United States District Court, W.D. Washington, Tacoma
BEAU A. WEIDMAN, Plaintiff,
CARRINGTON MORTGAGE SERVICES; BANK OF NEW YORK MELLON fka THE BANK OF NEW YORK AS TRUSTEE FOR REGISTERED HOLDERS OF CWABS, INC. ASSET BACKED CERTIFICATES SERIES 2006-23; AZTEC FORECLOSURE CORPORATION OF WASHINGTON, a Washington Corporation; and DOES 1 through 10 inclusive, Defendants.
ORDER ON MOTION TO DISMISS FIRST AMENDED COMPLAINT
AND FURTHER ORDERS TO PLAINTIFF
J. BRYAN UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendants Carrington
Mortgage Services (“Carrington”) and The Bank of
New York Mellon FKA The Bank of New York as Trustee for
Registered Holders of CWABS, Inc. Asset Backed Certificates
Series 2006-23's (“Bank of New York”) Motion
to Dismiss First Amended Complaint. Dkt. 14. The Court has
considered the pleadings filed regarding the motion and the
remainder of the record herein.
April 9, 2019, Plaintiff filed this case pro se,
asserting violations of federal law (including the Fair Debt
Collection Practices Act, 15 U.S.C. § 1692, et
seq. (“FDCPA”) and the Real Estate
Settlement Procedures Act, 12 U.S.C. § 2601, et.
seq. (“RESPA”)) and state law in connection
with a mortgage on real property commonly known as 3950 Birch
Street, Washougal, Washington. Dkt. 1. Defendants Carrington
and Bank of New York's motion to dismiss was granted and
Plaintiff's “Lack of Standing/Wrongful
Foreclosure” claim, FDCPA claim, and RESPA claim, were
dismissed with prejudice and without leave to amend. Dkt. 11.
Plaintiff was granted leave, if he wished, to file an amended
complaint to plead a Deed of Trust Act, RCW 61.24 et.
seq. (“DTA”) claim only
against the Bank of New York and Carrington. Dkt. 11.
Plaintiff filed an Amended Complaint asserting a DTA claim
against them on June 14, 3019. Dkt. 13.
Carrington and Bank of New York now move for dismissal of the
DTA claim asserted against them pursuant to Fed.R.Civ.P. 12
(b)(6). Dkt. 14. For the reasons provided below, the motion
(Dkt. 14) should be granted and the claims asserted against
Defendants Carrington and Bank of New York should be
dismissed. Further, the Plaintiff should be ordered to show
cause why this Court should not decline to exercise
supplemental jurisdiction over the remaining claims in the
case. If he argues that the Court should continue to exercise
supplemental jurisdiction, he should also be ordered to file
proof of service regarding Defendant Aztec Foreclosure
Corporation of Washington (“Aztec”).
FACTS, PROCEDURAL HISTORY AND ORGANIZATION OF
reviewing a motion to dismiss for failure to state a claim as
is the case here, the court is generally limited to review of
“the face of the complaint, materials incorporated into
the complaint by reference, ” and matters of which
judicial notice may be taken. In re Rigel
Pharmaceuticals, Inc. Securities Litigation, 697 F.3d
869, 876 (9th Cir. 2012). In considering this motion, the
moving Defendants ask the Court to take judicial notice of
publicly recorded documents, documents from the
Plaintiff's bankruptcy case, and documents referenced in
the Plaintiff's Complaint. “A court may take
judicial notice of matters of public record without
converting a motion to dismiss into a motion for summary
judgment, as long as the facts noticed are not subject to
reasonable dispute.” Id. (internal
quotations omitted). The Court should grant the
Defendants' request and take judicial notice of the
documents found at Dkt. 14-2. The Court has already taken
judicial notice of the documents found at Dkt. 8-1. The
following facts that are taken from the public record and
from documents referenced in Plaintiff's Complaint are
filed in this case at “Dkt. 8-1” and “Dkt.
14-2” are so referred to in this order. Facts from the
Plaintiff's Amended Complaint are cited as “Dkt.
Amended Complaint is difficult to follow. As it relates to
the current motion, Plaintiff alleges in the Amended
Complaint that on July 26, 2006, he obtained a loan on the
subject property from Golf Savings Bank, A Washington Stock
Bank (“Golf”) by executing a Note secured by a
Deed of Trust. Dkt. 13, at 6-7. The Note provides that if the
Plaintiff did “not pay the full amount of each monthly
payment on the date it [was] due, [he] would be in
default.” Dkt. 8-1, at 7. In the Deed of Trust, which
was recorded with the Clark County Auditor on August 4, 2006,
the Plaintiff agreed that the “Note or a partial
interest in the Note (together with [the Deed of Trust])
[could] be sold one or more times without prior notice to
[the Plaintiff].” Dkt. 8-1, at 13-31.
November 11, 2011, an Assignment of Deed of Trust, assigning
all interest in the Note and Deed of Trust to The Bank of New
York, was recorded with the Clark County Auditor. Dkt. 8-1,
at 34-35. On November 13, 2011, an Appointment of Successor
Trustee, in which the Bank of New York (through its attorney
in fact) appointed Northwest Trustee Services, Inc.
(“Northwest Trustee”) as successor trustee under
the deed of trust, was recorded with the Clark County
Auditor. Dkt. 8-1, at 37.
January 12, 2016, Northwest Trustee recorded, with the Clark
County Auditor, a Notice of Trustee's Sale regarding the
subject property. Dkt. 8-1, at 39-43. The sale was scheduled
for May 13, 2016. Id.
before the sale, on May 12, 2016, the Plaintiff filed for
relief under Chapter 13 of the U.S. Bankruptcy Code. In
re Weidman, U.S. Bankruptcy Court for the Western
District of Washington case number 16-42048-PBS; filed in
this case at Dkt. 8-1, at 45. On June 1, 2016 the Plaintiff
filed his proposed plan with the bankruptcy court, noting
that he had “listed his residence for sale” and
that the sale was “expected to be a short sale, and if
[he could not] obtain a short sale by August 15, 2016, [he
would] amend his plan to surrender the property.”
Id., Dkt. 16; filed in this case at Dkt. 8-1, at 65.
The bankruptcy was dismissed on September 2, 2016.
Id., Dkt. 32; filed in this case at Dkt. 8-1, at
August 29, 2018, an Appointment of Successor Trustee was
recorded with the Clark County Auditor's office, in which
the Bank of New York appointed Aztec Foreclosure Corporation
of Washington (“Aztec”) successor trustee on the
Deed of Trust. Dkt. 8-1, at 71-74. The Appointment was
executed by the Bank of New York via its attorney in fact,
Carrington. Id. Aztec recorded a Notice of
Trustee's Sale with the Clark County Auditor on October
31, 2018, giving notice of the trustee's sale on March 8,
2019. Dkt. 8-1, at 76-81. Carrington is noted to be the
loan's servicer on the Notice of Trustee's Sale. Dkt.
8-1, at 76. Aztec executed a Trustee's Deed granting the
property to the Bank of New York in exchange for payment of
$692, 750.00 for the property. Dkt. 8-1, at 83-86. The
Trustee's Deed was recorded with the Clark County Auditor
on March 20, 2019. Id.
April 9, 2019, the Plaintiff filed this case. Dkt. 1. In his
Amended Complaint, the Plaintiff maintains that
“Defendant Aztec allegedly sold the Subject Property to
Defendant Carrington at the Trustee Sale;” the
Plaintiff maintains that this “is not true.” Dkt.
13, at 7. The Plaintiff points to a letter from Aztec the
Plaintiff received that states, “The property located
at 3950 Birch Street, Washougal, WA 98671 was purchased at a
trustee's sale by Carrington Mortgage Services, LLC on
March 8, 2019.” Dkt. 13, at 13. The Plaintiff asserts
that the property went back to the Bank of New York, and so
the sale must be voided. Dkt. 13, at 7. His Amended Complaint
references Washington's DTA. Dkt. 13.
Plaintiff seeks attorneys' fees and costs. Dkt. 13, at 8.
He further seeks an order declaring that the foreclosure sale
was “unlawful and void.” Id.
not relevant to this motion, the Plaintiff names Aztec as a
Defendant in the Amended Complaint. Dkt. 13. Aztec is alleged
to be a Washington business entity. Dkt. 13. Aztec has not
appeared in the case and there is no evidence that it ...