July 9, 2013
Washington District Court Denies Plaintiff Mortgagors’ Motion for Injunctive Relief Against Foreclosure Sale
In Erickson v. IndyMac Bank, No. C11-598RAJ (W.D. Wash. July 14, 2011), plaintiff mortgagors Gregory Erickson and Aleksandra Makarova filed this action in the United States District Court for the Western District of Washington against defendant mortgagee Indymac Bank for wrongful foreclosure, breach of contract, and unjust enrichment. Defendants filed a motion to dismiss for failure to state a claim and under the doctrine of collateral estoppel.
Plaintiff failed to file its opposition on time, and the court denied its motion for an extension. However, the court went on to note that defendant’s motion to dismiss had merit. The court observed that plaintiff’s “show me the note” complaint had been dismissed in an earlier action for failure to state a claim. The earlier claim, which sought an injunction to stop the foreclosure, was dismissed for plaintiff’s failure to comply with the Washington law providing the basis for mortgagors to obtain an injunction against a foreclosure sale. The court concluded that its earlier order dismissing plaintiff’s claim was dispositive.
The court noted, however, that plaintiff’s request for damages, which had not been included in the earlier complaint, was not barred by the previous litigation and that it may fit within a fraud exception to the Washington law that barred their clam for injunctive relief.
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