Hoang et al v. Bank of America, N.A. et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

W.D. Wash.June 14, 2017

BANK OF AMERICA, N.A. AND FEDERAL NATIONAL MORTAGE ASSOCIATION'S MOTION TO DISMISS PLAINTIFFS' COMPLAINT - 1 Case No. 2:17-cv-00874-JLR S1563336.DOC 422 W. Riverside Avenue, Suite 1100 Phone: 509.624.5265 Spokane, Washington 99201-0300 Fax: 509.458.2728 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Christopher G. Varallo, WSBA No. 29410 Hon. James L. Robart Steven J. Dixson, WSBA No. 38101 WITHERSPOON ∙ KELLEY 422 W. Riverside Avenue, Suite 1100 Spokane, WA 99201-0300 Phone: (509) 624-5265 Fax: (509) 458-2728 cgv@witherspoonkelley.com sjd@witherspoonkelley.com Charles T. Meyer, WSBA No. 39754 SEVERSON & WERSON 19100 Von Karman Ave., Suite 700 Irvine, CA 92612 Phone: (949) 442-7110 Fax: (949) 225-3755 ctm@severson.com Attorneys for Defendants Bank of America, N.A. and Federal National Mortgage Association UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON JERRY HOANG and LE UYEN THI NGUYEN, Plaintiffs, v. BANK OF AMERICA, N.A. (BANA) and FEDERAL NATIONAL MORTGAGE ASSOCIATION (FANNIE MAE), Defendants. No. 2:17-cv-00874-JLR BANK OF AMERICA, N.A. AND FEDERAL NATIONAL MORTAGE ASSOCIATION'S MOTION TO DISMISS PLAINTIFFS' COMPLAINT NOTE ON MOTION CALENDAR: July 7, 2017 I. INTRODUCTION Plaintiffs in this matter seek to avoid the consequences of defaulting under their loans. Plaintiffs received a loan in 2010, defaulted thereunder and are now attempting to get around Case 2:17-cv-00874-JLR Document 4 Filed 06/14/17 Page 1 of 11 BANK OF AMERICA, N.A. AND FEDERAL NATIONAL MORTAGE ASSOCIATION'S MOTION TO DISMISS PLAINTIFFS' COMPLAINT - 2 Case No. 2:17-cv-00874-JLR S1563336.DOC 422 W. Riverside Avenue, Suite 1100 Phone: 509.624.5265 Spokane, Washington 99201-0300 Fax: 509.458.2728 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 their default and the resulting foreclosure by attempting to claim a notice of rescission was sent to Defendant in 2013, over seven years after the loan was originated. Plaintiffs allege that they sent a “Notice of Rescission” under the Truth in Lending Act (“TILA”), and that because Defendants failed to respond, their loan was cancelled by operation of law and the Note was rendered “void”. As a result, Plaintiffs seek injunctive relief requiring Defendants to return the Note, release any lien against the property, and return all monies received from Plaintiffs. The inescapable shortcoming with Plaintiffs’ case is obvious, namely they are not permitted to rescind their loan seven years after it was originated, nor can they get a free home without tendering the amount they received from Defendants pursuant to the loan. It is no mistake that Plaintiffs’ Complaint conveniently makes no reference to the underlying loan or tendering the amount borrower to accomplish the “rescission.” Plaintiffs’ baseless attempt to avoid foreclosure as well as to avoid their loan obligation altogether should not be tolerated, and their claims should be rejected. Plaintiffs’ claim also fails because they do not allege a willingness or ability to tender of the loan proceeds back to the lender. As Plaintiffs’ claims fail as a matter of law, the Court should grant Defendants’ Motion to Dismiss without leave to amend. II. FACTS AND PROCEDURAL HISTORY Plaintiffs purchased the real property located at 13522 43rd Avenue South, Tukwila, WA 98168 (the “Property”) on or about December 21, 2004. Compl., ¶¶ 4.1, Ex. A. On April 30, 2010, Plaintiff took out a $288,000 refinance loan (“Loan”) from BANA secured by a DOT on the Property. Compl., ¶ 4.2. The DOT lists Plaintiff as the borrower, LS Title of Washington as the trustee, and MERS as the beneficiary as nominee for BANA and its successors and assigns. Id. An Assignment of Deed of Trust was recorded on July 13, 2011, Case 2:17-cv-00874-JLR Document 4 Filed 06/14/17 Page 2 of 11 BANK OF AMERICA, N.A. AND FEDERAL NATIONAL MORTAGE ASSOCIATION'S MOTION TO DISMISS PLAINTIFFS' COMPLAINT - 3 Case No. 2:17-cv-00874-JLR S1563336.DOC 422 W. Riverside Avenue, Suite 1100 Phone: 509.624.5265 Spokane, Washington 99201-0300 Fax: 509.458.2728 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 evidencing MERS’ assignment of its interest as nominee for the beneficiary under the DOT to BACHLS. Declaration of Christopher G. Varallo, Ex. 1. Plaintiffs filed the instant Complaint on May 9, 2017 in King County Superior Court. Dockt. 1, Ex. A. BANA removed to Federal Court on June 12, 2013. ECF 1. Plaintiffs bring claims for: (1) TILA; and (2) Declaratory Judgment, seeking declaratory and injunctive relief as well as damages. In essence, Plaintiffs allege that they rescinded their loan by sending a “Right to Rescind” notice to Defendants, which Defendants in turn failed to file an action to terminate the security interest. Compl., ¶ 5.1. III. EVIDENCE RELIED UPON This Motion to Dismiss relies upon the allegations in the Complaint and the undisputed recorded documents of which the Court may take judicial notice. 1 IV. ISSUE Whether the Court should dismiss the Complaint in its entirety as to BANA for failure to state a claim upon which relief can be granted. V. ARGUMENT A. Legal Standard Federal Rule of Civil Procedure 8(a)(2) requires a plaintiff to provide “‘a short and plain statement of the claim showing that [he] . . . [is] entitled to relief’ to ‘give the defendant[s] fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. 1 The Court may take judicial notice of publicly recorded documents and may consider the documents without turning this Motion into a motion for summary judgment. See, e.g., Shaw v. Hahn, 56 F.3d 1128, 1129 n. 1 (9th Cir. 1995); see United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (court may consider documents to which the complaint “refers extensively” or “form the basis of the Plaintiff’s claim”); Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998) (“A court may consider evidence on which the complaint ‘necessarily relies’ if: (1) the complaint refers to the document; (2) the document is central to the Plaintiff’s claim; and (3) no party questions the authenticity of the copy attached to the 12(b)(6) motion.”). Case 2:17-cv-00874-JLR Document 4 Filed 06/14/17 Page 3 of 11 BANK OF AMERICA, N.A. AND FEDERAL NATIONAL MORTAGE ASSOCIATION'S MOTION TO DISMISS PLAINTIFFS' COMPLAINT - 4 Case No. 2:17-cv-00874-JLR S1563336.DOC 422 W. Riverside Avenue, Suite 1100 Phone: 509.624.5265 Spokane, Washington 99201-0300 Fax: 509.458.2728 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Twombly, 550 U.S. 544, 545 (2007). Claims that fail to meet this standard must be dismissed under Federal Rule of Civil Procedure 12(b)(6). While these Rules do not require heightened fact pleading, they do require that a complaint contain sufficient factual allegations, which, accepted as true, state a claim for relief “‘that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009). Where, however, the Plaintiff fails to “nudge[] [his] claims across the line from conceivable to plausible, [his] complaint must be dismissed.” Twombly, 550 U.S. at 570. This “plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.’” Iqbal, 129 S. Ct. at 1949. Indeed, where there is an “obvious alternative explanation” for the conduct alleged, the complaint should be dismissed. Id. at 1951. Therefore, to survive a motion to dismiss under Rule 12(b)(6), the Plaintiff must provide more than just “labels and conclusions”; rather, he must provide the grounds of his entitlement to relief. Twombly, 550 U.S. at 555 (“formulaic recitation of the elements of a cause of action will not do.”). Moreover, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 129 S. Ct. at 1949-50 (“threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice[;] only a complaint that states a plausible claim for relief survives a motion to dismiss.”). While legal conclusions may establish the complaint’s basic framework, “they must be supported by factual allegations.” Id. at 1950. Where it is clear amendment would be futile, the court may dismiss the Complaint Case 2:17-cv-00874-JLR Document 4 Filed 06/14/17 Page 4 of 11 BANK OF AMERICA, N.A. AND FEDERAL NATIONAL MORTAGE ASSOCIATION'S MOTION TO DISMISS PLAINTIFFS' COMPLAINT - 5 Case No. 2:17-cv-00874-JLR S1563336.DOC 422 W. Riverside Avenue, Suite 1100 Phone: 509.624.5265 Spokane, Washington 99201-0300 Fax: 509.458.2728 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 without leave to amend. See Havas v. Thorton, 609 F.2d 372 (9th Cir. 1979). B. Plaintiffs’ TILA Based Claims Fail As A Matter of Law. Plaintiffs’ causes of action are styled as being requests for injunctive relief, in reality the entire Complaint is premised on Plaintiffs’ attempt to seek rescission of their Loan under TILA. See Compl., ¶¶ 1.1-6.1. In short, Plaintiffs allege that because they sent in a rescission letter over seven years after the origination of the Loan, the Loan is no longer enforceable and they are entitled to injunctive relief releasing the lien and also ordering repayment of all payments she made on same. Id. Plaintiffs’ claims, however, fails on multiple levels, as they are both time-barred and also fail for lack of tender. 1. Plaintiffs’ Claims Are Time-Barred. As noted above, Plaintiffs allege that they sent in a rescission letter for her loan on April 15, 2013, which they believe served to rescind their loan upon delivering to Defendants. Compl., ¶¶ 4.5-4.7. They allege that Defendants only had twenty days to respond and contest the rescission, which they failed to do. Id., ¶ 4.7. In so alleging, Plaintiffs conveniently fail to mention that the loan was originated on or about April 30, 2010, which makes their claims unmistakably time-barred, and their attempt to rescind the loan was ineffective. Under TILA, an obligor has a right to rescind a refinance loan for three days after the loan transaction is finalized. 15 U.S.C. § 1635(a); 12 C.F.R. § 226.23. If a creditor fails to make material disclosures, including disclosure of the right to rescind, the consumer’s ability to rescind is extended for up to three years. Id. TILA provides that if a creditor fails to make the required TILA disclosures, including providing the obligor with a notice of right to cancel, the obligor’s right to rescind is extended and “shall expire three years after the date of consummation of the transaction ….” 15 U.S.C. § 1635(f) (emphasis added); see 12 C.F.R. Case 2:17-cv-00874-JLR Document 4 Filed 06/14/17 Page 5 of 11 BANK OF AMERICA, N.A. AND FEDERAL NATIONAL MORTAGE ASSOCIATION'S MOTION TO DISMISS PLAINTIFFS' COMPLAINT - 6 Case No. 2:17-cv-00874-JLR S1563336.DOC 422 W. Riverside Avenue, Suite 1100 Phone: 509.624.5265 Spokane, Washington 99201-0300 Fax: 509.458.2728 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 § 226.23(a)(3). The “date of consummation” of the transaction is considered to be when the loan is created. See, e.g., 12 C.F.R. § 226.2(a)(13) (“Consummation means the time that a consumer becomes contractually obligated on a credit transaction”).2 Accordingly, absent any TILA violation at Loan origination, Plaintiff had three days, not three years, to properly exercise a right to cancel. See 15 U.S.C. § 1635(a); 12 C.F.R. § 226.23(a)(3). Further, even if Plaintiffs allege such a TILA violation at origination, their right to rescind a loan expired no later than three years after the loan agreement was consummated. Beach v. Ocwen Federal Bank, 523 U.S. 410 (1998). In Beach, the Supreme Court construed the rescission language of TILA and its implementing Regulation Z, noting that the provision “talks not of a suit’s commencement,” like the typical statute of limitations, but “of a right’s duration.” Id. at 416. Ultimately, the Supreme Court ruled that a borrower’s federal right to rescind under TILA is extinguished at the end of the three-year period set forth in § 1635(f) and cannot be raised after such date, defensively or otherwise. The majority of cases, including many in the Ninth Circuit, have held that lawsuits for rescission under TILA must be filed within three years of the loan consummation regardless whether the purported “notice of rescission” was given within that three-year period. Ramos v. Citimortgage, Inc., 2009 WL 86744, *3 (E.D. Cal. 2009) (despite providing notice of intent to rescind given within three years of loan consummation, no claim to effectuate rescission when plaintiff filed suit outside three years from date of the transaction); McOmie-Gray v. Bank of America, 667 F.3d 1325 (9th Cir. 2012)(court concluded that the right to rescind expires as a matter of law unless a lawsuit for rescission is filed before the expiration of three years after the 2 In Beach v. Ocwen Federal Bank, 523 U.S. 410, 118 S. Ct. 1408 (1998), the Supreme Court noted that Section 1635(f) apparently reflected a Congressional intent to “circumscribe” the risk of rescission by enacting Section 1635(f) that “permits no federal right to rescind, defensively or otherwise, after the 3-year period of § 1635(f) has run.” Id. at 419. Case 2:17-cv-00874-JLR Document 4 Filed 06/14/17 Page 6 of 11 BANK OF AMERICA, N.A. AND FEDERAL NATIONAL MORTAGE ASSOCIATION'S MOTION TO DISMISS PLAINTIFFS' COMPLAINT - 7 Case No. 2:17-cv-00874-JLR S1563336.DOC 422 W. Riverside Avenue, Suite 1100 Phone: 509.624.5265 Spokane, Washington 99201-0300 Fax: 509.458.2728 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 date of the consummation of the loan, even if notice of the request to rescind is given to the lender within that three year period); Smith v. GMAC Mortg., LLC, 2010 WL 1525101,*4 (E.D. Cal. 2010); Falcocchia v. Saxon Mortg., Inc., 709 F. Supp. 2d 860, 868 (E.D. Cal. 2010). The Supreme Court opinion in Jensinoski v. Countrywide Home Loans, Inc., 135 S.Ct. 790 (2015) confirms that the claims made by Plaintiff are time-barred. Here, while Plaintiffs’ Complaint alleges that Defendants failed to provide disclosures required under TILA, there is no question that the action was not filed within three years. Further, there are no material allegations regarding notice failures at the time the Loan was originated. For instance, Plaintiffs do not allege that they failed to receive the material terms of the Loan. See Compl. Accordingly, they only had three days to seek rescission of the Loan under TILA. Assuming arguendo that Plaintiffs have properly alleged a TILA violation as part of the Loan, they still would have -- at most -- three years from the date or origination in order to seek rescind. Here, the date of consummation of Plaintiffs’ Loan was April 30, 2010. Compl., ¶ 2. Hence, Plaintiffs’ deadline to sue for rescission under TILA expired three days later. However, giving Plaintiffs every benefit of the doubt and assuming they could establish a TILA violation, any attempt to rescind must have been filed no later than three years after origination, or by April 30, 2013. Plaintiffs did not file suit until May 9, 2017, over seven (7) years after the origination of the loan and roughly four (4) years after the statute of limitations for seeking rescission under TILA had expired. Thus, there can be no mistake that Plaintiffs’ right to rescind has long since passed. Finally, Plaintiffs cannot be permitted to conduct an end-around the TILA statute of limitations by instead styling their claims as being for injunctive relief when in reality their claims are undeniably based on her defective TILA rescission argument. This conclusion is Case 2:17-cv-00874-JLR Document 4 Filed 06/14/17 Page 7 of 11 BANK OF AMERICA, N.A. AND FEDERAL NATIONAL MORTAGE ASSOCIATION'S MOTION TO DISMISS PLAINTIFFS' COMPLAINT - 8 Case No. 2:17-cv-00874-JLR S1563336.DOC 422 W. Riverside Avenue, Suite 1100 Phone: 509.624.5265 Spokane, Washington 99201-0300 Fax: 509.458.2728 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 further supported by the fact that injunctive relief is not even a remedy provided by TILA. 15 U.S.C. § 1640(a); Alexander v. Wells Fargo Bank, N.A., 2015 U.S. Dist. LEXIS 116492 (W.D. Wash. 2015). In short, as there can be no question that their claims against all Defendants are time-barred, the instant Complaint must be dismissed with prejudice. 2. Plaintiff Cannot Support an Allegation of Tender With Evidence. Further, even assuming that Plaintiffs’ TILA based claims were not time-barred, their attempt to rescind their Loan fails for an additional reason. Plaintiffs have not made a credible allegation of tender in their Complaint and are not excused from doing so. A claim for rescission under TILA requires Plaintiffs to prove they can or will tender the borrowed funds back to the lender. See Yamamoto v. Bank of New York, 329 F.3d 1167, 1171 (9th Cir. 2003) (“Rescission should be conditioned on repayment of the amounts advanced by the lender”); Joern v. Ocwen Loan Servicing, LLC, 2010 WL 2813769, *4 (W.D. Wa. 2010) (“Plaintiff must allege an ability to tender in order to state a claim for rescission under TILA.”). A court may properly dispose of a plaintiff’s TILA claim where the plaintiff fails to allege tender, before even deciding if there is any TILA violation. E.g., Yamamoto, 329 F.3d at 1169-73. Accordingly, if a borrower chooses to rescind a loan, they must repay the loan proceeds they received from the lender. In the event of rescission, borrowers are not afforded the right -- as Plaintiff apparently seeks to do here -- to simply walk away from the Loan, while at the same time both keeping the loan proceeds, and also further requesting return of all sums paid on the Loan over the past eight plus years. Such a position is, frankly, absurd and must be rejected. Thus, even if Plaintiffs were able to raise a timely rescission claim -- which they cannot - the Case 2:17-cv-00874-JLR Document 4 Filed 06/14/17 Page 8 of 11 BANK OF AMERICA, N.A. AND FEDERAL NATIONAL MORTAGE ASSOCIATION'S MOTION TO DISMISS PLAINTIFFS' COMPLAINT - 9 Case No. 2:17-cv-00874-JLR S1563336.DOC 422 W. Riverside Avenue, Suite 1100 Phone: 509.624.5265 Spokane, Washington 99201-0300 Fax: 509.458.2728 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 same would still fail absent a demonstration by Plaintiffs that they can and will tender return of the borrowed funds back to lender. Plaintiffs have not alleged tender in the Complaint, and therefore their claims fail for this additional reason and must be dismissed. VI. CONCLUSION For all these reasons, Plaintiffs’ Complaint fails to state a single viable cause of action against BANA. BANA therefore respectfully requests that the Court grant its Motion to Dismiss the Complaint with prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6). DATED this 14th day of June, 2017. WITHERSPOON  KELLEY By: s/ Christopher G. Varallo Christopher G. Varallo, WSBA #29410 Steven J. Dixson, WSBA #38101 cgv@witherspoonkelley.com sjd@witherspoonkelley.com 422 W. Riverside Avenue, Suite 1100 Spokane, WA 99201-0300 Phone: (509) 624-5265 Fax: (509) 458-2728 Attorneys for Defendants Bank of America, N.A. and Federal National Mortgage Association Case 2:17-cv-00874-JLR Document 4 Filed 06/14/17 Page 9 of 11 BANK OF AMERICA, N.A. AND FEDERAL NATIONAL MORTAGE ASSOCIATION'S MOTION TO DISMISS PLAINTIFFS' COMPLAINT - 10 Case No. 2:17-cv-00874-JLR S1563336.DOC 422 W. Riverside Avenue, Suite 1100 Phone: 509.624.5265 Spokane, Washington 99201-0300 Fax: 509.458.2728 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SEVERSON & WERSON By: s/ Charles T. Meyer Charles T. Meyer, WSBA No. 39754 ctm@severson.com 19100 Von Karman Ave., Suite 700 Irvine, CA 92612 Phone: (949) 442-7110 Fax: (949) 225-3755 Attorneys for Defendants Bank of America, N.A. and Federal National Mortgage Association Case 2:17-cv-00874-JLR Document 4 Filed 06/14/17 Page 10 of 11 BANK OF AMERICA, N.A. AND FEDERAL NATIONAL MORTAGE ASSOCIATION'S MOTION TO DISMISS PLAINTIFFS' COMPLAINT - 11 Case No. 2:17-cv-00874-JLR S1563336.DOC 422 W. Riverside Avenue, Suite 1100 Phone: 509.624.5265 Spokane, Washington 99201-0300 Fax: 509.458.2728 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE I hereby certify that on the 14th day of June, 2017, 1. I caused to be electronically filed the foregoing DEFENDANT BANK OF AMERICA, N.A. AND FEDERAL NATIONAL MORTGAGE ASSOCIATION'S MOTION TO DISMISS PLAINTIFFS' COMPLAINT with the Clerk of the Court using the CM/ECF System which will send notification of such filing to the following: James A. Wexler anitawexler@seanet.com; wex@seanet.com 2. I hereby certify that I have caused to be mailed by United States Postal Service the foregoing document to the following non-CM/ECF participants at the address listed below: None. 3. I hereby certify that I have mailed by United States Postal Service the foregoing document to the following CM/ECF participants at the address listed below: None. 4. I hereby certify that I have hand-delivered the foregoing document to the following participants at the addresses listed below: None. s/ Christopher G. Varallo Christopher G. Varallo, WSBA No. 29410 Case 2:17-cv-00874-JLR Document 4 Filed 06/14/17 Page 11 of 11 [PROPOSED] ORDER GRANTING MOTION TO DISMISS PLAINTIFFS' COMPLAINT - 1 Case No. 2:17-cv-00874-JLR S1563407.DOC 422 W. Riverside Avenue, Suite 1100 Phone: 509.624.5265 Spokane, Washington 99201-0300 Fax: 509.458.2728 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Christopher G. Varallo, WSBA No. 29410 Steven J. Dixson, WSBA No. 38101 WITHERSPOON ∙ KELLEY 422 W. Riverside Avenue, Suite 1100 Spokane, WA 99201-0300 Phone: (509) 624-5265 Fax: (509) 458-2728 cgv@witherspoonkelley.com sjd@witherspoonkelley.com Charles T. Meyer, WSBA No. 39754 SEVERSON & WERSON 19100 Von Karman Ave., Suite 700 Irvine, CA 92612 Phone: (949) 442-7110 Fax: (949) 225-3755 ctm@severson.com Attorneys for Defendants Bank of America, N.A. and Federal National Mortgage Association UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON JERRY HOANG and LE UYEN THI NGUYEN, Plaintiffs, v. BANK OF AMERICA, N.A. (BANA) and FEDERAL NATIONAL MORTGAGE ASSOCIATION (FANNIE MAE), Defendants. No. 2:17-cv-00874-JLR [PROPOSED] ORDER GRANTING MOTION TO DISMISS PLAINTIFFS' COMPLAINT THIS MATTER having come before the Court upon the filing of Bank of America, N.A. and Federal National Mortgage Association’s Motion to Dismiss Plaintiffs' Complaint Case 2:17-cv-00874-JLR Document 4-1 Filed 06/14/17 Page 1 of 3 [PROPOSED] ORDER GRANTING MOTION TO DISMISS PLAINTIFFS' COMPLAINT - 2 Case No. 2:17-cv-00874-JLR S1563407.DOC 422 W. Riverside Avenue, Suite 1100 Phone: 509.624.5265 Spokane, Washington 99201-0300 Fax: 509.458.2728 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (“Motion”); all parties having been given notice and an opportunity to respond; the Court having reviewed all pleadings filed by all parties relating to the Motion; and the Court having reviewed the records and files herein, it is hereby: ORDERED that the Motion is GRANTED; and it is FURTHER ORDERED that the claims of Plaintiffs Jerry Hoang and Le Uyen Thi Nguyen are dismissed in their entirety, with prejudice, and without leave to amend as to Defendants Bank of America, N.A. and Federal National Mortgage Association. IT IS SO ORDERED. _________________________________ HON. JAMES L. ROBART Submitted by: WITHERSPOON ∙ KELLEY s/ Christopher G. Varallo Christopher G. Varallo, WSBA No. 29410 Steven J. Dixson, WSBA No. 38101 Attorneys for Defendants Bank of America, N.A. and Federal National Mortgage Association SEVERSON & WERSON s/ Charles T. Meyer Andrew W. Noble, WSBA No. 50137 Charles T. Meyer, WSBA No. 39754 Attorneys for Defendants Bank of America, N.A. and Federal National Mortgage Association Case 2:17-cv-00874-JLR Document 4-1 Filed 06/14/17 Page 2 of 3 [PROPOSED] ORDER GRANTING MOTION TO DISMISS PLAINTIFFS' COMPLAINT - 3 Case No. 2:17-cv-00874-JLR S1563407.DOC 422 W. Riverside Avenue, Suite 1100 Phone: 509.624.5265 Spokane, Washington 99201-0300 Fax: 509.458.2728 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE I hereby certify that on the 14th day of June, 2017, 1. I caused to be electronically filed the foregoing [PROPOSED] ORDER GRANTING MOTION TO DISMISS PLAINTIFFS' COMPLAINT with the Clerk of the Court using the CM/ECF System which will send notification of such filing to the following: James A. Wexler anitawexler@seanet.com; wex@seanet.com 2. I hereby certify that I have caused to be mailed by United States Postal Service the foregoing document to the following non-CM/ECF participants at the address listed below: None. 3. I hereby certify that I have mailed by United States Postal Service the foregoing document to the following CM/ECF participants at the address listed below: None. 4. I hereby certify that I have hand-delivered the foregoing document to the following participants at the addresses listed below: None. s/ Christopher G. Varallo Christopher G. Varallo, WSBA No. 29410 Case 2:17-cv-00874-JLR Document 4-1 Filed 06/14/17 Page 3 of 3