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Wean v. U.S. Bank National Association

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

December 3, 2019

ROBERT A. WEAN Plaintiff,



         THIS MATTER comes before the Court on Plaintiff's Motion for a Temporary Restraining Order (Dkt. No. 4.) Having considered the Motion, the Response (Dkt. No. 24), the Reply (Dkt. No. 28), and all related papers, the Court DENIES Plaintiff's Motion.


         On June 15, 2006, Plaintiff, Robert Wean, borrowed $528, 000 from Homefield Financial Incorporated, secured by a deed of trust on his home in Kirkland, WA. (Dkt. No. 5, Declaration of Robert A. Wean (“Wean Decl.”), Ex. A; Dkt. No. 6, Declaration of Christina L. Henry (“Henry Decl.”), Ex. B.) On August 31, 2007, Plaintiff filed a Chapter 7 bankruptcy petition in the United States Bankruptcy Court for the Western District of Washington, receiving a bankruptcy discharge pursuant to 11 U.S.C. § 727 on December 7, 2007. (Henry Decl., Exs. C, E.) Homefield Financial obtained an order of relief from the bankruptcy stay, retaining its interest in the property even though Plaintiff's personal debts were discharged. (Henry Decl., at ¶ 5, Ex. D.)

         For the next twelve years, Homefield Financial and its successors in interest attempted to foreclose on the property, sending Plaintiff notices and setting trustee's sales in 2008, 2010, 2014, 2015, 2016, and 2019. (Dkt. No. 24, Declaration of Roberto Montoya (“Montoya Decl.”) Exs. E, L-1, M-6, N-1, O-1; Henry Decl., Ex. G.) In response to each of these planned trustee's sales, Plaintiff requested repayment plans, mediation, or filed for bankruptcy, which served to cancel each of the sales. (Montoya Decl., Ex. K-3 at 1, L-2, M-7, H-1, I-1, I-3, O-2.) In his requests for loan modifications, Plaintiff repeatedly implied that he was interested in keeping the property. When Plaintiff applied for a loan modification under the Home Affordable Modification Program (“HAMP”) on June 28, 2010, he submitted a hardship affidavit that stated: “Due to bad economy and company downsizing - became unemployed. Since then have gained employment & financially things have stabilize[d].” (Id., Ex. L-2.) He then updated his application the following month, stating that he would “be happy to furnish a Letter of Employment from my new employer for verification.” (Id., Ex. L-3.) Plaintiff provided another hardship affidavit when he applied for another HAMP loan modification on May 8, 2015. (Id., Ex. N-2.) In a letter to creditors dated February 15, 2019, Plaintiff wrote:

I have been actively trying to negotiate a loan modification since 2008 . . . . I would like to live in this home and [am] willing to negotiate terms that will help us continue to make that a reality. I would like to have our payments lowered and would like to secure a new loan with better terms to help us remain in our home.

(Id., Ex. Q-5.) And in May 2015, Plaintiff applied for a modification through the Home Affordable Modification Program (“HAMP”), certifying that he was seeking a modification in order to keep or sell the property. (Id. at N-2.) In spite of Plaintiff's multiple applications for loan modification, Plaintiff did not make any payments in furtherance of his modification agreements.[1]

         On June 5, 2019 Defendants issued a new Notice of Trustee's Sale (“NOTS”), which, pursuant to the instant Motion, Defendants have agreed to delay to November 22, 2019. (Henry Decl., at ¶ 8, Ex. G; Dkt. No. 13.) Plaintiff now seeks a TRO to halt the pending trustee's sale, arguing that the applicable six-year statute of limitations under RCW 4.16.040 has lapsed.


         A TRO is an “extraordinary remedy never awarded as of right.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). To obtain a TRO, Plaintiff must show: (1) a strong likelihood of success on the merits, (2) a likelihood that he will suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities is in his favor, and (4) that the requested relief is in the public interest. Id. at 20. Likelihood of success on the merits is the “most important” factor, and “if a movant fails to meet this ‘threshold inquiry,' the court need not consider the other factors. Disney Enterprises, Inc. v. VidAngel, Inc., 869 F.3d 848, 856 (9th Cir. 2017) (quoting Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015).) Here, Defendants only contest Plaintiff's likelihood of success on the merits. (See Dkt. No. 24.)

         A. Likelihood of Success on the Merits

         In Washington, a promissory note and a deed of trust are written contracts subject to the six-year statute of limitations under RCW 4.16.040. Cedar W. Owners Ass'n v. Nationstar Mortg., LLC, 7 Wn.App.2d 473, 482 (2019). The statute of limitations begins at the date of discharge of a borrower's personal liability in bankruptcy. Edmundson v. Bank of Am., 194 Wn.App. 920, 931 (2016); Westar Funding, Inc. v. Sorrels, 157 Wn.App. 777, 785, as amended on denial of reconsideration (Nov. 9, 2010). Plaintiff obtained a bankruptcy discharge on December 7, 2007. (Henry Decl., at ¶ 6, Ex. E.) Therefore, unless the statute of limitations is tolled or the Plaintiff acknowledges the debt, the statute of limitations ended on December 7, 2013. The Defendants contend that both occurred here. (Dkt. No. 24 at 10-17.)

         1. Tolling the Statute of Limitations

         Defendants argue that the bankruptcy and foreclosure proceedings tolled the statute of limitations period for a minimum of five years, four months, and 20 days. (Dkt. No. 24 at 14-15.) Under Washington law, “[t]he commencement of a nonjudicial foreclosure proceeding tolls the six-year statute of limitations period.” Cedar W., 7 Wn.App.2d at 488; Bingham v. Lechner, 45 P.3d 562, 568 (Wash.Ct.App. 2002). Bankruptcy petitions also operate to stay proceedings and, in Washington, toll the statute of limitations. Thacker v. Bank of New York Mellon, No. ...

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