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

Filing 29

ORDER defering pltf's 24 Motion for Reconsideration and staying case pending resolution of certified question to WA Supreme Court by Judge Ricardo S Martinez.(RS)

1
2
3
4
5
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

6
7
8
9

SUSAN KRUSEE, an individual,
Plaintiffs,

10
11
12
13
14
15

vs.
BANK OF AMERICA, N.A., THE BANK
OF NEW YORK MELLON, FKA THE
BANK OF NEW YORK, AS TRUSTEE
FOR THE CERTIFICATE HOLDERS OF
THE CWALT INC. ALTERNATIVE
LOAN TRUST 2006-29T1, AND BISHOP,
WHITE, MARSHALL & WEIBEL

Case No. C13-824 RSM
ORDER DEFERING MOTION FOR
RECONSIDERATION AND STAYING
CASE

Defendants.

16
17
18
19
20

This matter comes before the Court on Plaintiff’s Motion for Reconsideration (Dkt. #
24). Plaintiff requests that the Court reconsider dismissal of her first cause of action for breach
of the Washington Deed of Trust Act (“DTA”). See Dkt. # 22. Previously, the Court dismissed

21

that cause of action for failure to state a claim on the basis that a borrower has no cause of

22

action for the initiation of wrongful foreclosure under the DTA until a trustee’s sale of the

23

property has occurred. Id. at p. 4. Plaintiff now brings to the Court’s attention new authority

24

issued by Division I of the Washington State Court of Appeals. In Walker v. Quality Loan Serv.

25

Corp., 308 P.3d 716 (Wash. Ct. App. Aug 5, 2013), the court held that

26
27

ORDER - 1

1
2
3
4

a borrower has an actionable claim against a trustee who, by acting
without lawful authority or in material violation of the DTA, injures the
borrower, even if no foreclosure sale occurred. Additionally, where a
beneficiary, lawful or otherwise, so controls the trustee so as to make the
trustee a mere agent of the beneficiary, then, as principal, it may have
vicarious liability.

5

Id. at 724. Because Walker rejected the position taken by this Court in foreclosure actions,

6

Plaintiff seeks reinstatement of her dismissed DTA claim. Although Walker is not controlling

7

authority as federal courts sitting in diversity are bound only by the state’s highest court (In re

8
9

Kirkland, 915 F.3d 1236, 1238-39 (9th Cir. 1990)), this Court has since certified two questions

10

to the Washington Supreme Court for its consideration. The Court posed whether (1) “[u]nder

11

Washington law, may a plaintiff state a claim for damages relating to a breach of duties under

12

the Washington Deed of Trust Act and/or failure to adhere to the statutory requirements of the

13

Deed of Trust Act in the absence of a completed trustee’s sale of real property,” and (2) “[i]f a

14
15
16
17
18

plaintiff may state a claim for damages prior to a trustee sale of real property, what principles
govern his or her claim under the Consumer Protection Act and the Deed of Trust Act?” Order
Certifying Questions to the Washington Supreme Court (Dkt. # 48), Frias v. Asset
Foreclosures Serv. Inc., Case No. C13-760-MJP (W.D. Wash. Sept. 25, 2013).

19

In light of the Order Certifying Questions to the Washington Supreme Court, the Court

20

finds it appropriate to defer ruling on Plaintiff’s motion for reconsideration and stay this action

21

until after the Washington Supreme Court has provided additional guidance. Accordingly, the

22
23
24

case is hereby STAYED pending resolution of the certified questions.
Dated this 13th day of November 2013.

A

25
26

RICARDO S. MARTINEZ
UNITED STATES DISTRICT JUDGE

27

ORDER - 2