Tierney v. Carrington Mortgage Services LLC

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 PATRICK LEONARD TIERNEY, Case No. C20-1245RSM 9 Plaintiff, ORDER RE: MOTIONS FOR SUMMARY 10 JUDGMENT 11 v. 12 CARRINGTON MORTGAGE SERVICES, 13 LLC, et al., 14 Defendants. 15 16 I. INTRODUCTION 17 This matter comes before the Court on Defendants Carrington Mortgage Services, LLC 18 (“Carrington”) and Bank of New York Mellon (“BONY”)’s Motion for Summary Judgment, 19 Dkt. #33, Defendant Aztec Foreclosure Corporation of Washington (“Aztec”)’s Motion for 20 Summary Judgment, Dkt. #34, and Plaintiff’s Motion for Summary Judgment, Dkt. #40. The 21 22 Court has determined it can rule without oral argument. For the reasons stated below, the Court 23 GRANTS IN PART and DENIES IN PART Defendants’ Motions. 24 II. BACKGROUND 25 The Court sets forth the following factual background necessary for ruling on these 26 Motions. On March 5, 2004, Plaintiff Tierney and his now deceased wife refinanced their 27 28 mortgage with a promissory note in the amount of $208,000.00 (“Note”) and a deed of trust (“Deed of Trust”), which secured the Note (the Note and the Deed of Trust are hereinafter 1 2 referred to collectively as “the Loan”), and created a first priority lien against the real property 3 commonly known as 28023 Northeast 140th Place, Duvall, WA 98019 (“Property”). Dkt. #4 at 4 80-96. The Deed of Trust lists Christy A. Tierney and Patrick L. Tierney, wife and husband, as 5 the grantor and Mortgage Electronic Registration Systems, Inc. (“MERS”), solely as nominee 6 for MILA, Inc., and its successors and assigns, as the beneficiary. Id. 7 8 The interest in the Deed of Trust was thereafter assigned to The Bank of New York 9 Mellon f/k/a The Bank of New York as Trustee for Registered Holders of CWABS, Inc., Asset- 10 Backed Certificate Series 2004-5, as evidenced by an assignment recorded on August 5, 2011. 11 Dkt. #4 at 97. 12 13 In August of 2017, the servicing of the Loan was transferred to Defendant Carrington. 14 Dkt. #36 (“Carrington Decl.”), ¶8. The Loan was not in default at the time of the transfer to 15 Carrington. Id. at ¶ 43. A letter to the Tierneys, informing them of the change, provided the 16 following methods for submitting “Notices of Error, Information Requests, and Qualified 17 Written Requests”: by fax to 800-486-5134, or by mail to P.O. Box 5001, Westfield, IN 46074. 18 19 Carrington Decl., Ex 3 at 3. This address is different than the address borrowers were to send 20 mortgage payments. The monthly billing statements sent to the Plaintiff also contained this 21 information for where to submit correspondence related to notices of error, information 22 requests, and QWRs. Carrington Decl. at ¶45, Ex. 30. 23 The Tierneys faced a financial crisis in early 2019 due to Mr. Tierney’s medical 24 25 expenses. Dkt. #1-6 at 3–4. Then Mr. Tierney’s wife died suddenly in April of 2019. Id. at 4. 26 Plaintiff defaulted on the Loan by failing to make the payment scheduled for March 1, 2019, 27 and all subsequent payments. Dkt. #4 at 137. 28 On May 31, 2019, Defendant Carrington received a Request for Mortgage Assistance 1 2 from Mr. Tierney. Carrington Decl. at ¶16. Carrington concluded that the application was 3 missing certain documents and sent a letter on June 4, 2019, requesting additional documents 4 no later than June 19, 2019. Id. at ¶ 17, Ex. 10. On June 22, Carrington sent a follow up letter, 5 asking Mr. Tierney to submit the requested documents by July 7, 2019. Id. at ¶ 18, Ex 11. 6 Carrington argues that it received some, but not all, of the requested documents on June 7 8 24, 2019. Id. at ¶19, Ex 12. Specifically, Carrington states that Mr. Tierney failed to provide 9 “completed pages 3 and 4 of the Request for Mortgage Assistance Form and… 2018 tax 10 returns.” Dkt. #33 at 3. 11 On July 24, 2019, Carrington cancelled the review process and sent a Cancellation 12 13 Notification to Mr. Tierney. Carrington Decl. at ¶ 20, Ex. 13. Carrington did not review 14 Plaintiff’s account to determine whether the account qualified for any loss mitigation 15 alternatives under the guidelines of Plaintiff’s investor, BONY. Carrington Decl. at ¶ 21. 16 On September 5, 2019, Carrington received another request for mortgage assistance 17 from Mr. Tierney. Carrington Decl. at ¶24, Ex. 15. Carrington again requested additional 18 19 documents. Id. at ¶ 26. Carrington argues that Mr. Tierney again failed to provide the 20 requested documents and canceled the review process. Id. at ¶ 27. 21 Following issuance of the July 24, 2019, Cancellation Notice, Carrington referred 22 Plaintiff’s loan file to Aztec Foreclosure Corporation (“Aztec”) for commencement of non- 23 judicial foreclosure proceedings and, in turn, on October 25, 2019, Aztec issued a Notice of 24 25 Default. Dkt. #4 at 136–141; Carrington Decl. at ¶23. 26 On or about December 3, 2019, Carrington received a third Request for Mortgage 27 Assistance. Carrington Decl. ¶28, Ex. 18. Carrington acknowledged its receipt on December 9, 28 2019, and requested Mr. Tierney provide additional documents by December 24, 2019. 1 2 Carrington Decl. at ¶29. 3 On December 9, 2019 Aztec nevertheless recorded a Notice of Trustee’s Sale 4 (“NOTS”), setting a sale date of April 17, 2020. Id. at 148–153. 5 On January 11, 2020, despite receiving no further documents, Carrington deemed 6 Plaintiff’s application package to be sufficiently complete and submitted it to an underwriter 7 8 for review “on the merits”, i.e., to determine whether Plaintiff qualified for any loss mitigation 9 alternatives under BONY’s investor guidelines. Carrington Decl. at ¶30. Following that 10 review, Carrington determined that Plaintiff’s account was not eligible for any home retention 11 options (such as loan modification or forbearance plan) because BONY did not offer such 12 13 options for loan accounts that had reached their maturity date with a balloon payment. Id. at 14 ¶32. As a result, Carrington notified Plaintiff on January 13, 2020, that the only option 15 available to Plaintiff was to sell the property. Id. 16 Throughout the spring of 2020, Mr. Tierney contacted Carrington by phone and other 17 means to continue to attempt loan modifications that would allow him to keep his home. None 18 19 of these attempts were successful. See Dkt. #33 at 5–6. 20 The trustee’s sale was postponed to June 19, 2020, and then again to July 24, 2020. Dkt 21 #11-2, ¶1. 22 On July 17, 2020, Plaintiff filed his complaint with a Motion for Temporary Restraining 23 Order. Dkt. #11-1. The complaint alleged claims for Violation of the Washington Consumer 24 25 Protection Act, Breach of Fiduciary Duty, and Negligence. Dkt. #1-5. 26 On August 13, 2020, Plaintiff filed his Amended Complaint adding several new claims 27 for violation of the Real Estate Settlement Procedures Act, the Fair Debt Collections Practices 28 Act, the Truth in Lending Act, and the Equal Credit Opportunity Act. See Dkt. #1-6. He also 1 2 added a claim for declaratory and injunctive relief to prevent Defendants from exercising their 3 rights under the 2004 Deed of Trust. Id. 4 Defendants removed on August 18, 2020. Dkt. # 1. On March 18, 2021, the Court 5 dismissed Plaintiff’s claims for violation of the Truth in Lending Act and the Equal Credit 6 Opportunity Act. Dkt. #27. The instant Motions followed. 7 8 III. LEGAL ANALYSIS 9 A. Legal Standard for Summary Judgment 10 Summary judgment is appropriate where “the movant shows that there is no genuine 11 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. 12 13 R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Material facts are 14 those which might affect the outcome of the suit under governing law. Anderson, 477 U.S. at 15 248. In ruling on summary judgment, a court does not weigh evidence to determine the truth of 16 the matter, but “only determine[s] whether there is a genuine issue for trial.” Crane v. Conoco, 17 Inc., 41 F.3d 547, 549 (9th Cir. 1994) (citing Federal Deposit Ins. Corp. v. O’Melveny & 18 19 Meyers, 969 F.2d 744, 747 (9th Cir. 1992)). 20 On a motion for summary judgment, the court views the evidence and draws inferences 21 in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255; Sullivan v. U.S. 22 Dep't of the Navy, 365 F.3d 827, 832 (9th Cir. 2004). The Court must draw all reasonable 23 inferences in favor of the non-moving party. See O’Melveny & Meyers, 969 F.2d at 747, rev’d 24 25 on other grounds, 512 U.S. 79 (1994). However, the nonmoving party must make a “sufficient 26 showing on an essential element of her case with respect to which she has the burden of proof” 27 to survive summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 28 B. Claim for Declaratory and Injunctive Relief 1 2 In the Amended Complaint, Mr. Tierney alleges there is a present controversy over the 3 rights and obligations of the parties under the note and deed of trust, requiring judicial review. 4 Dkt. #1-6 at ¶58. In briefing, Mr. Tierney spends many pages detailing an improper assignment 5 of his loan and an alleged coverup by Defendants, with allegations of forgery, criminal 6 profiteering, money laundering, and perjury. 7 8 “[A] borrower generally lacks standing to challenge the assignment of its loan 9 documents unless the borrower shows that it is at a genuine risk of paying the same debt twice.” 10 Hummel v. Nw. Tr. Servs., Inc., 180 F. Supp. 3d 798, 806 (W.D. Wash. 2016), aff'd, 740 F. 11 app'x 142 (9th Cir. 2018) (citing Andrews v. Countrywide Bank, NA, 95 F.Supp.3d 1298, 1302 12 13 (W.D. Wash. 2015). Borrowers, as third parties to an assignment, cannot challenge the chain of 14 assignments. Borowski v. BNC Mortg., Inc., No. C12-5867RJB, 2013 U.S. Dist. LEXIS 15 122104, 2013 WL 4522253, at *5 (W.D. Wash. Aug. 27, 2013). 16 Defendants Carrington and BONY argue: 17 Here the Plaintiff has not alleged and cannot establish that more 18 than one party is trying to collect from him concurrently. Dkt #1-5, 19 55-70, generally. Nor has he indicated that he is even concerned that multiple parties could collect from him on the same debt. Id. 20 Finally, there is no reference to this loan in the MILA bankruptcy 21 filing. Dkt. No. 4-1. Plaintiff did not and cannot offer any evidence 22 showing that this loan was an asset of MILA at the time of its bankruptcy filing in 2007. As such, there is no evidence that the 23 assignment from MERS to BONY was in violation of MILA’s bankruptcy. Simply put, there is no controversy here, BONY holds 24 the Note and Plaintiff lacks standing to challenge the assignment to 25 BONY. All of Plaintiff’s contentions and arguments to the contrary are both, factually unsupported and legally incorrect. 26 Dkt. #33 at 13. 27 28 The Court generally agrees with Defendants’ analysis. Mr. Tierney has failed to 1 2 demonstrate he is at a genuine risk of paying the same debt twice and therefore lacks standing to 3 sue on this claim. See Hummel, supra. The Court finds it inappropriate to weigh in on 4 accusations of criminal activity in this civil matter. Dismissal of this claim is warranted as a 5 matter of law, and these same allegations cannot serve as a basis for Mr. Tierney’s CPA claim, 6 discussed below. 7 8 C. Real Estate Settlement Procedures Act Claim 9 Mr. Tierney alleges that Carrington violated the Real Estate Settlement Procedures Act 10 (“RESPA”) and Regulation X by failing to take timely action in response to his request to avoid 11 foreclosure. Dkt. #1-6 at ¶ 44. Mr. Tierney has previously argued that Carrington violated 12 13 RESPA by failing to respond to written requests for information or inquiry regarding the 14 account, see 12 USC §2605(e); 12 CFR §§1024.31, 1024.35 & 1024.36, by engaging in “dual 15 tracking,” see 12 USC §2605(e) and (k); 12 CFR §1024.41(g), and by manufacturing grounds 16 for denial of Mr. Tierney’s RMA application. See Dkt. #12 at 11–15 (citing, e.g., 12 CFR 17 §1024.38(b)(2)). Defendants move for summary judgment on this claim. 18 19 12 U.S.C. §2605(1)(B) defines a qualified written request as a written correspondence 20 that includes a statement of the reasons for the belief of the borrower that the account is in error 21 or provides sufficient detail regarding information sought by the borrower. Under 12 CFR § 22 1024.35(c), “[a] servicer may, by written notice provided to a borrower, establish an address 23 that a borrower must use to submit a notice of error…” The same is true of a request for 24 25 information. 12 CFR § 1024.36(b). 26 In his previous motion for preliminary injunction, Mr. Tierney set forth evidence of 27 Carrington’s failure to comply with regulation X when responding to his QWRs. Dkt. #12 at 28 11–13. In opposition to the preliminary injunction motion, Carrington argued that the 1 2 communications were technically requests for mortgage assistance and not QWRs. Dkt. #18 at 3 9. The Court disagreed and found that Tierney submitted evidence indicating a likelihood of 4 success on the merits with respect to Carrington’s response to the QWRs. Dkt. #28 at 6–7. 5 Rather than offering evidence of compliance with regulation X, Carrington now argues that Mr. 6 Tierney’s inquires do not meet the definition of QWRs because they were mailed to the wrong 7 8 address and that therefore Carrington was relieved of the response obligations under RESPA. 9 Dkt. #33 at 14 (citing Lucero v. Cenlar FSB, 2015 U.S. Dist. LEXIS 112629, *6, 2015 WL 10 5024047 (W.D. Wash. 2015) (“If a communication does not satisfy all of the requirements of a 11 QWR, including receipt at the designated address, it amounts to nothing more than general 12 13 correspondence between a borrower and servicer and does not trigger potential liability under 14 the statute.”). 15 Carrington points to the Notice of Servicing Transfer letter it sent to Tierney on August 16 25, 2017, as well as a “you are behind on your mortgage payment” notice sent to the Plaintiff on 17 April 11, 2019, as well as the cancellation notice sent on July 24, 2019, see Carrington Decl. at 18 19 ¶46, Ex.7 & 13. These letters specifically mention where to send QWRs. 20 In Response, Mr. Tierney states “a review of these letters reveal that they contain no 21 mention of QWRs or even notices of error, generally.” Dkt. #48 at 10. 22 However, the Court has reviewed these letters and finds that Mr. Tierney’s counsel is 23 just plain wrong. The Notice of Servicing Transfer letter explicitly states that QWRs were to be 24 25 sent to a different address than payments. It uses the Term Qualified Written Request “QWR”. 26 Plaintiff’s counsel cites to pages 1 and 2 of the letter, as attached by Carrington, but ignores 27 page 3, cited by defense counsel. This one mention of where to send QWRs might not be 28 dispositive, as it would be understandable that such correspondence could get lost prior to Mr. 1 2 Tierney’s need to send a QWR. However, as Carrington points out, the letters of April 11, 3 2019, and July 24, 2019, explicitly state where to send “QWRs” on a third page called 4 “Important Disclosures.” In any event, it appears to the Court that the monthly billing 5 statements explicitly state where to submit QWR correspondence. Carrington Decl. ¶45 Ex. 30 6 at 3 (“Notices of Error, Requests for Information and Qualified Written Requests (as defined in 7 8 RESPA) must be sent to: PO Box 5001…”). Mr. Tierney’s counsel does not address this point. 9 If there was some argument under equity to get around this requirement, it is not made by 10 Plaintiff’s counsel. Taking all of the above into consideration, the Court finds as a matter of 11 law that Carrington cannot be liable under RESPA for failing to respond to written requests for 12 13 information or inquiry regarding the account. 14 Carrington goes on to argue it did not engage in “dual tracking.” RESPA prohibits 15 commencing foreclosure while a complete loss mitigation application is under review. 12 CFR 16 1024.41(3)(i)(D)(1). However, requests for loss mitigation that are incomplete do not trigger 17 the dual tracking provisions of RESPA. Id. The parties disagree on whether Mr. Tierney’s loss 18 19 mitigation application(s) were incomplete, or whether Carrington was using this as a ruse to 20 deny loss mitigation relief and avoid liability under RESPA. It is undisputed that Carrington 21 received a request for mortgage assistance on December 3, 2019, but went ahead and issued a 22 notice of trustee’s sale six days later. Viewing the evidence and drawing inferences in the light 23 most favorable to the non-moving party, the Court concludes that a genuine dispute as to 24 25 material facts precludes summary judgment for Defendants on this claim. 26 Finally, Carrington argues for dismissal of any claim under 12 CFR § 1024.38. 27 Carrington argues “there is no private right of action to enforce § 1024.38.” Dkt. # 33 at 19 28 (citing, e.g., Joussett v. Bank of America, N.A., 2016 U.S. Dist. LEXIS 138912, *15, 2016 WL 1 2 5848845 (E.D. Pa. October 6, 2016)). Mr. Tierney does not address this point in his Response. 3 This claim is properly dismissed as a matter of law. 4 D. Fair Debt Collection Practices Act Claim 5 The Fair Debt Collection Practices Act (“FDCPA”) was enacted to combat abusive debt 6 collection practices. 15 U.S.C. § 1692. An FDCPA claim must allege facts demonstrating the 7 8 false or misleading representations made by the debt collector and unfair practices used in 9 attempt to collect the debt. 15 U.S.C. § 1692(e), (f). 10 To establish a violation of the FDCPA, a plaintiff must demonstrate the following 11 elements: (1) the plaintiff is a consumer; (2) the debt arises out of a transaction entered into for 12 13 personal purposes; (3) the defendant is a debt collector; and (4) the defendant violated one of 14 the provisions of the FDCPA. Smith v. Bank of New York Mellon, No. C19-0538-JCC, 2019 15 WL 2994695, at *4 (W.D. Wash. July 9, 2019). 16 The FDCPA defines “debt collector” as any person who “regularly collects or attempts 17 to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” 15 18 19 USC § 1692a(6). The term explicitly does not include any employee of a creditor acting in the 20 name of the creditor. § 1692a(6)(A). The term explicitly does not include “any person 21 collecting or attempting to collect any debt owed or due or asserted to be owed or due another to 22 the extent such activity… concerns a debt which was not in default at the time it was obtained 23 by such person.” § 1692a(6)(F). A creditor is defined as “any person who offers or extends 24 25 credit creating a debt or to whom a debt is owed, but such term does not include any person to 26 the extent that he receives an assignment or transfer of a debt in default solely for the purpose of 27 facilitating collection of such debt for another.” § 1692a(4). 28 Defendants argue that BONY is a creditor, not a debt collector, and that Carrington 1 2 received an assignment of the debt before it was in default and is therefore excluded under § 3 1692a(6)(F). Plaintiff does not adequately address either of these points. The Court agrees with 4 Defendants and finds that FDCPA claims cannot be brought against any of these Defendants as 5 Plaintiff has failed to demonstrate they are debt collectors, a requirement for FDCPA claims. 6 This claim is properly dismissed as a matter of law. 7 8 E. Washington Consumer Protection Act Claim 9 In order to state a claim for relief under the CPA, a plaintiff must allege facts sufficient 10 to meet each of the following elements: (1) an unfair or deceptive act or practice, (2) occurring 11 in trade or commerce, (3) affecting the public interest, (4) injury to a person’s business or 12 13 property, and (5) causation. Hangman Ridge Training Stables v. Safeco Title Ins. Co., 105 14 Wash.2d 778, 780, 719 P.2d 531 (1986); Panag v. Farmers Ins. Co. of Wash., 166 Wash.2d 27, 15 204 P.3d 885, 889 (2009). 16 Mr. Tierney argues Defendant Carrington committed a per se violation of the CPA by 17 violating RESPA. See Bain v. Metropolitan Mortg. Group, Inc., 175 Wn.2d 83, 118 (2012); 18 19 Brown v. Washington State Dept. of Commerce, 184 Wn.2d 509, 531, n.12 (2015); Trujillo v. 20 Northwest Trustee Services, Inc., 183 Wn.2d 820 (2015); McDonald v. OneWest Bank, 929 21 F.Supp.2d 1079 (2013). Typically, this would mean the CPA claim survives. However, 22 Defendants argue that the claim should still be dismissed for failure to satisfy the injury 23 element. 24 25 In response, Mr. Tierney argues that the conduct of the defendants precluded him from 26 taking action in lieu of foreclosure that would have preserved his equity in the property. Mr. 27 Tierney argues, without evidence and for the first time, that “he could have obtained a reverse 28 mortgage had he received timely notice of the RMA denial.” Dkt. #48 at 15. He argues that he 1 2 was wrongfully denied a “favorable” loan modification and that this can constitute injury under 3 the CPA. Id. (citing Frias v. Asset Foreclosure Services, Inc., 181 Wn.2d 412, 431-32 (2014)). 4 He asserts that Aztec added fees to the loan in connection with the foreclosure, and that this can 5 constitute an injury under the CPA. Id. He points to the notice of foreclosure as causing a 6 “diminution in Tierney’s property interests” without evidence. He argues he had to pay for 7 8 gasoline and postage related to filing this case. Id. at 16. Again, no citation to evidence. 9 On Reply, Carrington and BONY argue Mr. Tierney has never been able to demonstrate 10 that his income was sufficient to qualify for a modification. Dkt. #50 at 10. They argue that 11 Plaintiff has failed to provide documentation supporting damages in discovery. Id. at 10–11. 12 13 Defendants go on to state: 14 In his deposition, aside from claiming emotional damages caused by stress and anxiety to which he states he never sought treatment 15 for, Plaintiff did not attest to any other damages. Dkt. #38, Ex 6. 16 Indeed, he specifically indicated that he had no other damages. Id. For the first time in his Response, Plaintiff is now claiming 17 damages based on improper fees, diminution of value, travel, and postage, none of which have been supported by any evidence 18 whatsoever. Edwards Decl. ¶1-2. None of these damages are 19 claimed in the operative complaint. [See generally, FAC.] As discussed above, Plaintiff cannot defeat Defendants’ MSJ by 20 raising these new issues in the Response. 21 Id. at 11 (emphasis in original). 22 The Court is just as frustrated as Defendants, and agrees with their summary of the 23 situation. In response to a motion for summary judgment, the nonmoving party must make a 24 25 “sufficient showing on an essential element of her case with respect to which she has the 26 burden of proof” to survive summary judgment. Celotex, supra. Mr. Tierney points to several 27 28 sources of potential injury but has failed to make a sufficient showing, with citation to 1 2 evidence, for any of this. Accordingly, the Court must dismiss this claim as a matter of law. 3 F. Negligence 4 Defendant Aztec moves to dismiss Mr. Tierney’s sixth cause of action for negligence. 5 Mr. Tierney’s negligence claim is just a couple of sentences and relies on allegations 6 previously made in the pleading. He claims that Defendants have a general duty to use 7 8 reasonable care when assessing a borrower’s mortgage assistance options and to make good 9 faith attempts to avoid foreclosure, and that defendants breached these duties by taking 10 affirmative action that undermined Tierney’s request for modification in order to force his 11 home into foreclosure. Dkt. #1-5 at ¶ 55. The claim does not mention the Deed of Trust Act 12 13 (“DTA”). 14 Aztec argues that it is “fatal to Mr. Tierney’ claim …that defendant Aztec, as a neutral 15 third party, has no duty to assess Mr. Tierney's mortgage assistance options.” Dkt. #34 at 7. 16 Aztec also argues that Mr. Tierney has suffered no injury, an essential element of any 17 negligence claim, because there has been no foreclosure and he has suffered no out of pocket 18 19 loss. Id. at 10–11 (citing excerpts of Plaintiff’s deposition). 20 In response, Mr. Tierney argues that Aztec had a duty to “equally protect the rights of 21 the borrower and the investor” under the DTA, a duty to make its own independent decision 22 regarding continuance of the auction, and a duty to confirm the identity of the noteholder. Dkt. 23 #48 at 12–13.1 Mr. Tierney suggests he can pursue his negligence claim absent a foreclosure 24 25 by claiming emotional distress damages. Id. at 16. He does not substantiate such an injury 26 with a citation to evidence. 27 28 1 Mr. Tierney also inexplicably and incorrectly states to the Court that “[n]one of the defendants seek summary judgment on the negligence claim.” Dkt. #48 at 3. On reply, Aztec points out that under Washington law “there can be no cause of action 1 2 for monetary damages under the DTA based on DTA violations absent a completed foreclosure 3 sale.” Dkt. #51 at 8 (citing Frias, 181 Wn.2d at 429). 4 The Court finds that Aztec has correctly stated the law on this issue. Mr. Tierney points 5 to the DTA as the sole source of Aztec’s duty, but because there has not been a foreclosure he 6 cannot pursue a cause of action for violations of that statute. Mr. Tierney has also failed to 7 8 make a substantial showing as to damages as to any Defendant, an essential element of this 9 claim, and that this alone warrants summary judgment dismissal. 10 G. Plaintiff’s Motion for Summary Judgment 11 The Court has reviewed Plaintiff’s Motion for Summary Judgment, Dkt. #40, and finds 12 13 it can be denied given the above rulings. Mr. Tierney presents no evidence that Defendants are 14 debt collectors, that the above RESPA claims should not be dismissed (other than the dual 15 tracking claim), or that he suffered injury satisfying the requirements of a CPA or negligence 16 claim. Mr. Tierney fails to establish dual tracking as a matter of law, and the Court continues 17 to conclude there is a genuine dispute as to material fact for this issue. Mr. Tierney does raise 18 19 several other sources of RESPA violation for the first time (failure to implement information 20 management system, failure to implement quality controls, failure to train, and failure to assign 21 dedicated personnel). Many of these are violations of § 1024.38, a claim dismissed by the 22 Court above. A failure to assign dedicated personnel claim under § 1024.40 also fails because 23 there is no private right of action under that regulation. See Dkt. #45 at 17. The Court finds 24 25 that summary judgment in Plaintiff’s favor is not warranted for any of these claims. 26 // 27 // 28 IV. CONCLUSION 1 2 Having considered the briefing from the parties and the remainder of the record, the 3 Court hereby finds and ORDERS: 4 1) Defendants’ Motions for Summary Judgment, Dkts. #33 and #34, are GRANTED 5 IN PART and DENIED IN PART as stated above. 6 2) The following claims are DISMISSED: First Cause of Action (Violation of 7 8 Washington CPA), Third Cause of Action (Violation of FDCPA), Sixth Cause of 9 Action (Negligence), and Seventh Cause of Action (Declaratory and Injunctive 10 Relief). Plaintiff’s RESPA claim against Defendant Carrington survives as stated 11 above. No claims against Defendants BONY or Aztec remain. 12 13 3) Plaintiff’s Motion for Summary Judgment, Dkt. #40, is DENIED. 14 15 DATED this 12th day of November, 2021. 16 17 18 A 19 RICARDO S. MARTINEZ 20 CHIEF UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28