Hewitt et al v. Quality Loan Services et al, No. 3:2019cv05274 - Document 32 (W.D. Wash. 2019)
Court Description: ORDER granting 17 Motion to Dismiss with prejudice; granting 22 Motion to Strike; renoting 24 MOTION for Sanctions for 8/30/2019; denying 29 Motion for Temporary Restraining Order; terminating 30 Motion for Order. Signed by Judge Benjamin H. Settle. (MGC)
Download PDF
<![CDATA[
Hewitt et al v. Quality Loan Services et al Doc. 32 1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 6 7 8 HENRY and NANCY HEWITT, Plaintiffs, 9 10 v. QUALITY LOAN SERVICES, et al., 11 Defendants. 12 13 14 CASE NO. C19-5274 BHS ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS AND TO STRIKE, STRIKING PLAINTIFFS’ AMENDED COMPLAINTS, DENYING PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER, AND RENOTING DEFENDANTS’ MOTION FOR SANCTIONS This matter comes before the Court on Defendants “Wells Fargo Bank National 15 Association, Wells Fargo Bank National Association as Trustee for Securitized Asset 16 Backed Receivables LLC Trust 2006-FR1 Mortgage Pass-Through Certificates, Series 17 2006-FR1 (“the Trust”), and Select Portfolio Servicing, Inc.’s (“SPS”)” (collectively 18 “Defendants”) motion to dismiss, Dkt. 17, Plaintiffs Henry and Nancy Hewitt’s 19 (“Hewitts”) amended complaint, Dkt. 20, Defendants’ motion to strike unauthorized 20 second amended complaint, Dkt. 22, Defendants’ motion for sanctions, Dkt. 24, the 21 Hewitts’ amended complaint, Dkt. 28, the Hewitts’ motion for a temporary restraining 22 ORDER - 1 Dockets.Justia.com 1 order, Dkt. 29, and the Hewitts’ motion for order, Dkt. 30. The Court has considered the 2 pleadings filed in support of and in opposition to the motions and the remainder of the 3 file and hereby rules as follows: 4 5 I. PROCEDURAL HISTORY On February 8, 2019, the Hewitts filed an amended complaint in Pierce County 6 Superior Court for the State of Washington against Quality Loan Services (“QLS”), 7 Wells Fargo Bank, Select Portfolio Services, and John Does 1-10. Dkt. 1-1. On April 8 11, 2019, Defendants removed the matter to this Court. Dkt. 1. Defendants contend that 9 the Hewitts failed to properly name them and that they do not object to substitution of 10 their correct corporate names to “ensure clarity in this proceeding.” Id. at n.1, n.2. 1 11 On May 30, 2019, Defendants filed a motion to dismiss requesting that the Court 12 dismiss the Hewitts’ claims based on the doctrine of res judicata. Dkt. 17. The Hewitts 13 did not respond, which the Court may consider as an admission that the motion has merit. 14 Local Rules W.D. Wash. LCR 7(b)(2). 15 On June 12, 2019, the Hewitts filed an amended complaint. Dkt. 20. On June 19, 16 2019, Defendants moved to strike the complaint. Dkt. 22. The Hewitts did not respond, 17 which the Court may consider as an admission that the motion has merit. Local Rules 18 W.D. Wash. LCR 7(b)(2). 19 20 1 21 22 The Court grants the implicit motion to substitute the proper names of these defendants because the operative, underlying documents identify the Trust and SPS as the real defendants in interest, see, e.g., Dkt. 18-7 (Notice of Trustee’s Sale), and the Hewitts do not object to this request. ORDER - 2 1 On July 3, 2019, Defendants moved for sanctions. Dkt. 24. On July 18, 2019, 2 Defendants replied stating that the Hewitts had failed to timely respond. Dkt. 26. On 3 July 19, 2019, the Hewitts responded, Dkt. 27, filed another amended complaint, Dkt. 28, 4 filed a motion for temporary restraining order, Dkt. 29, and filed a motion for order, Dkt. 5 30, which is essentially the Hewitts’ proposed temporary restraining order. 2 6 II. FACTUAL BACKGROUND 7 In 2011, the Hewitts sued Wells Fargo Bank alleging among other claims a 8 wrongful foreclosure. Hewitt v. Wells Fargo Bank, Cause No. C11-05147-BHS. The suit 9 ended in a settlement that voided the foreclosure and restored the deed of trust to the 10 Hewitts under a loan modification agreement. Defendants assert that the Hewitts 11 breached their obligations under the settlement, and in 2017 the Trust initiated new 12 nonjudicial foreclosure proceedings. Dkt. 17 at 6. 13 In 2018, the Hewitts sued the Trust in state court alleging numerous causes of 14 action including breach of contract and violations of the Washington Consumer 15 Protection Act. Dkt. 18-3. On November 2, 2018, the Trust moved for summary 16 judgment on all of the Hewitts’ claims. Dkt. 18-4. On November 30, 2018, the court 17 granted the motion and dismissed all of the Hewitts’ claims with prejudice as a matter of 18 law. Dkt. 18-6. 19 20 21 2 22 The Court directs the Clerk to remove this document as a pending motion and clarify that it is only a proposed order. ORDER - 3 1 2 III. DISCUSSION A. Motion to Strike Defendants move to strike the Hewitts’ amended complaint because the Hewitts 3 4 failed to either obtain the “opposing party’s written consent or the court’s leave.” Fed. R. 5 Civ. P. 15(a)(2). The Court agrees and grants Defendants’ motion. Under the same 6 rationale, the Court sua sponte strikes the Hewitts’ other amended complaint, Dkt. 28. 7 B. 8 9 Motion to Dismiss As an initial matter on this motion, the Court considers the Hewitts’ failure to respond as an admission that the motion has merit. Local Rules W.D. Wash. LCR 10 7(b)(2). Although the Hewitts are proceeding pro se, they are experienced in litigating 11 this matter and should have known that some response was necessary. 12 Regarding the merits, Defendants argue that the Court should dismiss the 13 complaint under the doctrine of res judicata, which “bars all grounds for recovery that 14 could have been asserted, whether they were or not, in a prior suit between the same 15 parties on the same cause of action.” Siegel v. Fed. Home Loan Mortg. Corp., 143 F.3d 16 525, 528–29 (9th Cir. 1998) (internal quotation omitted). The doctrine is applicable 17 whenever there is “(1) an identity of claims, (2) a final judgment on the merits, and (3) 18 identity or privity between parties.” Western Radio Servs. Co. v. Glickman, 123 F.3d 19 1189, 1192 (9th Cir. 1997). 20 In this case, Defendants argue that all three elements of res judicata are present. 21 The Court agrees, and the Hewitts fail to present any evidence or argument to the 22 contrary. There is an identity of claims because the Hewitts’ current claims are based on ORDER - 4 1 the same nucleus of facts as in the previous actions, which are the loan documents, the 2 failure to pay under those documents, and the numerous attempts to nonjudicially 3 foreclose. Moreover, all of the Hewitts’ current claims could have been brought in the 4 previous action. Although the Hewitts assert a claim for wrongful foreclosure that could 5 be a claim based on more current facts, it is based on allegations that the Trust is not the 6 current holder of the note. See Dkt. 1-1 at 8–9. Thus, the current claims either were or 7 could have been brought in the previous state court action. 8 Regarding the other two elements, the state court entered a final judgment on the 9 merits, and the parties are identical. Therefore, the Court grants Defendants’ motion to 10 dismiss because the Hewitts’ claims are barred as a matter of law. Based on this ruling, 11 the Court denies the Hewitts’ motion for temporary restraining order as moot. 12 C. Motion for Sanctions 13 Defendants move for sanctions to deter future litigation stemming from their 14 attempts to rightfully foreclose the Hewitts’ property. Dkt. 24. The Hewitts respond and 15 request an extension of time to respond due to medical issues. Dkt. 27. The Court grants 16 the Hewitts’ request and directs the Clerk to renote the motion for consideration on the 17 Court’s August 30, 2019 calendar. Any response is due no later than Tuesday, August 18 27, 2019. IV. ORDER 19 20 Therefore, it is hereby ORDERED that: 21 22 ORDER - 5 1. Defendants’ motion to strike unauthorized second amended complaint, 1 2 Dkt. 22, is GRANTED and the Hewitts’ amended complaints, Dkts. 20, 3 28, shall be stricken; 4 2. Defendants’ motion to dismiss, Dkt. 17, is GRANTED and the Hewitts’ 5 claims are DISMISSED with prejudice as a matter of law; 6 3. The Hewitts’ motion for a temporary restraining order, Dkt. 29, is 7 DENIED; and 8 4. The Clerk shall enter a JUDGMENT; close the case; remove the Hewitts’ 9 motion for order, Dkt. 30, from the active docket and relabel it as a 10 proposed order; and renote Defendants’ motion for sanctions, Dkt. 24, for 11 consideration on the Court’s August 30, 2019 calendar. 12 Dated this 22nd day of July, 2019. 13 A 14 15 BENJAMIN H. SETTLE United States District Judge 16 17 18 19 20 21 22 ORDER - 6
]]>
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.
