United States District Court, W.D. Washington, Seattle
ORDER GRANTING MOTIONS TO DISMISS FILED BY DEFENDANTS
(1)GREENPOINT MORTGAGE; (2) NATIONSTAR, FREDDIE MAC, AND
MERS; AND (3) BANK OF AMERICA AND MERRILL LYNCH
Barbara Jacobs Rothstein, U.S. District Court Judge
matter comes before the Court on the three separate Motions
to Dismiss filed, respectively, by Defendants (1) Greenpoint
Mortgage Funding, Inc. (“Greenpoint”) (Dkt No.
10); (2) Nationstar Mortgage LLC (“Nationstar”),
Federal Home Loan Mortgage Corporation, as Trustee for
Freddie Mac Seasoned Credit Risk Transfer Trust, Series
2017-2 (“Freddie Mac”), and Mortgage Electronic
Registration Systems, Inc. (“MERS”) (Dkt. No.
24); and (3) Defendants Bank of America, N.A. (“Bank of
America”) and Merrill Lynch, Pierce, Fenner &
Smith, Inc. (“Merrill Lynch”) (Dkt. No. 43). For
the following reasons, the Court grants all three motions and
dismisses Plaintiff's Complaint with prejudice and
without leave to amend.
FACTUAL AND PROCEDURAL BACKGROUND
March 21, 2007, Plaintiff executed a promissory note
(“Note”) for $360, 000, in consideration for a
loan (the “Loan”) from Greenpoint, for the
purchase of real property located at 21811 45th Place S., in
Kent, Washington (the “Property”). Compl., ¶
3; see also Ex A to Request for Judicial Notice,
Dkt. No. 43-1. Plaintiff also executed at that time a Deed of
Trust (“Deed of Trust”) securing the Note and
encumbering the Property. Id., ¶ 31; See
also Ex. A to Declaration of Hunter Abell (“Abell
Decl.”). MERS was named as beneficiary and nominee for
Greenpoint, its successors and assigns. Id.
November 2008, MERS assigned its interest in the Deed of
Trust to Greenpoint, which in May 2011, assigned its interest
in the Deed of Trust to BAC Home Loan Servicing, LP
(“BAC”). Exs. B & C to Declaration of
Christopher Varallo (“Varallo Decl.”).
November 2012, Plaintiff executed a “Home Affordable
Modification Agreement, ” representing that he was in
default or that default was imminent. Compl. ¶ 41;
Varallo Decl., Ex. D. That agreement, with Nationstar as
Lender, modified the terms of the original Loan, setting
forth a new principal balance of $453, 069. Id.
December 2018, Bank of America, successor to BAC, assigned
its interest in the Deed of Trust to Freddie Mac.
Id., Ex. E. On January 8, 2019, Freddie Mac
authorized a Notice of Default, indicating that Plaintiff had
ceased making payments on the Loan in July 2018.
Id., Ex. G. The Notice of Trustee's Sale
indicated that as of February 2019 Plaintiff was $17, 068.12
in arrears on the loan, with a principal of $352, 307.19
remaining. Id., Ex. I at 2.
about February 13, 2019, Plaintiff, proceeding pro
se, filed the instant lawsuit in King County Superior
Court, which Defendants removed to this Court based on
diversity of the parties. Dkt. No. 1. On June 10, 2019,
Plaintiff filed a motion for a Temporary Restraining Order
(“TRO”), seeking an injunction of the foreclosure
sale of the Property, scheduled to take place in June 2019.
The Court granted that motion pending resolution of the
April 18, 2019, Greenpoint filed a motion to dismiss. On May
17, 2019, Nationstar, Freddie Mac and MERS filed a motion to
dismiss. And on July 3, 2019, Bank of America and Merrill
Lynch filed a motion to dismiss. Taken together, these three
motions seek dismissal of all claims against all named
Defendants, with prejudice and without leave to amend.
failed to file a response to either of the first two motions
to dismiss by the respective deadlines. Instead, on June 21,
2019-approximately six weeks after his first response was
due, and two weeks after the second was due-Plaintiff filed a
motion to extend, requesting until July 1, 2019 to respond to
the motions. Dkt No. 39. Plaintiff's motion to extend the
deadlines was untimely and set forth no justification for
having missed the deadlines to respond to the motions to
11, 2019, Plaintiff filed a “Response to
Defendant's Motion to Dismiss”
(“Response”). Dkt. No. 44. It is not clear from
the response which of the three motions to dismiss Plaintiff
is responding to, though the Court presumes it is a response
to all three. In his Response, Plaintiff essentially concedes
that his Complaint fails to state a claim on which relief can
be granted; seeks leave to amend his Complaint by August 2,
2019; and raises an argument concerning a purported UCC-1
filing requirement, discussed further below. Defendants filed
three separate replies. Dkt. Nos. 45, 46, 47.
reviewed the Complaint, the three Motions to Dismiss,
Plaintiff's Response, and the Defendants' Replies to
that Response, and all exhibits filed ...