Peri v. Bank of New York Mellon ( 2021 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 CHARLES PERI and on behalf of CASE NO. C20-5732 BHS 8 DEBORAH L. PERI, ORDER ADOPTING REPORT 9 Plaintiff, AND RECOMMENDATION v. 10 BANK OF NEW YORK MELLON, 11 QUALITY LOAN SERVICE CORPORATION OF WASHINGTON, 12 Defendants. 13 14 This matter comes before the Court on the Report and Recommendation (“R&R”) 15 of the Honorable David W. Christel, United States Magistrate Judge, Dkt. 28, and 16 Defendant The Bank of New York Mellon’s (“BONY”) partial objections to the R&R, 17 Dkt. 29. 18 Plaintiff Charles Peri initiated this action in Pierce County Superior Court on June 19 23, 2020, alleging that BONY was attempting to wrongfully foreclose and sell his real 20 property located at 942 25th Avenue Southwest, Puyallup, Washington and seeking, inter 21 alia, monetary relief and an order restraining the sale of his property and declaring the 22 foreclosure null and void. Dkt. 1-1. BONY removed the case to this Court on July 23, 1 2020. Dkt. 1. BONY then filed a motion to dismiss, Dkt. 25, but Peri did not respond. 2 Judge Christel denied the motion without prejudice and with the right to refile. Dkt. 26. 3 BONY again filed a motion to dismiss, Dkt. 27, and Peri again did not respond. 4 On December 28, 2020, Judge Christel issued the instant R&R, recommending 5 that the Court grant the motion to dismiss and deny BONY’s request for an award of 6 attorney fees and costs. Dkt. 28. On December 30, 2020, BONY objected to the R&R’s 7 recommendation to deny fees and costs. Dkt. 29. On January 11, 2021, Peri responded. 8 Dkt. 30. 9 When a party files objections to a nondispositve order, the “district judge in the 10 case must consider timely objections and modify or set aside any part of the order that is 11 clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a). 12 BONY argues that, when provided by a contract, an award of fees is mandatory, 13 not discretionary. Dkt. 29 at 1 (citing CHD, Inc. v. Boyles, 138 Wn. App. 131, 140–41 14 (2007)). Washington law “provides that a contract containing an attorney fee provision 15 entitles the prevailing party in an enforcement action to recover reasonable attorney fees 16 and costs.” CHD, 138 Wn. App. at 140 (citing RCW 4.84.330). Peri asserts that BONY 17 may not recover fees here because it cannot be said to be a prevailing party as BONY 18 cancelled the sale of the property at issue. Dkt. 30 at 1–2. Rather, Peri argues that he is 19 the prevailing party and is entitled to fees. Id. 20 A prevailing party is one who receives an affirmative judgment in their favor. Riss 21 v. Angel, 131 Wn.2d 612, 433 (1997) (internal citations omitted). If neither wholly 22 prevails, a court should award fees to the substantially prevailing party, and the identity 1 of that party depends on the extent of the relief afforded the parties. Id. Accordingly, if 2 both parties prevail on a major issue, neither is a prevailing party entitled to fees. Hertz v. 3 Reibe, 86 Wn. App. 1-2, 105 (1997) (internal citations omitted). 4 Here, both BONY and Peri have prevailed: Peri’s “goals have been achieved,” 5 Dkt. 30 at 1, because BONY cancelled the property’s sale, and BONY prevailed on its 6 motion to dismiss. Therefore, neither Peri nor BONY are entitled to fees. Judge Christel 7 reached the same conclusion, albeit for different reasons. The R&R’s recommendation to 8 deny BONY fees is thus neither clearly erroneous nor contrary to law. 9 The Court having considered the R&R, Plaintiff’s objections, and the remaining 10 record, does hereby find and order as follows: 11 (1) The R&R is ADOPTED; 12 (2) BONY’s motion to dismiss, Dkt. 27, is GRANTED, and request for fees is 13 DENIED; and 14 (3) The Clerk shall enter a JUDGMENT and close the case. 15 Dated this 25th day of February, 20A21. 16 17 BENJAMIN H. SETTLE 18 United States District Judge 19 20 21 22