Preview:

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 v. WELLS FARGO BANK, N.A., QUALITY LOAN SERVICE CORPORATION OF WASHINGTON, Defendants. This matter comes before the Court on Plaintiff's motion to stay deadlines and case ROSALIND YVETTE SMITH, Plaintiff, CASE NO. 13-5179 RJB ORDER ON PLAINITFF'S MOTION TO STAY UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA

18 schedule for 30 days while Plaintiff finds an attorney. Dkt. 19. The Court has considered the 19 pleadings filed regarding this motion, and the remaining file. 20 On February 1, 2013, Plaintiff filed, pro se, this quiet title action in the Superior Court of

21 Thurston County Washington, seeking injunctive relief to stop the foreclosure on her real 22 property known as 15626 Vail Cut Off Road SE, Rainier, Washington ("property") and to quiet 23 title. Dkt. 1-2. Plaintiff's complaint states that she further seeks a declaration that Defendant 24 Wells Fargo "has no legal or equitable rights in the Note or Mortgage for purposes of

ORDER ON PLAINITFF'S MOTION TO STAY- 1

1 foreclosure." Id., at 3. In the pending motion, Plaintiff seeks a 30 day continuance of all case 2 deadlines while she obtains an attorney. Dkt. 19. She also references the Defendant Wells Fargo 3 Bank N.A.'s ("Wells Fargo") Notice of Removal. Id. Her motion for a 30 day extension of time 4 should be denied as to Wells Fargo's Motion to Dismiss, and granted as to the remaining case 5 deadlines. To the extent that Plaintiff's reference to Wells Fargo's Notice of Removal is a 6 motion to remand, it should be denied. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 A. FACTS The facts are in the Order on Wells Fargo's Motion to Clarify: In September 2008, Plaintiff took out a mortgage for $258,000 with Eagle Home Mortgage, LLC, on the subject property, secured by a Deed of Trust which granted the trustee the property "in trust, with the power of sale." Dkt. 11, at 523. Mortgage Electronic Registration Systems, Inc. ("MERS") was the beneficiary. Id. On October 4, 2011, MERS, as nominee for Eagle Home Mortgage LLC, assigned the Deed of Trust to Defendant Wells Fargo. Dkt. 11, at 25. The assignment was recorded in the Thurston County records on October 7, 2011. Id. Wells Fargo then appointed Quality Loan Service Corp. of Washington as successor trustee for the Deed of Trust and recorded the appointment on April 11, 2012. Id., at 27. On November 20, 2012, Quality Loan Service Corp., as trustee for the Deed of Trust, recorded a Notice of Trustee's Sale. Dkt. 11, at 30. The trustee's sale was scheduled to take place on March 22, 2013. Id. The Complaint alleges that Wells Fargo, the purported servicer of the loan, instituted non-judicial foreclosure proceedings on the property. Dkt. 1-2. Plaintiff asserts that Wells Fargo, "acting as alleged `Trustee' for unnamed `Certificate holders' of a series of mortgage-backed securities, has failed to demonstrate that it, and not the `Certificate holders,' is the party with the true ownership in the mortgage." Id., at 2. She alleges that there is no proof that the certificate holders assigned their rights to Wells Fargo, particularly "the right to seek foreclosure." Id. Plaintiff asserts that Wells Fargo does not have "standing" to foreclose on the property and so the foreclosure should be temporarily and permanently enjoined. Id. Wells Fargo states that on or about February 13, 2012, it received a copy of the Plaintiff's summons and complaint. Dkt. 1. . . . The record further indicates that on February 22, 2013, a hearing was held before the Thurston County Superior Court regarding a motion for an order temporarily restraining the trustee's sale filed by Plaintiff. Dkt. 3, at 40. The clerk's minutes of the hearing provide: I. FACTS AND PROCEDURAL HISTORY

ORDER ON PLAINITFF'S MOTION TO STAY- 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16

Mr. Tim Defors, on behalf of Wells Fargo, and Ms. Rosalind Smith appeared telephonically. The Court indicated that proper service on Quality Loan Service of Washington had not been perfected. The Court indicated to the parties that the issue would not be heard until service was perfected. Mr. Defors responded and indicated that his client was not in opposition to the motion for temporary restraining order, but that monthly payments into the Court Registry would be requested. Mr. Defors had no opinion as to whether the matter could move forward without proper service on Quality Loan Service of Washington. Ms. Smith replied. The Court authorized a preliminary injunction as requested by Ms. Smith, on the condition that the mortgage payment of $1,630.74 per month be paid into the Court Registry. The Court instructed Ms. Smith to prepare the order for payment into the registry. The restraining order will apply only to Wells Fargo and not to Quality Loan Services of Washington. The Court scheduled a presentation date for March 8, 2013, at 9:00 a.m. The Court approved a telephonic hearing, if the parties were so inclined, and instructed the parties to contact the J.A. No orders were signed. Dkt. 3, at 40. Plaintiff failed to appear for the March 8, 2013 hearing and it was stricken. Id. at 40. The record does not contain any further written order from the Thurston County Superior Court on Plaintiff's Motion for a Temporary Restraining Order. (Wells Fargo states that Plaintiff mailed some sort of pleading to its offices in Des Moines, Iowa. In any event, the pleading was not signed by the Thurston County Superior Court). Dkt. 18, at 1-4.

17 B. PROCEDURAL HISTORY 18 On March 11, 2013, Wells Fargo removed the case to this Court based on the diversity of 19 citizenship of the parties under 28 U.S.C.

Download 46148.pdf

Washington Law