Robinson v. Wells Fargo Bank National Association et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

W.D. Wash.March 30, 2017

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 MOTION TO DISMISS: Case No. 2:17-cv-00061 JLR - Page 1 HOLLAND & KNIGHT LLP 111 S.W. Fifth Avenue 2300 U.S. Bancorp Tower Portland, Oregon 97204 Telephone: 503.243.2300 #49749144_v1 Honorable James L. Robart UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE BARBARA ROBINSON, Plaintiff, v. WELLS FARGO BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE CERTIFICATE HOLDERS OF THE MLMI TRUST, MORTGAGE LOAN ASSET-BACKED CERTIFICATES, SERIES 2005 WMC2; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; NATIONSTAR MORTGAGE LLC; JAY BRAY; AZTEC FORECLOSURE CORPORATION OF WASHINGTON Defendants. Case No. 2:17-cv-00061 JLR MOTION TO DISMISS (SUBMITTED BY DEFENDANTS WELLS FARGO BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE CERTIFICATE HOLDERS OF THE MLMI TRUST, MORTGAGE LOAN ASSET-BACKED CERTIFICATES, SERIES 2005 WMC2; NATIONSTAR MORTGAGE LLC; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; AND JAY BRAY) NOTE ON MOTION CALENDAR: APRIL 21, 2017 ORAL ARGUMENT REQUESTED Motion Defendants Wells Fargo Bank National Association, As Trustee for the Certificate Holders of the MLMI Trust, Mortgage Loan Asset-Backed Certificates Series 2005 WMC2 (“Wells Fargo”); Mortgage Electronic Registration Systems (“MERS”); Nationstar Mortgage LLC (“Nationstar”); and Jay Bray (collectively, the “Moving Defendants”) move the Court for an order dismissing Plaintiff’s Amended Complaint with prejudice for failure to state a claim. Case 2:17-cv-00061-JLR Document 19 Filed 03/30/17 Page 1 of 14 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 MOTION TO DISMISS: Case No. 2:17-cv-00061 JLR - Page 2 HOLLAND & KNIGHT LLP 111 S.W. Fifth Avenue 2300 U.S. Bancorp Tower Portland, Oregon 97204 Telephone: 503.243.2300 #49749144_v1 Points and Authorities A. Procedural Posture This action was removed from state court on January 13, 2017. Plaintiff then filed a motion to amend her pleading on February 3, 2017, see Dkt. No. 13, and simultaneously filed a proposed pleading (the “Amended Complaint”), see Dkt. No. 13-1. No defendant has opposed the motion to amend. Although no order has been entered allowing amendment, Plaintiff’s Amended Complaint was submitted within 21 days of Bank of America’s Motion to Dismiss, and thus would be allowable as of right under Fed. R. Civ. P. 15(a). Moving Defendants do not object to the amendment, and accordingly direct this motion against the Amended Complaint (Dkt. No. 13-1). B. Legal Standard In order to state a claim for relief, a pleading must set forth “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To survive a motion to dismiss, a pleading must “contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007)). To state a plausible claim that survives a motion to dismiss, a complaint must “plead factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Id. Nor are “naked assertions” devoid of “further factual enhancement” sufficient. Id. On a motion to dismiss, the court should assume the truth of all well-pleaded factual allegations; however, that tenet does not apply to legal conclusions asserted in a pleading, which need not be assumed to be true. Id. at 678-79. To state a claim, a complaint must therefore contain sufficient factual allegations to “plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.” Starr v. Baca, 652 F.3d Case 2:17-cv-00061-JLR Document 19 Filed 03/30/17 Page 2 of 14 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 MOTION TO DISMISS: Case No. 2:17-cv-00061 JLR - Page 3 HOLLAND & KNIGHT LLP 111 S.W. Fifth Avenue 2300 U.S. Bancorp Tower Portland, Oregon 97204 Telephone: 503.243.2300 #49749144_v1 1202, 1216 (9th Cir. 2011). A pleading may fail to state a claim “either by lacking a cognizable legal theory or by lacking sufficient facts alleged under a cognizable legal theory.” Woods v. U.S. Bank N.A., 831 F.3d 1159, 1162 (9th Cir. 2016). C. Argument The Amended Complaint is unclear and difficult to follow.1 Plaintiff appears to contend that the treatment of her mortgage loan and the non-judicial foreclosure of her real property were somehow inappropriate; however, Plaintiff has failed to state any factual basis or cognizable legal theory to show that foreclosure would be improper. Nor has Plaintiff stated any facts to establish any liability on the part of any Moving Defendant, whether under the Fair Debt Collection Practices Act or some other theory. Moving Defendants accordingly address below the various allegations of the Amended Complaint, as best they are able to understand them.2 For the following reasons, the Amended Complaint fails to state a claim and should be dismissed with prejudice. 1. Neither Moving Defendants nor their counsel are Plaintiff’s fiduciaries. As a preliminary point, Moving Defendants and their counsel expressly disclaim any fiduciary duties toward Plaintiff, despite her filing in this action a document entitled “Notice of Appointment of Fiduciary” on February 17, 2017. See Dkt. No. 15. This document lacks any legal or factual basis whatsoever, and cannot have any effect on the legal relations of the parties and counsel in this matter. 2. Plaintiff does not direct any allegations against Jay Bray. Plaintiff’s Amended Complaint names Mr. Bray as a defendant, but contains no factual allegations against Mr. Bray at all. The Amended Complaint does not allege that he took any 1 It appears from the language and arguments in the Amended Complaint and Plaintiff’s other filings that she is influenced by the theories of the “sovereign citizen” movement. These theories have been consistently criticized as confusing and meritless, and have been rejected by courts called upon to consider them. See, e.g., U.S. v. Alexio, 2015 WL 4069160 at *2-3 (D. Hawaii 2015) (discussing ideas of “sovereign citizen” movement and noting that courts have uniformly rejected its arguments). 2 A task made more difficult by Plaintiff’s failure to comply with the Court’s order that she submit redacted copies of various exhibits, which are currently under seal. Dkt. No. 18. This failure provides additional ground to dismiss this action. See FRCP 41(b) (action may be dismissed if plaintiff fails to comply with a court order). Case 2:17-cv-00061-JLR Document 19 Filed 03/30/17 Page 3 of 14 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 MOTION TO DISMISS: Case No. 2:17-cv-00061 JLR - Page 4 HOLLAND & KNIGHT LLP 111 S.W. Fifth Avenue 2300 U.S. Bancorp Tower Portland, Oregon 97204 Telephone: 503.243.2300 #49749144_v1 actions with respect to Plaintiff or her mortgage loan, and does not suggest any other basis for personal liability against Mr. Bray. He should be immediately dismissed from this action with prejudice. 3. Plaintiff directs no substantial allegations against MERS. As against MERS, the Amended Complaint is similarly almost entirely silent, and lacks any allegations of wrongdoing. The single reference to MERS in the Amended Complaint appears in paragraph 11, where Plaintiff alludes vaguely to “the parsed sale of certain rights under the ‘Security’ in part to at least one third party (Defendant MERS).” There are no allegations anywhere else in the Amended Complaint to describe MERS’s alleged role in this matter, or even to state that MERS took any actions at all. MERS should be dismissed with prejudice from this action because Plaintiff has not alleged the elements of any viable theory of recovery against MERS. See Twombly, 550 U.S. at 562 (noting that “a complaint . . . must contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory.”) (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984)). 4. Plaintiff has not alleged facts sufficient to support any cause of action against any defendant in connection with non-judicial foreclosure proceedings against her real property. The Amended Complaint leads off with a series of broad allegations that-although not prefaced with the title of any cause of action-appear to assert in a conclusory way that non- judicial foreclosure proceedings against Plaintiff’s real property were (or are) improper. See Amended Complaint ¶¶ B.1-11. These allegations do not plausibly show any defect in the foreclosure proceedings, or any basis upon which any of the Moving Defendants could be liable on any theory. As against Wells Fargo, the Amended Complaint appears to argue that Wells Fargo “has failed to demonstrate that it, and not the Certificateholders [of the MLMI Trust, mortgage loan asset-backed certificates, series 2005 WMC2]” is the beneficiary of Plaintiff’s deed of trust. See Case 2:17-cv-00061-JLR Document 19 Filed 03/30/17 Page 4 of 14 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 MOTION TO DISMISS: Case No. 2:17-cv-00061 JLR - Page 5 HOLLAND & KNIGHT LLP 111 S.W. Fifth Avenue 2300 U.S. Bancorp Tower Portland, Oregon 97204 Telephone: 503.243.2300 #49749144_v1 Amended Complaint ¶ 4. The Amended Complaint further argues that Bank of America3 has not demonstrated standing, id. ¶ 5, that there is a lien on the property, id. ¶ 6, and that Plaintiff’s request to cancel a foreclosure sale was denied, id. ¶¶ 8-9. The gist of Plaintiff’s allegations appears to be captured in paragraph 11 of the Amended Complaint, where Plaintiff avers that a “severance of the ownership and possession of the original Security and Deed of Trust has occurred,” allegedly precluding foreclosure. These allegations are simultaneously vague and conclusory, and fail to state a claim no matter how they are read. To the extent Plaintiff means to contend that securitization of her mortgage loan precludes foreclosure, she is wrong. First, Plaintiff has not even alleged any factual matter to describe securitization of her loan, let alone any irregularities in the process. Second, and more to the point, courts applying Washington law hold that securitization, and any assignments it might entail, do not constitute a defense to foreclosure. See Velasco v. Discovery Mortg. Co., 2015 WL 1753677 at *11 (Wn.App. 2015) (unpublished) (noting general rejection by federal courts of argument that securitization of loan changes the legal relationship between parties to a promissory note and deed of trust, and stating, “[w]e hold that securitization does not discharge [the borrowers’] obligation to pay the promissory note.”); see also Borowski v. BNC Mortg., Inc., 2013 WL 4522253, at *5 (W.D. Wash. 2013) (“[B]orrowers, as third parties to the assignment of their mortgage (and securitization process), cannot mount a challenge to the chain of assignments.”); Andrews v. Countrywide Bank, NA, 2015 WL 1487093, at *3 (W.D. Wash. 2015) (“[A] borrower generally lacks standing to challenge the assignment of its loan documents unless the borrower shows that it is at a genuine risk of paying the same debt twice.”). To the extent Plaintiff’s Amended Complaint is based on an argument that securitization of her mortgage loan discharged her obligation or is otherwise relevant to non-judicial foreclosure proceedings, she fails to state a claim. 3 Note that the Amended Complaint appears to confuse Wells Fargo with Bank of America, switching between references to these defendants from paragraph to paragraph. Case 2:17-cv-00061-JLR Document 19 Filed 03/30/17 Page 5 of 14 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 MOTION TO DISMISS: Case No. 2:17-cv-00061 JLR - Page 6 HOLLAND & KNIGHT LLP 111 S.W. Fifth Avenue 2300 U.S. Bancorp Tower Portland, Oregon 97204 Telephone: 503.243.2300 #49749144_v1 Similarly, Plaintiff’s apparent contention that foreclosure is inappropriate because of a “severance of the ownership and possession” of her promissory note and deed of trust is contrary to Washington law and is unavailing. First, the person authorized to enforce a promissory note does not necessarily have to also be the owner of that note. To the contrary, the holder of an instrument can enforce it without regard to who owns the note. RCW 62A.3-301 (“A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument . . .”); see also Deutsche Bank National Trust Co. v. Slotke, 192 Wn.App. 166, 172, 367 P.3d 600, 604 (2016) (“It is not necessary for the holder to establish that it is also the owner of the note secured by the deed of trust.”). Second, the Washington Supreme Court held in Bain v. Metropolitan Mortg. Group, Inc., 175 Wn.2d 83, 104, 285 P.3d 34, 44 (2012) that the Deeds of Trust Act “contemplates that the security instrument will follow the note, not the other way around.” See also Bavand v. OneWest Bank, 196 Wn.App. 813, 842-43 (2016), 385 P.3d 233, 248 (“by operation of law, [borrower’s] deed of trust followed the negotiation of that note held by [foreclosing party]”). It follows that the noteholder is entitled to enforce both note and deed of trust by operation of law. See Bavand, 196 Wn.App. at 843, 385 P.3d at 248-49. Courts applying Washington law have accordingly held that “it is not a violation in Washington to split the note from the deed.” Zamzow v. Homeward Residential, Inc., 2012 WL 6615931, at *1 (W.D. Wash. 2012) (citing Bain). Any contention in the Amended Complaint that foreclosure is inappropriate because the promissory note and deed of trust have been “split” is accordingly incorrect as a matter of law. The Amended Complaint also asserts that “Defendants are legally precluded from foreclosing on the Property unless and until it can demonstrate full legal standing to do so.” Amended Complaint ¶ 11. This allegation is a legal conclusion not entitled to the presumption of truth, see Iqbal, 556 U.S. 678, and misunderstands the facts and the law. In a non-judicial foreclosure of a deed of trust under Washington law, the foreclosing party (i.e., the beneficiary of the deed of trust) must provide to the trustee a declaration under penalty of perjury stating that Case 2:17-cv-00061-JLR Document 19 Filed 03/30/17 Page 6 of 14 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 MOTION TO DISMISS: Case No. 2:17-cv-00061 JLR - Page 7 HOLLAND & KNIGHT LLP 111 S.W. Fifth Avenue 2300 U.S. Bancorp Tower Portland, Oregon 97204 Telephone: 503.243.2300 #49749144_v1 the beneficiary is the actual holder of the promissory note or other obligation secured by the deed of trust. RCW 61.24.030(7). This declaration is sufficient proof of the beneficiary’s authority to foreclose. Id. Here, the Amended Complaint lacks any allegations that Wells Fargo did not provide the trustee with such a declaration in this case (in fact, it did), or that Wells Fargo is not the actual holder of Plaintiff’s promissory note (in fact, it is). To the extent Plaintiff contends that Wells Fargo must produce her original promissory note in open court or in discovery before proceeding with a non-judicial foreclosure, she is accordingly wrong as a matter of law.4 See Bavand, 196 Wn.App at 824, 385 P.3d at 239 (rejecting a borrower’s contention that the beneficiary must produce the original note before foreclosing, noting that RCW 61.24.030(7) establishes what proof is necessary to foreclose non- judicially). The allegations of the Amended Complaint thus fail to describe any defect in the grounds supporting the non-judicial foreclosure proceedings against Plaintiff’s real property in this case.5 In short, as a matter of law, none of the Amended Complaint’s factual allegations could lay any plausible foundation for any claim against any Moving Defendant, whether based upon the non-judicial foreclosure of her real property or any other basis. Nor do the allegations show any proper legal or equitable ground to enjoin the foreclosure sale. See RCW 61.24.130(1). 5. Plaintiff has not stated an FDCPA claim against Nationstar. The Amended Complaint directs a claim entitled “FDCPA Violations” against Nationstar. See Amended Complaint ¶¶ 12-16. To state a claim under the FDCPA, Plaintiff would have to allege three threshold elements: (1) that she is a “consumer”; (2) that Nationstar is a “debt collector”; and (3) that Nationstar committed some act or omission in violation of the FDCPA. See Robinson v. Managed Accounts Receivables Corp., 654 F.Supp.2d 1051, 1057 4 This argument is not to suggest that Wells Fargo would necessarily decline to produce Plaintiff’s original promissory note under appropriate circumstances, but rather simply that the law does not require it to do so here. 5 In addition to failing to state any defect in the non-judicial foreclosure proceedings, Plaintiff also fails to state that her real property has been sold at a foreclosure sale, which would be a necessary element of any claim for damages under Washington’s Deeds of Trust Act. See Frias v. Asset Foreclosure Services, Inc., 181 Wn.2d 412, 429, 334 P.3d 529, 537 (2014). Case 2:17-cv-00061-JLR Document 19 Filed 03/30/17 Page 7 of 14 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 MOTION TO DISMISS: Case No. 2:17-cv-00061 JLR - Page 8 HOLLAND & KNIGHT LLP 111 S.W. Fifth Avenue 2300 U.S. Bancorp Tower Portland, Oregon 97204 Telephone: 503.243.2300 #49749144_v1 (2009); see also 15 U.S.C. § 1692a(3), (6). The Amended Complaint fails to do so. The FDCPA defines a “debt collector” as any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. 15 U.S.C. § 1692(6). However, the definition expressly excludes any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity . . . concerns a debt which was not in default at the time it was obtained by such person. 15 U.S.C. § 1692a(6)(F)(iii). Under these definitions, a loan servicer who acquires servicing rights before the loan is in default is not a debt collector under the FDCPA. See King v. Bank of America, N.A., 2015 WL 12930129, at *5 (W.D. Wash. 2015) (“Case law makes clear that mortgage servicing companies are not debt collectors for purposes of the FDCPA unless the mortgages were in default when they were taken for servicing.”); see also Glazer v. Chase Home Fin. LLC, 704 F.3d 453, 457 (6th Cir. 2013); Bailey v. Sec. Nat’l Servicing Corp., 154 F.3d 384, 388 (7th Cir. 1998); Perry v. Stewart Title Co., 756 F.2d 1197, 1208 (5th Cir. 1985); cf. De Dios v. International Realty & Investments, 641 F.3d 1071, 1076 (9th Cir. 2011) (holding that a property manager was “exempt from the definition of a ‘debt collector’ under § 1692a(6)(F)(iii) because it obtained the right to collect [the plaintiff’s] rent before the debt was contractually overdue and before it triggered applicable contractual conditions or state law governing default.”). Here, the Amended Complaint does not allege that Plaintiff’s mortgage loan was in default when Nationstar began servicing the loan.6 It follows that Plaintiff cannot demonstrate that Nationstar is a debt collector with respect to Plaintiff’s mortgage loan, and that Plaintiff has thus necessarily failed to state a claim against Nationstar under the FDCPA. Next, even if Nationstar did fall within the statutory definition of debt collector, the 6 In fact, the loan was not in default when Nationstar began servicing it. Case 2:17-cv-00061-JLR Document 19 Filed 03/30/17 Page 8 of 14 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 MOTION TO DISMISS: Case No. 2:17-cv-00061 JLR - Page 9 HOLLAND & KNIGHT LLP 111 S.W. Fifth Avenue 2300 U.S. Bancorp Tower Portland, Oregon 97204 Telephone: 503.243.2300 #49749144_v1 Amended Complaint would still fail to state a claim for violation of the FDCPA. It appears that Plaintiff attempts to allege that Nationstar made improper reports to credit agencies. See Amended Complaint ¶ 11 (“the account should have never been on the credit reports nor subsequently placed on the credit reports after the accounts were invalidated.”). The Amended Complaint further appears to suggest that Nationstar did not properly respond to letters Plaintiff allegedly sent regarding her loan. See Amended Complaint ¶ 14.7 There are no allegations anywhere in the Amended Complaint to support these conclusions or an FDCPA claim based upon them. Next, to the extent Plaintiff contends that Nationstar was obligated to “present” her with the original promissory note, she misunderstands both the nature of presentment and the terms of her note, and fails to state any possible FDCPA violation. See Amended Complaint ¶ 14 (“no presentment of any kind was made to a request that the indenture instrument be presented.”). Under the Uniform Commercial Code as adopted in Washington, “presentment” means a demand for payment made by or on behalf of a person entitled to enforce an instrument. RCW 62A.3-501(a). While it is true that upon presentment by the person entitled to enforce, the person to whom presentment is made may demand that the instrument be exhibited, see id. at subsec. (2)(ii), this does not mean that a borrower may at any time demand that her loan servicer “present” her with the promissory note. Plaintiff appears to make a similar error in arguing that Nationstar’s alleged failure to present the promissory note “means that the debt is dishonored and therefore no debt is currently owed.” Amended Complaint ¶ 14. Dishonor of a note actually refers to the borrower’s failure to pay the note upon proper presentment. See RCW 62A.3-502. Plaintiff’s remaining allegations in connection with her FDCPA claim against Nationstar appear to be nothing more than a reprise of the various erroneous positions that appear earlier in the Amended Complaint, such as unfounded contentions that the loan has been “invalidated.” In short, these allegations do not plausibly allege any factual scenario under which Nationstar could 7 Paragraph 14 extends for several pages. The portion relevant here appears on page 6 of the Amended Complaint. Case 2:17-cv-00061-JLR Document 19 Filed 03/30/17 Page 9 of 14 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 MOTION TO DISMISS: Case No. 2:17-cv-00061 JLR - Page 10 HOLLAND & KNIGHT LLP 111 S.W. Fifth Avenue 2300 U.S. Bancorp Tower Portland, Oregon 97204 Telephone: 503.243.2300 #49749144_v1 be liable under the FDCPA. The claim should be dismissed with prejudice. 6. Plaintiff has not stated a cause of action for injunctive relief. The Amended Complaint next requests temporary and permanent injunctive relief to prevent a foreclosure sale of Plaintiff’s real property. First, Plaintiff cannot state a claim for injunctive relief because she fails to state any other claim. Many trial courts, including courts in this District, have held that claim for “injunctive relief” standing alone is not a cause of action. Kwai Ling Chan v. Chase Home Loans Inc., 2012 WL 1252649, *3 (W.D. Wash. 2012); see also Cannon v. US Bank, NA, 2011 WL 2117015, *4 (D. Haw. 2011) (“It is a well-settled rule * * * that a claim for injunctive relief is a remedy, not an independent cause of action”); Henke v. ARCO Midcon, L.L.C., 750 F.Supp.2d 1052, 1059-60 (E.D. Mo. 2010) (“Injunctive relief, however, is a remedy, not an independent cause of action.”); Motley v. Homecomings Fin., LLC, 557 F.Supp.2d 1005, 1014 (D. Minn. 2008) (no independent cause of action for injunction exists). Second, even if the Amended Complaint did state any underlying claim for relief, it would still fail make any allegations that could support injunctive relief. In order to obtain a permanent injunction from a federal district court, Plaintiff would have to show: (1) that she has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. W. Watersheds Project v. Abbey, 719 F.3d 1035, 1054 (9th Cir. 2013).8 The standard for a preliminary injunction is similar-Plaintiff would have to show: (1) the likelihood of success on the merits; (2) the likelihood of irreparable harm in the absence of preliminary injunctive relief; (3) the balance of equities tips in favor of 8 Under Washington law, a plaintiff seeking temporary or permanent injunctive relief must show: (1) a clear legal or equitable right; (2) a well-grounded fear of immediate invasion of that right; and (3) that the acts complained of are either resulting in or will result in actual and substantial injury. Hoover v. Warner, 189 Wn.App. 509, 528-29, 358 P.3d 1174, 1184-85 (2015). For the reasons explained in this motion, Plaintiff is not entitled to injunctive relief under either standard. Case 2:17-cv-00061-JLR Document 19 Filed 03/30/17 Page 10 of 14 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 MOTION TO DISMISS: Case No. 2:17-cv-00061 JLR - Page 11 HOLLAND & KNIGHT LLP 111 S.W. Fifth Avenue 2300 U.S. Bancorp Tower Portland, Oregon 97204 Telephone: 503.243.2300 #49749144_v1 the party seeking such relief; and (4) the public interest. Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008). Either type of injunction is a matter of the court’s equitable discretion-it does not follow from success on the merits as a matter of course. Id. at 32. Plaintiff’s Amended Complaint fails to allege facts justifying injunctive relief. She does not show that foreclosure of her real property would work an injury because she has not alleged any facts to suggest that foreclosure would be improper; nor has she alleged any facts to suggest that the balance of hardships tips in her favor. To the contrary, the Amended Complaint only reprises the argument that Wells Fargo, “has no standing to institute or maintain a foreclosure.” Amended Complaint ¶ 23. This allegation is a legal conclusion not entitled to the presumption of truth, Iqbal, 556 U.S. 678, and is unsupportable anyway-the Amended Complaint lacks any allegations to show that Wells Fargo is not the beneficiary of Plaintiff’s deed of trust or could otherwise lack standing to foreclose, as explained in detail above. Nor are there any allegations in the Amended Complaint to establish that the public interest would be served by restraining the non-judicial foreclosure in this case. In short, Plaintiff has not shown any proper legal or equitable ground to restrain the non- judicial foreclosure proceedings against her real property. See RCW 61.24.130(1) (stating that borrower may seek to enjoin a foreclosure sale “on any proper legal or equitable ground.”). She has not alleged any right to temporary or permanent injunctive relief. 7. Plaintiff has not stated a cause of action for declaratory relief. Plaintiff’s request for declaratory relief is misplaced. For all the reasons explained above, Plaintiff has not alleged any facts to support a declaration by this Court that foreclosure would be improper in this case. The Amended Complaint does not add any new allegations in the declaratory judgment claim, instead claiming again that Bank of America9 “has no legal standing or the proper legal or equitable interest . . . to institute or maintain a foreclosure.” Amended 9 The designation of Bank of America as the foreclosing party in this section of the Amended Complaint appears to be a typo. Wells Fargo is the current beneficiary of Plaintiff’s deed of trust and is the party that initiated the present non-judicial foreclosure. Case 2:17-cv-00061-JLR Document 19 Filed 03/30/17 Page 11 of 14 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 MOTION TO DISMISS: Case No. 2:17-cv-00061 JLR - Page 12 HOLLAND & KNIGHT LLP 111 S.W. Fifth Avenue 2300 U.S. Bancorp Tower Portland, Oregon 97204 Telephone: 503.243.2300 #49749144_v1 Complaint ¶ 33. As explained above, there are no allegations anywhere in the Amended Complaint to support that conclusion. The claim should be dismissed for that reason. In addition, Plaintiff’s request for declaratory relief is merely duplicative of the injunctive relief she seeks and has no independent purpose. “District courts possess discretion in determining whether and when to entertain an action under the Declaratory Judgment Act, even when the suit otherwise satisfies subject matter jurisdictional prerequisites.” Wilton v. Seven Falls Co., 515 U.S. 277, 282 (1995). Courts may properly decline to entertain a claim for declaratory judgment where the claim “would serve no useful purpose,” among other reasons. McGraw-Edison Co. v. Preformed Line Products Co., 362 F.2d 339, 343 (9th Cir. 1966) (quoting Yellow Cab. Co. v. City of Chicago, 186 F.2d 946, 950-51 (7th Cir. 1951)); see also Hardnett v. M&T Bank, 2016 WL 4581410 at *8 (E.D. Va. 2016) (dismissing request for declaratory judgment in wrongful foreclosure action where the declaratory judgment claim merely sought the resolution of the same legal issues that would necessarily be resolved in litigating the other courses of action). The Court should dismiss Plaintiff’s declaratory judgment claim for this reason as well. /// /// /// /// /// /// /// /// /// /// /// Case 2:17-cv-00061-JLR Document 19 Filed 03/30/17 Page 12 of 14 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 MOTION TO DISMISS: Case No. 2:17-cv-00061 JLR - Page 13 HOLLAND & KNIGHT LLP 111 S.W. Fifth Avenue 2300 U.S. Bancorp Tower Portland, Oregon 97204 Telephone: 503.243.2300 #49749144_v1 E. Conclusion Plaintiff has not stated any claim for relief against any of the Moving Defendants. Her Amended Complaint represents nothing more than a collage of unsupportable and discredited theories that are in turn unsupported by factual allegations. The Amended Complaint fails as a matter of law to show any reason that foreclosure should not proceed, or that any defendants have acted wrongfully in any way. The action should be dismissed with prejudice as against Wells Fargo, MERS, Nationstar, and Jay Bray. DATED this 30th day of March, 2017. HOLLAND & KNIGHT LLP By: s/ David J. Elkanich David J. Elkanich, WSBA No. 35956 Email: david.elkanich@hklaw.com Garrett S. Garfield, WSBA No. 48375 Email: garrett.garfield@hklaw.com 2300 U.S. Bancorp Tower 111 SW Fifth Avenue Portland, OR 97204 Telephone: (503) 243-2300 Facsimile: (503) 241-8014 Of Attorneys for Defendants Wells Fargo Bank National Association, As Trustee For The Certificate Holders of the MLMI Trust, Mortgage Loan Asset-Backed Certificates, Series 2005 WMC2; Nationstar Mortgage LLC; Mortgage Electronic Registration Systems, Inc.; and Jay Bray Case 2:17-cv-00061-JLR Document 19 Filed 03/30/17 Page 13 of 14 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 CERTIFICATE OF SERVICE - Page 1 HOLLAND & KNIGHT LLP 111 S.W. Fifth Avenue 2300 U.S. Bancorp Tower Portland, Oregon 97204 Telephone: 503.243.2300 #49749144_v1 CERTIFICATE OF SERVICE I hereby certify that I caused the foregoing MOTION TO DISMISS (SUBMITTED BY WELLS FARGO BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE CERTIFICATE HOLDERS OF THE MLMI TRUST, MORTGAGE LOAN ASSET-BACKED CERTIFICATES SERIES 2005 WMC2; NATIONSTAR MORTGAGE LLC; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; AND JAY BRAY) to be served on the following person[s]: Barbara Robinson 13540 SE 159th Place Renton, WA 98058 Plaintiff Christopher G. Varallo Steven J. Dixson cgv@witherspoonkelley.com sjd@witherspoonkelley.com 422 W. Riverside Avenue, Suite 1100 Spokane, WA 99201-0300 Attorneys for Defendants Mortgage Electronic Registration Systems, Inc., and Bank of America, N.A. by causing the document to be delivered by the following indicated method or methods:  by CM/ECF electronically mailed notice from the Court on the date set forth below.  by mailing full, true and correct copies thereof in sealed, first class postage prepaid envelopes, addressed to the parties and/or their attorneys as shown above, to the last-known office addresses of the parties and/or attorneys, and deposited with the United States Postal Service at Portland, Oregon, on the date set forth below.  by causing full, true, and correct copies thereof to be hand-delivered to the parties and/or their attorneys at their last-known office addresses listed above on the date set forth below.  by sending full, true, and correct copies thereof, via overnight courier in sealed, prepaid envelopes, addressed to the parties and/or their attorneys as shown above, to the last-known office addresses of the parties and/or their attorneys, on the date set forth below.  by faxing full, true, and correct copies thereof to the fax machines which are the last- known fax numbers for the parties’ and/or attorneys’ offices, on the date set forth below. DATED March 30, 2017. s/ Garrett S. Garfield Garrett S. Garfield Case 2:17-cv-00061-JLR Document 19 Filed 03/30/17 Page 14 of 14 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 [PROPOSED] ORDER GRANTING MOTION TO DISMISS: Case No. 2:17-cv-00061 JLR - Page 1 HOLLAND & KNIGHT LLP 111 S.W. Fifth Avenue 2300 U.S. Bancorp Tower Portland, Oregon 97204 Telephone: 503.243.2300 #50323939_v1 Honorable James L. Robart UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE BARBARA ROBINSON, Plaintiff, v. WELLS FARGO BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE CERTIFICATE HOLDERS OF THE MLMI TRUST, MORTGAGE LOAN ASSET-BACKED CERTIFICATES, SERIES 2005 WMC2; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; NATIONSTAR MORTGAGE LLC; JAY BRAY; AZTEC FORECLOSURE CORPORATION OF WASHINGTON Defendants. Case No. 2:17-cv-00061 JLR [PROPOSED] ORDER GRANTING MOTION TO DISMISS (SUBMITTED BY DEFENDANTS WELLS FARGO BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE CERTIFICATE HOLDERS OF THE MLMI TRUST, MORTGAGE LOAN ASSET-BACKED CERTIFICATES, SERIES 2005 WMC2; NATIONSTAR MORTGAGE LLC; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; AND JAY BRAY) This matter came before the Court on the Motion to Dismiss (Submitted by Defendants Wells Fargo Bank National Association as Trustee for the Certificate Holders of the MLMI Trust, Mortgage Loan Asset-Backed Certificates Series 2005 WMC2; Nationstar Mortgage LLC; Mortgage Electronic Registration Systems, Inc.; and Jay Bray) (the “Motion”). The Court having considered the Motion, any response and reply thereto, and being fully informed, IT IS HEREBY ORDERED that the Motion is GRANTED; and IT IS HEREBY FURTHER ORDERED that this action is dismissed with prejudice as Case 2:17-cv-00061-JLR Document 19-1 Filed 03/30/17 Page 1 of 3 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 [PROPOSED] ORDER GRANTING MOTION TO DISMISS: Case No. 2:17-cv-00061 JLR - Page 2 HOLLAND & KNIGHT LLP 111 S.W. Fifth Avenue 2300 U.S. Bancorp Tower Portland, Oregon 97204 Telephone: 503.243.2300 #50323939_v1 against Defendants Wells Fargo Bank National Association as Trustee for the Certificate Holders of the MLMI Trust, Mortgage Loan Asset-Backed Certificates Series 2005 WMC2; Nationstar Mortgage LLC; Mortgage Electronic Registration Systems, Inc.; and Jay Bray. Dated this ____ day of _______ 2017. United States District Court Judge Submitted by: HOLLAND & KNIGHT LLP By: s/ Garrett S. Garfield David J. Elkanich, WSBA No. 35956 Email: serve.dje@hklaw.com Garrett S. Garfield, WSBA No. 48735 Email: serve.gsg@hklaw.com 2300 U.S. Bancorp Tower 111 S.W. Fifth Avenue Portland, OR 97204 Of Attorneys for Defendants Wells Fargo Bank National Association, As Trustee For The Certificate Holders of the MLMI Trust, Mortgage Loan Asset-Backed Certificates, Series 2005 WMC2; Nationstar Mortgage LLC; Mortgage Electronic Registration Systems, Inc.; and Jay Bray Case 2:17-cv-00061-JLR Document 19-1 Filed 03/30/17 Page 2 of 3 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 CERTIFICATE OF SERVICE - Page 1 HOLLAND & KNIGHT LLP 111 S.W. Fifth Avenue 2300 U.S. Bancorp Tower Portland, Oregon 97204 Telephone: 503.243.2300 #50323939_v1 CERTIFICATE OF SERVICE I hereby certify that I caused the foregoing [PROPOSED] ORDER GRANTING MOTION TO DISMISS (SUBMITTED BY DEFENDANTS WELLS FARGO BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE CERTIFICATE HOLDERS OF THE MLMI TRUST, MORTGAGE LOAN ASSET-BACKED CERTIFICATES, SERIES 2005 WMC2; NATIONSTAR MORTGAGE LLC; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; AND JAY BRAY) to be served on the following person[s]: Barbara Robinson 13540 SE 159th Place Renton, WA 98058 Plaintiff Christopher G. Varallo Steven J. Dixson cgv@witherspoonkelley.com sjd@witherspoonkelley.com 422 W. Riverside Avenue, Suite 1100 Spokane, WA 99201-0300 Attorneys for Defendants Mortgage Electronic Registration Systems, Inc., and Bank of America, N.A. by causing the document to be delivered by the following indicated method or methods:  by CM/ECF electronically mailed notice from the Court on the date set forth below.  by mailing full, true and correct copies thereof in sealed, first class postage prepaid envelopes, addressed to the parties and/or their attorneys as shown above, to the last-known office addresses of the parties and/or attorneys, and deposited with the United States Postal Service at Portland, Oregon, on the date set forth below.  by causing full, true, and correct copies thereof to be hand-delivered to the parties and/or their attorneys at their last-known office addresses listed above on the date set forth below.  by sending full, true, and correct copies thereof, via overnight courier in sealed, prepaid envelopes, addressed to the parties and/or their attorneys as shown above, to the last-known office addresses of the parties and/or their attorneys, on the date set forth below.  by faxing full, true, and correct copies thereof to the fax machines which are the last- known fax numbers for the parties’ and/or attorneys’ offices, on the date set forth below. DATED March 30, 2017. s/ Garrett S. Garfield Case 2:17-cv-00061-JLR Document 19-1 Filed 03/30/17 Page 3 of 3