Michael J. Beverick, Apps v. Landmark Building & Dev. Inc., Res.
74210-8
| Wash. Ct. App. | Jul 3, 2017Background
- In 2006 the Bevericks executed a $409,600 adjustable‑rate promissory note to WMC secured by a recorded deed of trust naming MERS as beneficiary and Bishop & Lynch as trustee. Payments were made to servicers (Aurora then Nationstar); the note was physically transferred and indorsed in blank from WMC → Aurora (Dec 2011) → Nationstar (July 2012).
- The Bevericks sued (Aug 2012) to quiet title, cancel the debt, and under the Consumer Protection Act (CPA), naming WMC, U.S. Bank (trustee/owner), Aurora, Nationstar, MERS, Bishop & Lynch, and others. Many defendants moved for summary judgment.
- At a Sept 30, 2013 summary‑judgment hearing Nationstar produced what it said was the original note for inspection; the Bevericks later alleged it was a copy. Nationstar served requests for admission (RFAs) in Dec 2013 asking the Bevericks to admit the authenticity of signatures and a blank indorsement; the Bevericks failed to timely respond.
- Nationstar later moved for summary judgment (Mar 2015) supported by affidavits/declarations (Nationstar and servicer officers and counsel). The trial court granted summary judgment and entered a decree of foreclosure (May 2015). WMC separately moved for summary judgment on the remaining CPA claim and prevailed (Oct 2015).
- On appeal the Court of Appeals (Div. I) affirmed: the Bevericks waived claims against MERS, Bishop & Lynch, and U.S. Bank; the RFAs deemed the note authentic; Nationstar, as holder in possession, had standing to foreclose; and the Bevericks failed to raise triable CPA issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of appeal | Bevericks' appeal of Nationstar's summary judgment was timely. | Nationstar argued appeal untimely because order/decree was final. | Court: order was not a CR 54(b) final judgment (no written findings on no‑just‑reason), so appeal was timely. |
| Dismissal of MERS, Bishop & Lynch, U.S. Bank | Bevericks contended dismissal was error. | Defendants noted Bevericks agreed below they had no cause of action against those parties. | Court: Bevericks waived those claims by acquiescence; dismissal affirmed. |
| Authenticity of note (RFAs) | Bevericks said genuine factual dispute the produced note was a counterfeit. | Nationstar relied on RFAs and production of original note at hearing. | Court: failure to timely answer RFAs deemed admissions of authenticity; Bevericks barred from contesting authenticity. |
| Standing/Right to Foreclose | Bevericks argued U.S. Bank/Nationstar lacked status/standing to foreclose. | Nationstar argued it was the holder in possession of the indorsed‑in‑blank note and thus entitled to foreclose. | Court: holder in possession need not be owner; Nationstar presented original note and possession history → proper party to foreclose. |
| CPA claim | Bevericks argued designation of MERS and alleged improper foreclosures were deceptive practices under CPA. | Nationstar/WMC argued no unfair/deceptive acts attributable to WMC; holder status and affidavits were admissible. | Court: Bevericks failed to present sufficient factual support for CPA elements; summary judgment for Nationstar and WMC affirmed. |
Key Cases Cited
- Nelbro Packing Co. v. Baypack Fisheries, LLC, 101 Wn. App. 517 (2000) (CR 54(b) final‑judgment requirements and factors for "no just reason for delay")
- Bain v. Metro. Mortg. Grp., 175 Wn.2d 83 (2012) (designation of MERS can be deceptive but not per se CPA violation)
- Slotke v. Deutsche Bank Nat'l Trust Co., 192 Wn. App. 166 (2016) (holder in possession may sue/foreclose; possession of original note can establish status)
- Ruff v. King County, 125 Wn.2d 697 (1995) (summary judgment standard and inference drawing)
- Barkley v. Greenpoint Mortg. Funding, Inc., 190 Wn. App. 58 (2015) (business‑record affidavits may establish personal knowledge and qualify for summary‑judgment evidence)