United States District Court, W.D. Washington, Seattle
ORDER GRANTING DEFENDANTS HSBC, MERS, AND OCWEN'S
MOTION FOR JUDGMENT ON THE PLEADINGS
S. Lasnik, United States District Judge.
matter comes before the Court on a motion for judgment on the
pleadings filed by defendants HSBC Bank USA, N.A. as trustee
on behalf of Ace Securities Corp. Home Equity Loan Trust and
for the Registered Holders of Ace Securities Corp. Home
Equity Loan Trust, Series 2007-WM2, Asset Backed Pass-Through
Certificates (“HSBC”), MERSCORP Holdings, Inc.
(“MERCORPS”), Mortgage Electronic Registration
Systems, Inc. (“MERS”), and Ocwen Mortgage
Service, LLC (“Ocwen”) (collectively,
“defendants”), see Dkt. #63, and
plaintiff's “Motion to Strike Defendants
‘Reply' Re: Defendants' Motion for Judgment on
the Pleadings.” See Dkt. #72.
reasons that follow, defendants' motion is GRANTED.
Plaintiff's motion to strike, Dkt. #72, is DENIED.
November 2, 2006, plaintiff Jessica Saepoff executed and
delivered to WMC Mortgage Corporation (“WMC”) an
Adjustable Rate Note in the amount of $490, 000 (“the
Note”). Ex. A, Dkt. #1-2 at 51-57. On the same date, to
secure payment on the Note, plaintiff executed a Deed of
Trust pertaining to property located at 4003 92nd
Avenue SE, Mercer Island, Washington (“the
Property”). Ex. B, Dkt. #1-2 at 59-76; see
Dkt. #1-2 (Compl.) at ¶¶ 4.1-4.7. This named MERS
as the nominee for WMC and the beneficiary under the Deed of
Trust. Ex. B, Dkt. #1-2 at 59-60. The Deed of Trust was
recorded on November 6, 2006 in King County, Washington. Ex.
1, Dkt. #63-1 at 4-21. On April 7, 2011, MERS assigned its
interest in the Deed of Trust to HSBC (“the
Assignment”). Ex. 2, Dkt. #63-1 at 22. The assignment
was prepared by Ocwen. Id.; see Compl. at
¶ 4.37. On May 21, 2015, HSBC appointed North Cascade
Trustee Services, Inc. (“North Cascade”) as
Successor Trustee under the Deed of Trust. Ex. 3, Dkt. #63-1
at 23-24; see Compl. at ¶ 4.39. On January 19,
2016, North Cascade recorded a Notice of Trustee's Sale.
Ex. 9, Dkt. #63-1 at 35-38; see Compl. at ¶
4.40. The sale was canceled by a Notice of Discontinuance of
Trustee's Sale recorded by North Cascade on October 27,
2016. Ex. 11, Dkt. #63-1 at 42; see Compl. at ¶
filed her first complaint in the King County Superior Court
on April 25, 2016, and a Second Amended Complaint on February
10, 2017. She argues that the Note was not properly
transferred to any of the defendants, and that defendants
lacked the authority to enforce, transfer, assign or
foreclose on the Note. She brought six causes of action.
First, she requests that the Court make various declarations
regarding the Note, the Deed of Trust, the Assignment, the
Appointment of Successor Trustee, the Notice of Trustee's
Sale, and her right to prepay her loan. Compl. at
¶¶ 5.1-5.13. Second, she asserts that the Deed of
Trust, the Assignment, the Appointment of Successor Trustee
and Notice of Trustee's Sale all contain material
misrepresentations and constitute mortgage fraud and/or
fraudulent misrepresentation. Id. at ¶¶
5.14-5.18; see RCW 19.144.080. Third, she alleges
that Ocwen violated Washington's Consumer Loan Act
(“CLA”). Compl. at ¶¶ 5.19-5.21;
see RCW 31.04.015 et seq. Fourth, she
asserts that North Cascade violated the Deed of Trust Act
(“DTA”). Compl. at ¶¶ 5.22-5.23. Fifth,
she alleges violations of Washington's Consumer
Protection Act (“CPA”). Id. at
¶¶ 5.24- 5.30; see RCW 19.86.010 et
seq. Sixth, she brings a quiet title claim. Compl. at
April 11, 2017, defendants filed their answer and
counterclaimed for judicial foreclosure of the subject Deed
of Trust, joining, among others, the United States of
America. Dkt. #1-2 at 7-20. The United States removed the
case to this Court on June 22, 2017. Dkt. #1 at 1-5;
see 28 U.S.C. §§ 1442(a)(1), 1444, 2410.
Parties' Motions to Strike
was recently compelled to substitute her local Washington
counsel. Dkt. #72 at 2. On January 16, 2019, plaintiff's
counsel sent an email to defense counsel indicating that Lucy
Gilbert, Esq., plaintiff's new local counsel, would be
involved in the case going forward. Ex. A, Dkt. #75-1 at 3.
Ms. Gilbert entered her Notice of Appearance on February 20,
2019. Dkt. #64. Defendants' motion for judgment on the
pleadings was initially noted for March 8, 2019. Dkt. #63. On
March 5, 2019, plaintiff's counsel and defense counsel
exchanged emails agreeing to continue the noting date to
March 15, 2019. Ex. B, Dkt. #75-1 at 4-7. The deadline for
plaintiff's response, therefore, was March 11, 2019.
See LCR 7(d). Plaintiff did not file a response by
that deadline. On March 15, 2019, defendants filed a reply,
arguing that their motion should be granted. Dkt. #70;
see LCR 7(b)(2) (“if a party fails to file
papers in opposition to a motion, such failure may be
considered by the court as an admission that the motion has
merit.”). Plaintiff eventually filed a response on
March 18, 2019, see Dkt. #71, and filed a motion to
strike defendants' reply. Dkt. #72. Defendants filed a
response to plaintiff's motion to strike, see
Dkt. #75, and a supplemental reply in support of their motion
for judgment on the pleadings requesting that plaintiff's
response be stricken. Dkt. #76.
did not request relief from the court deadlines as required
by the local rules. See LCR 7(j). Nor did plaintiff
abide by the local rules in requesting that defendants'
reply be stricken. See LCR 7(g). For the sake of
completeness, the Court will consider plaintiff's
response in its ruling. However, this is the second time that
plaintiff has failed to adhere to court deadlines.
See Dkt. #77.
the foregoing reasons, the Court DENIES plaintiff's
motion to strike defendants' reply, Dkt. #72, and DENIES
defendants' request to strike plaintiff's response.
may move for judgment on the pleadings after the pleadings
are closed. Fed.R.Civ.P. 12(c). “The same legal
standard applies to a motion for judgment on the pleadings as
to a motion to dismiss for failure to state a claim.”
Dacumos v. Toyota Motor Credit Corp., 287 F.Supp.3d
1152, 1154 (W.D. Wash. 2017) (citing Cafasso v. Gen.
Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055 n.4 (9th
Cir. 2011)). The Court accepts “as true all material
facts alleged in the pleadings and draw[s] all reasonable
inferences in favor of the nonmoving party.”
Id. (citing Fleming v. Pickard, 581 F.3d
922, 925 (9th Cir. 2009)). “Judgment on the pleadings
is proper when the moving party clearly establishes on the
face of the pleadings that no ...