United States District Court, W.D. Washington, Seattle
JAMES B. EDWARDSON, Plaintiff,
CALIBER HOME LOANS, et al., Defendants.
C. COUGHENOUR UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendant Caliber Home
Loans' (“Caliber”) motion to dismiss (Dkt.
No. 6), Defendants Hugo Esporza and Mitzi Johankneckt's
(“the King County Defendants”) motion to dismiss
(Dkt. No. 8), and Defendant Nathan F. Smith's motion to
dismiss (Dkt. No. 16). Having thoroughly considered the
parties' briefing and the relevant record, the Court
finds oral argument unnecessary and hereby GRANTS the motions
to dismiss (Dkt. Nos. 6, 8, and 16) for the reasons explained
James Edwardson alleges that he is the owner of real property
located at 43025 126th Ave. SE Enumclaw, Washington 98002
(the “Property”). (Dkt. No. 1-1 at 2.) In June
2007, Mr. Edwardson and Kimberly Edwardson executed a deed of
trust against the Property to secure a $656, 000 mortgage
loan. (See Dkt. No. 6-1 at 4-19.) Under the terms of
the deed of trust, Mortgage Electronic Registration Systems,
Inc. (“MERS”) was the beneficiary solely as a
nominee for the lender First Franklin Financial Corp.
(Id. at 4-5.) On March 25, 2010, MERS assigned the
deed of trust to Wells Fargo, N.A. (Id. at 25.)
October 2014, Wells Fargo filed a judicial foreclosure action
(the “Foreclosure Action”) in King County
Superior Court against Mr. Edwardson, Ms. Edwardson, the
occupants of the Property, and all other parties holding an
interest in the Property. (See Id. at 31-39.) The
Foreclosure Action was filed to enforce the mortgage loan and
deed of trust on the Property. (Id. at 32-35.) Wells
Fargo was represented in the Foreclosure Action by Defendant
Mr. Smith. (Id. at 77.) It appears that Defendant
Caliber was the mortgage servicer. (See Dkt. Nos.
1-1, 6 at 5.) While the Foreclosure Action was pending, Wells
Fargo assigned the deed of trust to U.S. Bank Trust, N.A. as
Trustee for LSF9 Master Participation Trust. (Dkt. No. 6-1 at
72.) On April 25, 2017, the King County Superior Court issued
a default judgment and decree of foreclosure against Mr.
Edwardson and Ms. Edwardson. (Id. at 74-78.)
Edwardson alleges that he was incarcerated at the Airway
Heights Corrections Center in Spokane County beginning in
August 2016. (Dkt. No. 1-1 at 3.) On December 31, 2018,
Mr. Edwardson filed a motion to dismiss the default judgment
entered in the Foreclosure Action. (See Dkt. No.
9-3.) In his motion, Mr. Edwardson argued that he had not
received proper notice of the Foreclosure Action. (See
id.) The King County Superior Court denied the motion,
finding that Mr. Edwardson had “no basis for
relief.” (See Dkt. No. 9-4.) On May 13, 2019,
Mr. Edwardson filed a second motion to set aside the default
judgment in the Foreclosure Action. (See Dkt. No.
9-1.) In that motion, Mr. Edwardson again argued that he had
not received notice of the complaint or summons because he
was incarcerated. (Id.) The King County Superior
Court again denied Mr. Edwardson's motion, ruling that,
under Washington law, he had “not proved a sufficient
basis for setting aside the default judgment.” (Dkt.
No. 9-5 at 2.)
6, 2019, Mr. Edwardson, proceeding pro se, filed
this lawsuit in King County Superior Court. (Dkt. No. 1-1.)
On June 6, 2019, Defendants removed the case to this Court.
(Dkt. No. 1.) Mr. Edwardson alleges that Defendants Caliber
and Mr. Smith did not give him proper notice of the
Foreclosure Action. (Dkt. No. 1-1 at 3.) Mr. Edwardson
further asserts that Defendants Caliber and Mr. Smith
conspired to get the King County Defendants “to serve
papers at the incorrect address for the Plaintiff even
though, Wells Fargo in King County Washington had
‘written notice' of the Plaintiff's current
address.” (Id.) Mr. Edwardson alleges that
Defendants “conducted an improper service of process
knowing or having knowledge that the Plaintiff was
incarcerated and serving summons by publication without
giving the Plaintiff proper notice of the summons and
complaint.” (Id.) He seeks an award of
statutory penalties, attorney fees and expenses, an
“order to cease and desist all sales activities of [the
Property], ” and that “Defendants appear and show
cause why [they] failed to properly serve the Plaintiff while
he is in prison.” (Id. at 4.)
Defendants each moved to dismiss the complaint. (See
Dkt. Nos. 6, 8, 16.) Mr. Edwardson responded to the motions
to dismiss by asserting that “he will need to seek out
further discovery.” (Dkt. No. 14 at 1.) Mr. Edwardson
asks the Court to invoke Federal Rule of Civil Procedure
56(d) to grant him a continuance in order to conduct
discovery or to deny Defendants' motions as untimely.
survive a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6), a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief
that is plausible on its face. Ashcroft v. Iqbal,
556 U.S. 662, 664 (2009). The factual allegations must be
“enough to raise a right to relief above the
speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). The complaint may be
dismissed if it lacks a cognizable legal theory or states
insufficient facts to support a cognizable legal theory.
Zixiang v. Kerry, 710 F.3d 995, 999 (9th Cir. 2013).
addition, claims of fraud in a complaint must be supported
with specific and detailed factual allegations. See
Fed. R. Civ. P. 9(b). The Rule 9(b) pleading standard rule
requires that a complaint allege the “who, what, when,
where, and how” of the fraud. Vess v. Ciba-Geigy
Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003).
“To comply with Rule 9(b), allegations of fraud must be
specific enough to give defendants notice of the particular
misconduct which is alleged to constitute the fraud charged
so that they can defend against the charge and not just deny
that they have done anything wrong.” Bly-Magee v.
California, 236 F.3d 1014, 1019 (9th Cir. 2001)
Court may consider information that is subject to judicial
notice without converting a motion to dismiss into a motion
for summary judgment. Fed.R.Evid. 201(b); MGIC Indem.
Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986). For
example, the Court may take judicial notice of public records
because their contents are not subject to reasonable dispute.
See Disabled Rights Action Comm. v. Las Vegas Events,
Inc., 375 F.3d 861, 866 n.1 (9th Cir. 2004). Defendants
have asked the Court to take judicial notice of the following
documents: (1) the deed of trust for the Property; (2) an
assignment of the deed of trust to Wells Fargo; (3) an
assignment of the deed of trust to U.S. Bank; (4) the amended
complaint filed in the Foreclosure Action in King County
Superior Court; (5) the judgment and decree of foreclosure in
the Foreclosure Action; (6) Mr. Edwardson's motion to set
aside the default judgment in the ...