Sheryl C. Moore v. Select Portfolio Servicing, Inc.
34618-8
| Wash. Ct. App. | Jul 18, 2017Background
- In 2006 Moore borrowed $242,100 from First Franklin and executed a promissory note and deed of trust on her Spokane home; MERS was named as beneficiary on the deed of trust.
- Moore stopped payments in 2008, alleged document irregularities (including ink color) and that no note existed, and foreclosure steps were initiated by various entities between 2008–2015.
- Moore sued multiple parties in 2009 and again filed the present suit in 2015 against Select Portfolio Servicing (SPS), Quality Loan Service Corp. (QLS), MERS, and U.S. Bank (as trustee), alleging violations of the Consumer Protection Act, the Deed of Trust Act, quiet title, and challenging note ownership/securitization.
- QLS was later dismissed by Moore; earlier summary judgment in 2011 dismissed her 2009 claims. In 2016 SPS, U.S. Bank, and MERS moved for summary judgment in the 2015 action and produced the original note and deed of trust at hearing.
- The trial court granted summary judgment for defendants, ruling that SPS, as possessor of the original note and deed, could lawfully foreclose; the court declined to address Moore’s statute‑of‑limitations and securitization challenges as presented.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Should the trial court have reached Moore’s statute‑of‑limitations claim? | Moore: statute of limitations bars enforcement and may be raised in her quiet‑title complaint. | Defs: statute of limitations is an affirmative defense and was improperly used offensively. | Court declined review for lack of cited authority by Moore; affirmed trial court’s approach. |
| 2. Does the statute of limitations bar collection of the note or enforcement of the deed of trust? | Moore: limitations period has expired so defendants cannot enforce note or deed. | Defs: installment rule/acknowledgment extend limitations; issue unnecessary to decide. | Court declined to address merits and affirmed for other reasons. |
| 3. Is there a factual dispute whether SPS or U.S. Bank hold the original note? | Moore: defendants do not lawfully possess or validly hold/endorse the original note. | Defs: SPS produced the original note at summary judgment; title/possession established. | Court refused to address due to Moore’s lack of legal authority in brief; summary judgment affirmed. |
| 4. Do defendants lack authority to foreclose the deed of trust? | Moore: none of the defendants are entitled to foreclose because they don’t hold the note; MERS could not foreclose without the note. | Defs: possession of the original note by SPS supports foreclosure authority. | Court declined to decide (moot/no pending foreclosure and procedural posture); affirmed. |
| 5. Was the loan securitized and may Moore challenge securitization? | Moore: loan was not properly securitized; securitization defects invalidate enforcement. | Defs: Moore lacks standing to challenge securitization and cited no record or authority. | Court declined to address due to Moore’s failure to cite record or law; affirmed. |
Key Cases Cited
- Joy v. Department of Labor & Industries, 170 Wn. App. 614, 285 P.3d 187 (2012) (courts need legal authority for review; conclusory arguments not considered)
- West v. Thurston County, 168 Wn. App. 162, 275 P.3d 1200 (2012) (passing treatment or lack of reasoned argument insufficient)
- Holland v. City of Tacoma, 90 Wn. App. 533, 954 P.2d 290 (1998) (issues not argued with authority will not be reviewed)
- Spokane Research & Defense Fund v. City of Spokane, 155 Wn.2d 89, 117 P.3d 1117 (2005) (mootness and inability to provide effective relief)
- In re Cross, 99 Wn.2d 373, 662 P.2d 828 (1983) (general rule against deciding moot cases)