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Meppelink v. Wilmington Savings Fund Society FSB

United States District Court, W.D. Washington, Tacoma

September 23, 2019

AYNA AMANDA MEPPELINK, Plaintiff,
v.
WILMINGTON SAVINGS FUND SOCIETY FSB, d/b/a CHRISTIANA TRUST, a trustee for PRETIUM MORTGAGE CREDIT MANAGEMENT; SELENE FINANCE LP; and Defendants.

          ORDER ON MOTION TO REMAND AND ON MOTION TO CEASE SERVICE

          ROBERT J. BRYAN, UNITED STATES DISTRICT JUDGE.

         THIS MATTER comes before the Court on the September 10, 2019 order for the parties to show cause, if any they have, why the Plaintiff's Motion for Remand Opposing Defendants' Notice of Removal (Dkt. 12) should not be granted for failure to comply with 28 U.S.C. § 1446 (b)(2)(A) (Dkt. 18) and the Plaintiff's Motion to Cease Service upon Defunct Homeowners' Association and Non-Existing Occupants of the Premises (Dkt. 19). The Court has considered the pleadings filed responding to the September 10, 2019 Order, those filed regarding the motions, and the remaining file.

         Originally filed in Kitsap County, Washington Superior Court, this case arises from a mortgage and deed of trust on property commonly known as 11700 Carriage Place SE, Olalla, Washington. Dkt. 1-3. Defendants Wilmington Savings Fund Society, FSB, d/b/a Christiana Trust, a trustee for Pretium Mortgage Acquisition Trust (“Wilmington”) and Selene Finance LP (“Selene) removed the case to this Court based on the federal question asserted in the Amended Complaint, pursuant to 28 U.S.C. § 1331. Dkt. 1. Defendant Quality Loan Service Corp. of Washington (“Quality Loan”) was not a removing defendant according to the Notice of Removal. Id. The Plaintiff moved to remand the case, asserting that removal was improper. Dkt. 12. On September 10, 2019, the parties were ordered to show cause why this Court should not grant the Plaintiff's motion to remand based on Defendants' failure to comply with 28 U.S.C. § 1446 (b)(2)(A), which requires that all defendants join in, or consent to, removal. Dkt. 18. The Plaintiff also filed her motion to cease service regarding the Defendants' service of process on “defunct” parties. Dkt. 19. For the reasons provided below, the Plaintiff's motion to remand (Dkt. 12) should be denied and the Plaintiff's motion to cease service (Dkt. 19) should be renoted.

         I. FACTS

         The following facts are in the September 10, 2019 Order and are repeated here:

This case was originally filed in state court on May 15, 2017 and asserted only state law claims for quiet title and for violations of Washington's Consumer Protection Act. RCW 19.86, et. seq. Meppelink v. Wilmington Savings Fund Society, SSB, et. al., Kitsap County, Washington Superior Court case number 17-2-00839-9; filed in this case at Dkt. 13-1, at 1 and 6-17.
In a May 17, 2019 Order granting the Plaintiff's Motion for Leave to Amend the Complaint, the Plaintiff was ordered to “file the amended complaint with the court by June 15, 2019.” Dkt. 14, at 24. She was further ordered to “serve the Defendants with the amended complaint, pursuant to the rules of the court for service of process by June 30, 2019.” Id.
On June 11, 2019, the Plaintiff filed an “Amended Complaint Re: Claims for Wrongful Foreclosure Violation of Regulation X of [the Real Estate Settlement Procedures Act (“RESPA”)] (12 U.S.C. § 2601, et. seq.) Declaratory Relief and Damages” in the Kitsap County, Washington Superior Court. Dkt. 13-3, at 91-204. The Plaintiff's “Declaration of Mailing” states that she sent the Defendants a copy of an Amended Summons and the Amended Complaint to the Defendants on June 24, 2019. Dkt. 13-3, at 207-208.
Defendants Wilmington and Selene's counsel acknowledge that they received the Amended Complaint on June 26, 2019. Dkt. 1, at 2.
On July 17, 2019, Defendants Wilmington and Selene removed the case to this Court based on federal question jurisdiction. Dkt. 1.

Dkt. 18, at 2-3.

         Under 28 U.S.C. § 1446 (b)(2)(A), “all defendants who have been properly joined and served must join in or consent to the removal of the action.” Dkt. 18, at 3. In the September 10, 2019 Order, the undersigned noted that “it is not clear from the record that Defendant Quality Loan ‘join[ed] in or consent[ed] to the removal of the action' here.” Accordingly, on or before September 19, 2019, the parties were ordered to show cause, in writing, if any they had, why this Court should not grant the Plaintiff's motion to remand based on Defendants' failure to comply with 28 U.S.C. § 1446 (b)(2)(A).

         On September 16, 2019, Quality Loan filed a response to the order to show cause, stating that it consented to removal on July 9, 2019. Dkt. 20. Wilmington and Selene filed a response to the order to show cause, and state that they “erroneously removed the section of the notice of removal noting Quality [Loan]'s consent.” Dkt. 23. The Plaintiff also filed responses and maintains that the case should be remanded. Dkts. 22 and 24.

         On September 13, 2019, the Plaintiff filed the “Motion to Cease Service Upon Defunct Homeowners' Association and Non-Existing Occupants of the Premises.” Dkt. 19. In this motion, she asserts that there is no homeowner's association anymore and that there are no other occupants of the property, except herself. Dkt. 19. She moves for an order that “the Defendants be ordered to cease notice and/or service upon the Hidden Acres Homeowner's Association and Occupants of the Premises.” Id. (As may be relevant to this motion, Summons were issued on August 13, 2019, for “Hidden Acres ...


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