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Bess v. Ocwen Loan Servicing LLC

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

January 8, 2020

NANCY BESS, Plaintiff,
v.
OCWEN LOAN SERVICING LLC, Defendant.

          ORDER DENYING PLAINTIFF'S MOTION FOR CLASS CERTIFICATION AND DENYING DEFENDANT'S MOTION TO EXCLUDE EXPERT TESTIMONY

          BENJAMIN H. SETTLE, UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Plaintiff Nancy Bess's (“Bess”) motion for class certification, Dkt. 65, and Defendant Ocwen's Loan Servicing, LLC's (“Ocwen”) motion to exclude expert testimony, Dkt. 106. The Court has considered the pleadings filed in support of and in opposition to the motions and the remainder of the file and hereby denies the motion for class certification and denies the motion to exclude expert testimony for the reasons stated herein.

         I. PROCEDURAL HISTORY

         On November 10, 2014, Bess filed a class action complaint against Ocwen in the Kitsap County Superior Court for the State of Washington. Dkt. 1, Ex. A. On January 12, 2015, Ocwen removed the case to this Court. Dkt. 1. On January 13, 2015, Ocwen filed a motion to dismiss. Dkt. 6.

         On March 16, 2015, the Court granted the motion to dismiss with leave to amend. Dkt. 22. On March 27, 2015, Bess filed her first amended complaint. Dkt. 23. Bess alleged the following claims against Ocwen: (1) common law trespass; (2) statutory trespass; (3) violation of RCW 7.28.230; (4) violation of the Deed of Trust Act; (5) violations of the Consumer Protection Act (“CPA”); (6) breach of contract; and (7) unjust enrichment. Id. ¶¶ 5.1-13.11. On April 9, 2015, Ocwen filed a second motion to dismiss. Dkt. 24. On June 1, 2015, the Court granted the motion to dismiss with leave to amend. Dkt. 31. On June 9, 2015, Bess filed a notice of intent not to amend. Dkt. 32. On June 18, 2015, the Court dismissed Bess's claims with prejudice. Dkt. 34. On July 6, 2015, Bess filed a notice of appeal. Dkt. 35. On March 9, 2018, the Ninth Circuit issued its memorandum disposition affirming in part, reversing in part, and remanding, Dkt. 39, and on April 2, 2018, the Ninth Circuit entered its mandate, Dkt. 42.

         The Ninth Circuit reviewed in light of the Washington Supreme Court's July 7, 2016 decision in Jordan v. Nationstar Mortgage, LLC, 185 Wn. 2d 876 (2016) (“Jordan”). Dkt. 39.[1] In Jordan, the Washington Supreme Court evaluated deed of trust provisions which authorize a lender to enter the borrower's property after default and prior to foreclosure, concluding that they permit the lender to take possession of the property prior to foreclosure in conflict with state law. Jordan, 185 Wn.2d at 883. The Washington Supreme Court explained:

By changing the locks [the loan servicer] took possession of the property. Since these actions are authorized by the entry provisions, the entry provisions allow the lender to take possession of the property. Because Washington law prohibits lenders from taking possession of the borrower's property before foreclosure, the provisions are in conflict with state law.

Id. at 889.

         In light of Jordan, the parties conceded that Ocwen's defense that its entry onto Bess's property was privileged based on entry provisions in the deed of trust is no longer valid, rendering Bess's common law trespass claim well-pleaded. Dkt. 39 at 2. The Ninth Circuit found that in light of Jordan, Bess's claim for statutory trespass under RCW 4.24.630 was also well-pleaded, explaining that Bess's allegations “are sufficient to show a reasonably foreseeable invasion of Bess's property, which would affect Bess's exclusive possession and interest in the property.” Id. at 2-3 (citing Grundy v. Brack Family Tr., 151 Wn.App. 557, 566 (2009)). The Circuit explained it was “plausible that Ocwen was aware its conduct was unlawful . . . .” Id. at 4 (citation omitted). The Circuit also concluded Ocwen's alleged conduct “could constitute unfair or deceptive acts” in violation of Washington's CPA. Id. The Circuit affirmed the dismissal of Bess's remaining claims and affirmed that Bess lacked standing to bring claims on behalf of her late husband's estate. Id. at 5-6. On April 16, 2019, Ocwen answered Bess's amended complaint. Dkt. 43.

         On May 8, 2018, the Court entered an order setting a schedule for class certification briefing. Dkt. 49. On January 17, 2019, Ocwen filed a motion to stay the matter pending resolution of the appeal in Bund v. Safeguard Properties, LLC, No. C16-920 MJP, 2018 WL 5112642 (W.D. Wash. Oct. 19, 2018), appeal filed sub nom James v. Safeguard Properties, LLC, No. 18-35953 (9th Cir.). Dkt. 59.

         On March 15, 2019, Bess filed a motion to certify a class with the following membership:

All persons who own or owned real property in Washington subject to a deed of trust or mortgage serviced or held by Ocwen whose property Ocwen or its agents Altisource or CoreLogic entered prior to the completion of a foreclosure sale and changed one or more lock between November 10, 2010 and July 7, 2016.

Dkt. 65 at 14-15. On June 7, 2019, Ocwen responded to the motion for class certification. Dkt. 86. On June 28, 2019, the Court denied Ocwen's motion to stay. Dkt. 98. On July 26, 2019, Bess replied to her motion for class certification. Dkt. 100.

         On July 31, Ocwen surreplied seeking to strike all testimony from Bess's expert Dr. John A. Kilpatrick (“Kilpatrick”), which Bess submitted in support of her motion for certification. Dkt. 105. On August 9, 2019, Ocwen filed a motion to exclude Kilpatrick's testimony from the class certification record. Dkt. 106. On August 26, 2019, Bess responded. Dkt. 108. On August 29, 2019, Ocwen replied. Dkt. 110.

         On November 21, 2019, Ocwen filed a notice of supplemental authority. Dkt. 111.

         II. ...


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