Wolf et al v. New Century Mortgage Corporation et al

Filing 18

ORDER Granting Motions to Dismiss 9 13 by Judge Ronald B. Leighton.(JAB)

THE HONORABLE RONALD B. LEIGHTON

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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ANDREW S. WOLF AND STEPHANIE L.
WOLF AND ALL OCCUPANTS,

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Plaintiffs, )
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v.
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NEW CENTURY MORTGAGE CORP,
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MERS Mortgage Electronic Registration
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Systems Inc, WELLS FARGO NA,
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NORTHWEST TRUSTEE SERVICES, doing )
business in the State of Washington,
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Defendants. )
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NO. CV-11-05474-RBL
ORDER GRANTING MOTIONS TO
DISMISS
[DKT. #s 9 & 13]

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THIS MATTER is before the Court on Defendants Wells Fargo Bank, N.A.’s and

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Mortgage Electronic Registration Systems, Inc.’s (MERS) Motion to Dismiss for Failure to

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State a Claim [Dkt. #9], and Defendant Northwest Trustee Services Motion to Dismiss [Dkt.

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#13].

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The case involves the foreclosure of the pro se Plaintiffs’ home, and Plaintiffs’ efforts

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to either stop or recover damages from that foreclosure. Moving Defendants are Wells

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Fargo, MERS, and the successor Trustee. All seek dismissal under Rule 12(b)(6) for failure

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to state a claim. It does not appear that Defendant New Century Mortgage has been served,

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and it has not appeared or sought dismissal.
ORDER- 1

105727.1195/5143994.1

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The Defendants’ Motion argues that plaintiffs have failed to state a claim under Fed.

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R. Civ. P. 12(b)(6). Both Motions are well taken and thorough. Any response was due

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September 5, 2011 Plaintiffs failed to file a response of any kind, though. Under W.D.

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Wash. Local Civil Rule 7(b)(4), the court can deem the Plaintiffs’ failure to respond to be an

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admission that the motion has merit.

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On September 9, 2011, Plaintiffs filed a document entitled “AMENDMENT to:

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Wrongful Foreclosure, Request for Extension of Time, Plaintiff's Request that Pro Se Status

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be Recognized, Nice Offer & Demand, Negligence, Fraud, Cancellation of Voidable

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Contract, Set Aside Trustee's Sale, Void Trustee's Deed Upon Sale, Void Assignment of

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Deed of Trust, Breach of Contract, Breach of Implied Covenant, Unjust Enrichment,

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Violation of Washington Business Code, Quiet Title and Slander of Title.” [Dkt. #17].

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Among other things, that document asks the Court to consider the Plaintiffs’ pleadings in the

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context of their pro se status. The court has done so, and has construed the submittal

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liberally.

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Nevertheless, the 66 page submittal does not address the defendants’ arguments in

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any way. The submittal is largely taken form internet sites, consists of [proposed] discovery

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to the Defendants on a host of irrelevant matters, and misapprehends the burden of proof on

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the Motion and on the underlying claim. Plaintiffs seek additional time to determine the

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whereabouts of their original note, but the “show me the note” defense is not cognizable.

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The request for additional time is therefore DENIED.

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The Motions to Dismiss are GRANTED, and Plaintiffs’ claims against Wells Fargo,

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MERS, and Northwest Trustee Services are DISMISSED. Because there are no facts that the

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Plaintiffs could plead consistent with the record, the dismissal is with prejudice and without

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leave to amend.

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IT IS HEREBY ORDERED, ADJUDGED AND DECREED as follows:
ORDER- 2

105727.1195/5143994.1

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Defendants Wells Fargo Bank, N.A.’s and Mortgage Electronic Registration Systems,

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Inc.’s Motion to Dismiss for Failure to State a Claim is hereby GRANTED. Andrew S.

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Wolf’s and Stephanie L. Wolf’s claims against Wells Fargo Bank, N.A.; Mortgage Electronic

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Registration Systems, Inc.; and Northwest Trustee Services are dismissed with prejudice, and

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without leave to amend.
DATED this13th day of September 2011.

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A

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RONALD B. LEIGHTON
UNITED STATES DISTRICT JUDGE

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ORDER- 3

105727.1195/5143994.1