Frizzell v. Murray
170 Wash. App. 420
Wash. Ct. App.2012Background
- Frizzell obtained a deed-of-trust loan from the Murrays secured by her home; loan amount ultimately around $88,000 after fees.
- Frizzell’s friend Baer held power of attorney; Baer arranged the loan but Frizzell had no involvement in negotiations; Barbara Murray approved loan to Frizzell directly.
- Loan was marketed for a 'wheelchair/scooter business' though Frizzell had no business experience; no business plan was required by Murrays.
- Frizzell used loan proceeds to pay bills and invest about $60,000 in oil stocks which later fell in value; she stopped making payments in late 2008.
- Foreclosure proceedings were initiated; a trustee’s sale was scheduled for February 19, 2010; Frizzell sought a restraint order.
- Frizzell obtained a pre-sale restraining order conditioning payment of arrearages and a $10,000 bond; she failed to meet the conditions, and the sale proceeded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Frizzell waive postsale relief by not restraining the sale? | Frizzell obtained a restraining order; waiver not triggered. | Failure to restrain implies waiver under WDTA provisions. | No waiver; remanded for merits review. |
| Are there genuine issues about capacity to contract and other statutory claims? | Frizzell had capacity concerns and statutory claims; factual disputes exist. | Waiver, or lack thereof, forecloses claims; evidence insufficient. | Not reached; court remands for consideration of merits. |
Key Cases Cited
- Albice v. Premier Mortg. Servs. of Wash., Inc., 174 Wn.2d 560 (2012) (waiver under WDTA is an equitable tool not a rigid rule)
- Plein v. Lackey, 149 Wn.2d 214 (2003) (failure to obtain preliminary injunction can constitute waiver)
- Brown v. Household Realty Corp., 146 Wn..App. 157 (2008) (distinguishable on waiver from failing to obtain injunctive relief)
- Cox v. Helenius, 103 Wn.2d 383 (1985) (WDTA goals and pre-sale relief avenues)
- Lande v. S. Kitsap Sch. Dist. No. 402, 2 Wn. App. 468 (1970) (definition and scope of waiver in context of rights)
- York v. Wahkiakum Sch. Dist. No. 200, 163 Wn.2d 297 (2008) (summary judgment de novo review standard)