property. Id., Exh. 7.

         On October 16, 2018, Tibbett filed this action in the Kitsap County Superior Court for the State of Washington. Id., Exh. 8. On October 26, 2018, the court denied Tibbett's motion for an injunction to prevent the trustee's sale from occurring. Id. On November 1, 2018-one day before sale-Tibbett filed a Chapter 7 bankruptcy petition in the United States Bankruptcy Court for the Western District of Washington. Id., Exh. 9. On December 17, 2018, BONYM moved for relief from the automatic bankruptcy stay, which Tibbett opposed based solely on his allegation that BONYM is not the proper holder of the Note. Id., Exh. 10. On March 25, 2019, the bankruptcy court granted BONYM's motion for relief from stay allowing BONYM to proceed with a nonjudicial foreclosure. Id., Exh. 11.

         On May 21, 2019, BONYM removed the action. Dkt. 1. On May 30, 2019, BONYM moved to dismiss Tibbett's complaint. Dkt. 7. On June 4, 2019, Quality filed a notice of joinder. Dkt. 8. On June 20, 2019, Tibbett responded, Dkt. 10, and filed a motion to amend, Dkt. 11. On June 27, 2019, BONYM replied, Dkt. 12, and responded to Tibbett's motion, Dkt. 13.

         II. DISCUSSION

         A. BONYM's Motion

         BONYM moves to dismiss Tibbett's complaint arguing that (1) his claims are barred by res judicata and (2) he fails to state a claim. Dkt. 7. First, res judicata “bars all grounds for recovery that could have been asserted, whether they were or not, in a prior suit between the same parties on the same cause of action.” Siegel v. Fed. Home Loan Mortg. Corp., 143 F.3d 525, 528-29 (9th Cir. 1998) (internal quotation omitted). The doctrine applies to matters decided in ...


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