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Britton v. Servicelink Field Services, LLC

United States District Court, E.D. Washington

July 26, 2019

GINA L. BRITTON, a single woman, and JEREMY N. LARSON, a single man, and on behalf of others similarly situated, Plaintiffs,
v.
SERVICELINK FIELD SERVICES, LLC, formerly known as LPS FIELD SERVICES, INC., Defendant.

          ORDER DENYING CLASS CERTIFICATION

          THOMAS O. RICE CHIEF UNITED STATES DISTRICT JUDGE

         BEFORE THE COURT are Plaintiffs Gina L. Britton (and Jeremy N. Larson's)[1] 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 moot.

         BACKGROUND

         [2]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, [3] for its part in securing properties subject to foreclosure.

         A. ServiceLink; Complained-of Services

         ServiceLink 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.

         In 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.

         B. Plaintiff Britton

         Britton 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.

         Britton 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.

         “On 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.

         Britton 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.

         Britton 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.

         C. Plaintiff Larson

         Larson 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, ¶ 2.

         Defendant 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.

         D. Claims

         Based 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.

         Plaintiffs 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.

         GOVERNING LAW; STANDARD OF REVIEW

         Federal 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 ...


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