Saepoff v. North Cascade Trustee Services, Inc et al, No. 2:2017cv00957 - Document 106 (W.D. Wash. 2020)
Court Description: ORDER: Plaintiff's "Motion for Reconsideration and/or to Vacate Order Granting Defendants' HSBC, MERS, and Ocwen's Motion for Judgment on the Pleadings" (Dkt. # 89 ) is DENIED. HSBC'S "Motion for Summary Judgment" (Dkt. # 90 ) is GRANTED. HSBC may proceed to judicial foreclosure. HSBC'S "Motion for Default Judgment" (Dkt. # 91 ) is GRANTED. Signed by Judge Robert S. Lasnik. (LH)
Download PDF
<![CDATA[
Saepoff v. North Cascade Trustee Services, Inc et al Doc. 106 Case 2:17-cv-00957-RSL Document 106 Filed 10/30/20 Page 1 of 11 1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 8 9 JESSICA SAEPOFF, Plaintiff, 10 13 NORTH CASCADE TRUSTEE SERVICES, INC., et al., Defendants. 14 15 16 17 18 19 HSBC BANK USA N.A. AS TRUSTEE ON BEHALF OF ACE SECURITIES CORP. HOME EQUITY LOAN TRUST AND FOR THE REGISTERED HOLDERS OF ACE SECURITIES CORP. HOME EQUITY LOAN TRUST, SERIES 2007-WM2, ASSET BACKED PASS-THROUGH CERTIFICATES, 20 Counterclaimant, 21 22 ORDER v. 11 12 Case No. C17-957RSL v. JESSICA SAEPOFF, et al., 23 Counterdefendants. 24 25 26 27 28 This matter comes before the Court on (1) plaintiff Jessica Saepoff’s “Motion for Reconsideration and/or to Vacate Order Granting Defendants’ HSBC, MERS, and Ocwen’s Motion for Judgment on the Pleadings” (Dkt. #89), (2) counterclaimant HSBC Bank USA, N.A.’s (“HSBC”) “Motion for Summary Judgment” (Dkt. #90), and (3) HSBC’s “Motion for ORDER - 1 Dockets.Justia.com Case 2:17-cv-00957-RSL Document 106 Filed 10/30/20 Page 2 of 11 1 Default Judgment Against All Defaulted Counterdefendants” (Dkt. #91). The Court, having 2 reviewed the motions and the record contained herein, 1 finds as follows: 3 I. 4 On November 2, 2006, plaintiff Jessica Saepoff executed and delivered to WMC BACKGROUND 5 Mortgage Corporation (“WMC”) an Adjustable Rate Note in the amount of $490,000 (“the 6 Note”). Dkt. #1-2 (Ex. A) at 51-57. On the same date, to secure payment on the Note, plaintiff 7 executed a Deed of Trust pertaining to property located at 4003 92nd Avenue SE, Mercer Island, 8 Washington (“the Property”). Dkt. #1-2 (Ex. B) at 59-76; see Dkt. #1-2 (2d Am. Compl. 9 (“SAC”)) at ¶¶ 4.1-4.7. This named Mortgage Electronic Registration Systems, Inc. (“MERS”) 10 as nominee for WMC and the beneficiary under the Deed of Trust. Dkt. #1-2 (Ex. B) at 59-60. 11 The Deed of Trust was recorded on November 6, 2006 in King County, Washington. Dkt. #6312 1 (Ex. 1) at 4-21; see also Dkt. #86 at 2 n.1. On April 7, 2011, MERS assigned its interest in the 13 Deed of Trust to HSBC (“the Assignment”). Dkt. #63-1 (Ex. 2) at 22. The Assignment was 14 prepared by Ocwen. Id.; see SAC at ¶ 4.37. On May 21, 2015, HSBC appointed North Cascade 15 Trustee Services, Inc. (“North Cascade”) as Successor Trustee under the Deed of Trust. Dkt. 16 #63-1 (Ex. 3) at 23-24; see SAC at ¶ 4.39. On January 19, 2016, North Cascade recorded a 17 Notice of Trustee’s Sale. Dkt. #63-1 (Ex. 9) at 35-38; see SAC at ¶ 4.40. The sale was canceled 18 by a Notice of Discontinuance of Trustee’s Sale recorded by North Cascade on October 27, 19 2016. Dkt. #63-1 (Ex. 11) at 42; see SAC at ¶ 4.41. 20 Plaintiff filed her first complaint in King County Superior Court on April 25, 2016, see 21 Dkt. #12-2 at 8, and a Second Amended Complaint on February 10, 2017. See SAC. She 22 argued that the Note was not properly transferred to any of the defendants, and that defendants 23 lacked the authority to enforce, transfer, assign or foreclose on the Note. She brought six causes 24 of action. First, she requested that the Court make various declarations regarding the Note, the 25 Deed of Trust, the Assignment, the Appointment of Successor Trustee, the Notice of Trustee’s 26 Sale, and her right to prepay her loan. SAC at ¶¶ 5.1-5.13. Second, she asserted that the Deed 27 28 1 The Court finds this matter suitable for disposition without oral argument. ORDER - 2 Case 2:17-cv-00957-RSL Document 106 Filed 10/30/20 Page 3 of 11 1 of Trust, the Assignment, the Appointment of Successor Trustee, and Notice of Trustee’s Sale 2 all contained material misrepresentations and constituted mortgage fraud and/or fraudulent 3 misrepresentation. Id. at ¶¶ 5.14-5.18. Third, she alleged that Ocwen violated Washington’s 4 Consumer Loan Act (“CLA”). SAC at ¶¶ 5.19-5.21. Fourth, she asserted that North Cascade 5 violated the Deed of Trust Act (“DTA”). SAC at ¶¶ 5.22-5.23. Fifth, she alleged violations of 6 Washington’s Consumer Protection Act (“CPA”). Id. at ¶¶ 5.24-5.30. Sixth, she brought a quiet 7 title claim. SAC at ¶ 5.31. 8 On April 11, 2017, defendants filed their answer and counterclaimed for Deed of Trust 9 foreclosure, joining, among others, the United States of America. Dkt. #1-2 (Countercl.) at 710 20. The United States removed the case to this Court on June 22, 2017. Dkt. #1 at 1-5; see 28 11 U.S.C. §§ 1442(a)(1), 1444, 2410. 12 On September 23, 2019, the Court granted defendants HSBC’s, MERS’ and Ocwen’s 13 motion for judgment on the pleadings against plaintiff, and dismissed all of plaintiff’s claims 14 against those three defendants. See Dkt. #86. 15 II. 16 Plaintiff timely moved for reconsideration of the Court’s Order granting defendants PLAINTIFF’S MOTION FOR RECONSIDERATION (Dkt. #89) 17 HSBC’s, MERS’, and Ocwen’s motion for judgment on the pleadings. See Dkt. #89. Motions 18 for reconsideration are disfavored in this District and will be granted only upon a “showing of 19 manifest error in the prior ruling” or “new facts or legal authority which could not have been 20 brought to [the Court’s] attention earlier with reasonable diligence.” LCR 7(h)(1). Federal Rule 21 of Civil Procedure (“Rule”) 60(b)(6) provides that a judgment may be vacated for “any other 22 reason that justifies relief.” Fed. R. Civ. P. 60(b)(6). Rule 60(b)(6) is a catch-all provision that 23 should be used “sparingly as an equitable remedy to prevent manifest injustice.” United States 24 v. Alpine Land & Reservoir Co., 984 F.2d 1047, 1049 (9th Cir. 1993). 25 Plaintiff asserts that the Court erred in dismissing her fraudulent misrepresentation and 26 CPA claims as barred by the statute of limitations. See Dkt. #89 at 4-6. The Court found the 27 claims barred by the three- and four-year statutes of limitations, respectively. Dkt. #86 at 6-8. 28 Plaintiff argues that the relevant dates for purposes of the statutes of limitations are May 21, ORDER - 3 Case 2:17-cv-00957-RSL Document 106 Filed 10/30/20 Page 4 of 11 1 2015, the day HSBC appointed North Cascade as Successor Trustee, and January 19, 2016, the 2 day North Cascade recorded a Notice of Trustee’s Sale. Dkt. #89 at 4-6. 2 Plaintiff 3 misunderstands the nature of the Court’s holding, which made clear that “[a] cause of action 4 accrues when the plaintiff knew or should have known all the facts underlying the essential 5 elements of the action.” Hummel v. Nw. Tr. Servs., Inc., 180 F. Supp. 3d 798, 808 (W.D. 6 Wash. 2016), aff’d, 740 F. App’x 142 (9th Cir. 2018) (emphasis added). Because plaintiff 7 executed the Note and Deed of Trust on November 2, 2006, and because the Assignment from 8 MERS to HSBC was executed on April 7, 2011 and recorded on August 5, 2011, see Dkt. #63-1 9 (Ex. 2) at 22, four-and-a-half years before she filed her first complaint in King County Superior 10 Court, the Court “charged [plaintiff] with what reasonable inquiry would have discovered.” 11 Hummel, 180 F. Supp. 3d at 808. The Court properly dismissed plaintiff’s fraudulent 12 misrepresentation and CPA claims as barred by the statutes of limitations. 3 13 In addition, plaintiff argues that the Court erroneously disposed of her request for 14 declaratory relief on the basis that the fraudulent misrepresentation and CPA claims were 15 improperly dismissed. Dkt. #89 at 6-7. As described above, the Court reaffirms its dismissal of 16 these claims. Dkt. #86 at 8-10. Therefore, plaintiff is not entitled to reconsideration of her 17 request for declaratory relief. 18 The Court finds plaintiff has not met her burden for reconsideration under LCR 7(h) or 19 Rule 60(b)(6). Her “Motion for Reconsideration and/or to Vacate Order Granting Defendants’ 20 HSBC, MERS, and Ocwen’s Motion for Judgment on the Pleadings” (Dkt. #89) is DENIED. 21 22 2 Plaintiff did not specifically raise this argument in opposition to defendants’ motion for judgment on the pleadings. See generally Dkt. #71. Rather, she made the conclusory assertion that 23 judgment on the pleadings was inappropriate because discovery of when a cause of action accrues 24 involves questions of fact. Id. at 9-10. 3 Plaintiff also argues that the Court improperly interpreted plaintiff’s execution of Two Notices of Removal on September 20, 2010, and three Quit Claim Deeds on September 23 and October 11, 26 2010, and November 7, 2012, to suggest that plaintiff was aware of any events giving rise to her cause of action. See Dkt. #89 at 5-6. While these findings bolstered the Court’s analysis of the impacts of the 27 statutes of limitations and discovery rule on plaintiff’s claims, they were nonessential to the Court’s 28 holding charging plaintiff with reasonable notice and finding those claims barred by the statutes of limitations. 25 ORDER - 4 Case 2:17-cv-00957-RSL Document 106 Filed 10/30/20 Page 5 of 11 1 III. 2 HSBC moves for summary judgment on its counterclaim for Deed of Trust foreclosure. HSBC’S MOTION FOR SUMMARY JUDGMENT (Dkt. #90) 3 See Dkt. #90. 4 5 a. Parties’ Requests to Strike As a threshold matter, the Court must consider HSBC’s request to strike plaintiff’s 6 response brief, and plaintiff’s request to strike Section A of HSBC’s reply. See Dkt. #100 at 37 4, #103. Defendant asks the Court to strike plaintiff’s response brief, which was filed after 8 midnight on the deadline after plaintiff received two Court-ordered continuances extending her 9 response deadline by 25 days. See Dkts. #94, #98. Plaintiff filed an untimely surreply on 10 December 3, 2019. See Dkt. #103; LCR 7(g) (“The surreply must be filed within five days of 11 the filing of the reply brief.”). She filed a supplemental surreply on December 11, 2019, without 12 leave from the Court. Dkt. #105. The surreplies allege that the response brief was filed late due 13 to personal and family issues encountered by plaintiff’s local counsel. Dkts. #103, #105. 14 Plaintiff asks the Court to strike HSBC’s request to strike on this basis. Id. 15 For the sake of completeness, the Court will again consider plaintiff’s late response brief. 16 However, the Court sternly admonishes plaintiff for what can only be characterized as repeated, 17 blatant disregard for filing deadlines and the Local Rules of this District. See also Dkts. #77, 18 #86 at 3-4. The parties’ requests to strike are DENIED. 19 20 b. Legal Standard Summary judgment is appropriate if, viewing the evidence in the light most favorable to 21 the nonmoving party, “the movant shows that there is no genuine dispute as to any material fact 22 and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); L.A. Printex 23 Indus., Inc. v. Aeropostale, Inc., 676 F.3d 841, 846 (9th Cir. 2012). The moving party “bears 24 the initial responsibility of informing the district court of the basis for its motion[.]” Celotex 25 Corp. v. Catrett, 477 U.S. 317, 323 (1986). It need not “produce evidence showing the absence 26 of a genuine issue of material fact” but instead may discharge its burden under Rule 56 by 27 “pointing out . . . that there is an absence of evidence to support the nonmoving party’s case.” 28 Id. at 325. Once the moving party has satisfied its burden, it is entitled to summary judgment if ORDER - 5 Case 2:17-cv-00957-RSL Document 106 Filed 10/30/20 Page 6 of 11 1 the non-moving party fails to designate “specific facts showing that there is a genuine issue for 2 trial.” Id. at 324. “The mere existence of a scintilla of evidence in support of the non-moving 3 party’s position is not sufficient”; the opposing party must present probative evidence in support 4 of its claim or defense. Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th 5 Cir. 2001); Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991). 6 “An issue is ‘genuine’ only if there is a sufficient evidentiary basis on which a reasonable fact 7 finder could find for the nonmoving party[.]” In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008) 8 (citations omitted). 9 10 c. Discussion Under Washington law, a promissory note may be enforced by “the holder of the 11 instrument,” which is the “person in possession of a negotiable instrument that is payable either 12 to bearer or to an identified person that is the person in possession.” RCW 62A.113 201(b)(21)(A), 62A3-301. “Transfer of an instrument, whether or not the transfer is a 14 negotiation, vests in the transferee any right of the transferor to enforce the instrument[.]” RCW 15 62A.3-203. “If an indorsement is made by the holder of an instrument, whether payable to an 16 identified person or payable to bearer, and the indorsement identifies a person to whom it makes 17 the instrument payable, it is a ‘special indorsement.’” RCW 62A.3-205(a). “When specially 18 indorsed, an instrument becomes payable to the identified person and may be negotiated only by 19 the indorsement of that person.” Id. 20 It is undisputed that plaintiff executed the Adjustable Rate Note in the amount of 21 $490,000, and secured the payment by the Deed of Trust pertaining to the Property on 22 November 2, 2006. Dkt. #90-3 (Exs. A, B). Plaintiff admits that she stopped making her 23 monthly mortgage payments in 2010, see Dkt. #90-1 (Ex. A) at 30:4-6, and that she never 24 conveyed monies to pay off the Note, id. at 127:2-5, 131:6-32-7, 135:2-37:4. She has defaulted 25 under the terms of the Note. Dkt. #90-3 (Ex. A) at 8, § 7(B) (“If I do not pay the full amount of 26 each monthly payment on the date it is due, I will be in default.”). Under the terms of the Note 27 and Deed of Trust, foreclosure is the legal remedy for the holder of the Note. Dkt. #90-3 (Ex. 28 A) at § 7(B), Ex. B at 23, ¶ 22. HSBC has provided evidence that it is the current holder of the ORDER - 6 Case 2:17-cv-00957-RSL Document 106 Filed 10/30/20 Page 7 of 11 1 Note. Dkt. #90-1 (Ex. B) at 179. Counsel for HSBC is currently in possession of the original 2 Note and Deed of Trust. See id. (Coughlin Decl.) at ¶ 2 (“I continue to have physical possession 3 of these documents as attorney for HSBC in this action.”). The Note contains a special 4 endorsement to HSBC. Dkt. #90-3 (Ex. A) at 9. In Washington, the deed of trust follows the 5 transfer of debt. See Spesock v. U.S. Bank, N.A., No. C18-92JLR, 2018 WL 4613163, at *8 6 (W.D. Wash. Sept. 26, 2018) (citing Am. Sav. Bank & Tr. Co. v. Helgesen, 64 Wn. 54 (1911), 7 on reh’g, 67 Wn. 572 (1912)). Accordingly, as holder of the Note, HSBC is also the holder of 8 the Deed of Trust as a matter of law and is entitled to enforce it. Id. (“[I]t follows logically that 9 the noteholder is entitled to enforce both the note and the [deed of trust] by operation of law.” 10 (citations omitted)). 11 Plaintiff argues that HSBC is not entitled to foreclose on the Deed of Trust on the 12 grounds that HSBC’s declaration in support of its motion (Dkt. #90-3) is legally insufficient, 13 and that a genuine issue of material fact exists as to the endorsement, and any transfer of, the 14 Note. Dkt. #99 at 4-9. 4 Her arguments lack merit for the reasons set forth below. 15 First, plaintiff asserts that HSBC’s declaration is legally insufficient because the affiant, 16 an employee of the loan servicer, lacks personal knowledge as to the loan closing, and 17 subsequent transfer and endorsement of the Note. Dkt. #99 at 4-5. She argues that the 18 declaration is not supported by sufficient documentation of these processes. Id. The 19 Washington State Court of Appeals recently considered and rejected a similar argument 20 regarding an endorsement in blank. 21 [T]he [borrowers] argue that [the bank] should not be entitled to foreclosure because it failed to explain how it came into possession of the note. The [borrowers] do not provide any legal support for their argument that, despite possessing the note, [the bank] cannot enforce the note if it cannot explain all previous transfers of the note. [The bank] produced the original note endorsed in blank. That alone allows [the bank] to enforce it. RCW 62A.1-201(21)(A) (defining “holder” as “[t]he person in possession of a negotiable instrument.”); 22 23 24 25 26 27 4 Plaintiff also argues that the Court should deny the motion for summary judgment because her motion for reconsideration remains pending. Dkt. #99 at 2. The Court has now denied the motion for 28 reconsideration, rendering this argument moot. ORDER - 7 Case 2:17-cv-00957-RSL Document 106 Filed 10/30/20 Page 8 of 11 1 RCW 62A.3-205(b) (“When [e]ndorsed in blank, an instrument becomes payable to bearer and may be negotiated by transfer of possession alone until specially [e]ndorsed.”); see also Brown [v. Wash. State Dep’t of Commerce, 184 Wn.2d 509, 536 (2015)] (“As the holder of the note [endorsed in blank], M & T Bank is entitled to enforce the note.”); Deutsche Bank [Nat’l Tr. Co. v. Slotke, 192 Wn. App. 166, 173 (2016)] (“[I]t is the holder of the note who is entitled to enforce it. It is not necessary for the holder to establish that it is also the owner of the note secured by the deed of trust”). 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 Deutsche Bank Nat’l Tr. Co. for Long Beach Mortg. Loan Tr. 2006-4 v. Erickson, 197 Wn. App. 1068, 2017 WL 571526, at *3 (2017), review den. sub nom., Deutsche Bank Nat’l Tr. Co. v. Erickson, 188 Wn.2d 1021 (2017). The Court finds the reasoning of Erickson persuasive, and rejects plaintiff’s implication that HSBC fails to allege sufficient evidence as to how it came to possess the Note. HSBC’s counsel has made a sworn declaration that it is in possession of the Note, and HSBC has submitted a copy of the original Note as an exhibit to its declaration. 5 See Coughlin Decl. at ¶ 2; Dkt. #90-3 (Ex. A). The Note contains a special endorsement to HSBC. Id. These facts are sufficient to establish that HSBC is the holder of the Note, and the Court rejects plaintiff’s arguments regarding the insufficiency of HSBC’s declaration (Dkt. #90-3). Second, plaintiff challenges the validity of the securitization process, asserting that the endorsement of the Note and its transfer to HSBC were improper. However, “there is ample authority that borrowers, as third parties to the assignment of their mortgage (and securitization process), cannot mount a challenge to the chain of assignments unless a borrower has a genuine claim that they are at risk of paying the same debt twice if the assignment stands.” Borowski v. BNC Mortg., Inc., No. C12-5867 RJB, 2013 WL 4522253, at *5 (W.D. Wash. Aug. 27, 2013); see also Hummel, 180 F. Supp. 3d at 806 (quoting Andrews v. Countrywide Bank, NA, 95 F. Supp. 3d 1298, 1301 (W.D. Wash. 2015)). Plaintiff has not genuinely alleged such risk. See, e.g., Dkt. #90-1 (Saepoff Dep.) at 133:22-23 (“Q: . . . Has any other lender or servicer other than Ocwen or HSBC contacted you for payment of the note? A: Not to this date.”). She 5 Plaintiff does not credibly challenge HSBC’s evidence establishing that it is in possession of the original Note and Deed of Trust. The Court finds there is no genuine dispute that HSBC is the 28 current holder of the specially endorsed note. ORDER - 8 Case 2:17-cv-00957-RSL Document 106 Filed 10/30/20 Page 9 of 11 1 accordingly has no basis to challenge the securitization and assignment of the Note and Deed of 2 Trust to HSBC. 6 3 HSBC has established as a matter of law that, as holder of the Note, it is entitled to 4 foreclose on the Deed of Trust. Plaintiff has offered no valid basis to prevent the foreclosure, 5 and has failed to identify any genuine issue of fact for trial. HSBC’s “Motion for Summary 6 Judgment (Dkt. #90) is GRANTED. 7 IV. 8 On July 26, 2017, the Clerk of Court entered an order finding defendant State of HSBC’S MOTION FOR DEFAULT JUDGMENT (Dkt. #91) 9 Washington in default for its failure to appear or file a responsive pleading to counter-claimant 10 HSBC’s counterclaims. Dkt. #21. On November 21, 2017, the Clerk entered an order of default 11 against defendants Unknown Beneficiary of the 4003 92nd Avenue SE Land Trust; Randy Styer, 12 Trustee of the 4003 92nd Avenue SE Land Trust; MERS; and Occupants of the Premises. Dkt. 13 #40. With the exception of MERS, which appeared and agreed to the entry of default, all of the 14 aforementioned defendants failed to appear or file a responsive pleading. Id. 15 HSBC moves the Court for default judgment against the defaulted defendants. Dkt. #91. 16 It appearing from the record that defaults were entered pursuant to LCR 55(a) against Unknown 17 Beneficiary of the 4003 92nd Avenue SE Land Trust; Randy Styer, Trustee of the 4003 92nd 18 Avenue SE Land Trust; MERS; State of Washington; and Occupants of the Premises 19 (collectively, “defaulted defendants”); and it appearing from the declaration of HSBC, the 20 declaration of Laura Coughlin (Dkt. #91-1), and the records herein that HSBC has established its 21 entitlement to the non-monetary relief sought, NOW, THEREFORE, on request of counsel for 22 HSBC, the in rem default judgment against defaulted defendants is hereby adjudged and entered 23 as follows: 24 6 The Court declines plaintiff’s invitation to rely on non-binding, out-of-circuit authority to find that she may challenge HSBC’s alleged noncompliance with the Pooling & Servicing Agreement. See 26 Dkt. #99 at 7-9 (citing inter alia U.S. Bank Nat’l Ass’n as Tr. to Bank of Am., Nat’l Ass’n v. Gerber, 2019 WL 1299464, at *4-6 (M.D. Pa. Mar. 21, 2019)). Courts in Washington have rejected this 27 argument. See, e.g., Deutsche Bank Nat’l Tr. Co. v. Slotke, 192 Wn. App. 166, 177 (2016) (finding 28 plaintiff lacked standing to raise challenge to bank’s compliance with the trust’s pooling and service agreement “because she [was] not a party to or intended third-party beneficiary of that agreement”). 25 ORDER - 9 Case 2:17-cv-00957-RSL Document 106 Filed 10/30/20 Page 10 of 11 1 IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the real property (the 2 “Property”) secured by the HSBC’s DOT is described as follows: 3 LOT 1 of PATRICK HEIGHTS, AS PER PLAT RECORDED IN VOLUME 49 OF PLATS, ON PAGE 37, RECORDS OF KING OCUNTY; SITUATE IN THE CITY OF MERCER ISLAND, COUNTY OF KING, STATE OF WASHINGTON. 4 5 6 IT IS FURTHER ORDERED, ADJUDGED AND DECREED that if the final judgment 7 amount is not tendered to HSBC immediately, then said sum shall be satisfied from the sale of 8 the property. 9 IT IS FURTHER ORDERED, ADJUDGED AND DECREED that any interest held by 10 the defaulted defendants, subject to HSBC’s Deed of Trust recorded on November 6, 2006 under 11 King County Auditor’s File No. 20061106002692, is hereby foreclosed and the Property is 12 hereby ordered sold in the manner provided by law, and the proceeds from the foreclosure shall 13 be applied to the final judgment amount, as permitted therein. 14 IT IS FURTHER ORDERED, ADJUDGED AND DECREED that if a deficiency balance 15 remains due after the application of the foreclosure sale proceeds to the final judgment amount 16 and post-judgment amount, then a deficiency judgment shall not be entered against the 17 defaulting defendants pursuant to RCW 6.23.020(1), as they are not the final judgment debtor. 18 IT IS FURTHER ORDERED, ADJUDGED AND DECREED that HSBC’s Deed of 19 Trust is declared the senior lien upon the Property and that all right, title, claim, or interest of the 20 defaulted defendants’ interests in the Property is hereby declared junior and subordinate to 21 HSBC’s lien, and said defaulted defendants are hereby forever foreclosed except for any 22 statutory right of redemption and surplus funds allowed by law, if any. 23 IT IS FURTHER ORDERED, ADJUDGED AND DECREED that HSBC is hereby 24 granted the right to become the bidder and purchaser at the foreclosure sale. 25 IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the purchaser at the 26 foreclosure sale of the Property is entitled to exclusive and immediate possession of the Property 27 from and after the date of the sale and is entitled to such remedies as are available at law to 28 secure possession and the judgment entered herein have the same effect as a writ of assistance, if ORDER - 10 Case 2:17-cv-00957-RSL Document 106 Filed 10/30/20 Page 11 of 11 1 defendants, or any of them, or any other party or person shall refuse to surrender possession to 2 the purchaser immediately on the purchaser’s demand for possession. 3 IT IS FURTHER ORDERED, ADJUDGED AND DECREED that HSBC may localize 4 this judgment for the purposes of enforcing the judgment through sale effectuated by the King 5 County Sheriff’s Office in the same manner as if it had been issued by the King County Superior 6 Court. 7 V. 8 For all the foregoing reasons, IT IS HEREBY ORDERED THAT, 9 (1) CONCLUSION Plaintiff’s “Motion for Reconsideration and/or to Vacate Order Granting 10 Defendants’ HSBC, MERS, and Ocwen’s Motion for Judgment on the Pleadings” (Dkt. #89) is 11 DENIED. 12 (2) HSBC’S “Motion for Summary Judgment” (Dkt. #90) is GRANTED. HSBC may 13 proceed to judicial foreclosure. 14 (3) HSBC’S “Motion for Default Judgment” (Dkt. #91) is GRANTED as set forth 15 above. 16 DATED this 30th day of October, 2020. 17 A Robert S. Lasnik 18 19 United States District Judge 20 21 22 23 24 25 26 27 28 ORDER - 11
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
