United States District Court, E.D. Washington
GINA L. BRITTON, a single woman, and JEREMY N. LARSON, a single man, and on behalf of others similarly situated, Plaintiffs,
SERVICELINK FIELD SERVICES, LLC, formerly known as LPS FIELD SERVICES, INC., Defendant.
ORDER DENYING CLASS CERTIFICATION
O. RICE CHIEF UNITED STATES DISTRICT JUDGE
THE COURT are Plaintiffs Gina L. Britton (and Jeremy N.
Larson's) Motion for Class Certification (ECF No.
51) and Defendant ServiceLink Field Services, LLC's
Motion to Exclude (ECF No. 84) and Motion for Evidentiary
Hearing (ECF No. 85). The Court reserved ruling on the
necessity of an evidentiary hearing until after considering
the parties' oral arguments on the other motions. On June
25, 2019, the Court heard oral argument on the Motion to
Certify and Motion to Exclude. The Court has reviewed the
file and the records therein, heard from counsel and is fully
informed. For the reasons discussed below, Plaintiffs'
Motion to Certify (ECF No. 51) is denied.
Defendant's Motion to Exclude (ECF No. 84) is
granted. Defendant's Motion for
Evidentiary Hearing (ECF No. 85) is denied as
The instant suit involves a
claim by Plaintiffs Gina L. Britton and Jeremy N. Larson,
personally and on behalf of others similarly situated,
against Defendant ServiceLink Field Services, LLC,
its part in securing properties subject to foreclosure.
ServiceLink; Complained-of Services
provides asset preservation services to lenders by
contracting with vendors, who provide the actual services.
ECF No. 73 at 17. Among other things, ServiceLink would -
through its vendors - “confirm owner occupancy, 
preserve property where owners died or property was otherwise
vacant or abandoned, address insurance losses/repairs, remedy
code or HOA violations,  address emergencies like burst
pipes[, ]” and “abate hazards/nuisances to
prevent deaths/injuries.” ECF No. 73 at 17.
Specifically at issue here, ServiceLink would drill out and
replace the locks on homes - barring access through that
entry - and leave a sticker on the home informing the
owner of how they can get a key. ECF No. 73 at 17. In all,
ServiceLink worked with 28 lenders and 27 unrelated vendors
during the proposed class period. ECF No. 73 at 17. Notably,
“Lenders represent their authority to [order the
services to] ServiceLink and warrant compliance with all
laws[.]” ECF No. 73 at 17.
2016, the Supreme Court of Washington held that contract
provisions found in deeds of trust which purport to allow
lenders to take possession of homes after default, but before
foreclosure, were invalid. Jordan v. Nationstar Mortg.,
LLC, 185 Wash.2d 876 (2016). As a result, all entries
and actions on the property - specifically, drilling out and
replacing the locks - based solely on this
pre-default consent were deemed to be a trespass that
effectively interfered with the owner's property rights.
Here, Plaintiffs are seeking to hold Defendant liable for
working as the middleman between the lenders and the vendors.
purchased property located at 35 E. Walton, in Spokane,
Washington, with Sean Britton (her future husband) and her
grandmother Esther Haugen (“Haugen”) as
co-owners, using an FHA-loan. ECF No. 73 at 19. Britton
testified that Haugen was on the loan “so [Britton]
could get into a house” and that Haugen thereafter
tried to transfer her property interest to Britton, but the
document purporting to do so was not valid. ECF No. 80-2 at
152-153. Haugen passed away in 2004 and her heirs have not
been joined as named parties.
fell behind on payments and her lender enlisted ServiceLink
to determine the occupancy status. See ECF No. 80-3
at 127 (letter re: default on loan), 130 (Letter verifying
occupancy). “In 2011, Britton entered into a
forbearance agreement with Wells Fargo, promising to
owner-occupy” the Walton house (“Walton”),
but “[w]ithin days she  moved to Northport” and
“admit[ted] Northport was her primary residence.”
ECF No. 73 at 19. Britton later told the foreclosure trustee
and Wells Fargo that Walton was “owner occupied”,
despite her only allegedly visiting the property once or
twice a month to make repairs. ECF No. 73 at 20.
“Britton admits Walton looked abandoned with no
utilities, missing siding and furnishings, discontinued
construction, accumulated mail, no garbage service, and no
one living there.” ECF No. 73 at 20.
December 30, 2013, Wells Fargo noted emergent conditions-that
Walton was likely to freeze-and ordered preservation,
providing its guidelines and instructions.” ECF No. 73
at 20. “On January 2, 2014, a vendor reported Walton
was vacant and that it had changed the front door lock and
padlocked the shed.” ECF No. 73 at 20. Britton asserts
that the vendor also replaced the lock on the garage. ECF No.
73 at 20. The vendor reported that the toilet had frozen and
the line broke. ECF No. 73 at 20-21.
went to the property on or about January 11, 2014 and was
able to enter the house through the back door with her own
key. ECF Nos. 73 at 21; 56-1 at 30-31. ECF No. 73 at 21.
According to Britton, “[t]he inside was absolutely
trashed.” ECF No. 80-2 at 32. “There was garbage
thrown all over the floor”, “urine all over the
bathroom”, and “[t]he toilet was broken.”
ECF No. 80-2 at 32. Britton received a key to the changed
lock and, on January 16, 2014, Britton broke the key off in
the lock to keep ServiceLink from entering the property
thereafter. ECF Nos. 73 at 21; 56-1 at 31. At no time was
Britton locked out of the house.
blamed ServiceLink for “destroy[ing]” her house
and for stealing property inside the home. ECF No. 80-3 at
213-14. She complained to the lender that ServiceLink was
“stalking” her at her property. ECF No. 80-3 at
215. Britton's lender tried to arrange a meet-and-greet
between Britton and ServiceLink to discuss the issues, but
Britton did not want to deal with them. ECF No. 80-3 at 216.
The lender “got a different contractor” with
ServiceLink to discuss the issue with Britton, but
Britton's partner (Time Lowe) told the lender to
“go ahead and send them out” and relayed his
intention to physically assault and detain the contractor,
concluding with “[h]ow does that sound?”. ECF No.
80-3 at 216; see also ECF No. 80-3 at 247. The
lender ultimately purchased the home in a foreclosure sale on
June 13, 2014.
purchased property at 5501 NE 49th Street, Vancouver,
Washington. ECF No. 73 at 23. “On March 17, 2017,
ServiceLink informed Larson's lender [that the property]
was reported unsecure and asked if [Larson's lender] had
the borrower(s) consent to enter, secure, and maintain the
property.” ECF No. 73 at 23. ServiceLink then changed a
lock on the property. However, Larson, like Britton, was
never locked out and he was able to gain access to the
property immediately (only the backdoor lock was replaced).
ECF No. 73 at 23. Larson continued to live at the property
and “never demand[ed] a lock change or lockbox
removal.” See ECF Nos. 73 at 23; 82-3 at 1-2,
contends that it is still determining whether the lender had
actual authority from Larson or whether the lock change was a
result of a mistake, given Defendant changed its policies
post-Jordan to require post-default consent before
performing a lock change. ECF No. 73 at 23.
on its role in facilitating the asset preservation services,
Plaintiffs assert that ServiceLink is liable for (1) Common
Law Trespass; (2) Intentional Trespass in violation of RCW
4.24.630; (3) Negligent Trespass; (4) violation of the
Washington Consumer Protection Act, RCW 19.86; and (5)
Negligent Supervision. ECF No. 69 at 36-49, ¶¶
7.1-11.11. Plaintiffs seek damages, attorneys' fees,
costs, and injunctive relief. ECF No. 69 at 49-50.
now move the Court to certify their proposed class. ECF No.
51; see ECF No. 69 at 23, ¶ 6.1 (proposed class
definition). Defendant opposes the motion and requests the
Court exclude the Plaintiff's expert opinion. ECF Nos.
73; 84. These motions are now before the Court.
LAW; STANDARD OF REVIEW
Rule of Civil Procedure 23 governs class actions. “Rule
23 specifies that the party seeking class certification bears
the burden of demonstrating that (i) all four requirements of
Rules 23(a) and (ii) at least one of the three requirements
under Rule 23(b) are met.” 1 McLaughlin on Class
Actions § 4:1 ...