Cox, J.
¶ 1 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 CR 56(f) motion for a continuance and dismissed with prejudice all claims against these defendants.
¶ 2 Bavand fails to show that the trial court abused its discretion in denying her CR 56(f) motion for a continuance. Her challenges to the trial court's consideration of certain evidence supporting the motions for summary judgment and striking Bavand's declaration in opposition are unpersuasive. She fails in her burden to show that any genuine issue of material fact exists for trial. These defendants are entitled to judgment as a matter of law. We affirm.
¶ 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 Deeds of Trust Act. She also claimed violations of the Consumer Protection Act (CPA) and the federal Fair Debt Collection Practices Act. She sought to quiet title to the property subject to the deed of trust as well as declaratory and injunctive relief, damages, and attorney fees.
¶ 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.
¶ 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 CR 56(f) motion for a continuance.
¶ 13 Bavand appeals.
DEEDS OF TRUST ACT
Continuance
¶ 14 Bavand argues that the trial court abused its discretion in denying her CR 56(f) motion for continuance of the hearing on the summary judgment motions of OneWest, MERS, and NWTS. We disagree.
¶ 15 Under CR 56(f), a court may order a continuance to allow a party opposing summary judgment to conduct discovery. We review for abuse of discretion a trial court's denial of a CR 56(f) motion for a continuance.
¶ 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.'"
¶ 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:
¶ 18 Whether Bavand offered a "`good reason 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 continuance because she offered no "`good reason for the delay in obtaining the desired evidence.'"
¶ 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
¶ 23 Second, the identity of the note "holder" is material to enforcement of the delinquent note and deed of trust.
¶ 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, RCW 61.24.030(7)(a) provides:
¶ 25 This record shows that OneWest has complied with this requirement to provide 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.
¶ 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."
¶ 29 Summary judgment is subject to a burden-shifting scheme.
¶ 30 We review de novo a trial court's grant of summary judgment.
Summary Judgment Evidence
¶ 31 Bavand argues that the trial court should not have considered certain evidence in support of the motions for summary judgement. She is wrong.
¶ 32 Under CR 56, the moving party may support its summary judgment motion with affidavits, and the adverse party may file opposing affidavits.
¶ 33 The Uniform Business Records as Evidence Act ("business records act") "makes evidence that would otherwise be hearsay competent testimony."
¶ 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."
¶ 35 Importantly, "where `the trial court is satisfied that sufficient testimony has been adduced regarding 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
¶ 37 Barkley defaulted on the loan. In 2011, NWTS, acting as U.S. Bank's agent, sent Barkley a notice of default.
¶ 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.
¶ 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.
¶ 40 This court concluded that these declarations satisfied CR 56(e) and RCW 5.45.020.
¶ 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."
¶ 42 Here, Bavand makes the same arguments as those rejected in
¶ 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 upon his "personal knowledge[ ] and/or [his] review of OneWest's business records."
¶ 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 CR 56(e).
¶ 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 RCW 5.45.020. She further argues that the "testimony must be based on personal knowledge of the third party's record custodian" to satisfy the statute.
¶ 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."
¶ 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
¶ 54 Bavand further argues that Boyle, Blake, and Flannigan did not provide the trial court with facts that would establish the following:
¶ 55 But neither RCW 5.45.020 nor the two cases that Bavand cites to support this argument address these factors. For example,
¶ 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
¶ 57 We have carefully compared the affidavit here with the discussion in
¶ 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 existence 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.'"
¶ 61 Here, the trial judge properly struck portions of Bavand's declaration. They directly contradicted her "`clear answers to unambiguous [deposition] questions.'"
¶ 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.
¶ 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 of 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 Deeds of Trust Act in the absence of a completed trustee's sale of her property.
¶ 73 On the other hand, Bavand may bring a CPA claim based on the circumstances of this case.
Standing
¶ 74 NWTS argues that Bavand lacks standing under the Deeds of Trust Act 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 prong test.
¶ 76 We review de novo whether a party has standing.
¶ 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
¶ 78 There, Bavand, sued to challenge another nonjudicial foreclosure to enforce the terms of her delinquent note evidencing a $722,950 loan for a property she owned.
¶ 79 We have no difficulty in expressly deciding that, under state law, borrowers have standing under both statutes 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.
Good Faith of Successor Trustee
¶ 82 Bavand claims NWTS violated its duty of good faith under RCW 61.24.030(7)(b) in three ways. First, she argues that the beneficiary declaration provided by OneWest is ambiguous because the date on the document is incomplete. Second, she argues that the declaration may have been signed by someone who was not employed by OneWest when the declaration was provided to NWTS in June 2011. Third, she contends that the declaration implies that she signed only one promissory note but argues that there are two versions of her note. None of these arguments is persuasive.
¶ 83 Bavand relies, in part, on
¶ 84 The supreme court chose not to address the ambiguity of RCW 61.24.030(7)(a) in
¶ 85 There, the declaration stated, in relevant part, that the beneficiary "is the actual holder of the promissory note ... or has requisite authority under RCW 62A.3-301 to enforce said obligation."
¶ 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
¶ 88 Rather, the ambiguity that Bavand claims is based on the fact that the beneficiary declaration is dated "this 8th day of June 20__."
¶ 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 declaration 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
¶ 93 It is undisputed that Bavand signed one
¶ 94 Bavand bases her argument on the fact that this record shows a
¶ 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
¶ 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 Deeds of Trust Act without a completed trustee's sale of her property.
¶ 101 The CPA prohibits "unfair or deceptive acts or practices in the conduct of any trade or commerce."
¶ 102 Whether a particular action constitutes a CPA violation is reviewable as a question of law.
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
¶ 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 deed of trust in this assignment has the capacity to deceive. Thus, it is presumptively deceptive under
¶ 106 We reach these conclusions on the same basis as the supreme court in
¶ 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
¶ 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 and 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
¶ 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.
¶ 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
¶ 113 Commentators have stated that the "transfer of the [note] alone will carry the [deed of trust] along with it."
¶ 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 note 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.
¶ 117 MERS is entitled to judgment as a matter of law. The trial court properly dismissed this CPA claim against 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."
¶ 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
¶ 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."
¶ 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.
¶ 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 original 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.'"
¶ 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 Deeds of Trust Act. Whether she provided evidence within the scope of the CPA is now at issue.
¶ 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
¶ 128 This statement is another example of the confusion that commentators have observed regarding the failure of courts to distinguish between holding a note and owning a note.
¶ 129 In
¶ 130 Based on our reading of
¶ 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 because "[c]ompensable injuries under the CPA are limited to `injury to [the] plaintiff in his or her business or property.'"
¶ 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.
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 Deeds of Trust Act. Bavand expands on that claim here by making additional assertions. None has merit.
¶ 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, RCW 61.24.010(3) states that "[t]he trustee or successor trustee shall have
¶139 More importantly, ownership of a note is irrelevant to enforcement of the note.
¶140 In sum, there is 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.
WE CONCUR:
J. Robert Leach
Becker, J.
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