Church of the Gardens v. Quality Loan Services Corporation

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 CHURCH OF THE GARDENS et al., Case No. 3:23-cv-06193-TMC 8 Plaintiff, ORDER GRANTING DEUTSCHE BANK’S 9 MOTION FOR SUMMARY JUDGMENT v. AND DENYING PLAINTIFFS’ MOTION 10 FOR SUMMARY JUDGMENT QUALITY LOAN SERVICES 11 CORPORATION et al., 12 Defendant. 13 14 I. INTRODUCTION 15 This case arises from Plaintiff Alvin White’s default on five mortgage loans, secured by 16 five separate properties in Fife, Washington. On January 5, 2024, Defendant Deutsche Bank 17 National Trust Company, as Trustee for Holders of Long Beach Mortgage Loan Trust 2006-4, 18 Asset-Backed Certificates, Series 2006-4 (“2006-4 Trust”) and Long Beach Mortgage Loan 19 Trust 2006-5 (“2006-5 Trust”) (collectively “the Trusts”), sold two of the five properties through 20 a nonjudicial foreclosure proceeding. 21 Plaintiffs White and Church of the Gardens filed suit, alleging that Deutsche Bank did 22 not possess the original promissory notes required to proceed with the nonjudicial foreclosure. 23 Plaintiffs seek to restrain the future sale of the remaining three properties and request damages 24 1 for the prior two sales. Plaintiffs allege that selling the properties violated the Washington Deed 2 of Trust Act (“DTA”) and Washington Consumer Protection Act (“CPA”), as well as breached 3 the loan contract. Plaintiffs also raise federal and state constitutional challenges to the DTA. 4 Finally, Plaintiffs seek a declaration on the meaning and governing version of RCW 61.24.130, 5 the provision in the DTA allowing the borrower to restrain a trustee’s sale. 6 On April 30, 2025, Deutsche Bank moved for summary judgment, arguing that Plaintiffs 7 had failed to put forth evidence from which a jury could find that the Trusts did not hold the 8 original notes. Dkt. 67. Plaintiffs also cross-moved for summary judgment, contending that 9 “there is irrefutable evidence that promissory notes—including those signed by White in 2006— 10 were routinely destroyed by the financial industry shortly after execution.” Dkt. 76 at 8–9. 11 Upon reviewing the motions and briefing, the Court ordered supplemental briefing 12 because both parties did not address all the claims raised in Plaintiffs’ amended complaint, the 13 relevant standard for challenging expert testimony, and whether Church of the Gardens has 14 standing to pursue its claims. Dkt. 91. On July 16, 2025, the parties filed supplemental briefs. 15 Dkts. 96, 97, 98, 99. 16 Having considered the briefing, governing law, and the balance of the record, the Court 17 GRANTS Deutsche Bank’s motion for summary judgment (Dkt. 67). Plaintiffs’ cross-motion for 18 summary judgment (Dkt. 76) is DENIED as moot. 19 II. BACKGROUND 20 A. Factual Background The following background facts are either not genuinely disputed or viewed in the light 21 most favorable to Plaintiffs, the non-moving party. Additional material facts for each claim 22 brought by Plaintiffs are discussed in the sections corresponding to those claims. 23 24 1 1. White executed five promissory notes and deeds of trust to secure loans borrowed from Long Beach Mortgage Company. 2 In February 2006, White purchased five properties—Lot 11, Lot 16, Lot 7, Lot 10, and 3 Lot 12—using funds borrowed from Long Beach Mortgage Company. White executed five 4 promissory notes and deeds of trust to secure the loans. See Dkts. 70-1, 70-8, 70-14, 70-19, 70- 5 24 (promissory notes); Dkts. 70-2, 70-9, 70-15, 70-20, 70-25 (deeds of trust). Defendant Quality 6 Loan Services Corporation of Washington (“QLS”) is acting as the successor trustee for Lots 16 7 and 11, see Dkt. 72 at 2, and Defendant MTC Financial Inc. (doing business as “Trustee Corps”) 8 is acting as the successor trustee for Lots 7, 10, and 12, see id. at 7–8, 10, 13–14. QLS sold Lots 9 11 and 16 to the Trusts on January 5, 2024 at a public auction. See Dkt. 70-7, 70-13. Trustee 10 Corps recorded a Notice of Trustee’s Sale in Pierce County, Washington for Lots 7, 10, and 12, 11 see Dkt. 72 at 16–20, 41–48, 53–54, but it later cancelled the sale by recording a Discontinuance 12 of Sale, see id. at 22–23, 50–51, 53–54. Since this case has been pending, Trustee Corps has not 13 served or recorded any new Notice of Trustee’s Sales for the remaining Lots. Id. at 4. 14 a. Loan 3221 15 White executed a promissory note for the principal sum of $333,000, which was secured 16 by a Deed of Trust encumbering real property Lot 11. Dkt. 70-1; Dkt. 70-2. The Deed of Trust 17 was recorded as Instrument No. 200603030818 on March 3, 2006 in Pierce County, Washington. 18 Dkt. 70-2 at 2. Loan 3221 went into default after White missed the January 1, 2009 payment. 19 Dkt. 70 ¶ 12. 20 On February 28, 2009, the Deed of Trust was transferred to Deutsche Bank as Trustee for 21 the 2006-4 Trust, which was assigned as the beneficiary. Dkt. 70-3. The mortgage was also 22 transferred to Deutsche Bank on January 27, 2023, assigning 2006-4 Trust as the beneficiary. 23 Dkt. 70-4. Both assignments were recorded in Pierce County, Washington. Dkt. 70-3 at 2; 24 1 Dkt. 70-4 at 2. The document control notes by the mortgage servicer, Select Portfolio Servicing, 2 Inc. (“SPS”), state that the promissory note for Loan 3221 was sent by Deutsche Bank to SPS to 3 be placed in SPS’s vault in Salt Lake City, Utah on May 3, 2019. Dkt. 70 ¶ 11; Dkt. 70-5 at 2, 4. 4 On October 14, 2024, the note was sent to the Trusts’ counsel’s office in Seattle, Washington. 5 Dkt. 70 ¶ 15; Dkt. 70-5 at 5. 6 Due to the default, Loan 3221 was referred for a nonjudicial foreclosure and successor 7 trustee QLS recorded a Notice of Trustee Sale on May 10, 2023 in Pierce County, Washington. 8 Dkt. 70-6. The Notice of Trustee Sale indicated that the amount in arrears was $562,990.56 and 9 that the default “must be cured by 9/4/2023 (11 days before the sale date), or by other date as 10 permitted in the Note or Deed of Trust, to cause a discontinuance of the sale.” Id. at 3. It also 11 noted that Lot 11 was being sold “to secure an obligation in favor of LONG BEACH 12 MORTGAGE COMPANY, as original beneficiary, the beneficial interest in which was 13 subsequently assigned to Deutsche Bank National Trust Company, as Trustee, in trust for 14 registered Holders of Long Beach Mortgage Loan Trust 2006-4, Asset-Backed Certificates, 15 Series 2006-4, the Beneficiary[.]” Id. at 2. 16 After the sale was postponed twice, it was completed on January 5, 2024 at a public 17 auction and Lot 11 was sold to the 2006-4 Trust for the amount of $650,250. Dkt. 70-7 at 3. The 18 Trustee’s Deed Upon Sale was recorded in Pierce County, Washington under Instrument No. 19 202101160348 on January 16, 2024. Id. at 1. 20 b. Loan 1002 21 White executed a second promissory note for the principal sum of $382,500, which was 22 secured by a Deed of Trust encumbering real property Lot 16. Dkt. 70-8; Dkt. 70-9. The Deed of 23 Trust was recorded as Instrument No. 200603030826 on March 3, 2006 in Pierce County, 24 1 Washington. Dkt. 70-9 at 2. After White missed the January 1, 2009 payment, Loan 1002 went 2 into default. Dkt. 70 ¶ 21. 3 SPS’s document control notes show that the promissory note for Loan 1002 was sent to 4 SPS from Deutsche Bank on July 2, 2015 and held in SPS’s vault in Salt Lake City, Utah. 5 Dkt. 70-11 at 4. On December 2, 2024, the note was sent to the Trusts’ counsel’s office in 6 Seattle, Washington. Dkt. 70 ¶ 24; Dkt. 70-11 at 7. 7 Loan 1002 was referred for a nonjudicial foreclosure following White’s default in 8 payments. Dkt. 70 ¶ 21. Successor trustee QLS recorded a Notice of Trustee Sale on May 17, 9 2023 in Pierce County, Washington. Dkt. 70-10. The total sum in arrears was $617,254.33 and 10 the Notice of Trustee Sale stated that Lot 16 was being sold “to secure an obligation in favor of 11 LONG BEACH MORTGAGE COMPANY, as original beneficiary, the beneficial interest in 12 which was subsequently assigned to Deutsche Bank National Trust Company, as Trustee, in trust 13 for registered Holders of Long Beach Mortgage Loan Trust 2006-5, Asset-Backed Certificates, 14 Series 2006-5, the Beneficiary[.]” Id. at 2–3. 15 The sale was completed at a public auction on January 5, 2024, and Lot 16 was sold to 16 the 2006-5 Trust for $722,500. Dkt. 70-13 at 3. The Trustee’s Deed Upon Sale was recorded in 17 Pierce County, Washington under Instrument No. 202401160353 on January 16, 2024. Id. at 1. 18 c. Loan 3205 19 White executed a third promissory note for the principal sum of $333,000, which was 20 secured by a Deed of Trust encumbering real property Lot 7. Dkt. 70-14; Dkt. 70-15. The Deed 21 of Trust was recorded as Instrument No. 200603030820 on March 3, 2006 in Pierce County, 22 Washington. Dkt. 70-15 at 2. 23 On February 28, 2009, the Deed of Trust was transferred to Deutsche Bank as Trustee, 24 naming the 2006-5 Trust as the beneficiary. Dkt. 70-16. The assignment was recorded in Pierce 1 County, Washington on April 15, 2009. Id. at 2. A Corporate Assignment of Deed of Trust was 2 also later recorded on February 7, 2023, which again named 2006-5 Trust as the beneficiary. 3 Dkt. 70-17 at 2. 4 SPS’s document control notes show that on October 16, 2024, Deutsche Bank sent the 5 promissory note for Loan 3205 to SPS to be held in its vault in Salt Lake City, Utah. Dkt. 70 6 ¶ 29; Dkt. 70-18 at 3. On October 21, 2024 the note was then sent to the Trusts’ counsel’s office 7 in Seattle, Washington, where it is currently held. Dkt. 70-18 at 3. 8 d. Loan 3213 9 White executed a fourth promissory note for the principal sum of $382,500, which was 10 secured by a Deed of Trust encumbering real property Lot 10. Dkt. 70-19; Dkt. 70-20. The Deed 11 of Trust was recorded as Instrument No. 200603030822 on March 3, 2006 in Pierce County, 12 Washington. Dkt. 70-20 at 2. After White failed to make the May 1, 2018 payment, Loan 3213 13 went into default. Dkt. 70 ¶ 36. 14 The Deed of Trust was transferred to Deutsche Bank on February 28, 2009, naming Trust 15 2006-5 as the beneficiary. Dkt. 70-21. This assignment was recorded in Pierce County, 16 Washington on April 9, 2009 under Instrument No. 200904030273. Id. at 2. On May 25, 2016, a 17 Corporate Assignment of Deed of Trust was recorded under Instrument No. 201605250006, 18 again naming 2006-5 Trust as the beneficiary. Dkt. 70-22. 19 SPS’s document control notes state that SPS’s vendor, Richmond Monroe Group, held 20 the promissory note for Loan 3213 until it sent the note to Trusts’ counsel’s office in Seattle, 21 Washington on October 8, 2024, where it is currently stored. Dkt. 70 ¶ 35; Dkt. 70-23 at 3. 22 e. Loan 3239 23 White executed a fifth promissory note for the principal sum of $333,000, which was 24 secured by a Deed of Trust encumbering real property Lot 12. Dkt. 70-24; Dkt. 70-25. The Deed 1 of Trust was recorded as Instrument No. 200603030824 on March 3, 2006 in Pierce County, 2 Washington. Dkt. 70-25 at 2. Loan 3239 went into default after White missed his March 1, 2018 3 payment. Dkt. 70 ¶ 42. 4 On February 28, 2009, the Deed of Trust was transferred to Deutsche Bank as Trustee for 5 the 2006-5 Trust, which was the assigned beneficiary. Dkt. 70-26 at 2. This assignment was 6 recorded in Pierce County, Washington on April 9, 2009 under Instrument No. 200904090276. 7 Id. On June 29, 2016, a Corporate Assignment of Deed of Trust was recorded under Instrument 8 No. 201606290260, listing 2006-5 Trust as the beneficiary. Dkt. 70 ¶ 39; Dkt. 70-27 at 3. 9 SPS’s document control notes reflect that SPS received the note for Loan 3239 from 10 Deutsche Bank on October 16, 2024. Dkt. 70-28 at 3. Two days later, SPS sent the note to 11 Trusts’ counsel’s office, where it is currently held. Id.; Dkt. 70 ¶ 41. 12 2. Church of the Gardens 13 Church of the Gardens (“COTG”) is a nonprofit organization with a mission to “minister 14 to and protect those in need such as the hungry, the sick, the poor, and the homeless, the 15 indebted, the enslaved, the vulnerable, and all others who are unfairly prevented from exercising 16 their inalienable God-given natural rights.” Dkt. 102-1 at 3; Dkt. 102-3 at 2. Part of COTG’s 17 mission is “to engage in activities necessary for the accomplishment of the mission” and “to 18 oppose all, which by design or through corruption, are inimical to the church’s mission[.]” 19 Dkt. 102-1 at 3; Dkt. 102-3 at 2. COTG “was born out of the government corruption which is 20 claimed to exist in this case with regards to governments’, government institutions’ and their 21 officials’ (including ‘judges’) unlawful removal of people from their homes for the benefit of 22 23 24 1 money changers,1 often causing death and injury to persons and always taking their real 2 property.” Dkt. 102 ¶ 21. 3 COTG is overseen by the Governing Board, which is the “church’s final interpretive 4 authority on the Bible’s meaning and application as it applies to the mission and faith of this 5 Church.” Dkt. 102-1 at 3. The Governing Board is composed of seven directors—three founding 6 directors and four ministry directors. Id. at 5. The ministry directors represent the Economic and 7 Social Justice Ministry, the Opposition to Governmental Injustice Ministry, the Affiliated 8 Church, Faith Based Organizations, and Chapel Ministry, and the Education, Workship, and 9 Outreach Ministry. Id. at 5–6. 10 COTG has been a party to other cases challenging the nonjudicial sale of properties. 11 Dkt. 102 ¶ 14; see Dkt. 102-6. Scott E. Stafne is a “Church Advocate” representing COTG in 12 these cases. Dkt. 102 ¶¶ 14, 20. Stafne has “help[ed] [] write the Church’s mission statement, 13 statement of faith, and bylaws” and works to prevent the “unlawful exercise of state authority on 14 behalf of money changers to take real properties from their owners in Washington State.” Id. 15 ¶¶ 20, 35. 16 B. Procedural Background 17 Plaintiffs White and COTG filed suit in Pierce County Superior Court on December 13, 18 2023 against Defendants QLS, Trustee Corps, Deutsche Bank National Trust Company, 2006-4 19 Trust, 2006-5 Trust, and the State of Washington. Dkt. 1-2. Deutsche Bank removed the case to 20 21 1 In their cross-motion for summary judgment, see Dkt. 76 at 9, Plaintiffs adopt the term “money changers” to refer to the financial industry. Plaintiffs assert that the “term is used deliberately 22 and with respectful awareness of its biblical weight” given that “[i]n the Scripture, the money changers were those who exploited sacred obligations by manipulating the means of exchange 23 within the Temple. . . . [and similarly,] today’s financial institutions manipulate legal forms and credit instruments—converting the borrower’s own promise into a source of profit for the money 24 changer who risks nothing.” Id. 1 this Court on December 28, 2023. Dkt. 1. On January 8, 2024, Plaintiffs amended their 2 complaint. Dkt. 8. 3 The 109-page complaint contained numerous allegations and legal theories for why the 4 past or potential future nonjudicial sale of White’s properties violates “the organic law of this 5 Nation and the State of Washington.” Id. ¶¶ 1.3, 4.18. Plaintiffs’ core allegation is that the five 6 promissory notes at issue were lost or destroyed within a year of when the notes were signed by 7 White, thus cancelling the debt related to the mortgage loans. Id. ¶¶ 3.24, 3.28. Since the notes 8 were lost or destroyed, Plaintiffs assert that they “were never transferred into either of the 9 Defendant Trusts or any other trust.” Id. ¶ 3.27. As a result, Plaintiffs allege that Defendants 10 cannot enforce the notes against White and any attempts to do so are unlawful. Id. ¶¶ 4.11–4.18. 11 Plaintiffs assert the following causes of action: (1) QLS’s sale of Lot 11 and Lot 16 under 12 the DTA violates the due process clause, equal protection clause, and takings clause of the U.S. 13 Constitution; (2) the sale violates Article 1, section 10, Article IV, section 6, and Article V, 14 section 6 of the Washington Constitution; (3) the sale violates the DTA and CPA, and constitutes 15 a breach of contract. Id. ¶¶ 4.7, 3.99(H), 3.99(I), 3.98, 4.6, 4.8, 4.11–4.18. 16 Plaintiffs further assert that they are entitled to a declaration that the 2006 version of 17 RCW 61.24.130 is the governing law and a declaration as to the meaning of the current version 18 of RCW 61.24.130. Id. ¶¶ 4.1, 4.2. Plaintiffs also seek an injunction restraining Trustee Corps 19 from proceeding with the nonjudicial sale of the remaining Lots 7, 10, and 12, id. ¶¶ 4.9–4.10, 20 and request damages from QLS and Deutsche Bank for the prior sale of Lots 11 and 16, id. 21 ¶¶ 4.11–4.18. 22 On January 11, 2024, the State of Washington moved to dismiss for failure to state a 23 claim, Dkt. 12, which the Court granted, Dkt. 39. The Court also granted Trustee Corps’ motion 24 to determine validity of nonmonetary status. Dkts. 51, 74. Trustee Corps was excused from 1 participating in the litigation, though it remains bound by this Court’s ruling on Plaintiffs’ 2 claims. Dkt. 74 at 7. 3 On April 30, 2025, Deutsche Bank moved for summary judgment, Dkt. 67, and Plaintiffs 4 cross-moved for summary judgment, Dkt. 76. QLS joined Deutsche Bank’s motion for summary 5 judgment. Dkt. 73. After reviewing the motions and briefing, the Court ordered parties to submit 6 two supplemental briefs. First, the parties were asked to file a brief addressing the Federal Rule 7 of Evidence 702/Daubert standard for the expert witnesses whose testimony they argued was 8 unreliable. Dkt. 91; see also Dkt. 104 at 3–4. Second, the parties were asked to file a brief 9 addressing (1) Plaintiffs’ federal and state constitutional claims challenging the Deed of Trust 10 Act; (2) Plaintiffs’ declaratory judgment claims with respect to RCW 61.24.130; (3) Plaintiffs’ 11 claims for equitable relief; and (4) whether Plaintiff Church of the Gardens (as opposed to 12 White) has Article III standing to pursue its claims. Id. 13 Plaintiffs objected to the Court’s order for supplemental briefing and moved to recuse the 14 undersigned district judge. Dkt 92. In their objections, Plaintiffs argued that the Court was 15 improperly providing Defendants “an opportunity to make additional arguments pursuant to 16 [FRE] 702 to exclude the Plaintiffs’ engineering expert, who had not been timely challenged on 17 such grounds.” Id. at 2–3. Plaintiffs also disavowed the notion that they “have attempted to 18 exclude the money changers’ experts” and asserted that the “record shows (and this Court should 19 know this) that Plaintiffs have not moved to exclude Defendants’ expert; rather Plaintiffs rely on 20 Defendants’ expert witness graphology-trained handwriting expert, McFarland, to support their 21 theory of the case.” Id. at 3. In denying Plaintiffs’ motion for recusal, the Court rejected as 22 unsupported and conclusory their claim that the Court’s order for supplemental briefing was 23 based on bias and animus towards Plaintiffs. Dkt. 93. 24 1 On July 16, 2025, Deutsche Bank filed its supplemental briefs, and moved to exclude 2 Plaintiffs’ proffered experts, James M. Kelley, Ph.D., and William Paatalo. Dkt. 96; Dkt. 97. The 3 Court ruled on the challenge to that testimony in a separate order. Dkt. 104. Plaintiffs also filed 4 supplemental briefs. Dkt. 98; Dkt. 99. The motions are ripe for the Court’s consideration. 5 III. LEGAL STANDARD 6 A. Standing Article III of the U.S. Constitution limits the Court’s jurisdiction to “cases” and 7 “controversies.” U.S. Const. art. III, § 2. For a case or controversy to exist, the party bringing the 8 case must have standing. Perry v. Newsom, 18 F.4th 622, 630 (9th Cir. 2021). The “irreducible 9 constitutional minimum” of Article III standing requires the plaintiff to show the following three 10 elements: “(1) [The plaintiff] suffered an injury in fact, (2) that is fairly traceable to the 11 challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial 12 decision.” Spokeo v. Robins, 578 U.S. 330, 338 (2016). As the party invoking the Court’s 13 jurisdiction, the plaintiff “bears the burden of establishing these elements.” Id. 14 Injury in fact is the “[f]irst and foremost” of the three elements. Id. “To establish injury in 15 fact, a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’ that 16 is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Id. at 17 339 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). A concrete injury is one that 18 is “real, and not abstract.” Spokeo, 578 U.S. at 340 (internal quotation marks omitted). “An 19 injury in fact can be a physical injury, a monetary injury, an injury to one’s property, or an injury 20 to one’s constitutional rights, to take just a few common examples.” FDA v. All. for Hippocratic 21 Med., 602 U.S. 367, 381 (2024). “A ‘particularized injury’ is one that ‘affect[s] the plaintiff in a 22 personal and individual way.’” Safer Chems., Healthy Fams. v. U.S. Env’t Prot. Agency, 943 23 F.3d 397, 411 (9th Cir. 2019) (quoting Spokeo, 578 U.S. at 339). 24 1 B. Summary Judgment Standard 2 “The court shall grant summary judgment if the movant shows that there is no genuine 3 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 4 Civ. P. 56(a). A dispute as to a material fact is genuine “if the evidence is such that a reasonable 5 jury could return a verdict for the nonmoving party.” Villiarimo v. Aloha Island Air, Inc., 281 6 F.3d 1054, 1061 (9th Cir. 2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 7 (1986)). The moving party has the initial burden of “‘showing’—that is, pointing out to the 8 district court—that there is an absence of evidence to support the nonmoving party’s case.” 9 Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party meets its initial burden, 10 the nonmoving party must go beyond the pleadings and “set forth specific facts showing that 11 there is a genuine issue for trial.” Anderson, 477 U.S. at 248. The moving party is entitled to 12 judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an 13 essential element of a claim on which the nonmoving party has the burden of proof. Celotex, 477 14 U.S. at 323. 15 Generally, “‘[t]he evidence of the nonmovant is to be believed, and all justifiable 16 inferences are to be drawn in his favor.’” Tolan v. Cotton, 572 U.S. 650, 651 (2014) (per curiam) 17 (quoting Anderson, 477 U.S. at 255). “Credibility determinations, the weighing of the evidence, 18 and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.” 19 Anderson, 477 U.S. at 255. Thus, at summary judgment, the court must resolve “factual issues of 20 controversy in favor of the non-moving party[.]” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 21 889 (1990) (internal quotations omitted). But conclusory, nonspecific statements in affidavits are 22 not sufficient, and “missing facts” will not be presumed. See Lujan, 497 U.S. at 889. 23 24 1 IV. DISCUSSION 2 A. Church of the Gardens lacks standing to bring its claims. The Court asked the parties to brief standing because “it is well established that the court 3 has an independent obligation to assure that standing exists, regardless of whether it is 4 challenged by any of the parties.” Summers v. Earth Island Inst., 555 U.S. 488, 499 (2009) 5 (citation omitted); see also Bowen v. Energizer Holdings, Inc., 118 F.4th 1134, 1149 (9th Cir. 6 2024) (“[W]e have an independent obligation to consider standing sua sponte.”) (citation 7 modified). “The party invoking federal jurisdiction bears the burden of establishing” Article III 8 standing “with the manner and degree of evidence required at the successive stages of the 9 litigation.” Lujan, 504 U.S. at 561 (citation modified). “Thus, at the summary judgment stage, a 10 plaintiff must offer evidence and specific facts demonstrating each element.” Ctr. for Biological 11 Diversity v. Exp.-Imp. Bank of the United States, 894 F.3d 1005, 1012 (9th Cir. 2018) (citing 12 Lujan, 504 U.S. at 561). 13 1. Direct Standing 14 When a plaintiff is an organization, “the standing requirements of Article III can be 15 satisfied in two ways.” Students for Fair Admissions, Inc. v. President & Fellows of Harvard 16 Coll., 600 U.S. 181, 199 (2023). “Either the organization can claim that it suffered an injury in 17 its own right, or alternatively, it can assert ‘standing solely as the representatives of its 18 members.’” Id. (quoting Warth v. Seldin, 422 U.S. 490, 511 (1975)). 19 The “in its own right” line of organizational standing cases come from the Supreme 20 Court’s decision in Havens v. Realty Corp. v. Coleman, 455 U.S. 363 (1982), where the court 21 held that a concrete and demonstrable injury to the organization’s activities demonstrated 22 through a drain on the organization’s resources could establish standing. Rodriguez v. City of San 23 Jose, 930 F.3d 1123, 1134 (9th Cir. 2019). The Ninth Circuit has interpreted Havens to require 24 1 that an organization show: “(1) frustration of its organizational mission; and (2) diversion of its 2 resources to combat the particular [injurious behavior] in question.” Id. (quoting Smith v. Pac. 3 Props. & Dev. Corp., 358 F.3d 1097, 1105 (9th Cir 2004)). The organization, however, cannot 4 “manufacture the injury by incurring litigation costs or simply choosing to spend money fixing a 5 problem that otherwise would not affect the organization at all.” Id. (quoting La Asociacion de 6 Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d 1083, 1088 (9th Cir. 2010)). 7 Importantly, “organizations must satisfy the usual standards for injury in fact, causation, and 8 redressability that apply to individuals.” Food & Drug Admin. v. All. for Hippocratic Med., 602 9 U.S. 367, 393–94 (2024) (citing Havens, 455 U .S. at 378–79). 10 Deutsche Bank argues that Church of the Gardens (“COTG”) lacks standing to bring this 11 case because it “does not have a ‘personal stake in the outcome of the controversy’ that would 12 entitle it to any relief from this Court.” Dkt. 97 at 9 (citation omitted). Specifically, Deutsche 13 Bank points out that the only allegation in Plaintiffs’ complaint referencing COTG is that it “is a 14 Washington not for profit corporation [] operating as a Christian religious organization for the 15 purpose of achieving its spiritual and religious purposes as per its mission statement as that 16 statement has been interpreted through COTG’s Board of Directors.” Id. (quoting Dkt. 8 ¶ 1.2). 17 Deutsche Bank further argues that Plaintiffs have presented no evidence to establish a 18 relationship between COTG and any part of this case given that the “public records indicate that 19 COTG is not a record owner of any of the five subject properties, and the loan records show that 20 COTG is not a party to any of the five subject notes and deeds of trust.” Id. (citing Dkts. 70-1, 21 70-2, 70-8, 70-9, 70-14, 70-15, 70-19, 70-20, 70-24, 70-25). 22 Plaintiffs contend that courts “allow standing where an organization itself suffers a 23 cognizable injury to its mission or resources[.]” Dkt. 99 at 7 (first citing Havens, 455 U.S. at 24 378–79; and then citing E. Bay Sanctuary Covenant v. Biden, 993 F.3d 640, 662 (9th Cir. 2021)). 1 Plaintiffs assert that COTG’s mission is “to minister to and protect those in need such as the 2 hungry, the sick, the poor, the homeless, the indebted, the enslaved, the vulnerable, and all others 3 who are unfairly prevented from exercising their inalienable God-given natural rights.” Dkt. 99 4 at 6–7 (citing Dkt. 102-1 at 3). Since COTG’s mission statement also includes “engag[ing] in 5 activities necessary for the accomplishment of the mission” and “oppos[ing] all, which by design 6 or through corruption, are inimical to the church’s mission,” Plaintiffs argue that “defending a 7 member, like Alvin White, from an allegedly fraudulent and unjust foreclosure directly aligns 8 with and is essential to the Church’s institutional purpose.” Id. Plaintiffs contend that the 9 “Church’s time, energy, and resources expended to defend White and other members, resist 10 unlawful displacement, and oppose systemic injustice reflect exactly the kind of mission-related 11 institutional injury recognized by the courts.” Id. at 6. 12 Plaintiffs’ arguments are unpersuasive. The Court first addresses Plaintiffs’ contention 13 that COTG has asserted standing in its own right. For this argument, Rodriguez v. City of San 14 Jose is instructive. 930 F.3d at 1127. There, the Second Amendment Foundation, Inc., (“SAF”) 15 and the Calguns Foundations, Inc. (“CGF”) joined Lori Rodriguez as co-plaintiffs in a suit 16 against the City of San Jose alleging that the city unlawfully seized her firearms in violation of 17 her Second, Fourth, Fifth, and Fourteenth Amendment rights. Id. at 1127–29. The City of San 18 Jose had filed a petition in state court, “seeking an order of forfeiture based on a determination 19 that the guns’ return would likely endanger” Rodriguez’s husband, who had previously suffered 20 several mental health crises requiring the assistance of law enforcement. Id. at 1127–28. 21 The Ninth Circuit held that the organizational plaintiffs, SAF and CGF, lacked standing 22 in their own right, because even though “the organizational plaintiffs state in the Complaint that 23 they are seeking prospective injunctive relief ‘to prevent future violations of their members’ 24 constitutional right[s],’ the Havens theory of standing they relied on exclusively at summary 1 judgment is not based on injury to their members.” Id. at 1135. The Ninth Circuit pointed out 2 that Plaintiffs had not shown that Rodriguez was a member of either SAF or CGF, and that they 3 had “not explained how the City’s retention of Lori’s guns either impedes their ability to carry 4 out their mission or requires them to divert substantial resources away from the organizations’ 5 preferred uses—let alone both.” Id. 6 The court noted that SAF and CGF each had unsuccessfully produced “a single affidavit 7 from a high-ranking official to attempt to establish Article III standing.” Id. In his affidavit, 8 “SAF’s executive vice president asserted only that the organization’s purpose, ‘include[s] 9 education, research, publishing and legal action focusing on the Constitutional right to privately 10 own and possess firearms [as well as] the consequences of gun control and legislation that 11 impacts the ‘right to keep and bear arms.’” Id. at 1135–36. “CGF’s executive director similarly 12 framed CG’s mission as ‘promoting education for all stakeholders about California and federal 13 firearms laws . . . and defending and protecting the civil rights of California gun owners.’” Id. at 14 1136. Though both organizations asserted “that they expend resources advising and assisting 15 members and non-members in navigating California’s gun laws and attempting to recover 16 confiscated firearms[,] . . . neither organization present[ed] any evidence of expending resources 17 to assist Lori apart from incurring litigation costs as co-plaintiffs in her federal litigation.” Id. 18 The Ninth Circuit then explained that the “mere fact that these organizations represent 19 California gun owners and provide legal advice in navigating California’s gun laws does not 20 automatically lead to the conclusion that the confiscation and retention of Lori's guns frustrates 21 their missions or requires them to divert resources.” Id. Since SAF and CGF offered no other 22 theory explaining their organizational harm, “let alone evidence supporting such a theory as 23 required at the summary judgment stage,” the Ninth Circuit concluded that they had not 24 demonstrated Article III standing. Id. 1 Here, Plaintiffs assert that they are seeking relief on behalf of White, a COTG member. 2 See, e.g., Dkt. 99 at 6 (“These statements show that defending a member, like Alvin White, from 3 an allegedly fraudulent and unjust foreclosure directly aligns with and is essential to the 4 Church’s institutional purpose.”). But like in Rodriguez, Plaintiffs offer no evidence to establish 5 that White, the individual plaintiff, is a member of COTG. See generally Dkts. 101, 102, 102-1, 6 102-2, 102-3, 102-4, 102-5, 102-6, 102-7, 102-8, 102-9, 102-10, 102-11. Other than White’s 7 relationship with COTG as co-plaintiff in a different lawsuit, see Dkt. 102-6, none of White’s 8 declarations to this Court show he was a member of COTG. See Dkts. 20, 45, 78. For sure, 9 Stafne has declared that “[i]n addition to being the Church’s Advocate I am one of the Church’s 10 members and know that this part of the Church’s mission requires the Church and myself (as the 11 Church Advocate and a Church member) to bring those judicial inquiries which I have been 12 asserting on behalf of Church of the Gardens since its founding and which I am asserting here 13 until it is no longer legally tenable for me to do so.” Dkt. 102 ¶ 23. Though Plaintiffs’ counsel is 14 a member of COTG, the organization cannot rely at summary judgment on a theory of harm that 15 “is not based on injury to [its] members.” Rodriguez, 930 F.3d at 1135. 16 But even if the Court assumed Plaintiffs had established that White was a member of 17 COTG, they have not presented evidence that COTG diverted resources away from its preferred 18 uses. See id. at 1136; cf. E. Bay Sanctuary Covenant, 993 F.3d at 663 (organizations established 19 standing by showing that the government’s rule stripping asylum eligibility from every migrant 20 that crossed the border caused “a near complete diversion of [AOL’s] resources” because 21 “[c]aring for the often nonlegal needs of these unaccompanied children is not part of AOL’s core 22 mission[.]”). Rather, it appears that resources are being expended for COTG’s preferred use— 23 filing actions in state and federal courts. 24 1 For example, COTG’s mission is “to engage in activities necessary for the 2 accomplishment of the mission” and “to oppose all, which by design or through corruption, are 3 inimical to the church’s mission.” Dkt. 102-1 at 3; Dkt. 102-3 at 2. Plaintiffs have submitted 4 filings from several other mortgage foreclosure cases COTG has been party to, which show that 5 the purported injuries are based on costs COTG incurred by bringing lawsuits. See, e.g., 6 Dkt. 102-6; see also Dkt. 99 at 7 (“The Church’s time, energy, and resources expended to defend 7 White and other members, resist unlawful displacement, and oppose systemic injustice reflect 8 exactly that kind of mission-related institutional injury recognized by the courts.”). 9 But the Supreme Court’s recent opinion in Food and Drug Administration v. Alliance for 10 Hippocratic Medicine forecloses Plaintiffs’ standing argument. 602 U.S. at 394. There, the 11 organizational plaintiff argued that the FDA’s rules “‘forced’ the associations to ‘expend 12 considerable time, energy, and resources’ drafting citizen petitions to FDA, as well as engaging 13 in public advocacy and public education. . . . And all of that has caused the associations to spend 14 ‘considerable resources’ to the detriment of other spending priorities.” Id. The Supreme Court 15 rejected this argument, explaining that “an organization that has not suffered a concrete injury 16 caused by a defendant’s action cannot spend its way into standing simply by expending money to 17 gather information and advocate against the defendant’s action.” Id. 18 Here, COTG’s injuries of “time, energy, and resources expended” are analogous to those 19 claimed by the plaintiffs in Alliance for Hippocratic Medicine. Dkt. 99 at 7. Plaintiffs have 20 presented no evidence to show that Defendants’ actions caused COTG to divert substantial 21 resources away from carrying out its organizational mission, let alone from its preferred use. See 22 Rodriguez, 930 F.3d at 1135. Because “[a]n organization cannot manufacture its own standing” 23 by spending money to advocate against the defendant’s position, Church of the Gardens lacks 24 standing in its own right. Id. 1 2. Representational Standing 2 COTG similarly lacks representational standing to bring these claims on behalf of its 3 members. To invoke “representational . . . standing[,]” the organization must show (1) “its 4 members would otherwise have standing to sue in their own right;” (2) “the interests it seeks to 5 protect are germane to the organization’s purpose;” and (3) “neither the claim asserted nor the 6 relief requested requires the participation of individual members in the lawsuit.” Students for 7 Fair Admissions, Inc., 600 U.S. at 199 (quoting Hunt v. Washington State Apple Advert. 8 Comm’n, 432 U.S. 333, 343 (1977)). 9 Plaintiffs argue that the “evidence presented by the Church through its advocate satisfies 10 all prongs of the Hunt test.” Dkt. 99 at 8. But the “first requirement sinks [COTG’s] effort to 11 establish standing.” Satanic Temple v. Labrador, No. 24-1243, --- F.4th -----, 2025 WL 2302188, 12 at *3 (9th Cir. Aug. 11, 2025). Plaintiffs allude to “congregants” who are affected by 13 “nonjudicial sales and related evictions,” Dkt. 99 at 8, but they fail to satisfy the general 14 requirement to name affected members. Id.; see Associated Gen. Contractors of Am., San Diego 15 Chapter, Inc. v. California Dep’t of Transp., 713 F.3d 1187, 1194 (9th Cir. 2013) (plaintiff failed 16 to satisfy the first prong because it did “not identify any affected members by name nor has it 17 submitted declarations by any of its members attesting to harm they have suffered or will 18 suffer[.]”). Apart from their conclusory arguments that “all prongs of the Hunt test” have been 19 satisfied, Plaintiffs have not proffered a single declaration from a COTG congregant asserting an 20 injury caused by Defendants’ actions. See Dkt. 99 at 8. 21 Instead, Plaintiffs submitted a declaration from Justin Wood, a member of COTG, who in 22 2018 “began volunteering at Stafne Law Advocacy & Consulting.” Dkt. 101 ¶ 3. Wood’s 23 declaration states that the “Church regularly receives requests from individuals, particularly 24 homeowners facing foreclosure, seeking advocacy or assistance” and “many of these individuals 1 report consistent and disturbing concerns about unfair practices within Washington’s foreclosure 2 process and the judicial system more broadly.” Id. ¶ 6. The declaration goes on to describe how 3 he has “come to believe that these judicial failures . . . reflect a broader institutional bias that 4 favors purported lenders, servicers, securitized trusts and trustees over homeowners[.]” Id. ¶ 11. 5 But nowhere in the declaration does Wood claim that he has been affected by Defendants’ 6 conduct. See generally Dkt. 101. Because Plaintiffs have not “shown that one of [COTG’s] 7 members has suffered or will imminently suffer an injury, [they] [have] not met the burden to 8 establish” representational standing. Satanic Temple, 2025 WL 2302188, at *5. 9 3. Plaintiffs’ Remaining Standing Theories 10 Plaintiffs argue that “when the nonjudicial sales and related evictions of congregants, 11 such as those which are occurring in Washington State disrupt religious missions and interferes 12 with the church member’s ability to practice their faith, then the Church can assert its own First 13 Amendment rights.” Dkt. 99 at 8. Plaintiffs raise this claim for the first time in their summary 14 judgment motion. See id. This claim is untimely, and the Court will not consider a claim that is 15 not properly raised. Wasco Prods., Inc. v. Southwall Techs., Inc., 435 F.3d 989, 992 (9th Cir. 16 2006) (“Simply put, summary judgment is not a procedural second chance to flesh out 17 inadequate pleadings.”) (citation omitted). 18 Finally, Plaintiffs make a passing reference that COTG may “possibly tak[e] an interest 19 in the properties that got sold.” Dkt. 99 at 6; Dkt. 102 ¶ 35. But COTG’s hypothetical interest in 20 the sold properties is insufficient to establish that it suffered any concrete injury that is more than 21 an “abstract, generalized grievance.” Meland v. WEBER, 2 F.4th 838, 844 (9th Cir. 2021) 22 (citation omitted). Plaintiffs have not presented any evidence to show that COTG has an interest 23 in the lots that were sold or in the lots that are potentially subject to foreclosure proceedings. See 24 Dkts. 70-1, 70-2, 70-8, 70-9, 70-14, 70-15, 70-19, 70-20, 70-24, 70-25. While a party “may 1 suffer a concrete, personalized injury stemming from noneconomic harm,” the injury must be 2 greater than “the psychological consequence presumably produced by observation of conduct 3 with which one disagrees[.]” Id. (citations omitted); see Valley Forge Christian Coll. v. 4 Americans United for Separation of Church & State, Inc., 454 U.S. 464, 485–86 (1982) (“even 5 though the disagreement is phrased in constitutional terms . . . standing is not measured by the 6 intensity of the litigant’s interest or the fervor of his advocacy”). 7 Plaintiffs have not met their burden to show COTG has direct or representational 8 standing. Accordingly, COTG’s claims are DISMISSED without prejudice for lack of 9 jurisdiction. Hampton v. Pac. Inv. Mgmt. Co. LLC, 869 F.3d 844, 846 (9th Cir. 2017) 10 (“Dismissals for lack of subject-matter jurisdiction . . . must be without prejudice, because a lack 11 of jurisdiction deprives the dismissing court of any power to adjudicate the merits of the case.”) 12 (citation omitted). The Court’s remaining discussion of the merits is based solely on White’s 13 claims. 14 B. Plaintiff’s constitutional claims fail for lack of state action. 15 1. Federal Constitutional Claims Deutsche Bank argues that Plaintiff White’s claims that the DTA violates due process, 16 equal protection, and the takings clause of the U.S. Constitution fail for lack of state action. 17 Dkt. 97 at 2. Plaintiff does not directly address the issue of state action for the federal 18 constitutional claims in his briefs. See Dkt. 75, 76, 87, 88, 98, 99. But he does assert that 19 Plaintiffs “raise a substantial constitutional inquiry into whether statutory trustees, paid by DB, 20 can lawfully exercise judicial power delegated by the State of Washington to them as 21 Washington State judicial officers without violating [] this Nation’s organic law, those principles 22 of Natural Justice upon which that organic law is based, international law, and long established 23 equitable principles.” Dkt. 76 at 27. A plain reading of this constitutional challenge shows that 24 1 Plaintiff presumes that Deutsche Bank is “exercis[ing] judicial power delegated by the State of 2 Washington to them” when it conducts a nonjudicial sale of properties. See id. 3 This presumption of state action has been expressly rejected by the Supreme Court in 4 Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 161–64 (1978) and the Ninth Circuit in Apao v. 5 Bank of New York, 324 F.3d 1091, 1092 (9th Cir. 2003). In Flagg Brothers, the Supreme Court 6 held that when a creditor enforced a lien through a private, non-judicial sale, there was no state 7 action even when this procedure was authorized by the state’s Uniform Commercial Code. 436 8 U.S. at 151–53. The Supreme Court rejected the plaintiff’s arguments that the state’s grant of a 9 private power of sale was a delegation of a traditional government function or that it constituted 10 state encouragement of nonjudicial remedies. Id. at 161, 164. Because the statute neither 11 encourages nor compels the sale of the debtor’s property, but merely recognizes its legal effect, 12 the Supreme Court held that the sale did not implicate Fourteenth Amendment due process and 13 equal protection protections. Id. at 153, 160, 166. 14 Several circuit courts, including the Ninth Circuit, have since explained that “self-help 15 foreclosure remedies have existed since early in the common law, and thus one cannot say that 16 the power of foreclosure is one traditionally belonging only to the government.” Apao, 324 F.3d 17 at 1094 (citing cases). And when nonjudicial foreclosure statutes were challenged on Fourteenth 18 Amendment grounds, the Ninth Circuit (along with six other circuits) held “there was no state 19 action in either the availability of such private remedies or their enforcement.” Id. (citing cases). 20 For example, in Apao, the Ninth Circuit addressed whether Hawaii’s nonjudicial 21 foreclosure statute violated the due process clause of the Fourteenth Amendment. Id. at 1092. 22 There, the plaintiff had obtained a mortgage on her residence but stopped making payments after 23 three years. Id. at 1093. When the default was not cured within thirty days as required by the 24 1 mortgage contract, the lender instituted a nonjudicial foreclosure under Haw. Rev. Stat. § 667–5, 2 which the borrower challenged as unconstitutional. Id. 3 The Ninth Circuit affirmed the district court’s dismissal of the case because “the sale was 4 a purely private remedy and involved no state action.” Id. It also noted that “there has been no 5 legal or historical development in the intervening years that would require . . . us to reconsider 6 the round of decisions by this circuit and others a generation ago that upheld the constitutionality 7 of similar statutorily authorized sale procedures.” Id.; see Charmicor, Inc. v. Deaner, 572 F.2d 8 694, 696 (9th Cir. 1978) (finding no state action in an equal protection challenge to Nevada’s 9 nonjudicial foreclosure statute). The Ninth Circuit began its discussion with the text of the 10 Fourteenth Amendment, noting that it “shields citizens from unlawful governmental actions, but 11 does not affect conduct by private entities.” Apao, 324 F.3d at 1093. Citing Flagg Bros., Inc. v. 12 Brooks, the Ninth Circuit reiterated the Supreme Court’s holding that when a lien is enforced 13 “through a purely private, non-judicial sale,” there is no state action “even though the lien was 14 authorized by the state’s legislative enactment of the Uniform Commercial Code.” Id. at 1094. 15 The Ninth Circuit further rejected the plaintiff’s argument that because the residential 16 mortgage business is regulated by state and federal laws, any action by the mortgage lender is 17 converted into state action. Id. at 1095. It explained that “the development of the extensively 18 regulated secondary mortgage market does not convert the private foreclosure procedures at 19 issue here into state action” and while “the bar for state action is low . . . non-judicial foreclosure 20 procedures like Hawaii’s nevertheless slip under it for want of direct state involvement.” Id. 21 Like Hawaii’s nonjudicial foreclosure statute, Washington’s DTA neither “encourages” 22 nor “compels” the use of nonjudicial foreclosure procedures, but “merely recognizes its legal 23 effect.” See Apao, 324 F.3d at 1094; see also RCW 61.24.030 (prerequisites that must be 24 complied with prior to a nonjudicial foreclosure); Owen v. Atkins, No. C15-5375 BHS, 2015 WL 1 5826313, at *2 (W.D. Wash. Oct. 6, 2015) (“[T]he contracted right to conduct a nonjudicial 2 foreclosure does not convert [the trustee’s] conduct into action under color of law.”); De Botton 3 v. Quality Loan Servs. Corp. of Washington, No. 2:23-CV-00223-RSL, 2023 WL 6126769, at *1 4 (W.D. Wash. Sept. 19, 2023) (challenge to the DTA “cannot support a takings claim under either 5 the federal or state constitution because there was no governmental action”). 6 Under Supreme Court and Ninth Circuit precedent, Defendants’ use of the DTA cannot 7 be considered state action. See Flagg Bros., Inc., 436 U.S. at 161–64; Charmicor, Inc., 572 F.2d 8 at 696; Apao, 324 F.3d at 1094. The “United States Constitution protects individual rights only 9 from government action, not from private action.” Single Moms, Inc. v. Montana Power Co., 331 10 F.3d 743, 746 (9th Cir. 2003). Thus, Deutsche Bank’s motion for summary judgment on the 11 federal constitutional claims is GRANTED. 12 2. State Constitutional Claims 13 Plaintiff’s claim that the DTA violates Article IV, section 6 of the Washington 14 Constitution has also been repeatedly rejected by state courts. See Kennebec, Inc. v. Bank of the 15 W., 88 Wn.2d 718, 725, 565 P.2d 812 (1977); Jackson v. Quality Loan Serv. Corp., 186 Wn. 16 App. 838, 846, 347 P.3d 487 (2015); Larson v. Snohomish Cnty., 20 Wn. App. 2d 243, 281, 499 17 P.3d 957 (2021). 18 For example, in Kennebec, the Washington Supreme Court held that the DTA, RCW 19 61.24, is “passive state involvement and does not constitute significant ‘state action’ and, 20 therefore, it is neither violative of the due process clause of the Fourteenth Amendment nor of 21 article 1, section 3 of the Washington State Constitution.” 88 Wn.2d at 726. The court explained 22 that parties have the power to choose to use the DTA or not. Id. at 725. “If the parties elect to 23 contract and use the deed of trust device, the statute regulates its manner of operation almost 24 solely for the protection of the debtor.” Id. at 725. “The creditor may, if he chooses, elect to 1 involve the state by utilizing judicial foreclosure and thereby preserving any deficiency that may 2 exist. . . . [but] if he opts to foreclose nonjudicially, he does not involve the state, . . . [and] is 3 restricted to the value of his security.” Id. Since RCW 61.24 “neither commands nor forbids 4 nonjudicial foreclosure[,]” the Washington Supreme Court found no state action and upheld the 5 constitutionality of the statute. Id. 6 The Washington Court of Appeals in Jackson again addressed state constitutional 7 challenges to the DTA. 186 Wn. App. at 846–49. There, the plaintiff argued that Article IV, 8 section 6 of the Washington State Constitution provides that “[t]he superior court shall have 9 original jurisdiction in all cases at law which involve the title or possession of real property.” Id. 10 at 847 (citing Wash. Const. art. IV, § 6). But because the DTA vests power in the trustee to sell 11 property through a nonjudicial foreclosure proceeding, the plaintiff contended that the DTA 12 impermissibly divested the superior court of jurisdiction. Id. 13 Noting that several federal courts2 had previously rejected this argument, the court 14 explained that the DTA does not take away jurisdiction from superior courts because “a 15 nonjudicial foreclosure is not made pursuant to a judgment but rather is one conducted under a 16 power contained in a mortgage or a decree of foreclosure.” Id. at 847, 848 n.9. Since the option 17 of a nonjudicial foreclosure is created “through an agreement between the grantor and the 18 beneficiary of the deed of trust[,]” the “DTA does not divest the superior court of jurisdiction.” 19 Id. at 847. In fact, the court noted that the DTA preserves the superior court’s constitutional grant 20 2 See Knecht v. Fid. Nat’l Title Ins. Co., No. C12–1575RAJ, 2014 WL 4057148 * 11 (W.D. 21 Wash. Aug. 14, 2014) (rejecting the plaintiff’s argument that DTA’s “decision to vest discretionary authority in a trustee” violates Washington Constitution Art. IV, § 6 because the 22 plaintiff “advances no ‘interpretation’ of the words of any portion of the Act that would prohibit nonjudicial foreclosures, and the court cannot conceive of one”); Galyean v. Nw. Tr. Servs., Inc., 23 No. C13–1359 MJP, 2014 WL 3360241 *6 (W.D .Wash. July 9, 2014) (“The Deed of Trust Act has already been found by the Washington State Supreme Court to satisfy constitutional due 24 process requirements.”). 1 of jurisdiction in specific provisions of the statute. Id.; see id. at n.8 (“RCW 61.24.130(1) (buyer 2 has right to file action in superior court to restrain a trustee’s sale); RCW 61.24.130(8)(j) 3 (granting borrower power to initiate court action); RCW 61.24.040(2); RCW 61.24.090(2) 4 (granting borrower right to request any court to determine reasonableness of fees)”). For these 5 reasons, the court concluded that the “legislature had authority to enact the DTA, and its 6 enactment did not encroach upon the jurisdiction of the superior court.” Id. at 849. 7 Plaintiff’s challenges under Article I, section 10, and Article V, section 6 of the 8 Washington Constitution also lack merit. See Dkt. 8 ¶¶ 3.99(I), 4.6. Article I, section 10 provides 9 that “[j]ustice in all cases shall be administered openly, and without unnecessary delay.” Plaintiff 10 does not provide any argument in support of this claim in his briefs. See Dkt. 76, 87, 98, 99; see 11 Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (“[W]e will not 12 consider any claims that were not actually argued in [the party’s] opening brief.”) (citation 13 omitted). Finally, Plaintiff asserts a claim under Article V, section 6, see Dkt. 8 ¶ 4.6, but Article 14 V contains only three sections, see Wash. Const. art. V. Again, the Court declines to consider 15 this claim as it will “review only issues which are argued specifically and distinctly in a 16 party’s . . . brief.” Greenwood v. Fed. Aviation Admin., 28 F.3d 971, 977 (9th Cir. 1994) (citation 17 omitted). 18 Accordingly, Deutsche Bank’s motion for summary judgment on the state constitutional 19 claims is GRANTED. 20 C. Plaintiff’s DTA, CPA, and breach of contract claims fail because he cannot show that the Trusts do not possess the original promissory notes. 21 Deutsche Bank argues that the Plaintiffs’ “only factual allegations relate to their lost note 22 theory,” which is “the basis for Plaintiffs’ bare assertions that Defendants violated the DTA 23 and . . . CPA.” Dkt. 97 at 8, n.1. Deutsche Bank argues that it has produced evidence showing 24 1 that “the Trust held the original notes entitling them to complete the January 5, 2024 Trustee 2 Sales, and that the 2006-5 Trust holds the original notes for the remaining three loans and is 3 entitled to proceed with non-judicial foreclosures.” Dkt. 67 at 8 (citing Dkt. 69; Dkt. 70). 4 Specifically, Deutsche Bank asserts that SPS’s business records show how each original 5 promissory note came into their possession and is currently held at their counsel’s office. Id.; see 6 Dkts. 70-5, 70-11, 70-18, 70-23, 70-28. Additionally, Deutsche Bank provided the testimony of 7 Hannah McFarland3, an expert in document examination and handwriting analysis. Dkt. 69, 69- 8 1, 69-3. McFarland has been certified by the National Association of Document Examiners 9 (“NADE”) since 2002 and currently serves as Secretary for the Executive Board of Directors of 10 NADE. Dkt. 69-1 at 2. 11 McFarland examined the five promissory notes held at the Trusts’ counsel’s office in 12 Seattle, Washington. Dkt 69 ¶ 4. She was provided with “28 exemplar initials of Alvin B. White 13 on copy documents dated 9-10-2005 to 3-29-2006” and “10 original initials of Alvin B [that 14 were] produced for the purpose of handwriting comparison.” Dkt. 69-3 ¶ 4. Based on her 15 comparison of the questioned and exemplar initials of White produced by his counsel, 16 McFarland identified several similarities. Id. ¶ 7. For example, she noted “[q]uestioned and 17 exemplar initials are roughly one quarter inch tall;” “[p]lacement of the questioned and exemplar 18 initials are roughly one quarter inch tall;” “[m]any ending strokes are average in length in the 19 questioned and exemplar initials;” and “[t]here is very little variation in pressure in that the 20 upstrokes and downstrokes have the same pressure[.]” Id. Having “found no significant 21 3 Plaintiff did not seek to exclude the expert testimony of Hannah McFarland. Rather, after the 22 Court gave Plaintiff the opportunity to submit supplemental briefing explaining his contention that McFarland was unreliable, Plaintiff disavowed ever attempting to exclude McFarland. See 23 Dkt. 92 at 3 (“The record shows (and this Court should know this) that Plaintiffs have not moved to exclude Defendants’ expert; rather Plaintiffs rely on Defendants’ expert witness graphology- 24 trained handwriting expert, McFarland, to support their theory of the case.”). 1 differences between the questioned and exemplar initials of Alvin B. White[,]” McFarland 2 opined that the “combination of all similarities between the questioned and exemplar initials 3 provides convincing evidence that the questioned initials are genuine initials of Alvin B. White.” 4 Id. ¶¶ 8–9. 5 Deutsche Bank contends that it is entitled to judgment as a matter of law for the DTA and 6 CPA claims because Plaintiff fails to make a sufficient showing on an essential element of his 7 claim—that the Trusts do not hold the original promissory notes. Dkt. 97 at 8. Deutsche Bank 8 also argues that it has met its initial burden to come forward with evidence, through SPS’s 9 document records and its handwriting expert, showing that it possesses the original notes, but 10 Plaintiff has “submitted no admissible or corroborating evidence.” Id. Since Plaintiff has failed 11 to satisfy an essential element of his claims against Defendants, Deutsche Bank argues that 12 summary judgment should be granted in its favor. Dkt. 67 at 9. 13 Plaintiff contends that his “theory of the case is that Deutsche Bank and its agents are 14 attempting to enforce facially invalid and fraudulent documents—specifically, a promissory note 15 and deed of trust that are not original, wet-ink signed instruments, but digital reproductions that 16 cannot confer lawful enforcement rights under Washington law, the Constitution, or long- 17 standing equitable doctrines.” Dkt. 98 at 9. Plaintiff alleges that Defendants’ “attempt[] to 18 foreclose on a void note” violates the borrower’s right to restrain a trustee’s sale under the DTA, 19 RCW 60.24.130(1). Dkt. 8 ¶ 4.11. Plaintiff also asserts that Defendants’ “attempt[] to collect a 20 loan that does not exist” or “attempt to collect monies which are not owed to them” constitutes 21 unfair, deceptive, or illegal practices under the CPA. Id. ¶ 4.14. Finally, Plaintiff alleges that 22 enforcement of a void note violated the terms of his loan contract. Id. ¶ 4.11. 23 As evidence that Defendants do not possess the original notes, Plaintiff first presents 24 Dr. Kelley’s “forensic findings establish[ing] that the five promissory notes at issue, which were 1 purportedly executed in 2006, were not signed by Alvin White but mechanically reproduced, i.e. 2 forged using inkjet printing technology.” Dkt. 98 at 9. Plaintiff next provides William Paatalo’s 3 testimony that “the endorsements DB relies upon to prove it is a ‘holder’ of the note were most 4 likely fabricated after the fact and are not the result of a lawful negotiation.” Dkt. 76 at 23. 5 Plaintiff also offers historical evidence, see Dkt. 77 ¶ 36, showing that “promissory notes were 6 routinely destroyed as part of the money changers’ business practices during the lead up to the 7 subprime mortgage crisis.” Dkt. 76 at 12. 8 For example, Plaintiff asserts that in 2016, Deutsche Bank, acting as trustee for 9 mortgage-backed securities trusts, entered into a $3 billion settlement agreement with the Federal 10 Deposit Insurance Corporation (“FDIC”) and JPMorgan Chase. Id. Plaintiff contends that in this 11 settlement, Deutsche Bank “released all claims relating to defective, incomplete, or non-existent 12 documentation,” which “included those in the relevant 2006 defendant trusts in this case[.]” Id. 13 at 12–13 (citing Dkt. 81-12 at 7). Plaintiff also offers a memorandum from Deutsche Bank dated 14 July 28, 2008, where Deutsche Bank acknowledged “that the number of contested foreclosure 15 proceedings” has “substantially increased” nationwide and that “some courts are demanding that 16 the party seeking to foreclose prove ‘ownership[.]’” Dkt. 77-6 at 3–4. 17 Plaintiff points to another memorandum from Deutsche Bank that was sent to 18 securitization loan servicers stating that “[r]ecent media reports suggest the Alleged Foreclosure 19 Deficiencies may include the execution and filing by certain Servicers and/or their agents of 20 potentially defective documents . . . in connection with certain foreclosure proceedings.” 21 Dkt. 77-7 at 3. Plaintiff argues that these “internal documents make one thing abundantly clear: 22 DB knew that document fabrication, loss, and improper filings were endemic in the 23 securitization and foreclosure process.” Dkt. 76 at 15 (emphasis in original). Plaintiff references 24 several other public documents that he argues should be judicially noticed under Federal Rule 1 201 to show that “promissory notes were routinely destroyed.” See id. at 14–19. Based on this 2 historical evidence, Plaintiff contends that “the industry had institutionalized note destruction as 3 part of its standard procedures” and “DB and the trusts have no equitable or legal basis to now 4 claim authority to enforce instruments it has already deemed defective or unenforceable.” Id. at 5 18, 13. 6 The Court agrees that Defendants’ authority to foreclose on White’s properties depends 7 on their status as “holders” of the promissory notes. Bain v. Metro. Mortg. Grp., Inc., 175 Wn.2d 8 83, 89 285 P.3d 34 (2012) (“[O]nly the actual holder of the promissory note or other instrument 9 evidencing the obligation may be a beneficiary with the power to appoint a trustee to proceed 10 with a nonjudicial foreclosure on real property” under the DTA.); see also id. at 104 (“[A] 11 beneficiary must either actually possess the promissory note or be the payee.”). But Plaintiff has 12 not carried his burden to show evidence from which a reasonable factfinder could conclude that 13 the Trusts do not possess the promissory notes. See Fed. R Civ. P. 56(c). He thus has failed to 14 raise a triable issue on his DTA, CPA, and breach of contract claims. See In re Brazier Forest 15 Prods., Inc., 921 F.2d 221, 223 (9th Cir. 1990) (“[I]f the nonmoving party bears the burden of 16 proof on an issue at trial, the moving party need not produce affirmative evidence of an absence 17 of fact to satisfy its burden. The moving party may simply point to the absence of evidence to 18 support the nonmoving party’s case. The nonmoving party must then make a sufficient showing 19 to establish the existence of all elements essential to their case on which they will bear the 20 burden of proof at trial.”). 21 First, the Court has excluded Dr. Kelley’s opinions that the promissory notes were 22 fabricated because Plaintiff has not established by a preponderance of evidence that Dr. Kelley is 23 a qualified expert in forensic science or that his testimony is reliable. Dkt. 104 at 10–16. Second, 24 the Court similarly found William Paatalo unqualified to opine on the authenticity of the 1 promissory notes because he lacked the “knowledge, skill, experience, training, or education” in 2 a relevant discipline. Id. at 16–20; Fed. R. Evid. 702. Thus, the remaining evidence Plaintiff has 3 provided are public records that he requests be judicially noticed, the entire 2006 Revised Code 4 of Washington, court filings from other cases, and documents supporting Plaintiff’s counsel’s 5 defense to a disciplinary investigation by the Washington State Bar. See Dkt. 76 at 14–19; Dkt. 6 77-2; Dkt. 80-9; Dkt. 77-15; Dkt. 77-16. 7 Viewing this evidence in the light most favorable to Plaintiff, a reasonable jury could not 8 find that the Trusts do not possess the promissory notes. At best, some of the records relate to 9 systemic problems in the mortgage system. See, e.g., Dkt. 77-5 (Deutsche Bank memorandum 10 informing servicers of best practices in foreclose and eviction proceedings); Dkt. 77-6 (Deutsche 11 Bank memorandum asking servicers to be mindful of issues including proving ownership of 12 loans); Dkt. 77-7 (Deutsche Bank memorandum expressing concern to servicers about the 13 execution and filing of “potentially defective documents”). But none offer evidence that the five 14 promissory notes at issue in this case was fabricated. See Bavand v. OneWest Bank, FSB, 587 F. 15 App’x 392, 394 (9th Cir. 2014) (“Bavand argues that OneWest’s possession of the note is a fact 16 in dispute, but she fails to produce any evidence to support her claim or to contest OneWest’s 17 representative Charles Boyle’s affidavit, declaring that OneWest currently possesses the original 18 note and deed of trust.”). 19 Because Plaintiff does not point to any evidence from which a reasonable factfinder 20 could conclude that the Trusts do not possess the promissory notes, Deutsche Bank’s motion for 21 summary judgment on the DTA, CPA, and breach of contract claims is GRANTED. 22 D. Plaintiff is not entitled to equitable relief or a declaratory judgment. 23 Plaintiff White seeks to restrain Defendants from proceeding with a nonjudicial sale of 24 his remaining properties. Dkt. 8 ¶¶ 3.29, 3.30. A plaintiff seeking a permanent injunction must 1 show: “(1) actual success on the merits; (2) that it has suffered an irreparable injury; (3) that 2 remedies available at law are inadequate; (4) that the balance of hardships justify a remedy in 3 equity; and (5) that the public interest would not be disserved by a permanent injunction.” 4 Confederated Tribes & Bands of Yakama Nation v. Yakima Cnty., 963 F.3d 982, 989 (9th Cir. 5 2020) (citation omitted). Here, Plaintiff has not succeeded on the merits. Accordingly, he is not 6 entitled to an order restraining Defendants from conducting a nonjudicial sale of property under 7 the DTA, RCW 61.24.130. 8 Plaintiff also requests a declaration as to the meaning of the current version of 9 RCW 34.24.130 and whether the 2006 version of RCW 61.24.130 is the governing law. Dkt. 8 10 ¶¶ 4.1, 4.2. Plaintiff argues that “[n]either of the statutes DB and its paid-for trustees rely on as 11 the basis for their MSJ was in existence in 2006. . . . [and] [t]o the extent those changes in these 12 statutes affect the outcome of this case, Plaintiffs object they violate the Contracts Clause.” 13 Dkt. 76 at 29. Plaintiff also contends that even if the Court applies the most recent version of 14 RCW 61.24.130, it does not establish Deutsche Bank’s standing to foreclose. Id. at 29–30. In any 15 case, Plaintiff argues that RCW 61.24.130 is preempted by the Fourteen Amendment’s 16 protections against taking of property. Id. at 30. 17 Deutsche Bank argues that the claims for declaratory judgment should be denied because 18 “Plaintiffs argue that the amendments to RCW 61.24.130 unconstitutionally altered Mr. White’s 19 contracts but fail to identify how the present matter would be different under the 2006 version[.]” 20 Dkt. 97 at 6. Deutsche Bank further asserts that the law was amended twice since 2006—once in 21 2008 and once in 2018. Id. at 7. Since Plaintiff provides no basis for why the amended version is 22 unconstitutional, Deutsche Bank maintains that the request should be denied. Id. Deutsche Bank 23 also argues that Plaintiff’s request for a declaration regarding the constitutionality of 24 RCW 61.24.130 is moot because there is no substantial controversy between parties “of 1 sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Id. Finally, 2 Deutsche Bank argues that Plaintiff’s request for a declaration that the Trustee’s sale violated the 3 Deed of Trust Act is not an appropriate exercise of federal jurisdiction because the sale occurred 4 over 1.5 years ago and there is no alleged “continuing or future violations.” Id. 4 5 “The Declaratory Judgment Act creates only a remedy, not a cause of action.” Bisson v. 6 Bank of Am., N.A., 919 F. Supp. 2d 1130, 1139 (W.D. Wash. 2013). Thus, a “court cannot grant 7 declaratory relief in the absence of a substantive cause of action.” Id. (citation omitted); see 8 United States v. State of Wash., 759 F.2d 1353, 1357 (9th Cir. 1985) (“Declaratory relief should 9 be denied when it will neither serve a useful purpose in clarifying and settling the legal relations 10 in issue nor terminate the proceedings and afford relief from the uncertainty and controversy 11 faced by the parties.”) (citing cases). Plaintiff has not raised a genuine factual dispute about the 12 authenticity of the promissory notes, nor have any other claims survived the summary judgment 13 stage. See, supra Sec. IV.A–C; Umouyo v. Bank of Am., NA, No. 2:22-CV-00704-JHC, 2023 WL 14 1433804, at *3 (W.D. Wash. Feb. 1, 2023) (denying the request for declaratory relief because the 15 plaintiffs did not demonstrate a substantive legal basis for the Court to void the promissory note, 16 deed of trust, or any other legal claim the defendant had in the property). 17 18 19 4 While “a declaratory judgment merely adjudicating past violations of federal law—as opposed to continuing or future violations of federal law—is not an appropriate exercise of federal 20 jurisdiction[,]” the “cessation of conduct does not necessarily render a declaratory judgment moot.” Bayer v. Neiman Marcus Grp., Inc., 861 F.3d 853, 868 (9th Cir. 2017); Biodiversity 21 Legal Found. v. Badgley, 309 F.3d 1166, 1175 (9th Cir. 2002); see also Skysign Int’l, Inc. v. City & Cnty. of Honolulu, 276 F.3d 1109, 1115 (9th Cir. 2002) (“Although the district court correctly 22 noted that the assessed fines are for [the plaintiff’s] ‘past conduct,’ that distinction does not in and of itself deprive a federal court of jurisdiction to hear a declaratory judgment action 23 challenging the enforceability of the law under which the penalty is assessed.”). Regardless, the Court does not reach this issue because Plaintiff has not established a substantive cause of action 24 that would entitle him to declaratory relief. l Because Plaintiff cannot maintain a substantive cause of action that would warrant 2 declaratory relief, Deutsche Bank’s motion for summary judgment on these claims 1s 3 GRANTED. 4 Vv. CONCLUSION 5 Therefore, it is hereby ORDERED that: 6 e Deutsche Bank’s motion for summary judgment (Dkt. 67) is GRANTED. 7 e Plaintiff White’s claims are DISMISSED with prejudice and Plaintiff Church of 8 the Gardens’ claims are DISMISSED without prejudice for lack of subject matter 9 jurisdiction. 10 e Plaintiffs’ motion for summary judgment is DENIED (Dkt. 76) as moot. 1] 12 13 Dated this 2nd day of September, 2025. 14 ( A 15 Tiffany. Cartwright United States District Judge 16 17 18 19 20 21 22 23 24 ORDER GRANTING DEUTSCHE BANK'S MOTION FOR SUMMARY JUDGMENT AND DENYING