United States District Court, W.D. Washington, Seattle
KAREN D. SMITH, Plaintiff,
BANK OF NEW YORK MELLON et al., Defendants.
C. Coughenour UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiff's motion for
partial summary judgment (Dkt. No. 53) and motion to strike
affirmative defenses (Dkt. No. 49). Having thoroughly
considered the parties' briefing and the relevant record,
the Court finds oral argument unnecessary and hereby GRANTS
the motion for partial summary judgment (Dkt. No. 53) and
GRANTS the motion to strike affirmative defenses (Dkt. No.
49) for the reasons explained herein.
February 9, 2007, Plaintiff obtained a loan from Mortgage
Solutions Management, Inc. and secured the loan with a deed
of trust on her property. (Dkt. No. 45 at 5.) In July 2007,
Plaintiff stopped making payments on the loan. (Id.)
Shortly thereafter, Plaintiff filed for bankruptcy, and her
mortgage loan was eventually discharged. (Id. at
5-6.) Defendant Bank of New York Mellon (“BONY”)
retained an in rem interest in Plaintiff's
property after the discharge and recorded a series of notices
of trustee's sales from 2009 through 2016, although none
of the sales occurred. (Id. at 6-7.) In November
2016, Plaintiff initiated mediation under Washington's
Foreclosure Fairness Act. (Id. at 8.) During
mediation, Plaintiff was informed that her loan modification
application was denied. (Id.) Plaintiff alleges that
Defendant BONY, through its loan servicer Defendant
Shellpoint and its legal counsel Defendant Malcolm &
Cisneros (“M&C”), stopped participating in
mediation. (Id. at 8-9.) On January 10, 2018, a
foreclosure mediation certificate was issued stating that
“[Defendant Shellpoint] failed to timely participate in
mediation.” (Dkt. 45-2 at 3.)
April 11, 2018, Defendant M&C filed a judicial
foreclosure complaint on behalf of Defendant BONY in King
County Superior Court against Plaintiff's property. (Dkt.
No. 45 at 9.) After the case was removed to federal court,
the Honorable Thomas S. Zilly dismissed the judicial
foreclosure complaint with prejudice, finding that it was
time-barred. (Id.); see Bank of New York Mellon
as Tr. for Certificate Holders of CWABS, Inc. v. Smith,
No. C18-0764-TSZ, Dkt. No. 16 (W.D. Wash. 2018). Defendants
appealed, and the Ninth Circuit Court of Appeals affirmed.
See Bank of New York Mellon as Tr. for benefit of
certificate holders of CWABS, Inc., asset-backed
certificates, Series 2007-SD1 v. Smith, 782 Fed.Appx.
638 (9th Cir. 2019).
subsequently filed this lawsuit, bringing claims against
Defendants for: (1) violations of the Washington Consumer
Protection Act (“CPA”), Revised Code of
Washington § 19.86.020; (2) violations of the Federal
Fair Debt Collection Practices Act (“FDCPA”), 15
U.S.C. § 1692; (3) negligent misrepresentation; and (4)
a claim to quiet title. (Dkt. No. 45 at 11- 26.) Plaintiff
now moves for summary judgment on her quiet title claim
against Defendant BONY. (Dkt. No. 52.) Plaintiff also moves
to strike M&C's affirmative defenses (Dkt. No. 49.)
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). In making such a determination, the court
must view the facts and justifiable inferences to be drawn
therefrom in the light most favorable to the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). Once a motion for summary judgment is
properly made and supported, the opposing party “must
come forward with ‘specific facts showing that there is
a genuine issue for trial.'”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)).
Material facts are those that may affect the outcome of the
case, and a dispute about a material fact is genuine if there
is sufficient evidence for a reasonable jury to return a
verdict for the non-moving party. Anderson, 477 U.S.
at 248-49. Conclusory, non-specific statements in affidavits
are not sufficient, and “missing facts” will not
be “presumed.” Lujan v. Nat'l Wildlife
Fed'n, 497 U.S. 871, 888-89 (1990). Ultimately,
summary judgment is appropriate against a party who
“fails to make a showing sufficient to establish the
existence of an element essential to that party's case,
and on which that party will bear the burden of proof at
trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986).
Quiet Title Action
Washington law, a promissory note and deed of trust are
written contracts that are subject to a six-year statute of
limitations. See Wash. Rev. Code § 4.16.040(1);
Cedar W. Owners Ass'n v. Nationstar Mortg., LLC,
434 P.3d 554, 559 (Wash.Ct.App. 2019). An action “can
only be commenced” within six years “after the
cause of action has accrued.” Wash. Rev. Code §
4.16.005. The six-year statute of limitations on a deed of
trust accrues “when the party is entitled to enforce
the obligations of the note.” Wash. Fed., Nat'l
Ass'n v. Azure Chelan LLC, 382 P.3d 20, 30
(Wash.Ct.App. 2016). When a promissory note is payable in
installments, the six-year statute of limitations accrues for
each monthly installment from the time it becomes due.
Edmundson v. Bank of America, N.A., 378 P.3d 272,
277 (Wash.Ct.App. 2016) (citing Herzog v. Herzog,
161 P.2d 142, 145 (Wash. 1945)). And when the statute of
limitations to enforce a promissory note expires, the right
to enforce a deed of trust securing the note also expires.
Walcker v. Benson & McLaughlin, P.S., 904 P.2d
1176, 1178 (Wash.Ct.App. 1995). “When an action for
foreclosure on a deed of trust is barred by the statute of
limitations, RCW 7.28.300 authorizes an action to quiet
title.” Westar Funding, Inc. v. Sorrels, 239
P.3d 1109, 1113 (Wash.Ct.App. 2010); Wash. Rev. Code §
7.28.300. The statute provides:
The record owner of real estate may maintain an action to
quiet title against the lien of a mortgage or deed of trust
on the real estate where an action to foreclose such mortgage
or deed of trust would be barred by the statute of
limitations, and, upon proof sufficient to satisfy the court,
may have judgment quieting title against such a lien.
Wash. Rev. Code § 7.28.300.
made her last payment in July 2007, and Defendant BONY
initiated the judicial foreclosure proceeding in April 2018.
(Dkt. 45 at 5, 9.) Plaintiff argues that, even after
accounting for tolling during Defendants' nonjudicial
foreclosure actions, the statute of limitations expired