United States District Court, W.D. Washington, Tacoma
ORDER DENYING PLAINTIFF'S MOTION FOR CLASS
CERTIFICATION AND DENYING DEFENDANT'S MOTION TO EXCLUDE
BENJAMIN H. SETTLE, UNITED STATES DISTRICT JUDGE
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.
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.
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.
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. 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
Id. at 889.
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.
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.
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.
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.
November 21, 2019, Ocwen filed a notice of supplemental
authority. Dkt. 111.