Marisa Bavand v. Onewest Bank Fsb
196 Wash. App. 813
| Wash. Ct. App. | 2016Background
- In 2007 Bavand borrowed $240,000 from IndyMac evidenced by a single original promissory note secured by a recorded deed of trust; she later defaulted in 2010.
- IndyMac’s assets (including Bavand’s original note endorsed in blank) were acquired by OneWest, which has had possession of the original note and deed of trust since March 2009.
- MERS recorded an assignment of the deed of trust in 2011 purporting to assign "all beneficial interest" to OneWest; OneWest appointed Northwest Trustee Services (NWTS) as successor trustee and recorded notices of sale but no trustee’s sale occurred.
- Bavand sued (federal then state court) alleging wrongful foreclosure, Deeds of Trust Act violations, CPA and FDCPA claims; federal court previously granted summary judgment to defendants on most claims and remanded only the CPA claim; state court later granted summary judgment to OneWest, MERS, and NWTS and denied Bavand’s CR 56(f) continuance motion.
- Trial court struck parts of Bavand’s declaration as inconsistent with prior deposition testimony; Bavand appealed, arguing denial of continuance, improper consideration of defendants’ business-records declarations, and errors on CPA and Deeds of Trust Act issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Denial of CR 56(f) continuance | Bavand needed additional discovery (note/deed owners, holders, originals) to oppose summary judgment | Delay unjustified after years of litigation and prior federal rulings; requested discovery speculative and would not create genuine issue | No abuse of discretion; continuance properly denied because reasons for delay and likelihood of creating a triable issue were lacking |
| Admissibility of defendants’ declarations/business records | Declarations relied on third‑party records and lacked foundation/personal knowledge | Declarations were by qualified custodians/reviewers and satisfied RCW 5.45.020 and CR 56(e) | Court properly considered the declarations under the business‑records exception; objections rejected |
| Striking plaintiff’s declaration | Bavand’s later declaration supplied facts about rental damages and note ownership | Defendants pointed to deposition testimony contradicting those claims | Court properly struck portions that directly contradicted earlier unambiguous deposition answers and contained hearsay |
| CPA and Deeds of Trust Act claims (MERS/OneWest/NWTS) | MERS’s recorded assignment and alleged multiple versions of the note were deceptive and caused injury; OneWest and NWTS lacked authority/acted in bad faith | OneWest possessed the original endorsed note (holder) so it had enforcement authority; MERS’s assignment was presumptively deceptive but immaterial because the deed follows the note; no compensable CPA injury shown | Summary judgment affirmed: Deeds of Trust Act claims fail (no trustee’s sale; holder status dispositive); MERS’s assignment presumptively deceptive but not causative; CPA claims dismissed for lack of causation/public‑interest/injury where required |
Key Cases Cited
- Bain v. Metropolitan Mortgage Group, Inc., 175 Wn.2d 83 (Wash. 2012) (MERS cannot be treated as beneficiary if it never held the note; such characterizations can be presumptively deceptive)
- Brown v. Dep’t of Commerce, 184 Wn.2d 509 (Wash. 2015) (holder status and beneficiary declaration standards under deeds‑of‑trust law)
- Trujillo v. Northwest Trustee Services, Inc., 183 Wn.2d 820 (Wash. 2015) (successor trustee good‑faith duty and CPA standing/injury discussion)
- Indoor Billboard/Wash., Inc. v. Integra Telecom of Wash., Inc., 162 Wn.2d 59 (Wash. 2007) (CPA causation and public‑interest elements)
- Scrivener v. Clark College, 181 Wn.2d 439 (Wash. 2014) (summary judgment standard)