United States District Court, W.D. Washington, Tacoma
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
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:
PROCEDURAL AND FACTUAL BACKGROUND
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. 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”).
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.
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.
February 2016, Tibbett stopped making payments. Dkt. 1-1,
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.
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.
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.
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.
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 ...