Wilkerson v. Select Portfolio Servicing Inc

[4] 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 6 AT SEATTLE [7] JOE ANNE WILKERSON, [8] Plaintiff, 9 v. C20-831 TSZ 10 SELECT PORTFOLIO SERVICING, MINUTE ORDER et al., [11] Defendants. [12] 13 The following Minute Order is made by direction of the Court, the Honorable Thomas S. Zilly, United States District Judge: [14] (1) Defendant Select Portfolio Servicing’s motion for summary judgment, docket no. 11, is DENIED. There are genuine issues of fact material to whether Plaintiff [15] Joe Anne Wilkerson has standing to bring this action or whether she is a successor in interest who might have become a party to the loan modification agreement at issue. It is [16] undisputed that Plaintiff owned the subject property from 1991 to 2006, and again from 2011 to present. See Statutory Warranty Deed, Ex. 14 to Hoisington Decl. (docket no. 12 [17] at 130) (dated April 12, 2011). The terms of the note encumbering the subject property, executed in 2006, provides that in the event of a “transfer of the property,” the lender [18] (Defendant’s principal) may “evaluate the intended transferee [i.e., Plaintiff] as if a new loan were being made to the transferee,” assuming the lender “reasonably determines that [19] [its] security will not be impaired by the loan assumption.” See Note, Ex. 1 to Hoisington Decl. (docket no. 12 at 10). In April 2018, Plaintiff provided to Defendant a copy of the [20] 2011 statutory warranty deed conveying to Plaintiff the subject property. See Contact History Report, Ex. 4 to Hoisington Decl. (docket no. 12 at 37). The record indicates that [21] Defendant then started to treat Plaintiff as a successor in interest or “SII.” See id. at 34– 37; see also 12 C.F.R. § 1024.31 (“Confirmed successor in interest means successor in [22] 1 interest once a servicer has confirmed the successor in interest’s identity and ownership interest in a property that secures a mortgage loan.”). [2] There are also questions of fact as to when Plaintiff could have reasonably 3 discovered the basis for her negligence claims against Defendant. See Contact History Report, Ex. 4 to Hoisington Decl. (docket no. 12 at 34–37) (indicating that Defendant did 4 not require Plaintiff to provide power of attorney documentation until April 16, 2020, after treating Plaintiff as a successor in interest for the two years prior); see also Mayer v. 5 City of Seattle, 102 Wn. App. 66, 76 , 10 P.3d 408 (2000) (“Whether the plaintiff has exercised due diligence under the discovery rule is a question of fact.”). [6] (2) The Court finds this case is appropriate for mediation under Local Civil Rule 39.1. The parties are DIRECTED to conduct mediation by Friday, July 23, 2021, [7] and file with the Court a letter of compliance by Friday, July 30, 2021. [8] (3) The Court SETS a telephone status conference for Wednesday, June 30, 2021, at 11:00 a.m. [9] (4) The Clerk is directed to send a copy of this Minute Order to all counsel of 10 record. 11 Dated this 25th day of June, 2021. [12] William M. McCool 13 Clerk 14 s/Gail Glass Deputy Clerk