United States District Court, W.D. Washington, Tacoma
ORDER DENYING DEFENDANT'S MOTION TO
BENJAMIN H. SETTLE, UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendant HSBC Bank USA
National Association, as Trustee for the holders of the
Merrill Lynch Investors Inc., Mortgage Pass-Through
Certificates, Mana Series 2007-OAR5's
(“HSBC”) motion to dismiss. Dkt. 13. The Court
has considered the pleadings filed in support of and in
opposition to the motion and the remainder of the file and
hereby denies the motion for the reasons stated herein.
PROCEDURAL AND FACTUAL BACKGROUND
17, 2019, Plaintiff Amiee Veden a/k/a Lorenzen
(“Plaintiff”) filed a complaint against HSBC
asserting claims for quiet title, unjust enrichment, and
declaratory judgment. Dkt. 1. Plaintiff's claims are
based on the alleged forgery of her and her consignor, Jason
Lorenzen's (“Mr. Lorenzen”) signatures on a
Deed of Trust (“DOT”) and Note securing
Plaintiff's real property at 21315 Orting Kapowsin
Highway East, Graham, Washington, 98338 (the
“Property”). Id. ¶¶ 21-29.
2007, Mr. Lorenzen signed the Note for a $238, 400.00 loan
from FirstLine Mortgage, Inc. (“FirstLine”). Dkt.
4-2 at 12. The DOT, however, was signed by both Mr. Lorenzen
and Plaintiff. Id. at 11. It appears undisputed at
this point that the DOT and Note were transferred from
FirstLine to HSBC.
August 2014, Plaintiff filed a bankruptcy petition in this
District's Bankruptcy Court. Dkt. 14-2. The ultimate
outcome of this petition is unclear.
November 2016, a Notice of Trustee's Sale for the
Property was recorded in Pierce County, Washington records.
Dkt. 1, ¶ 15. The sale was rescinded in June 2017.
Id. In October 2017, Mr. Lorenzen quitclaimed his
interest in the Property to Plaintiff. Id., ¶
February 6, 2018, Plaintiff filed a complaint in this Court
against HSBC and others seeking declaratory judgment and
asserting claims for slander of title and intentional
infliction of emotional distress. Lorenzen v. Mortgage
Electronic Registration Systems, Inc., C18-5094BHS. In
response to a motion to dismiss, Plaintiff voluntarily
dismissed her complaint. Id., Dkt. 14.
17, 2019, Plaintiff filed the instant complaint. Dkt. 1. On
July 31, 2019, HSBC filed a motion to dismiss. Dkt. 13.
Plaintiff did not respond. On August 30, 2019, HSBC replied.
moves to dismiss based on judicial estoppel and failure to
join a necessary party. As an initial matter, the Court
agrees with HSBC that Plaintiff's failure to respond to
HSBC's motion will be taken as an admission that the
motion has merit. The Court, however, concludes that HSBC has
failed to establish that Plaintiff's complaint should be
dismissed with prejudice at this point of the proceeding.
judicial estoppel, the Court should consider at least three
factors as follows: (1) whether the party's current
position is clearly inconsistent with its prior position; (2)
whether the party succeeded in persuading a court to accept
its prior position; and (3) whether the party seeking to
assert an inconsistent position would derive an unfair
advantage or impose an unfair detriment on the opposing party
if not estopped. Quin v. Cnty. Of Kauai Dep't of
Transp., 733 F.3d 267, 270-71 (9th Cir. 2013).
case, HSBC concentrates on the first factor but fails to
submit any evidence to establish the second or third factors.
While the Court agrees with HSBC that Plaintiff has taken
inconsistent positions in admitting the debt in her
bankruptcy and previous case with this Court, that
inconsistent position alone does not warrant the enforcement
of judicial estoppel. The record is devoid of any indication
that Plaintiff either succeeded in persuading a court to
accept her prior position or would derive an unfair advantage
in now asserting that the signatures on the initial documents
were forged. Thus, the Court concludes that HSBC has failed
to establish that judicial estoppel is warranted at this time
and denies HSBC's motion on this issue.
failure to join an indispensable party, HSBC has failed to
establish that Mr. Lorenzen is indispensable. While it is
true that Mr. Lorenzen will most likely be a necessary
witness in this matter, it is not entirely clear that he is a
necessary party. HSBC argues in conclusory fashion that (1)
the Court is unable to afford complete relief among the
parties without Mr. Lorenzen's appearance and (2) HSBC
may be exposed to double or inconsistent obligations without
Mr. Lorenzen's appearance. Dkt. 13 at 12. ...