358 P.3d 1204
Wash. Ct. App.2015Background
- In 2002 Barkley borrowed $291,900 from GreenPoint, executing a note and deed of trust listing MERS as nominee/beneficiary; GreenPoint endorsed the note in blank. U.S. Bank later acquired the note; JPMorgan Chase serviced the loan.
- Barkley defaulted in August 2010; NWTS (as U.S. Bank’s agent) sent a notice of default and later recorded a notice of trustee’s sale scheduled for March 2013; NWTS postponed then cancelled the sale after Barkley’s counsel requested more time.
- Barkley filed suit in May 2013 against GreenPoint, U.S. Bank, Chase, NWTS, and MERS alleging wrongful foreclosure, violations of the Deeds of Trust Act (DTA), the Consumer Protection Act (CPA), and the Criminal Profiteering Act; no trustee’s sale actually occurred.
- Defendants moved for summary judgment supported by declarations and business records from Chase and NWTS; the trial court compelled discovery, awarded costs, denied Barkley’s CR 56(f) continuance request, and granted summary judgment for defendants; GreenPoint and Doe defendants were voluntarily nonsuited.
- On appeal Barkley challenged evidentiary rulings, denial of continuance, and dismissal of DTA, CPA, and criminal profiteering claims; the Court of Appeals affirmed.
Issues
| Issue | Barkley’s Argument | Defendants’ Argument | Held |
|---|---|---|---|
| Did defendants fail to comply with the DTA and thus give rise to damages? | DTA violations (e.g., improper beneficiary/assignment, improper trustee appointment) entitle him to relief. | DTA does not allow monetary damages absent a completed trustee’s sale; defendants complied with statutory prerequisites. | Dismissed: DTA claims fail because no trustee’s sale occurred and defendants met DTA requirements. |
| Were the Chase and NWTS declarations/business records admissible on summary judgment? | Declarations lack personal knowledge and are conclusory, so should be excluded. | Declarations satisfy CR 56(e) and RCW 5.45.020 as business-record-based testimony by qualified witnesses. | Admissible: court properly considered the sworn declarations and attached business records. |
| Do Barkley’s facts state a CPA claim? | Notices, beneficiary/nominee practices, and trustee appointment were deceptive/unfair, injuring Barkley. | Notices and trustee actions complied with statute; no deceptive act or public-impact unfair practice shown. | Dismissed: plaintiff failed to show unfair/deceptive act or public impact sufficient for CPA relief. |
| Do facts support a civil claim under the Criminal Profiteering Act? | Foreclosure-related conduct amounted to criminal profiteering and pattern criminality. | No evidence of criminal conduct or pattern; actions were lawful servicing and statutorily required notices after default. | Dismissed: record lacks evidence of criminal profiteering or unlawful scheme. |
| Was denial of CR 56(f) continuance an abuse of discretion? | Additional discovery (ownership, agency, undisclosed investor) was needed to oppose summary judgment. | Plaintiff offered no affidavit stating what evidence would be produced, had ample prior discovery, and ownership is not material to holder’s authority. | Denied: no good cause, no showing of material facts producible by further discovery; denial not an abuse of discretion. |
Key Cases Cited
- Bain v. Metro. Mortg. Grp., Inc., 175 Wn.2d 83 (Wash. 2012) (describing DTA scheme and strict compliance principles)
- Albice v. Premier Mortg. Servs. of Wash., Inc., 174 Wn.2d 560 (Wash. 2012) (DTA purpose and trustee duties)
- Frias v. Asset Foreclosure Servs., Inc., 181 Wn.2d 412 (Wash. 2014) (DTA does not create independent monetary damages absent sale)
- Lyons v. U.S. Bank NA, 181 Wn.2d 775 (Wash. 2014) (CPA claims may proceed based on DTA violations under certain circumstances)
- Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778 (Wash. 1986) (elements and analysis for CPA claims)
- Qwest Corp. v. City of Bellevue, 161 Wn.2d 353 (Wash. 2007) (standards for denying CR 56(f) continuance)
- Trujillo v. Northwest Trustee Servs., Inc., 181 Wn. App. 484 (Wash. Ct. App. 2014) (ownership of note not dispositive of holder’s authority to foreclose)