BAC HOME LOANS SERVICING, LP, its sucessors in interest and/or assigns f/k/a Countrywide Home Loans Servicing, LP, Plaintiff,
DOUGLAS HACKETT, TRISH REGAN UNKNOWN HEIRS OF VIVIAN HACKETT, KING CITY CIVIC ASSOCIATION, OREGON DEPARTMENT OF HUMAN SERVICES, OCCUPANTS OF THE PREMISES, and LINDA MICHELET WILLIAMS, as Trustee for Aka Ala Trust, Defendants, DOUGLAS HACKETT and TRISH REGAN, Counterclaimants,
BAC HOME LOANS SERVICING, LP, f/k/a Countrywide Home Loans Servicing, LP, its sucessors in interest and/or assigns, Counterclaim Defendants, DOUGLAS HACKETT, Cross-Complainant,
RECONTRUST COMPANY, N.A., and DOES 1 through 10, Cross-Defendants.
Pilar C. French, Anthony M. Stark, Lane Powell, PC, Portland, OR, Attorneys for Plaintiff.
Douglas Hackett Pro Se, Trish Regan, Pro Se, King City, OR, Linda Michelet Williams, Pro Se, Kailua-Kona, HI.
OPINION & ORDER
MARCO A. HERNANDEZ, District Judge.
Plaintiff BAC Home Loans Servicing, LP ("BAC") brings this judicial foreclosure action against Defendants. With the exception of Defendants Douglas Hackett, Trish Regan, and Linda Williams, all other Defendants have defaulted. Defendants Hackett and Regan counterclaimed against Plaintiff BAC to quiet title. Defendant Hackett also filed a cross claim against ReconTrust and Does 1-10 for breach of fiduciary duty and constructive fraud. BAC and ReconTrust moved for summary judgment on the judicial foreclosure claim, the counterclaim, and the cross claim. Defendants Hackett and Regan cross moved for summary judgment on the judicial foreclosure claim. Defendant Hackett also filed a motion to dismiss Williams and the defaulted parties as defendants in this case. There is no genuine dispute of fact that Hackett and Regan have defaulted against BAC, the holder of the note. Therefore, I grant Plaintiff's motion for summary judgment and deny Defendant's cross motion for summary judgment. I also deny the motion to dismiss Williams and the defaulted defendants from this case.
On March 21, 2008, Defendants Hackett and Regan obtained a loan from Countrywide Bank for $165, 000. Slyapich Decl. Ex. 1 at 1. BAC is the successor in interest to Countrywide Bank. Slyapich Decl. ¶ 7. In the note, Hackett and Regan agreed to repay the loan over 30 years at an interest rate of 5.875%. Id. at 1-2. The note was secured by a deed of trust for residential property located at 12421 SW Prince Albert Street, Portland, Oregon. Slyapich Decl. Exs. 1 at 5; 2 at 1-2. ReconTrust Company was named the trustee and Mortgage Electronic Registration Systems, Inc. ("MERS") was named the nominee and beneficiary. Slyapich Decl. Ex. 2 at 1. The deed of trust was recorded in Washington County on April 22, 2008. Id . BAC is the holder of the note. Slyapich Decl. ¶¶ 9-10.
Over four years ago, Hackett and Regan stopped making payments on the loan. The last payment they made was more than four years ago on July 16, 2009. Slyapich Decl. Ex. 4 at 3. Hackett and Regan are in default according to the terms of the note. Id. at Ex. 1 at 4 (borrower in default if he fails to "pay the full amount of each monthly payment on the date it is due"). The note provides that if the borrower is in default, the note holder may require immediate payment of "the full amount of Principal that has not been paid and all the interest... owe[d] on that amount." Id . A similar acceleration of payment provision is in the deed of trust as well. Slyapich Decl. Ex. 2 at 1-2 ("failure to cure the default... may result in acceleration of the sums secured by this Security Instrument and sale of the Property."). The note allows the note holder to recover "costs and expenses in enforcing the Note, " including "reasonable attorneys' fees." Slyapich Decl. Ex. 1 at 4. The deed of trust similarly allows the lender to recover expenses, including attorneys' fees, to pursue remedies after a default. Id. at Ex. 2 at 9.
On May 21, 2010, MERS, as the beneficiary, assigned the deed of trust to BAC. Id. at Ex. 3. BAC filed for judicial foreclosure in Washington County on January 31, 2011. Compl. 10. On February 26, 2011, BAC filed a notice of lis pendens in Washington County to give notice of the suit to any prospective buyers of the residential property. Stark Decl. (Dkt. #124) Ex. 4. Hackett and Regan, who reside in Hawaii, filed a notice of removal to this court on March 26, 2011. Notice of Removal, Dkt. #1. BAC seeks the unpaid principal, interest, and any additional sums under the terms of the note and deed of trust, including costs and attorney's fees. Compl. ¶¶ 20, 23. A payoff demand shows an unpaid principal of $164, 615.38. Slyapich Decl. Ex. 5 at 1. Additionally, the unpaid interest accrued through May 31, 2013 is $37, 084.29. Id.
On August 23, 2011, Hackett and Regan executed a quitclaim deed for the residential property. Stark Decl. Ex. 1. Hackett and Regan granted their interest in the residential property to the Aka Ala Trust and named Defendant Linda Williams as trustee. Id . The quitclaim deed was recorded in Washington County on August 24, 2011. Id . But on May 29, 2013, Williams, as trustee for the Aka Ala Trust, executed a quitclaim deed to grant interest in the residential property back to Hackett and Regan in the form of tenancy by the entirety. Stark Decl. Ex. 2 at 4.
Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the initial responsibility of informing the court of the basis of its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56(c)).
Once the moving party meets its initial burden of demonstrating the absence of a genuine issue of material fact, the burden then shifts to the nonmoving party to present "specific facts" showing a "genuine issue for trial." Fed. Trade Comm'n v. Stefanchik , 559 F.3d 924, 927-28 (9th Cir. 2009) (internal quotation marks omitted). The nonmoving party must go beyond the pleadings and designate facts showing an issue for trial. Bias v. Moynihan , 508 F.3d 1212, 1218 (9th Cir. 2007) (citing Celotex , 477 U.S. at 324).
The substantive law governing a claim determines whether a fact is material. Suever v. Connell , 579 F.3d 1047, 1056 (9th Cir. 2009). The court draws inferences from the facts in the light most favorable to the nonmoving party. Earl v. Nielsen Media Research, Inc. , 658 F.3d 1108, 1112 (9th Cir. 2011).
If the factual context makes the nonmoving party's claim as to the existence of a material issue of fact implausible, that party must come forward with more persuasive evidence to support his claim than would otherwise be necessary. Matsushita ...