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ORDER - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

GEORGE BENNETT & MARTHA BENNETT

fka MARTHA GORSUCH, husband and wife and

the marital community composed thereof

Plaintiffs,

v.

 HOMEQ SERVICING CORPORATION, a New

Jersey Corporation, WACHOVIA MORTGAGE

CORPORATION, a North Carolina Corporation,

REGIONAL TRUSTEE SERVICES

CORPORATION, a Washington Corporation 

Defendants.

No. 2-06-cv-874

ORDER GRANTING REGIONAL

TRUSTEE SERVICES

CORPORATION’S MOTION FOR

SUMMARY JUDGMENT

This matter comes before the Court on motion for summary judgment by Defendant Regional

Trustee Services Corporation (“Regional”). Having reviewed the record and the documents submitted

by the parties (Dk. No. 1–3, 16, 19, 21), the Court GRANTS Defendant’s motion. 

Background

This case concerns a foreclosure on the Plaintiffs’ home. Plaintiffs claim improprieties in that

process by Defendants Regional, Homeq Servicing Corporation (“Homeq”) and Wachovia Mortgage

Corporation. On February 23, 1999, Plaintiff Martha Bennett—then known as Martha

Gorsuch—executed a Note and Deed of Trust for the property located at 7365 Jackson Road, Blaine,

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ORDER - 2

Washington. (Dk. No. 1, Ex. A & B) Homeq, the loan servicer, later declared Plaintiffs in default,

and on January 31, 2006, Regional sent a Notice of Default to Plaintiffs. The Notice was issued by

“REGIONAL TRUSTEE SERVICES CORPORATION Trustee and/or Agent for the Beneficiary”

and signed by Nanci Lambert, a Regional employee. (Id., Ex. C) On February 2, 2006, Regional was

appointed as trustee, and on March 2, 2006, Regional issued to Plaintiffs a Notice of Trustee’s Sale

and Notice of Foreclosure. (Id., Ex. D–F) The amounts itemized in these notices were provided by

Homeq to Regional, and Regional had no independent knowledge of the truth of these claimed debts. 

(Dk. No. 16, Kaufman Decl. ¶ 4, 5)

On May 19, 2006, Plaintiffs filed suit in Washington state court to enjoin the Trustee’s Sale,

and on June 20, 2006, Defendants properly removed the action to federal court. (Dk. No. 1) The

Bennetts’ lawsuit includes several alleged violations of federal lending laws, but the only claim against

Regional is for breach of their fiduciary duty as trustee under Washington law. (Id. at 10–15)

Analysis

I. Summary Judgment Standard

Summary judgment is not warranted if a material issue of fact exists for trial. Warren v. City

of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995), cert. denied, 516 U.S. 1171 (1996). The underlying

facts are viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “Summary judgment will not lie if . . . the

evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party moving for summary judgment has the

initial burden to show the absence of a genuine issue concerning any material fact. Adickes v. S.H.

Kress & Co., 398 U.S. 144, 159 (1970). Once the moving party has met its initial burden, the burden

shifts to the nonmoving party to establish the existence of an issue of fact regarding an element

essential to that party’s case, and on which that party will bear the burden of proof at trial. Celotex

Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). To discharge this burden, the nonmoving party cannot

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ORDER - 3

rely on its pleadings, but instead must have evidence showing that there is a genuine issue for trial. Id.

at 324. 

II. Notice of Default

Plaintiffs’ Complaint and Response cite two potential breaches of fiduciary duty. First,

Regional lacked the authority to execute the Notice of Default because it was not the trustee on

January 31, 2006. The Notice, however, stated Regional is “Trustee and/or Agent for the

Beneficiary” (emphasis added). Regional asserts they were acting as Homeq’s agent at that time. 

Under Washington law someone may serve both as the creditor’s agent and as trustee. See Meyers

Way v. Univ. Savings Bank, 80 Wn. App. 655, 666 & n.8 (1996). This claim is easily dispensed with,

as it is clear that a party may serve in both capacities.

III. Notices of Trustee’s Sale and Foreclosure

Plaintiffs’ also claim Regional breached its fiduciary duty by including debts in the notices

without conducting any independent verification. Regional correctly points to RCW 61.24.030. The

statute contemplates the trustee will simply pass along allegations of debts claimed by the beneficiary

(indeed, according to the statute, the beneficiary-creditor can send the notices directly). When a

debtor disputes any claim, the proper procedure is to challenge the foreclosure in a lawsuit, which is

exactly what the Bennetts did here. See RCW 61.24.130. Contested claims are to be decided in a

court proceeding, not by the trustee, and consequently Regional did not breach its fiduciary duty to

Plaintiffs.

IV. Motion to Strike

Plaintiffs’ motion to strike portions of the Kaufman declaration is without merit. The

objections are incorrect as 1) the foundation for Kaufman’s statements in this matter is established by

her position, and 2) the statements are not conclusions of law. Plaintiffs’ claims against Regional fail

largely as a matter of law. Therefore the objections would be moot. 

The Clerk is directed to send copies of this order to all counsel of record.

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ORDER - 4

Dated: May 2, 2007.

 /s/ Marsha J. Pechman 

Marsha J. Pechman

United States District Judge

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