MARISA BAVAND, Appellant, v. ONEWEST BANK, FSB, ET AL., Respondents.
No. 74347-3-1
Division One. November 28, 2016.
813
Ryan M. Carson (of Wright Finlay & Zak LLP); Robert W. Norman Jr. (of Houser & Allison APC); and Joshua S. Schaer (of RCO Legal PS), for respondents.
[As amended by order of the Court of Appeals December 15, 2016.]
¶1 Cox, J. — Marisa Bavand appeals the order granting summary judgment in favor of OneWest Bank, Mortgage Electronic Registration Systems Inc. (MERS), and Northwest Trustee Services Inc. (NWTS). The order denied Bavand‘s
¶2 Bavand fails to show that the trial court abused its discretion in denying her
¶3 In August 2007, Bavand obtained a loan from IndyMac Bank. The loan was evidenced by a promissory note dated August 6, 2007 in the principal amount of $240,000. She is the only obligor on the note.
¶4 In order to secure payment of the note, Bavand, a married woman as her separate estate, executed a deed of trust that encumbers real property located in Snohomish County. Chicago Title Insurance Company is named as the trustee in this deed of trust. The deed of trust was recorded in the Auditor‘s Records of Snohomish County on August 16, 2007.
¶5 In July 2008, the federal Office of Thrift Supervision closed IndyMac Bank and created IndyMac Federal Bank. The Federal Deposit Insurance Corporation (FDIC) operated IndyMac Federal Bank. The FDIC then sold IndyMac Federal Bank‘s assets to OneWest.
¶6 OneWest took possession of Bavand‘s original note, which was endorsed in blank by IndyMac Federal Bank, and the original deed of trust in March 2009. OneWest has maintained possession of these loan documents at all times since then.
¶8 Thereafter, MERS executed and recorded an Assignment of Deed of Trust dated June 7, 2011. It purports to assign to OneWest “all beneficial interest” under Bavand‘s deed of trust.
¶9 In July 2011, OneWest appointed NWTS as successor trustee to Chicago Title Insurance Company, the original trustee under Bavand‘s deed of trust. Thereafter, NWTS recorded a notice of trustee‘s sale, setting the sale date for December 2011. NWTS postponed the sale several times and eventually discontinued the sale in May 2013. No trustee‘s sale has occurred.
¶10 Bavand commenced this suit in December 2011. She claimed wrongful foreclosure under the
¶11 MERS and OneWest removed this action to the United States District Court for the Western District of Washington. The federal trial court granted summary judgment to OneWest, MERS, and NWTS on most of Bavand‘s claims in March 2013. The federal court remanded only Bavand‘s CPA claim to state court. The Ninth Circuit Court of Appeals affirmed the federal trial court‘s decision.1
¶12 Thereafter, OneWest, MERS, and NWTS moved for summary judgment in state court. The trial court granted the motions in November 2015, dismissing with prejudice all of Bavand‘s claims and denying her
¶13 Bavand appeals.
DEEDS OF TRUST ACT
Continuance
¶14 Bavand argues that the trial court abused its discretion in denying her
¶15 Under
¶16 Washington courts may deny a continuance motion “when (1) the requesting party does not offer a good reason for the delay in obtaining the desired evidence; (2) the requesting party does not state what evidence would be established through the additional discovery; or (3) the desired evidence will not raise a genuine issue of material fact.”3
¶17 Here, Bavand sought a continuance of the August 2015 hearing of the summary judgment motions. She claimed to need additional time to conduct specified discovery. The discovery she sought may be summarized as follows:
- The identity of and documents related to “each and every owner” of her note and deed of trust;
- The identity of and documents related to “each and every holder” of her note and deed of trust; and
- The originals of her note and deed of trust.4
¶18 Whether Bavand offered a “good rеason for the delay in obtaining the desired
¶19 The request for a continuance came almost four years after she commenced this action and over two years after the federal court granted summary judgment to the same moving parties in this action. That hearing in federal court resulted in dismissal of all of Bavand‘s claims except for the CPA claim remanded to state court. Bavand fails to explain satisfactorily why, on this record, she needed a continuance to conduct additional discovery.
¶20 Bavand stated in her motion that she had previously requested the discovery identified in her motion, but claimed it was not provided. But no evidence suggests that she moved to compel discovery to obtain what she believed she was entitled to obtain. On this first basis alone, the trial court properly denied Bavand‘s motion for a continuancе because she offered no “‘good reason for the delay in obtaining the desired evidence.‘”6
¶21 The trial court also properly denied Bavand‘s motion for a second reason. That is because Bavand failed to establish that a continuance would produce any discovery that would show the existence of a genuine issue of material fact.
¶22 First, a note owner‘s identity is immaterial to this litigation, which was commenced to challenge a nonjudicial foreclosure of Bavand‘s deed of trust due to her delinquent note.7
¶23 Second, the identity of the note “holder” is material to enforcement of the delinquent note and deed of trust.8 The record establishes that OneWest has been the “holder” of Bavand‘s original note since March 2009. There is no evidence in this record to refute this status. All that Bavand offers is speculative and argumentative assertions that unresolved factual issues remain regarding the noteholder‘s identity. Such unsupported assertions are not sufficient to avoid summary judgment.9 Thus, further discovery on this point would not have shown any genuine issue of material fact.
¶24 Third, Bavand‘s discovery request to see her original note is not well founded. That is because the legislature has specified that a holder of a promissory note need not produce the original note to prove the right to enforce a deed of trust under these circumstances. Specifically,
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 [of the status to enforce the note] as required under this subsection.10
¶25 This record shows that OneWest has complied with this requirement to prоvide a satisfactory declaration. Bavand fails to argue persuasively why she is entitled to avoid the legislature‘s statement of what proof is sufficient to establish the right to enforce the note under the circumstances of this case. Her “show me the note” argument is simply untenable.11
¶26 For these additional reasons, the trial court properly denied Bavand‘s request for a continuance of the summary judgment hearing.
Summary Judgment
¶27 Bavand argues, in part, that the trial court improperly considered certain evidence
¶28 Summary judgment is proper “only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.”12 “A genuine issue of material fact exists if ‘reasonable minds could differ on the facts controlling the outcome of the litigation.‘”13
¶29 Summary judgment is subject to a burden-shifting scheme.14 The moving party is entitled to summary judgment by submitting affidavits establishing that it is entitled to judgment as a matter of law.15 The nonmoving party avoids summary judgment by setting forth “‘specific facts which sufficiently rebut the moving party‘s contentions and disclose the existence of a genuine issue’ of material fact.”16 To accomplish this, the nonmoving party may not rely on argumentative assertions that unresolved factual issues remain or on speculation.17
¶30 We review de novo a trial court‘s grant of summary judgment.18 We may affirm on any basis supported by the record whether or not the argument was made below.19
Summary Judgment Evidence
¶31 Bavand argues that the trial court should not have considered certain evidence in support of the motions for summary judgment. She is wrong.
¶32 Under
¶33 The
¶34 The statute‘s purpose “is to permit the admission in evidence of systematically entered records made in the usual course of business without the necessity of identifying, locating[] and producing as witnesses each individual who made the original entries in the records.”24 No particular mode or record form is required.25
¶35 Importantly, “where ‘the trial court is satisfied that sufficient testimony has been adduced rеgarding the manner in which certain records have been kept, and that their identity has been properly established in compliance with the [business records] act,
¶36 Barkley v. GreenPoint Mortgage Funding, Inc.27 is instructive. In that case, Alex Barkley executed a note and deed of trust in favor of GreenPoint Mortgage Funding Inc. in 2002.28 GreenPoint endorsed the note in blank. In 2003, U.S. Bank possessed the note and deed of trust.29 Chase Bank serviced the loan.30
¶37 Barkley defaulted on the loan. In 2011, NWTS, acting as U.S. Bank‘s agent, sent Barkley a notice of default.31 In 2012, U.S. Bank executed a beneficiary declaration stating it held “the promissory note” evidencing the loan.32 U.S. Bank also appointed NWTS as successor trustee under the deed of trust.33 In late 2012, NWTS recorded a notice of trustee‘s sale and postponed the sale three times before discontinuing it.34
¶38 Barkley commenced suit against GreenPoint, U.S. Bank, Chase, NWTS, and others. He alleged wrongful foreclosure, Deeds of Trust Act violations, and CPA violations.35 The trial court granted summary judgment to the defendants.36
¶39 On appeal, Barkley argued that the trial court should not have considered two declarations from officers of Chase, the loan servicer, and NWTS, the successor trustee, respectively.37
¶40 This court concluded that these declarations satisfied
(1) they were officers of Chase and NWTS, respectively, (2) they had personal knowledge of their companies’ practices of maintaining business records, (3) they had personal knowledge from their own review of records related to Barkley‘s note and deed of trust, and (4) the attached records were true and correct copies of documents made in the ordinary course of business at or near the time of the transaction.39
¶41 Although Barkley argued that the testimony was conclusory and failed to demonstrate personal knowledge, this court determined that Barkley did not identify any genuine issue of material fact as to the declarants’ qualifications, “their statements, or the authenticity of the attached documents.”40
¶42 Here, Bavand makes the same arguments as those rejected in Barkley. Because the challenged evidence satisfies the business records act, it also satisfies
¶43 First, Charles Boyle declared under penalty of perjury that he is Vice President in Default Litigation for OneWest and that his statements are based on his “personal knowledge[] and/or [his] review of OneWest‘s business records.”41 He also testified that he based his testimony on his review of the relevant business records concerning Bavand.
¶44 His testimony establishes that OneWest took possession of Bavand‘s original promissory note and deed of trust in March 2009. The testimony also establishes that OneWest has maintained possession of these loan documents at all times material to this litigation.
¶46 The substance of Blake‘s declaration explains the relationship between MERS and OneWest. It further explains the authority of certain bank officers to act as agents for MERS in connection with the loan documents. Copies of relevant business records are attached to his declaration.
¶47 Lastly, Kevin Flannigan declared under penalty of perjury that he is a senior loan analyst for Ocwen Financial Corporation, which services Bavand‘s loan. Like the two other documents that Bavand challenges, this declaration fully complies with the requirements of the business records act.
¶48 The substance of Flannigan‘s testimony establishes that the Assignment of Deed of Trust dated June 7, 2011 purported to assign to OneWest “all beneficial interest” of MERS under Bavand‘s deed of trust.
¶49 All of these documents satisfy the business records act and
¶50 Bavand argues that the business records referred to and relied on in the affidavit and declarations “necessarily include” third party records, which “must be separately authenticated by the third party who compiled” them to satisfy
¶51 To the contrary, courts are “not required to examine the person who actually made a record to admit the record under the business record exception. Rather, testimony by one who has custody of the record as a regular part of his work or who has supervision of its creation will be sufficient to introduce the record.”42
¶52 The trial court properly considered this evidence in this case.
¶53 None of the cases that Bavand cites support her arguments challenging the trial court‘s consideration of the challenged evidence. For example, in State v. Weeks, the supreme court determined that the hospital record in that case was not “competent evidence” because it did not satisfy
¶54 Bavand further argues that Boyle, Blake, and Flannigan did not provide the trial court with facts that would establish the following:
- how the documents they refer to are maintained, whether in hard copy or electronic;
- if the records are maintained by electronic means, whether the computer document retrieval equipment used is standard;
- the original source of the materials maintained;
- the identity of person who compiled the information contained in the files or computer printouts;
- when, aside from the conclusory statements that they were made “at or near the time of the happening or event“, the records or the entries were made and
- ... how the еmployer of each declarant relies on these records.45
¶55 But neither
¶56 Lastly, Bavand cites a federal district court case involving a declaration from Charles Boyle, one of the declarants in this case, to argue that the criticisms mentioned there apply here. In McDonald v. OneWest Bank, FSB, the court imposed sanctions against OneWest and others to offset costs caused by their discovery violations.48 In a portion of that opinion, the federal court discussed factual misstatements in Boyle‘s declaration.49
¶57 We have carefully compared the affidavit here with the discussion in McDonald and conclude there is no similarity for purposes of our analysis. So that case is not helpful.
¶58 In sum, the trial court properly considered the affidavits and declarations. Bavand fails in her burden to show otherwise.
¶59 Bavand next argues that the state trial judge erred in striking her declaration in opposition to summary judgment. We disagree.
¶60 “When a party has given clear answers to unambiguous [deposition] questions which negate the exis-tence of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.‘”50
¶61 Here, the trial judge properly struck portions of Bavand‘s declaration. They directly contradicted her “‘clear answers to unambiguous [deposition] questions.‘”51
¶62 During Bavand‘s deposition in 2013, OneWest‘s counsel asked Bavand unambiguous questions about her interrogatory answers. This discovery concerned renters of Bavand‘s property in this foreclosure. Bavand testified that her husband manages the rental properties. She also testified that she “never had any knowledge about what the rent is,” had “no personal knowledge” of the four month rental property vacancy, and had “no personal knowledge” of a rental agreement for specific renters. These are unambiguous answers to the questions at the deposition.
¶63 In August 2015, Bavand signed her declaration in opposition to the summary judgment motions that are now before us for review. The declaration explained the alleged injuries and damages she sustained due to the moving parties’ actions.
¶64 Bavand‘s testimony in this declaration essentially claims $17,442 in damages. Of this total, $16,442 relates to rents or expenditures in connection with renting the property subject to the deed of trust during the time to which she previously testified at the deposition.
¶65 This declaration testimony relating to rentals contradicts her “clear answers to unambiguous [deposition] questions” given earlier.52
¶66 Bavand earlier testified that she “never had any knowledge about what the rent is.” But her later declaration states that she suffered injuries and damages totaling $16,442 related to rentals. She also testified at the deposition that her husband handled the rentals. Thus, her declaration directly contradicts her prior deposition testimony.
¶67 Bavand also testified in her deposition that she had “no personal knowledge” of the four month rental property vacancy. But her later declaration states that she was unable to obtain renters for four months. This also
¶68 The trial court properly struck these portions of the declaration due to the conflicts between Bavand‘s deposition testimony and her later declaration opposing the summary judgment motions.
¶69 Bavand does not argue that either the deposition questions or her answers were ambiguous. Rather, she argues that she did not know the answers to the questions at the time of her deposition. She later spoke with her husband, the manager of the property, to obtain the information. This points to the second problem with her declaration: her testimony contains inadmissible hearsay. This is an additional basis to affirm the trial court‘s decision to strike the declaration.
¶70 Accordingly, the trial judge did not err in striking these portions of Bavand‘s declaration.
¶71 We note that Bavand also claims in her declaration a $1,000 federal statutory penalty as damages. But she has abandoned this claim by not arguing it in this appeal. In view оf her abandonment of this claim, the trial judge‘s decision to strike this portion of Bavand‘s declaration is not properly before us for review. Accordingly, we do not further address this damages claim.
¶72 We also note that Bavand cannot make a claim for damages under the
¶73 On the other hand, Bavand may bring a CPA claim based on the circumstances of this case.54 To that extent, her declaration could have potential value but for the deficiencies we have already discussed. We address later in this opinion what value, if any, hеr declaration has in connection with her CPA claim.
Standing
¶74 NWTS argues that Bavand lacks standing to challenge its appointment as successor trustee. Bavand does not directly address this argument in her briefing. We hold that she does have standing under state law.
¶75 To establish standing, Washington law requires that a claimant satisfy a two pronged test.55 First, that party “must show ‘a personal injury fairly traceable to the challenged conduct and likely to be redressed by the requested relief.’ ”56 Second, the party must show that his or her interest is within the “zone of interests protected by the statute” at issue.57
¶76 We review de novo whether a party has standing.58
¶77 While none of the parties in this case discusses it, a prior case of this court impliedly addressed standing to challenge the appointment of a successor trustee. That was the 2013 decision of Bavand v. OneWest Bank, FSB.59
¶78 There, Bavand, sued to challenge another nonjudicial foreclosure to enfоrce the terms of her delinquent note evidencing a $722,950 loan for a property she owned.60 Bavand challenged the appointment of a successor trustee under the
¶79 We have no difficulty in expressly deciding that under state law, borrowers have standing to challenge the appointment of a successor trustee. We so hold.
¶80 Based on a series of federal cases, NWTS argues that Bavand does not have standing. We disagree based on the state law we just discussed.
¶81 Additionally, none of the federal cases on which NWTS relies applies Washington‘s test for standing that we just discussed.63 We see no reason why standing, a question of statе law in this state case, should be controlled by those federal cases. Accordingly, we do not follow them.
Good Faith of Successor Trustee
¶82 Bavand claims NWTS violated its duty of good faith under
¶83 Bavand relies, in part, on Trujillo v. Northwest Trustee Services, Inc.
There, the supreme court addressed the extent to which a successor trustee under a deed of trust may rely on a beneficiary declaration that purports to satisfy the requirements of
¶84 The supreme court chose not to address the ambiguity of
¶85 There, the declaration stated, in relevant part, that the beneficiary ” ‘is the actual holder of the promissory note ... or has requisite authority under
¶86 Trujillo alleged that the successor trustee deferred to that ambiguous declaration
¶87 Here, Bavand does not and cannot make the same claim that was made in Trujillo. The beneficiary declaration in this case is unambiguous on the status of OneWest. It clearly states that OneWest “is the holder of the promissory note” of Bavand.71 Under Brown, this unambiguous declaration is sufficient to fulfill the requirements of
¶88 Rather, the ambiguity that Bavand claims is based on the fact that the beneficiary declaration is dated “this 8th day of June 20 .”73 She argues that this incomplete statement of the year creates a genuine issue of material fact. Specifically, she claims it is uncertain whether the declaration was signed when the loan closed, after the foreclosure started, or during the litigation of this case. She fails to point to any evidence in the record to substantiate any of the above alternatives that she argues.
¶89 In response, NWTS cites to the record to establish that the declaration was signed on June 8, 2011 and that NWTS received the declaration on June 15, 2011. These two dates predate the issuance of the notice of sale, which is the material date. Moreover, NWTS cites other evidence in the record that establishes that OneWest is the proper beneficiary to provide the required declaration. Accordingly, Bavand fails to show any genuine issue of material fact respecting when OneWest signed the beneficiary declaration.
¶90 Bavand next argues that the record shows that the person who signed the beneficiary declaratiоn for OneWest was not then employed by the bank. NWTS does not respond to this argument in its briefing.
¶91 Assuming, without deciding, this is true, there is no evidence that Bavand identifies in this record to show that NWTS either knew or should have known that the person signing the declaration may not have been the bank‘s employee. It is difficult to see how NWTS could breach its duty of good faith without Bavand producing evidence of this necessary factual predicate. We conclude there is no genuine issue of material fact that Bavand has shown for this claim.
¶92 Bavand‘s final “ambiguity” argument is that the beneficiary declaration states that OneWest ” is the holder of the promissory note, implying there to be only one note.”74 She further states that “there were two notes endorsed in blank by two different individuals.”75 This argument is without merit.
¶93 It is undisputed that Bavand signed one original promissory note, not two. Thus, Bavand‘s statement that “there were two notes” is misleading. Her liability for her delinquent loan obligation arises from one original note—the evidence of her debt.
¶94 Bavand bases her argument on the fact that this record shows a copy of her note stamped “Certified a True Copy” that bears an endorsement in blank by IndyMac Federal Bank, signed by its officer Kimberly Woody.76 This record does not show when the stamped notation was affixed in relation to when IndyMac Federal Bank executed the endorsement in blank. Nevertheless, based on this certified copy, Bavand urges that she “can potentially [be] liable to pay sums in excess of” the original promissory note that she signed at closing.77 She is wrong.
¶96 There is no genuine issue of material fact as to the obligation that OneWest seeks to enforce by the trustee‘s sale scheduled by NWTS. That obligation is evidenced only by the original promissory note that Bavand signed, nothing else.
¶97 In sum, there are no genuine issues of material fact whether either OneWest or NWTS violated the Deeds of Trust Act in any respect.
¶98 For these reasons, the trial court properly granted summary judgment to the defendants on all claimed violations of the Deeds of Trust Act.
CONSUMER PROTECTION ACT
¶99 We turn our attention to the only remaining claim Bavand briefs on appeal. She argues that the trial court improperly granted summary judgment on her CPA claim. We disagree.
¶100 As previously noted in this opinion, Bavand cannot bring a claim for damages under the
¶101 The CPA prohibits “unfair or deceptive acts or practices in the conduct of any trade or commerce.”81 To succeed on a CPA claim, a claimant must establish “(1) an unfair or deceptive act (2) in trade or commerce (3) that affects the public interest, (4) injury to the plaintiff in his or her business or property, and (5) a causal link between the unfair or deceptive act complained of and the injury suffered.”82 A claimant must establish all five elements to prevail.83
¶102 Whether a particular action constitutes a CPA violation is reviewable as a question of law.84
MERS
¶103 Bavand first argues that MERS committed an unfair or deceptive act by executing and recording the Assignment of Deed of Trust dated June 7, 2011. That recorded document purports to assign to OneWest the “beneficial interest” of MERS under Bavand‘s deed of trust. We hold that this recorded assignment that characterizes MERS as having a beneficial interest in the Bavand deed of trust is presumptively deceptive.
¶104 In Bain v. Metropolitan Mortgage Group, Inc., the supreme court stated that “only the actual holder of the promissory note or other instrument evidencing the obligation may be a beneficiary with the powеr to appoint a trustee to proceed with a nonjudicial foreclosure on real property.”85 The court held that MERS “is an ineligible ‘beneficiary‘” within the Deeds of Trust Act “if it never held the promissory note or other debt instrument secured by the deed of trust.”86 The court determined that MERS was not a “holder” under the Uniform Commercial Code definition.87 Thus, the court concluded
¶105 Here, the recorded assignment of the deed of trust, not the deed of trust itself, purports to assign to OneWest “all beneficial interest” of MERS under Bavand‘s deed of trust. MERS is an ineligible beneficiary under the law. This recorded document gives constructive notice of its contents. Characterizing MERS as having a beneficial interest in the Bavand dеed of trust in this assignment has the capacity to deceive. Thus, it is presumptively deceptive under Bain.
¶106 We reach these conclusions on the same basis as the supreme court in Bain. We are bound by that decision and see no rational basis to avoid applying the rule of that case to this recorded assignment of deed of trust.
¶107 MERS fails to show that this recorded assignment of deed of trust is not presumptively deceptive. It argues that it did not commit an unfair or deceptive act because it executed the assignment as OneWest‘s agent. It relies on Bain to argue “that lenders and assigns are entitled to name MERS as their agent.”
¶108 Agency is immaterial for this purpose. MERS executed the document that is presumptively deceptive. The fact that it may have done so as OneWest‘s agent does not relieve MERS of responsibility of making the representation аnd recording the document.
¶109 MERS also argues that this assignment did not constitute a deceptive act because it did not “mislead or misrepresent something of material importance.” The Bain court held that a similar characterization in a deed of trust had the capacity to deceive and was presumptively deceptive. MERS does not satisfactorily explain why the alleged lack of “material importance” of this characterization distinguishes it from that in Bain.
¶110 But our conclusion that this characterization is presumptively deceptive does not end our inquiry. A CPA claimant must also establish that he or she would not have suffered an injury but for the other party‘s unfair or deceptive practice.89
¶111 Here, the question is whether Bavand would not have suffered an injury but for the presumptively deceptive act of MERS‘s characterization in the recorded assignment of deed of trust. We conclude that there is no genuine issue of material fact showing causation.
¶112 In Bain, the supreme court stated in its discussion regarding MERS that the
¶113 Commentators have stated that the “transfer of the [note] alone will carry the [deed of trust] along with it.”91 Similarly, other commentators have elaborated, stating:
[B]etween the parties to a transfer[,] the assignment or negotiation of the note itself is all that must be done. It is unnecessary to have any separate document purporting to transfer or assign the mortgage on the real estate, for it will follow the obligation automatically.[92]
¶114 This record shows that OneWest has had possession of the original Bavand note, endorsed in blank, at all times material to this matter. By operation of law, Bavand‘s deed of trust followed the negotiation of that notе now held by OneWest. Accordingly, OneWest had the ability to enforce the deed of trust due to its possession of the note.
¶115 Thus, MERS‘s characterization in the assignment of deed of trust did not cause any injury that Bavand has identified. OneWest‘s authority to enforce the note and deed of
¶116 Bavand‘s failure to show any genuine issue of material fact for this necessary element of causation makes any factual disputes over the other necessary elements to establish a CPA claim against MERS immaterial for summary judgment purposes.94 That is because those facts cannot affect the outcome.
¶117 MERS is entitled to judgment as a matter of law. The trial court properly dismissed this CPA claim аgainst MERS.
OneWest Bank
¶118 Bavand next argues that the creation of “two separate versions of [her] Note with endorsements from two different individuals that could be separately negotiated is also a deceptive act and practice.”95 We hold that Bavand fails in her burden to show necessary elements of this CPA claim against the bank.
¶119 We previously discussed the factual underpinnings of this argument. Bavand claims she is potentially liable to pay sums in excess of the original promissory note based on a certified copy of her promissory note. This is so, notwithstanding that OneWest seeks to enforce the obligations of her original note—which is the evidence of her debt, not any copy.
¶120 First, in a private action, a claimant can establish the public interest element of a CPA claim by “showing a likelihood that other plaintiffs have been or will be injured in the same fashion.”96 Here, Bavand utterly fails to show that the facts underlying her “two notes” theory have been replicated elsewhere. Thus, there is no showing that others have been or will be injured in the same fashion. Bavand fails to show a public interest.
¶121 Second, Bavand contends that OneWest is not the actual holder of her promissory note. Thus, she argues that OneWest committed an unfair and deceptive act by appointing, without authority, a successor trustee.
¶122 There is no legal basis for this argument in view of controlling case law. The “holder” of a promissory note is the person with possession of it.97 The holder of the note—the evidence of the debt—has the right to enforce it.98 Consistent with these principles, the holder of a note has the right to appoint a successor trustee under the
¶123 The undisputed facts in this record show that OneWest has had possession of Bavand‘s original note since March 2009. Critically, it had possession of the оriginal note on the date it appointed NWTS as the successor trustee in this case. The appointment was neither unfair nor deceptive.
¶124 Third, a question remains whether there are any genuine issues of material fact as to injuries to Bavand‘s business or property.
¶125 “Compensable injuries under the CPA are limited to ‘injury to [the] plaintiff in his or her business or property.’ ”99 In Trujillo, the supreme court recently discussed what injuries are within the scope of the CPA under these circumstances. In that case, the court stated:
While emotional distress, embarrassment, and inconvenience are not compensable injuries under the CPA, Trujillo does not have to lose her property completely to prove injury. Trujillo can satisfy the CPA‘s
injury requirement with proof that her property interest or money is diminished as a result of NWTS‘s unlawful conduct, even if the expenses incurred by the statutory violation are minimal. Trujillo‘s investigation expenses and other costs associated with dispelling the uncertainty about who owns the note that NWTS‘s allegedly decep-tive conduct created are therefore sufficient to constitute an injury under the CPA.[100]
¶126 We already discussed the content in Bavand‘s declaration and why the trial court properly struck that declaration for purposes of Bavand‘s claim for violation of the
¶127 Here, Bavand asserts that she incurred expenses to determine the “owner” of her note. This appears to be based on the statement by the supreme court in Trujillo that investigative expenses associated with dispelling uncertainty “about who owns the note” are compensable.101
¶128 This statement is another example of the confusion that commentators have obsеrved regarding the failure of courts to distinguish between holding a note and owning a note.102 This statement is also at odds with the supreme court‘s more recent analysis and conclusion in Brown.
¶129 In Brown, the supreme court concluded that the status of “holder” is dispositive for purposes of enforcing a promissory note.103 The status of “owner” is not.
¶130 Based on our reading of Brown and other relevant authority, we conclude that expenses incurred to determine the “owner” of a promissory note under the circumstances of this case are not compensable under the CPA. Accordingly, this expense does not create any genuine issue of material fact as to Bavand‘s alleged injury under the CPA.
¶131 Bavand also claims to have experienced emotional distress in dealing with the potential loss of her property. But these injuries are personal to Bavand and are not compensable becаuse “[c]ompensable injuries under the CPA are limited to ‘injury to [the] plaintiff in his or her business or property.’ ”104
¶132 Overall, Bavand‘s failure to establish the existence of any genuine issues of material fact for these necessary elements of a CPA claim make all other factual disputes for the remaining elements immaterial for summary judgment purposes.105 OneWest is entitled to judgment as a matter of law and dismissal of the CPA claim.
NWTS
¶133 Bavand follows the claim against OneWest with one against NWTS. She specifically argues that this successor trustee violated its duty of good faith and fair dealing by failing to comply with trustee sale requirements and failing to act impartially. Accordingly, Bavand argues that NWTS‘s actions constitute unfair or deceptive acts.
¶134 We previously discussed in this opinion why there is no merit to Bavand‘s claim that NWTS breached its duty of good faith under the
¶135 She argues that there were serious doubts whether OneWest is the actual holder of her original note. As previously explained, there is no such doubt based on the evidence
¶136 Bavand also argues that NWTS was not lawfully appointed. Again, the record and the law show otherwise. This does not create a genuine issue of material fact for trial.
¶137 Lastly, Bavand argues that NWTS breached its “fiduciary” good faith duty by issuing the notice of default and the notice of foreclosure that “misrepresent[ed] the ownership” of Bavand‘s note and deed of trust.
¶138 There simply is no authority for the assertion that a successor trustee under a deed of trust has a “fiduciary duty of good faith.” Rather,
¶139 More importantly, ownership of a note is irrelevant to enforcement of the note.107 Issuance of the notice of default was properly based on proof that OneWest is the holder of the delinquent note.
¶140 In sum, there are no genuine issue of material fact regarding NWTS‘s good faith duty. It is entitled to judgment as a matter of law and dismissal of the CPA claim.
¶141 We affirm the summary judgment order dismissing with prejudice all claims of Bavand and denying her CR 56(f) motion for a continuance.
Becker and Leach, JJ., concur.
Reconsideration denied December 15, 2016.