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26 ORDER- 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

DENNIS BARNETT and WILLIAM

BARNETT,

Plaintiffs,

v.

T.D. ESCROW SERVICES, INC., et al.,

Defendants.

 NO. C05-799JLR

 ORDER

 

I. INTRODUCTION

This matter comes before the court on a motion for summary judgment by Defendant

Wilshire Credit Corporation (“Wilshire”). (Dkt. # 30). Plaintiffs have not opposed

Wilshire’s motion, nor requested oral argument. Having considered the documents filed in

support of this motion, the court GRANTS Defendant’s motion.

II. BACKGROUND

In January 1989, Plaintiff Dennis Barnett (“Barnett”) purchased a residence in

Marysville, Washington. As part of the purchase, Barnett executed a promissory note for

$69,000 and a deed of trust securing the loan. Over the next decade, the deed of trust was

reassigned multiple times, most recently to Defendant Homecomings Financial Network, Inc.

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26 ORDER- 2

(“Homecomings”). In fall 2001, Barnett fell behind in his loan payments to Defendant

Ocwen, the loan servicing agent at that time. Ocwen declared default, threatening to

foreclose unless Barnett paid $49,603.05 to reinstate the loan. Barnett borrowed $40,000

from his father and secured a written agreement from Ocwen that his $40,000 payment would

reinstate the loan. 

In early 2002, Ocwen transferred servicing rights on Barnett’s loan to Wilshire. On

March 27, 2002, Defendant T.D. Escrow Services (“T.D. Escrow”) issued a Notice of

Trustee’s Sale alleging Barnett had missed 15 months of payments. Barnett successfully

stopped the foreclosure proceedings and sent a letter to Wilshire, dated June 14, 2002,

requesting clarification of his account status in light of his previous $40,000 payment to

Ocwen. 

In January 2003, Wilshire claimed that Barnett defaulted again by allegedly failing to

make any payments during 2002. Barnett’s father, William Barnett, ultimately refinanced the

loan and paid it off in February 2004.

Barnett and his father filed suit against Defendants Homecomings, Wilshire, Ocwen,

and T.D. Escrow alleging wrongful acts, usury, and violations of the Washington Consumer

Protection Act (“WCPA”), Real Estate Settlement Practice Act (“RESPA”), and Fair Debt

Collection Practices Act. Per stipulated motion, the court ordered the dismissal of Defendant

Ocwen. (Dkt # 29). Defendants Homecomings and Wilshire moved for a judgment on the

pleadings as to all claims. (Dkt. #23). The court granted Defendants’ motion in part and

denied the motion in part, leaving only Plaintiffs’ RESPA claim against Wilshire. (Dkt. # 27). 

The court also noted that Plaintiffs’ WCPA claim remained as to T.D. Escrow. Id. Wilshire,

as the only remaining Defendant in Plaintiffs’ RESPA claim, filed this motion for summary

judgment. Plaintiffs have not opposed the motion. 

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III. DISCUSSION

In examining Wilshire’s motion, the court must draw all inferences from the

admissible evidence in the light most favorable to the non-moving party. Addisu v. Fred

Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). Summary judgment is proper where there

is no genuine issue of material fact and the moving party is entitled to judgment as a matter of

law. Fed. R. Civ. P. 56(c). The moving party bears the initial burden to demonstrate the

absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986). Once the moving party has met its burden, the opposing party must show that there is

a genuine issue of fact for trial. Matsushita Elect. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 586-87 (1986). The opposing party must present significant and probative evidence to

support its claim or defense. Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551,

1558 (9th Cir. 1991). 

When a non-moving party fails to oppose a summary judgment motion, the court must

still apply the above standards consistent with Fed. R. Civ. P. 56. Henry v. Gill Indus., Inc.,

983 F.2d 943, 949-50 (9th Cir. 1993) (holding that court may not grant summary judgment

merely because motion is unopposed, even where local rules are to the contrary). The court

must determine if the moving party’s papers are sufficient to demonstrate that there is no

genuine issue of material fact and judgment is appropriate as a matter of law. See id. at 950. 

Plaintiffs allege that Wilshire violated RESPA by failing to honor “proper requests for

information by Dennis Barnett about loan balances, and requests for acknowledgment of

amounts paid.” Compl. at ¶ 7.2. RESPA requires federally related mortgage loan servicers,

such as Wilshire, to take certain actions when a borrower sends a “qualified written request.” 

12 U.S.C. § 2605(e)(1)(A). To qualify, a borrower’s request must be (1) in writing, (2) state

the borrower’s name and account, and (3) state the reasons the borrower believes the account 

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is in error. 12 U.S.C. § 2605(e)(1)(B) Failure to respond to a borrower within 60 days of

receiving a qualified written request exposes a loan servicer to potential liability for actual

damages and up to $1,000 in additional damages “in the case of a pattern or practice of

noncompliance.” 12 U.S.C. § 2605(f)(1). 

A comparison of Plaintiffs’ complaint to Wilshire’s motion reveals that Wilshire has

demonstrated an absence of genuine issues of material fact, and is therefore entitled to

judgment as a matter of law. As determined previously by this court, only Barnett’s letter of

June 14, 2002 constitutes a “qualified written request” which, by statute, requires a response

from Wilshire. (Dkt. # 27). Wilshire, in turn, has provided copies of letters mailed to

Barnett, which indeed answer his June 14th letter. Devours Decl., Exh. 2, 3. Specifically,

employee Sue Jones responded to Barnett on June 26, 2002, acknowledging receipt of his

request and indicating that Wilshire would investigate his concerns. Also, on August 20,

2002, employee P. White sent a letter to Barnett which summarized Wilshire’s conclusions

following their investigation into his account and included the phone number of Barnett’s

account representative. Devours. Decl., Exh. 2, 3. The court is satisfied that Wilshire’s

response to Barnett’s qualified written request complies with the requirements of 12 U.S.C. §

2605(e), both in timeliness and content. 

IV. CONCLUSION

 For the reasons stated above, the court GRANTS Defendant Wilshire’s motion for

summary judgment (Dkt. # 30). 

Only Plaintiffs’ WCPA claim against T.D. Escrow remains in this case. The court

notes that the parties have not complied with this court’s order requiring submission of a joint

status report and discovery plan, which was due on August 16, 2005 (Dkt. # 24). Plaintiffs 

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and T.D. Escrow should submit the status report and discovery plan by October 7, 2005 to

avoid the court’s dismissal of the remaining claim (Dkt. # 32). 

Dated this 27th day of September, 2005.

A JAMES L. ROBART

United States District Judge

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