Moore v. Federal National Mortgage Association et al

Filing 29

ORDER STAYING CASE, by Judge Robert S. Lasnik. (CL) (cc: T. Moore)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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_______________________________________
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TIMOTHY H. MOORE,
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Plaintiff,
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v.
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FEDERAL NATIONAL MORTGAGE
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ASSOCIATION, et al.,
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Defendants.
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_______________________________________)

No. C11-1342RSL

ORDER STAYING CASE

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On February 9, 2012, the Court granted plaintiff leave to amend his complaint to

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remedy a deficiency in the allegations supporting his Deed of Trust Act (“DTA”), Consumer

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Protection Act (“CPA”), declaratory judgment, and Fair Debt Collection Practices Act

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(“FDCPA”) claims. Plaintiff was instructed “to file an amended complaint that includes, to the

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extent consistent with his obligations under Federal Rule of Civil Procedure 11, an allegation

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that the property at issue was owner-occupied at the time he received the notice of default.” Dkt.

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# 25 at 11-12. Plaintiff’s Real Estate Settlement Procedures Act (“RESPA”) and federal tax law

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claims survived defendant’s motion to dismiss, but his Civil Rights Act, Fair Credit Reporting

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Act (“FCRA”), rescission and expungement claims did not. Defendants were ordered to show

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cause why this matter should not be stayed pending the Washington Supreme Court’s decision

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regarding Mortgage Electronic Registration Systems’ (“MERS”) ability to serve as the

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beneficiary under a deed of trust.

ORDER STAYING CASE

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Plaintiff filed his “First Amended Verified Complaint” on March 2, 2012. Dkt.

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# 28.1 Plaintiff asserts only three causes of action in the amended pleading: an FDCPA claim

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against all defendants, a breach of contract claim against MERS, and a DTA claim against all

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defendants. Plaintiff has not remedied the deficiency identified by the Court, however: he has

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not alleged that the subject property was owner-occupied at the time he received the notice of

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default. In the absence of such an allegation, the FDCPA and DTA claims asserted in the First

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Amended Verified Complaint fail as a matter of law for the reasons stated in the Court’s

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February 9, 2012, Order. Plaintiff’s only other claim – that MERS’ breached the note and/or the

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deed of trust – was not asserted in the original complaint. While the Court suspects that this

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claim was waived along with the DTA and declaratory judgment claims, the breach of contract

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claim was not the subject of defendants’ motion to dismiss and the Court declines to sua sponte

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determine its validity.
Defendants argue that a stay of the above-captioned matter is not appropriate

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because plaintiff failed to restrain the trustee’s sale. Dkt. # 27 at 2-3 (citing Townley v. BAC

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Home Loans, C10-1720JCC, slip op. at 3 (W.D. Wash. June 29, 2011)). Whether MERS may

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act as a beneficiary under the DTA when it does not hold the note secured by the deed of trust

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and the legal effect of any ultra vires acts goes to the merits of plaintiff’s breach of contract

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claim, however. Because the Washington Supreme Court’s resolution of those issues may be

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relevant to plaintiff’s one remaining claim, a stay is appropriate.

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The above-captioned matter is hereby STAYED pending the Washington Supreme

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Court’s decision on the questions certified in Selkowitz v. Litton Loan Servicing LP, C10-

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5523JCC (W.D. Wash), and Bain v. Metro. Mortg. Group Inc., C09-0149JCC (W.D. Wash.).

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The parties shall, within twenty-one days of the Supreme Court’s ruling on the certified

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Although the amended complaint was untimely filed, it has been accepted and is now the
operative pleading in this matter.
ORDER STAYING CASE

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questions, file a status report in this case.

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Dated this 19th day of March, 2012.

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A
Robert S. Lasnik
United States District Judge

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ORDER STAYING CASE

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