929 F. Supp. 2d 1079
W.D. Wash.2013Background
- In January 2007, plaintiff borrowed from IndyMac Bank with a deed of trust naming IndyMac as lender and MERS as beneficiary.
- The deed identified Pacific Northwest Title as trustee; OneWest/ NWTS later asserted rights after IndyMac’s failure.
- Notice of default under the DTA was issued January 12, 2010, by NWTS as agent for OneWest; the note’s holder/possession status was disputed.
- Assignment of beneficial interest to OneWest and appointment of NWTS as successor trustee were recorded February 4, 2010.
- Plaintiff filed suit December 3, 2010 seeking DTA relief; an injunction prevented sale until further order, then lifted in 2012.
- Deutsche Bank delivered the original note to OneWest in October 2010; questions about possession and chain of custody persisted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the January 12, 2010 default notice was valid under the DTA | OneWest/NWTS lacked holder status to issue notice | OneWest had right to enforce and cure defects through chain of custody | Defendants violated the DTA; injunction issued against further foreclosure actions based on that notice |
| Whether OneWest/NWTS can initiate future nonjudicial foreclosures | Holder status unresolved; future foreclosures improper | If note possession is proven, future foreclosures permitted | Judgment reserved on future foreclosure; material question remains whether OneWest possesses the note |
| Damages under the DTA | Damages for each DTA violation and broader relief requested | Private DTA damages not recoverable absent foreclosure sale | Damages under the DTA not awarded absent a foreclosure sale; monetary relief limited |
| RESPA claims against MERS and NWTS | Requests constituted QWRs triggering RESPA duties | Only servicers owe RESPA duties; MERS/NWTS not liable | RESPA claims against MERS and NWTS dismissed; RESPA duties limited to servicers |
| FDCPA and related damages | NWTS violated FDCPA § 1692f(6); seek actual and statutory damages | FDCPA applicability limited; no present right to possession | NWTS violated § 1692f(6)(A); allow trial on actual damages; partial relief granted |
Key Cases Cited
- L.A. Printex Indus., Inc. v. Aeropostale, Inc., 676 F.3d 841 (9th Cir. 2012) (summary judgment standard framework)
- Celotex Corp. v. Catrett, 477 U.S. 317 (U.S. 1986) (burden on movant to show absence of issue of material fact)
- Hexcel Corp. v. Ineos Polymers, Inc., 681 F.3d 1055 (9th Cir. 2012) (evidence and summary judgment standards)
- U.S. v. Arango, 670 F.3d 988 (9th Cir. 2012) (summary judgment evidentiary standards)
- Bain v. Metropolitan Mortg. Group, Inc., 175 Wash.2d 83 (Wash. 2012) (actual possession of note prerequisite to beneficiary status; MERS issues)
- Donovick v. Seattle-First Nat. Bank, 111 Wash.2d 413 (Wash. 1988) (DTA context and foreclosure actions)
- Panag v. Farmers Ins. Co. of Wash., 166 Wash.2d 27 (Wash. 2009) (injury under CPA: recoverable damages framework)
- Leingang v. Pierce County Med. Bureau, Inc., 131 Wash.2d 133 (Wash. 1997) (unfair or deceptive acts standard under CPA)
- Roadway Express, Inc. v. Piper, 447 U.S. 752 (U.S. 1980) (principles of sanctions and ancillary remedies)
- Dixon v. Comm’r of Internal Revenue, 316 F.3d 1041 (9th Cir. 2003) (fraud-on-the-court considerations)