ALEX C. BARKLEY, Appellant, v. GREENPOINT MORTGAGE FUNDING, INC., ET AL., Defendants, U.S. BANK NATIONAL ASSOCIATION, as Trustee, ET AL., Respondents.
No. 72051-1-I
Division One
August 10, 2015
190 Wash. App. 58
Joshua S. Schaer (of RCO Legal PS); and Fred B. Burnside and Hugh R. McCullough (of Davis Wright Tremaine LLP), for respondents.
¶1 LEACH, J. — After Alex Barkley‘s lender initiated nonjudicial foreclosure proceedings following Barkley‘s default on his mortgage loan, Barkley filed suit. He appeals the summary judgment dismissal of his complaint for injunctive relief and damages against U.S. Bank National Association, JPMorgan Chase Bank National Association, Northwest Trustee Services Inc. (NWTS), and Mortgage Electronic Registration Systems Inc. (MERS). He claims that genuine issues of material fact exist as to the respon-
FACTS
¶2 In November 2002, real estate agent and investor Alex Barkley borrowed $291,900 from GreenPoint Mortgage Funding Inc. to refinance real property in Seattle, executing an adjustable rate note and a companion deed of trust. The deed was recorded in King County on November 26, 2002. It lists GreenPoint as lender, Transnational Title Insurance Co. as trustee, and MERS, “a separate corporation that is acting solely as a nominee for Lender and Lender‘s successors and assigns,” as beneficiary. GreenPoint endorsed the note in blank. In a January 2003 pooling services agreement, U.S. Bank acquired the note.1 Chase, to whom Barkley made all his mortgage payments from 2002 to 2010, serviced the loan.
¶3 In 2010, Barkley‘s income as a real estate agent dropped significantly. In August 2010, he defaulted on his loan. Also in August, he began renting the property, receiving roughly $20,000 in short-term vacation rental fees between August and December 2010.2
¶5 On September 18, 2012, MERS, “as nominee for GreenPoint Mortgage Funding, Inc.,” executed an assignment of deed of trust, transferring its beneficial interest in Barkley‘s deed to U.S. Bank.3 On October 18, 2012, U.S. Bank, by “JPMorgan Chase Bank, NA, its Attorney in Fact,” executed a beneficiary declaration, stating that U.S. Bank was “the holder of the promissory note or other obligation evidencing” Barkley‘s loan.
¶6 On November 7, 2012, U.S. Bank, by its attorney-in-fact, Chase, appointed NWTS as successor trustee. On December 13, 2012, NWTS recorded a notice of trustee‘s sale, scheduling the sale for March 15, 2013. The notice identified U.S. Bank as the beneficiary of the deed of trust, and the attached notice of foreclosure explained that it was “a consequence of default(s) in the obligation to the U.S. Bank National Association.” The notice of foreclosure informed Barkley that he had until 11 days before the sale to cure the default, which totaled more than $54,000 in arrearages and fees. The notices informed Barkley of his right to contest the default and the procedures to do so and gave contact information for NWTS.
¶7 On March 4, 2013, Barkley‘s counsel sent a letter requesting NWTS‘s “cooperation” in postponing the sale to allow Barkley sufficient time “to make a determination of whether it is appropriate to move forward with a lawsuit
¶8 On May 22, 2013, Barkley filed suit against GreenPoint, U.S. Bank, Chase, NWTS, and MERS, alleging wrongful foreclosure and violations of the DTA, the CPA, and the Criminal Profiteering Act. Barkley has continued to rent out the property, receiving short-term vacation rental fees of $6,400 a month, on average.
¶9 In January and February 2014, the defendants filed motions to compel discovery, which the trial court granted, also awarding the defendants $1,068 in costs and reasonable attorney fees. In April 2014, the defendants moved for summary judgment. In his responding brief, Barkley requested a continuance to obtain additional discovery.
¶10 On May 23, 2014, the trial court granted the defendants’ motions for summary judgment. Following a stipulation by the parties,4 the court also granted a motion for voluntary nonsuit, dismissing GreenPoint and all Doe defendants without prejudice.
¶11 Barkley appeals.
STANDARD OF REVIEW
¶12 We review de novo a trial court‘s order granting summary judgment.5 We use the de novo standard to review all trial court rulings made in conjunction with a summary judgment decision.6 Summary judgment is appropriate if, viewing the facts and reasonable inferences in the light most favorable to the nonmoving party, no genuine issues of material fact exist and the movant is entitled to
¶13 A defendant may move for summary judgment by demonstrating an absence of evidence to support the plaintiff‘s case.9 If the defendant makes this showing, the burden shifts to the plaintiff to establish the existence of an element essential to his or her case.10 If the plaintiff fails to meet his or her burden as a matter of law, summary judgment for the defendant is proper.11
ANALYSIS
Deeds of Trust Act
¶14 The DTA creates a three-party transaction in which a borrower conveys the mortgaged property to a trustee, who holds the property in trust for the lender as security for the borrower‘s loan.12 If a borrower defaults, a lender may nonjudicially foreclose by a trustee‘s sale.13 The act furthers three goals: (1) an efficient and inexpensive foreclosure process, (2) adequate opportunity for interested parties to prevent wrongful foreclosure, and (3) stability of land titles.14 Because the DTA eliminates many of the protections afforded borrowers under judicial foreclosures,
¶15 The DTA describes the steps a trustee must take to start a nonjudicial foreclosure. Among other requirements, before scheduling a sale, a trustee must confirm that the beneficiary of the deed of trust holds the note and thus has authority to enforce the obligation. The act requires
(7)(a) That, for residential real property, before the notice of trustee‘s sale is recorded, transmitted, or served, the trustee shall have proof that the beneficiary is the owner of any promissory note or other obligation secured by the deed of trust. A declaration by the beneficiary made under the penalty of perjury stating that the beneficiary is the actual holder of the promissory note or other obligation secured by the deed of trust shall be sufficient proof as required under this subsection.
(b) Unless the trustee has violated his or her duty under
RCW 61.24.010(4) , the trustee is entitled to rely on the beneficiary‘s declaration as evidence of proof required under this subsection.17
Declarations of John Simionidis and Jeff Stenman
¶16 First, Barkley contends that the court should not have considered the declarations of John Simionidis, assistant secretary for Chase, and Jeff Stenman, vice-president and director of operations for NWTS. To be considered on summary judgment,
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.
¶17 Statements in a declaration based on a review of business records satisfy the personal knowledge requirement of
if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.19
Reviewing courts interpret the statutory terms “custodian” and “other qualified witness” broadly.20
¶18 Both declarations satisfy the requirements of
Deeds of Trust Act Claims
¶19 Barkley makes a number of claims alleging violations of the DTA. The DTA does not create an independent cause of action for monetary damages based on alleged violations of its provisions when, as here, no foreclosure sale has occurred.21
Consumer Protection Act Claims
¶20 Next, Barkley alleges claims under the CPA, including “reduced rental, damage to his credit and emotional distress.” Although he cannot bring a claim for damages under the DTA without a foreclosure sale, he may bring claims for violating this act under the CPA.22 To prevail on an action for damages under the CPA, the plaintiff must establish “(1) [an] unfair or deceptive act or practice; (2) occurring in trade or commerce; (3) public interest impact; (4) injury to plaintiff in his or her business or property; [and] (5) causation.”23 “[W]hether a particular action gives rise to a Consumer Protection Act violation is reviewable as a question of law.”24
¶21 Under our Supreme Court‘s Hangman Ridge25 test, a plaintiff may base a claim under the Washington CPA on a per se violation of statute, an act or practice that has the capacity to deceive substantial portions of the public,
¶22 Barkley does not allege any per se violations, and his allegations of unfair or deceptive acts are somewhat vague. He makes general statements such as, “The Bain court specifically held that a homeowner might have a CPA claim against MERS if MERS acts as an ineligible beneficiary” and “the improper appointment of NWTS, among other violations of the DTA alleged herein, can constitute unfair and deceptive acts or practices.” These general statements do not prove, nor does the record support, any claim for unfair or deceptive practices here.
¶23 The mere fact that the deed of trust identified MERS as beneficiary will not support a claim.27 U.S. Bank, through its agent, Chase, was the holder of the note, which GreenPoint had endorsed in blank. Therefore, U.S. Bank had the authority to appoint NWTS as successor trustee. It was not deceptive to refer to U.S. Bank as the beneficiary on the notice of default and notice of trustee‘s sale and foreclosure. NWTS sent the notices the DTA requires, and Barkley does not show that these notices were unfair or deceptive so as to support a claim under the CPA.
Criminal Profiteering Act Claims
¶24 Next, Barkley argues that the trial court improperly dismissed his claims under
¶25 Here, the record does not support any claim for criminal profiteering. The respondents’ actions related to
¶26 In its oral ruling, after opining that “it would be reversible error for this Court not to grant summary judgment to the defendants in this case,” the trial court observed,
It is not enough to simply raise arguments and ask questions. And the Court finds that that is pretty much all that was done in this case on the plaintiff‘s part to try to try to convince the Court that there is a genuine issue of material fact. In the Court‘s view there is not.
“[B]are assertions that a genuine material [factual] issue exists will not defeat a summary judgment motion in the absence of actual evidence.”31 We affirm the trial court‘s summary dismissal of Barkley‘s claims.
¶27 Finally, Barkley claims that the trial court erred by denying his request to continue discovery under former
[s]hould it appear from the affidavits of a party opposing the motion that, for reasons stated, the party cannot present by affidavit facts essential to justify the party‘s opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
¶28 A party seeking a continuance must provide an affidavit stating what evidence it seeks and how this evidence will raise an issue of material fact precluding summary judgment.32 We review a trial court‘s denial of a
¶29 A trial court may deny a motion for a continuance when:
“(1) the requesting party does not have a good reason for the delay in obtaining the evidence, (2) the requesting party does not indicate what evidence would be established by further discovery, or (3) the new evidence would not raise a genuine issue of fact.”34
¶30 Here, Barkley filed no motion or affidavit, simply making the request at the conclusion of his response to the defendants’ motions for summary judgment. More importantly, he articulated no good reason for delay. As the basis for his request, he cited “the clear need for additional discovery to flesh out the ownership of the subject Note and Deed of Trust and the agency relationships, if any, among the Defendants, and learn the identity of the ‘undisclosed
Motion To Strike
¶31 NWTS filed with this court a motion to strike portions of Barkley‘s brief, arguing that Barkley impermissibly raised new theories for the first time in his response to the respondents’ summary judgment motions.36 These theories are related to Barkley‘s allegations that NWTS had a conflict of interest as U.S. Bank‘s agent and that the notice of foreclosure failed to comply with
¶32 We deny the motion to strike. Barkley‘s complaint alleged that NWTS had a conflict of interest. And although Barkley made no specific contentions about
Attorney Fees
¶33 Barkley requests his costs and reasonable attorney fees under RAP 18.1 and paragraph 26 of his deed of trust.
¶34 NWTS requests its costs on appeal under RAP 14.2: “A commissioner or clerk of the appellate court will award costs to the party that substantially prevails on review, unless the appellate court directs otherwise in its decision terminating review.” NWTS prevails here. We grant NWTS‘s request upon its timely filing and serving of a cost bill under RAP 14.4.
CONCLUSION
¶35 Because the trial court did not err in its evidentiary rulings, in denying Barkley‘s request for a continuance, or in granting the defendants’ motions for summary judgment, we affirm. We deny NWTS‘s motion to strike and Barkley‘s request for costs and attorney fees. We grant NWTS‘s request for costs on appeal upon its timely compliance with RAP 14.4.
VERELLEN, A.C.J., and BECKER, J., concur.
Review denied at 184 Wn.2d 1036 (2016).