dkt 38 10.02.2013 defendants motion for summary judgment

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JACOB D. BRADBURN, an individual,

Plaintift

V.

RECONTRUST COMPANY, N.A., a limited-pu{pose national trust bank; FIDELITYl.lAlIgNAL TITLE, a corporarion;MORTGAGE ELECTRONICREGISTRATION SYSTEMS, NC., a foreigncorporation; BAC HOME LOANSSERVICING, LP FKP COT'NTRYWIDEBANK HOME LOANS SERVTCING LP, Aforeign-entity; BANK OF AMERICA, N.A., anational bank; BANK OF AMERICA-çq$f qRATION, a foreign corporation;COUNTRYWIDE FINAÑCIAICORPORATION, a foreign corporation;COUNTRYWIDE HOME LOANS,INC., Aforeign corporation; FEDERAL NATIONALMORTGAGE ASSOCIATION, a federallychartered corporation, LINDA GREEN DOESl-10, unknown persons; and QUICKDRAWREAL ESTATE SERVICES, INC d/b/AHOMESTAR LENDING, a domesticcorporation; NATIONAL CITY MORTGAGECO. d/b/ a COMMONWEALTH UNITEDMORTGAGE COMPANY, a foreigncorporation; STEWART TITLE, a domesticcorporation,

SUPERIOR COURT OF WASHINGTON

COUNTY OF SNOHOMISH

THE CIVIL MOTIONS ruDGEHearing Date: November 1,2013

Hearing Time: 9:30 a.m.With O¡al Argument

LANEPOWELLTcI42O FI TH AVENUE, SUITE 4IOO

SEATTLE, WASHINGTON 9810I.2338206.223.7 000 F AX: 206.223.7 I 07

NO" r t-2-08345-2

DEFENDANTS' MOTION FORSUMMARY JUDGMENT

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Defendants.

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT - I

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In 2005, Plaintiff Jacob D. Bradburn ("Borrower',) obtained a $200,900 loan to

finance real property located in Snohomish County. After Borrower defaulted, the property

was sold at a trustee's sale in May 2011. Four months later, Borrower filed this lawsuit

against Defendants,l raising claims attacking the underlying loan transaction, the denial of his

application for a loan modification, and the foreclosure.

Borrower claims that he never received notice of the sale, but the Notice of Trustee's

Sale and pictures of it posted on the Property belie this contention, Therefore, Bor¡ower had

proper notice of the Trustee's Sale and, as discussed below, had a duty to take action before

the sale, either by curing his default or enjoining the sale. Borrower did neither. Therefore,

Bonower has waived all claims not preserved under RCw 61.24.r27(l).

ln addition, Borrower's claims are unsupported by any evidence. In fact, the evidence

conclusively establishes that BAC Home Loans Servicing, LP (now Bank of America, N.A.)

("BANA") was at all relevant times the holder of the Note and that all actions taken by

Mortgage Electronic Registration Systems, Inc. ("MERS") were done at BANA,s direction in

accordance with the servicing guidelines of Federal National Mortgage Association (..Fannie

Mae"), the owner of the Note. Accordingly, ReconTrust company, N.A. (,.ReconTrust') was

a valid trustee and was authorized to issue a Notice of Trustee's Sale, to conduct the

foreclosure, md to execute a Trustee's Deed in favor of Fannie Mae. Therefore, the

foreclosure was proper and there is no genuine issue of material fact regarding any ofBorrower's claims, such that Defendants are entitled to summary judgment as a matter of law.

l Defendants are Defendants ReconTrust Company, N.4., Mortgage Electronic Registration!Is!eps' Inc., Bank of America, N.4., s.ugcgssä¡ þÍ *.tu.. to B-Aó Home Loans Sãi;i"g;LP (also sued erroneously--as "Countrywide Bank Fíomesîoans Servicing, I,Þ;;*¿ as..Baríiof Americ3. C-q'rporafig{'), Countrywide. _Hqme_ Loans, Inc. fafso süäl-.rrãìeousty ut"Countrywide Financial Corporation'-'), and Federal Natioial tvtort!áge Association

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT _ 2

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II. F.'ACTUALBACKGROUND

On December 14,2005, Bonowe¡ obtained a $200,900 loan (the "Loan") to refinance

real property located at4819l36th Place NE, Marysville, Washing¡ongB2Tl (the,.property,,).

Declaration of Abraham K. Lorber ("Lorber Decl."), Ex. A (Deed of Trust). The Deed ofTrust lists Jacob D. Bradburn as the borrower, HomeStar Lending as the lender, Fidelity Title

as the trustee, and MERS as the beneficiary, "as a nominee for Lender and Lender's

successors and assigns." .Id Borrower admits signing the Note and Deed of Trust. Ex. H to

Lorber Decl., Bradburn Deposition ("Bradburn Dep.,'), at lg:5-6, lg:14-15, l9:g-10, 3g:l-2,

39:15-19, Exs. l, 2.2 He also admits that he was not deceived about the terms of the Loan or

misled into obtaining it, and further, concedes that he is not aware of any kickback or

wrongdoing by the broker. Id. at72-74, g0, 93.

Following the origination of the Loan, the Note was endorsed to Countrywide Bank,

N.A, which then endorsed the Note to Counhywide Home Loans, Inc., which subsequently

endorsed the Note in blank. Declaration of Heather Dispenza (,.BANA Decl.',), tffl g, 9, Exs.

A (Note), B (Allonge).

The Relationshio Between BANA and Fannie Mae

Immediately following origination, Countrywide Home Loans Servicing, Lp began

servicing the Loan. Id.,n6. On or about January 3,2006,Fannie Mae became the owner ofthe Loan' Id',n7. BAC Home Loans Servicing LP fka Countrywide Home Loans Servicing

LP (now BANA)3 continued to service the Loan on behalf of Fannie Mae, pursuant to Fannie

2 The Deposiliol of Plaintiff Jacob D. Bradbum, conducted June 1 l, 20l3,is attached to theDeclaration of Abraham K. Lorber as Exhibit H.'3 on J.rly 1,2011, BAC Home Loans servicing, Lp merged with BANA . Irt.,1[23, Ex. H toBANA Decl. Fo¡ the sake of clarity and consistency with Borrower's refèrence to theservicer as "BANA," Defendants will hereafter refer to the servicer as "BANA," regardless ofthe time period.

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT- 3

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Mae's servicing guidelines. Id., nn11-15; Ex. I to Lorber Dect. This anangement was

designed to allow BANA to take all actions necessary for the collection and enforcement ofthe Loan, including receiving and processing loan payments, communicating regarding the

Loan, and should such action be necessary, initiating foreclosure consistent with the Note,

Deed of Trust, and Fannie Mae's servicing guidelines. Id.,n ll.Fannie Mae's Servicing Guide "grants servicers, acting in their own names, the

authority to represent Fannie Mae's interests in foreclosure proceedings as holder of the

mortgage note." Id.,Ex. E to BANA Decr., at l. since January 3,2006, the original,

endorsed-in-blank Note has been maintained by BANA and its predecessors in interest on

behalf of Fannie Mae, pursuant to Fannie Mae's servicing guidelines. Id.,n l0,lg, 26. Since

January 3,2006, Fannie Mae has been the owner of the note. 1d.,nn7,25;Ex. Id. E, at I

("Fannie Mae is at all times the owner of the mortgage note.,').

The original, wet-ink Note is currently in the possession of Defendants' attorneys. Id.,

n27.

Borrowerts Default and Foreclosure

Borrower defaulted on his loan obligations beginning in March 2009. Id.,I 16; Ex. D

to BANA Decl' (Loan Payment History). On or about June 8,2}}g,ReconTrust, as agent for

the beneficiary under the Deed of Trust, issued a Notice of Default to Borrower by first class

and certified or registered mail. Decla¡ation of ReconT¡ust Company, N.A. (.,ReconTrust

Decl."), !f 4, Ex. A to ReconTrust Decl. (Notice of Default). The Notice of Default was sent

to Borrower by first class and certified or registered mail on June 8,2009, and personally

served on him or posted in a conspicuous place on the Property on June g , Z00g Id. , \ 5, Ex.

B to ReconTrust Decl., $ VI (First Notice of Trustee's Sale).

Acting at the direction of BANA, the holder of the Note, MERS appointed ReconTrust

as the successor trustee, pursuant to an Appointment of Successo¡ Trustee recorded on June

17 ' 2009 ' BANA Decl., fl 2 I , Ex. F to BANA Decl. (Appointment of Successor Trustee).


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Again acting at BANA's direction, MERS then assigned the interest under the Deed of Trust

to BANA, as reflected in a Corporation Assignment of Deed of Trust recorded on March 30,

2014. Id.,fl22,Ex.G.

On July 29, 2010, ReconTrust recorded a Notice of Trustee's Sale, indicating total

arrears of 522,713.95 and scheduling a sale for October 29,20rc. ReconTrust Decl., tf 6, Ex.

B to ReconTrust Decl. Prior to and at the time of recording the first Notice of Trustee's Sale,

ReconTrust had proof that Fannie Mae was the owner of the Note. Id., n7, Ex. c to

ReconTrust Decl. @eclaration of Beneficiary). The sale was postponed and ReconTrust

recorded a second Notice of Trustee's Sale on February 17,2011, scheduling a sale for May

20,2011. Id., fl 8, Ex. D to ReconTrust Decl. (Second Notice of Trustee's Sale). Prior to and

at the time of recording the second Notice of Trustee's Sale, ReconTrust had proof that

Fannie Mae was the owner of the Note. 1d., fl 9, Ex. C. The second Notice of Trustee's Sale

was mailed to Borrower by first class and certified mail on February !7,2011 and was posted

in a conspicuous place on the Property on February 18,2011. Id.,nnlO, ll, Ex. E to

ReconTrust Decl. (Declarations of Mailing), Ex. F to ReconTrust Decl. (Declaration of

Posting); Bradburn Dep., at 46:3-5 (admitting that photographs in Declaration of Posting are

of the Property), 47:22-48:2 (admitting that Borrower has no reason to dispute statement in

Declaration of Posting that the Notice of Trustee's Sale was posted on the Property on

February 18, 2011). The Second Notice of Trustee's Sale advised: "Anyone having any

objection to the sale on any grounds whatsoever will be afforded an opportunity to be heard as

to those objections if they bring a lawsuit to restrain the sale. . . Failure to bring such a lawsuit

may result in a waiver . . ." Ex. D to ReconTrust Decl., $ IX.

Borrower did not bring a lawsuit to restrain the sale and the Property was sold on May

20,20L1 to Fannie Mae, as evidenced by the Trustee's Deed, recorded on June 9,2A11. Ex.

G. to Lorber Decl. (Trustee's Deed). BANA assigned the interest under the Deed of Trust to

Fannie Mae pursuant to a Corporation Assignment of Deed of Trust recorded on June 9,2011,


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immediately prior to the recording of the Trustee's Deed. Ex. F to Lorber Decl. (Corporation

Assignment of Deed of Trust).

Nearly fourmonths after the sale of the Property, on September 19,2011, Borrower

filed this action, asserting the following claims against Defendants: (l) engaging in an.,illicitscheme" to profit from Borrower's inability to make his loan payments (Compl. 1lI3.l-3.3;(2) violation of the Deed of Trust Act (id. nn 4J-4.35); (3) ..dual rracking,,, promising a loan

modification while proceeding with foreclosure (id. tt.1¡ 5.1-5.7); (4) engaging in a ,.pattern ofcriminal profiteering activity" (td. I116.1-6.6); (5) violation of the consumer protection Act(id'lll7'4-7.8); (6) quiet titre (id. ltftf 8.1-8-3); (7) unenforceability of, and breach by

Defendants of the Note and Deed of Tru st (id. Tll 9. 1-9. I 8); (8) equitable estoppel and unjust

en¡ichment (id'ffi l0.l-10.s); and (9) trespass, conversion, and negligence for coming onto

the Property and stealing and destroying objects on the property (id.nnl1.l-l l.l7). withouttying his requests for relief to his claims, Borrower seeks injunctive relief; declaratory relief,

and damages. Id. fl'l[ tL.t-tZ.t2 and pp. 49_50.

Defendants filed their Answer on Novemb er 3,2011.

UL ISST'E

Are Defendants entitled to summary judgment where Borrower received notice of the

foreclosure sale but did not move to enjoin the sale or cure his default and where there is no

genuine issue of material fact regarding the essential elements of his claims?

IV. EVIDENCE RELIED UPON

This Motion for Summary Judgment relies upon the pleadings and papers on file with

the Court in this matter, the Declaration of Abraham K. Lorber and exhibits thereto, the

Declaration of Heather Dispenza and exhibits thereto, and the Declaration of ReconTrust

Company, N.A. and exhibits thereto.

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT_ 6

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V. ARGUMENT

A. Summarv Judement Standard

Summary judgment is proper if, after viewing all facts and reasonable inferences in

the light most favorable to the nonmoving party, no genuine issues exist as to any material

fact and the moving party is entitled to judgment as a matter of law" CR 56(c); Torgerson v"

North Pøc. Ins. co., L09'wn. App. 131, 136, 34 p.3d s30 (2001). The non-rnoving parry may

not rest upon mere allegations or denials, but must instead set forth specific facts showing the

existence of a genuine issue for trial. CR 56(c); McBride v. Walla Wqlla Cnty., 95 Wn. App.

33,36,975 P.2d L02g (1999).

Where, as here, a defendant moves for summary judgment and shows an absence ofevidence to support an essential element of the plaintiffs claim, the burden shifts to the

plaintiff to provide evidence sufficient to establish the existence of the challenged element ofthat party's case. Young v. Key pharm., Inc., ll2 wn. zd,216, zz5 & n.l, 770 p.zd rg2

(1989) (quoting Celotex Corp. v. Catrett,477 U.5.317,325 (1986). Where the plainriff fails

to do so, slrlnmary judgment is proper "'since a complete failure of proof conceming an

essential element of the nonmoving party's case necessarily renders all other facts

immaterial. "' Young, 1 12 wn. 2d at 225 (quoting celotex, 477 u.s. at 322-23).

Non-judicial foreclosures such as the one at issue here are govemed by the

washington Deed of Trust Act ("DTA"), codified at RCw 6r.24.a0s, et seq. when a

borrower has reason to challenge the foreclosure of his property, RCW 61.24.130 governs the

procedure that the borrower must follow to enjoin the sale. See Brown v. Household Realty

corp.,146 wn. App. r57,163, 189 p.3dz33 (200g), review denied,l65 wn.2d 1023 (2009).

"This statutory procedure is 'the only means by which a grantor may preclude a sale once

foreclosure has begun with receipt of the notice of sale and foreclosure."' /d (quoting Cox v.

Helenius,l03 Wn'2d 383, 388, 693 P.2d 6S3 (1985)). If a bonower fails to enjoin the sale,

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the borrower waives any claims related to the underlying obligation and the sale itself. plein

v' Lackey, I49 Wn.2d 214, 227-28, 67 P.3d 1061 (2003) (frnding waiver even though the

plaintifffiled a lawsuit seeking to enjoin the sale prior to the sale because the plaintiff failed

to meet all of the DTA's requirements.) "A party waives the right to postsale remedies where

the party (l) received notice of the right to enjoin the sale, (2) had actual or constructive

knowledge of a defense to foreclosure prior to the sale, and (3) failed to bring an action to

obtain a court order enjoining the sale." Brown,146 Wn. App. at 163; Gossen v. JpMorgan

Chase Bank,819 F. Supp. 2d lt6L, tl69 (W.D. Wn. 2011) (same).

The Washington legislature responded to the Court of Appeals' holding in Brown by

enacting RCW 6I.24.127 ' RCW 61.24.127(lXa)-(c) preserves post-sale claims for damages

based on alleged fraud, violations of the Consumer Protection Act, and failure by the trustee

to materially comply with the DTA in cases of owner-occupied property. However, by its

very language, claims other than for damages a¡e all waived. ^gee

RCW 61.24.127(l) (., . . .

may not be deemed a waiver of a claim for damage^' . . .,, (emph. added)),

Additionally, to preserve its claims against the lender, the borrower must comply with

all of the following requirements of the DTA:

The court shall.require as a condition of granting the restraining order orinjt'r-rction that the applicant pay to the cterk"of/hi"court the sumsThat iouldbe due an the obligàiion secured by the deed'of trusi ir tn. ¿r"J of î*ri *utnot being forecloseã:

(a)-In the case of default in making. the periodic payment of principal, intetest,and reserves, such sums shall be pãid toihe clerk of th. courtïvãry-tfritiv ¿"vr.

(2) No -court may grant a restraining order or injunction to restrain a trustee'ssale unless the perion seeking the rísffaint gives"Jìià aoyt ,oilià n *lîitttnof the time whèn,. place. wherl, and the- judg'e u.for" *tí"- th" ;ppriããtiã" r-the restraining ordèr or injunction is to b'e m'ade.

RCW 61.24.130(l), (2) (emphasis added).


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Here, Borrower waived his right to post-sale remedies under Brown because he

received notice of the sale, failed to bring an action to enjoin the sale, and failed to make

payments to the Clerk of Courr as required by RCW 61.24.130(l).

Borrower alleges that he did not receive notice of the sale. Compl. nn232, 4.35.

However, the evidence establishes that Defendants complied with all the notice requirements

under the DTA. First, as required by RCW 6I2.24.030(8),a a Notice of Default was sent to

Borrower flrrst class and certified or registered mail, return receipt requested, on June B, 2009

and personally served on him or posted on the Property on June g,2009. ReconTrust Decl.,

TI4, 5, Ex. A to ReconTrust Decl., Ex. B to ReconTrust Decl., $ VI. ReconTrust recorded a

Notice of Trustee's sale on February 17,z0rr. Id.,nB, Ex. D to ReconTrust Decl. The

Notice was mailed to Borrower by first class and certified mail on February 17,2071 and was

posted in a conspicuous place on the property on February lg, 2011. Id.,nn 10, 11, Exs. D, E

to ReconTrust Decl.; Bradburn Depo., at 46 (admitting that photographs in Declaration of

Posting are of the Properfy), 47-48 (admitting that Borrower has no reason to dispute

statement in Declaration of Posting that the Notice of Trustee's Sale was posted on the

Property on February 18,2011). The Notice states:

Anyone having any objections to the sale on any grounds whatsoever will beafforded an opportunity to be heard as to those objections if they bring alawsuit to restrain the sale pursuant to RCW 61.24.130. Failure to bring such alawsuit may result in a waiver of any proper grounds for invalidating theTrustee's Sale.

Ex. D, $ IX.

4 RCV/ 61.24.ßA requires, as -a

condition to a trustee's sale, "[t]hat at least thirty days beforenotice of saie shall be recorded, transmitted or served, writtön notice of default'shall betransmitted by tþe beneficiary or trustee to the bonower and grantor at their last knownaddresses by joth first-class and either registered or certified mãil, return receipt requested,and the btneficiary or trustee shall cause tõbe posted in a conspicuóus placè on tiri prä*ir"r,a copy of the notice, or personally served on thé borrower and grantor."'


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Borrower's purported claims relating to the foreclosure documents and loan

modifìcation necessarily existed before the sale. Borrower must have been aware of those

claims because he alleges that he "had sufficient funds in his account to cover the regular

payments of the obligation" and that he "believed he was current on the obligation," yet he

acknowledges that he received the July 2009 Notice of Trustee's Sale. Compl. TI2.l l-2.12,

2'30' lf Borrower truly believed he was current on his loan payments, as he alleges, then he

also must have believed that he had a defense to foreclosure when he received said notice.

Moreover, Borrower admitted in his deposition that he knew of his elaims in May of 2011,

prior to the foreclosure sale. Bradbum Dep., at 46:14-rg,5g:10-14.

Nevertheless, Borrower did not seek a preliminary injunction or other restraining order

to bar the sale of the Properly as required under RCW 61.24.130 in the nearly two years that

elapsed between the first Notice of Trustee's Sale and the sale of the property. Therefore, he

waived all but damages claims under RCW 61.24.127(lXa)-(c) (i.e., claims for damages

based on alleged fraud, violations of the Consumer Protection Act, and failure by the trustee

to materially comply with the DTA). Brown,146 wn. App. at 164 (,,inapplying the waiver

doctrine, a person is not required to have knowledge of the legal basis for his claim, but

merely knowledge of the facts sufficient to establish the elements of a claim that could serve

as a defense to foreclosure"); see qlso Tran v. Bank of Americø, N.A., z0l3 wL 64770, at *3

(W.D. Wn. Jan. 4,2013) ("Plaintifß have constructive knowledge of a defense to a Trustee's

sale when, at the time of the sale, they knew of facts necessary to establish the elements of a

defense."),

Indeed, Borrower waived each of the following claims: engaging in a 'þattern of

criminal profiteering activity" (Compl. !1fl 6.1-6.6); quiet title (id.nn8.l-8.3); unenforceability

of and breach by Defendants of the Note and Deed of Trust (id. 1119.l-9.18); equitable

estoppel (id.flI l0.l-10.7); unjust enrichment (id.n10.8); and trespass, conversion, and

negligence for coming onto the Property and stealing and destroying objects on the property

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Qd.nn 11.1-11.17). In addition, while RCW 61.24.127 provides that a failure to bring an

action to enjoin foreclosure does not waive certain claims, that exception does not apply

where the claiming party is seeking remedies other than damages. .lee RCW 61.24.127(2)(b)

("The nonwaived claims listed under subsection (l) of this section are subject to the following

limitations:...(b) the claim may not seek any remedy at law or in equity other than monetary

damages."). Here, Borrower seeks injunctive and declaratory relief. .!ee Compl. ff 12.1-

12.12. This relief is simply not available. Accordingly, Defendants are entitled to summary

judgment as a matter of law on all waived claims, including claims for injunctive or

declaratory relief.

Even if Bolrower had not waived certain claims, there is no genuine issue of material

fact as to such claims or as to the remainder of his claims, such that Defendants are entitled to

summary judgment as a matter of law.

C. Defendants Did Not Participate in an íIllicit Scheme"

Borrower's first cause of action for an "illicit scheme" fails where he does not offer a

single fact to support his claim. Rather, Borrower alleges generally that Defendants and the

banking industry at large committed various acts of misconduct. See generally Compl. T 3.1-

3.3' Borrower does not once allege a single instance where Defendants' conduct

(participation in an "illicit scheme") caused harm to him. Instead, he seems to allege that

Defendants acted tortiously to the public in general. ,See Compl . n 3.2 ("the Defendants and

the home residential lending, servicing, collections, and foreclosure industry, in general, wffi,

and still is, engaged in a broad range of unfair, deceptive, and criminal practices that have

injured U.S. and Washington consumers, including himself personally), 113.3 ("[Borrower],

like many others, has been injured by . . . toxic home lending practices.,,).

While Borrower's frustrations are evident in his diatribe, facts are absent. Without

any factual allegations that Defendants committed any of these acts, and that they affected

Borrower in particular, Bolrower's claim must fail.

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D.

In his second cause of action, Borrower alleges various violations of the DTA.

Compl' ulJ4.1-4.35. Defendants are entitled to summary judgment on this claim because

there is no evidence to support Borrower's conclusory allegations. To the contrary, the

evidence shows that Defendants complied with the DTA.

1.

Borrower alleges that neither BANA nor "other concealed defendant alleging

'beneficiary' status" was a "note holder," ,.lender," or ..holder in due course,', that BANA was

not and is not licensed to do business in Washington, and that Defendants filed to followrequired procedures under the DTA. Compl. ffi 4,14-4.17. However, the evidence shows that

BANA was and is the holder of the Note and was authorized to foreclose on behalf of the

owner of the Note, Fannie Mae, and that all required procedures were followed.

Since 1998, the DTA has defined a "beneficiary" as "the holder of the instrument or

document evidencing the obligations secured by the deed of trust, excluding persons holding

the same as security for a different obligati on." Bain v. Metro. Mortg. Grp., Inc.,l75 Wn.2d

83, 98-99, 285 p.3d 34 (Z}tZ) (quoting RCW 61.24.005e)) (emphasis added). The

Washington U.C'C. defines the "Holder" of a negotiable instrument in relevant part as ,.[t]he

person in possession of a negotiable instrument that is payable . . . to bearer. RCW 62A.1-

201(21); Bain, 775 Wn.2d at 104. A negotiable instrument is payable to bearer if it is

indorsed in blank. .See RCW 62.A3-2A5ft) ("When indorsed in blank, an instrument

becomes payable to bearer and may be negotiated by transfer of possession alone until

specially indorsed.").

Applying the plain language of the statutes and case law cited above, the evidence

establishes that BANA was the holder of the Note. Following the Loan,s origination, the

Note was endorsed to Countrywide Bank, N.A, which endorsed the Note to Countrywide

Home Loans, Inc', which subsequently endorsed the Note in blank. BANA Decl., ,llï g, 9,

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT_ I2

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Exs. A, B to BANA Decl. Since January 3,2006, when Fannie Mae became the owner of the

Note, the original, endorsed-in-blank Note has been maintained by BANA and itspredecessors in interest on behalf of Fannie Mae, pursuant to Fannie Mae's servicing

guidelines. Id.,n 10,18,26,8x. E.

Because it was the holder of the Note, BANA had the right to foreclose. See Zalqc v.

crx Mortg. corp., case No. cl2-0r474 MJp, 2013 wL lgg072g, at *3 (w.D. wn. May 13,

2013) (granting motion to dismiss where "Defendant [] asserts that it is the true holder of the

note, even if Fannie Mae is the owner of the note.") (emph. in original) ; Corales v. Flagstar

Banh FSB, 822 F. Supp. 2d 1,102, 1107-08 (W.D. Wn. 20l l) (granting motion to dismiss in

functionally identical circumstances where lender sold loan to Fannie Mae but then proceeded

to foreclose in its own n¿rme - "Thus, even if Fannie Mae has an interest in Plaintiffs' loan,

[Defendant] has the authority to enforce it.,').5

2. MERS. as the Asent of the Beneficiaru. Was Authorized to Appoint

Borrower asserts that MERS was not a lawful benef,rciary, such that its appointment of

ReconTrust ¿ts successor trustee was invalid, and "any assignment of the beneficial interest to

Bank of America or other Defendant w¿rs invalid." compl. TT4.9-4.10, 4.lg-4.20.

However, these assertions ignore the fact that MERS was acting as an agent of and at the

direction of the beneficiary, BANA, the holder of the Note.

In Bain, the Washington Supreme Court held that MERS cannot be a valid beneficiary

if it does not hold the Note. Bain, 175 Wn.2d at 110. However, the Court concluded that it

could not decide the legal effect of MERS's acting as an unlawful beneficiary. Id. at 110-14.

In addition, the Court noted that "nothing in this opinion should be construed to suggest an

1|qryo*g alleges that BANA was and is not licensed to do business in Washington. Compl.I 1.1.5^' However, there is no requjrement that BANA be licensed d w;hi"g;ón to act onbehalf of Fannie Mae in enforcing the Note and Deed of Trust.


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agent cannot represent the holder of the note." Id. at 106. The Court declined to find that

MERS was acting as the agent of the beneficiary only because there was no evidence in either

of the cases it was reviewing showing that MERS was acting on behalf of identifiable

beneficiaries. Id. at 107.

In the present case, by contrast, the evidence establishes both BANA as the

beneficiary (as the holder of the Note) and MERS acting as BANA's agent when it appointed

ReconTrust as the successor trustee and when it assigned the beneficial interest under the

Deed of Trust to BANA. BANA Decl.,1l1l21, 22,Exs. F, G to BANA Decl. BANA, as the

holder of the Note, directed MERS to appoint ReconTrust and to assign the Deed of Trust to

BANA' 1d' It did so in compliance with Fannie Mae's servicing guidelines which',grant[]

servicers, acting in their o\ryïr names, the authority to represent Fannie Mae's interests in

foreclosure proceedings as holder of the mortgage note.,, Id.,Ex. E, at 1.

Therefore, it is entirely irrelevant whether MERS was a valid beneficiary. Because itacted as the agent of the beneficiary, it properly appointed ReconTrust as successor trustee

and properly assigned the Deed of Trust to BANA. As the authorized trustee, ReconTrust had

the power to issue the Notices of Trustee's Sale, to carry out the foreclosure sale, and to issue

the Trustee's Deed transferring the property to Fannie Mae. In addition, as the holder of the

Note, BANA had the power to assign the interest under the Deed of Trust to Fannie Mae after

the foreclosure sale. See Bain, 175 Wn.2d, at 104 ("Washington's deed of trust act

contemplates that the security instrument will follow the note.,').

In addition, under Washington law, an assignment of the Deed of Trust is not a

prerequisite to non-judicial foreclosure. ,See Corales v. Fløgstar Bank, FSB, gZZ F. Supp. 2d

1102, 1109 (w.D. Wn.20ll) ("Washington State does not require the recording of such

transfers and assignments. . . . The purpose of recording the assìgnment is to put parties who

subsequently purchase an interest in the property on notice of which entity owns a debt

secured by the property."); In re United Home Loans, Tl B.R. gg5, g9l (Bankr. w.D. Wn.

DEFENDANTS'MOTION FOR SUMMARY JUDGMENT_ 14

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1987), aff'd 876 F.zd 897 (9th Cir. 1989) ("An assignment of a deed of trust ... is valid

between the parties whether or not the assignment is ever recorded. . . . Recording of the

assignments is for the benefit of the parties.") (intemal citations omitted). For this reason as

well, the MERS assignment is irrelevant to BANA's authority to foreclosure through the

trustee"

3. ReconTrust Was a Valid Successor Trustee

Borrower asserts that "[a]ny assignment of trustee powers to ReconTrust did not

comply with RCW 61.24.010(2)" because the assignment was made by aparty other than the

beneficiary or lender, such that ReconTrust was not authorized to institute non-judicial

foreclosure or grant a trustee's deed to Fannie Mae. compl. nn4.ß-4.21. However, as

discussed above, the evidence shows MERS acted as the agent of and at the direction of the

beneficiary, BANA, when it appointed ReconTrust as successor trustee. See supra Section

V 'D.2. Thus, ReconTrust was a valid successor trustee. ,S¿e RCW 6l.24.OLAe) (..The trustee

may resign at its own election or be replaced by the beneficiary.").

4.

Borrower next asserts that "defendants Trustees Fidelity, Stewart and/or ReconTrust

breached their duties of Good Faith to [Bonower] by permitting ReconTrust's non-judicial

foreclosure to occur on the [Borrower's] Property and not providing [Bonower] with

information on one or more practices described in fl 2.3 of this complaint.', Compl. n 4.26.

He further alleges that "ReconTrust willfully, knowingly, or intentionally initiated and

continued a non-judicial foreclosure for the servicer when ReconTrust knew or should have

known that BAC Home Loans was not the beneficiary andlor that proof of the beneficiary

and/or a declaration of the beneficiary had not been provided as is required by RCW

64.21'030(7)." Id. n 4.27. These allegations are without merit and contradicted by the

evidence.

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT- I5

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Borrower's allegation that ReconTrust failed to provide Borrower information on the

'þractices described in l[2.3 of this complaint" is nonsensical. Paragraph 2.3 of the

Complaint alleges that "[o]ne or more parties acquired certain rights, and/or legal or equitable

interests in [Borrower's] prior mortgage on one or more secondary markets." Id. n23.However, there is nothing illegal or improper in securitizing a loan. Thus, it was not a

violation of any duty of good faith not to inform Borrower of the securitization of his loan.

Moreover, if any loan was securitized, it was Borrower's prior loan, which is not at issue in

this case.

Borrowet's allegation that ReconTrust "knew or should have known that that BAC

Home Loans was not the beneficiary" is contradicted by the evidence confirming that BANA

was the holder of the Note and the beneficiary. BANA Decl. !J L0, rg,26.

In addition, the evidence establishes that when ReconTrust issued the Notices of

Trustee's Sale, it had a Declaration of Beneficiary that complied with the DTA. RCW

61.24'030(7)(a) provides "[t]hat, 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." Here, the

Declaration of Beneficiary accurately identifies Fannie Mae as the owner of the Note. Ex. C

to ReconTrust Decl.; see BANA Decl., fln 7, 25. While Borrower may contend that the

Declaration does not identiff BANA, the beneficiary, as the owner of the Note, it would be

inaccurate for the Declaration to so state because BANA was the holder of the Note. Any

claimed inconsistency is the result of ambiguity in the language of RCW 61.24.üAe)(a), i.e.,

that it fails to take into account the rather common scenario where the holder of the Note and

the owner of the Note are not one and the same. As noted above, the Western District has

recognized the reality that when Fannie Mae is the owner of the Note, the holder of the Note

ca¡r foreclose in its own n¿Lme. See Zalac, 2013 WL 1990728, at *3 (granting motion to

dismiss where "Defendant [] asserts that it is the true holder of the note, even if Fannie Mae is

DEFENDANTS'MOTION FOR SUMMARY JUDGMENT_ I6

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the owner of the note.") (emph. in original); corales, g2z F. supp. at ll0z-0g (granting

motion to dismiss in functionally identical circumstances where lender sold loan to Fannie

Mae but then proceeded to foreclose in its own name - "Thus, even if Fannie Mae has an

interest in Plaintifß' loan, [Defendant] has the authority to enforce it."); see also In re Veal,

450 B'R. 897, 912 (9th Cir. BAP 201 1) ("[O]ne can be an owner of a note without being a

'person entitled to enforce.' The converse is also true: one can be a .person entitled to

enforce' without having any ownership interest in the negotiable instrument. This distinction

may not be an easy one to draw, but it is one the UCC clearly embraces. While in many cases

the owner of a note and the person entitled to enforce it are one and the same, this is not

always the case.").

Indeed, it is fairly typical for Fannie Mae to require, under its servicing guidelines,

that the servicer hold the Note and foreclose in its own name. ReconTrust would certainly

have been familiar with that accepted practice. In addition, Borrower did not know of the

Declaration of Beneficiary until after the sale, so he can hardly claim that he relied on it or

was prejudiced by it. It is not as if a stranger to the Loan foreclosed on the property; the

holder of the Note and loan servicer did so, as expressly required by the servicing guidelines

of the owner of the Note. In the end, any claimed contradiction or claimed ambiguity in who

was the beneficiary is no more than a red herring. BANA was the holder of the Note and,

thus, was entitled to foreclose.

Borrower alleges that Defendants failed to follow non-judicial foreclosure procedures.

Compl. Tn4-28-4.35. However, there is simply no evidence to support Borrower's conclusory

allegations. To the contrary, the evidence shows that Defendants followed proper foreclosure

procedures.

Non-judicial foreclosures in Washington are governed by DTA chapter RCV/ 61.24 et

seq., which sets out the procedural requirements necessary before a notice of trustee sale ca¡r


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be recorded. First, for this section to be applicable, the deed of trust must be recorded,

contain a power of sale, and not be for property primarily used for agricultural purposes. ,See

RCw 61.24.030(1), (2), (5). Once a default has occurred, the beneficiary or trustee must

transmit a notice of default to the borrower or grantor at least thirty days before the notice oftrustee sale. RCW 61.24,030(3), (8). There must not be a "pending action by the beneficiary

nnder the deed of trust" at the time. RCW 61.24.030(4). Finally, the trustee musr have proof

that the beneficiary is the owner of the promissory note and have a physical presence in the

state where service of process is made which includes a sheet address and telephone service.

RCW 6r.24.030(6)-(7).

The evidence shows that all non-judicial foreclosure requirements were followed. The

Deed of Trust was recorded on December 21,2005, it contained. a power of sale, and the

property was used primarily for residential purposes, not agricultural purposes. Ex. A toLorber Decl', at 3. When Borrower defaulted on his loan obligations beginning in March

2009 (BANA Decl', tI 16, Ex. D to BANA Decl.), ReconTrust, as agent for the beneficiary,

sent Borrower a Notice of Default by first class and certified or registered mail on June 8,

2009, and the Notice was personally served on Bor¡ower or posted in a conspicuous place on

the Property on June 9,2009. ReconTrust Decl., !f 5, Ex. B to ReconTrust Decl., $ vI. This

was more than 30 days before the Notices of Trustee's Sale were recorded. ,See Exs. B, E to

Lorber Decl. There was no pending action by the beneficiary under the Deed of Trust, and

ReconTrust had proof that Farurie Mae was the owner of the Note. ReconTrust Decl., nn7,g,

Ex' C to ReconTrust Deci. Finally, ReconTrust maintained a physical presence in

Washington'6 Therefore, BANA had the right to foreclose, and, per the power of sale in the

6 As shown in the Notices of Trustee's Sale, ReconTrust maintains a physical address andFl".plqlq_number ^t::c-T,Çgrygtqttol

system, LBOI v/est Bay Drive ñri¡lst. à06;óiñpttWA 98502, Phone: (360) 351-6794;' Éxs. B, E to Lorber decl., at 4. Írtis Ir s,im"i"ni tóPjffy.Lh-"-qhysig{ Prglgnce_ requirement. See Douglas v. ReconTrust Co.,ìy'.1., Case No.cl1-147sRAI, .2012 .wL s470360, at ït-_l ffb. wn. Nov. t, iõtzj ir,i,¿irl ir,ãiReconTrust satisfies the requirements of RCW et.Z+.OZO6) by maínøi"i"g ; ug.irt fot

(continued. . .)DEFENDANTS'MOTION FOR SUMMARY JUDGMENT_ I8

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Deed of Trust, directed ReconTrust to sell the property. Ex. A to Lorber Decl., at 1-2.

ReconTrust sold the Property to Fannie Mae on May 20,2011. Ex. F to Lorber Decl.

For all these reasons, there is no genuine issue of material fact on Borrower's claim

for violations of the Deed of Trust Act, such that Defendants are entitled to summary

judgment as a matter of law.

E. Borrower's Claim That Defendants Eneaeed in Dual Tracking Lacks Merit

Borrower alleges that Defendants engaged in "dual tracking" when it allegedly

"assuled [Bonower] that his home would not be foreclosed upon while he sought a

modification" while at the same time moving forward with foreclosure. Compl.nn2.ß-2.21,

5.2-5.4. The claim fails as a matter of law.

First, Bonower has no evidence of any alleged promise by BANA that his home

would not be foreclosed while he sought a modification, such as when, how, and by whom it

was made. Further, the Deed of Trust expressly grants the Lender, and its successors and

assigns, the right to invoke a power of sale in the event of uncured default: "If the default is

not cured . . . Lender at its option may require immediate payment in full of all sums secured

by this Security Instrument without further demand and may invoke the power of sale and any

other remedies permitted by Applicable Law." Ex. A to Lorber Decl., at 14. In addition, the

Deed of Trust contains explicit language that acts of forbearance, including activities in

firrtherance of loan modifïcation, do not waive the Lender's right to enforce the terms of the

Deed of Trust. Id. at ll (12. Borrower Not Released; Forbearance by Lender Not a

Waiver. . . . Any forbearance by Lender in exercising any right or remedy . . . shall not be a

(. . . continued)service

-of proc_ess with telephone number and a physical address in Washington): Mikhqy v.

lqr,rk of Am., N.A., Case No. 2:1O-cv-01464 RAJ;20il WL 167064, at *3 (W.D. 'Wn. Jan 12,2011)_.(recogni4ing information of registered agent for service of process to be evidence ofcompliance with RCW 61.24.030); Ramirez-Melgoze v. Countrywlde Home Loan Servicing,IP, No. CV-10-0049-LRS, 2010 WL 4641948,-at *7 (E.D. Wn. Nov. 8, 2010) (affïrmingbankruptcy court ruling that existence in state of registered agent for service of processsatisfies physical presence requirement of RCW 61.24.030(6)).


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waiver of or preclude the exercise of any right to remedy.") (emph. in original). Thus, even

assuming that Borrower was told "that his home would not be foreclosed upon while he

sought a modification," he could not reasonably have relied on such a statement where the

Deed of Trust he signed states that the Lender could foreclose if Borrower did not cure the

default, which he did not. Furthennore, the Deed of Trust provides, "Borrower shall not be

released from Borrower's obligations and liability under this Security Instrument unless

Lender agrees to such release in writing." Id. There is no evidence of any writing waiving

the right to foreclose based on Borrower's default.

Finally, Borrower's allegations are belied by his admission that he received notice that

his request for a loan modification was denied prior to the sale. Bradbum Dep., 59:11-13,

75:9-ll, 83: 8-11.

F.

In support of his fourth cause of action for a'þattem of criminal profiteering activity,,,

Borrower alleges that Defendants committed various crimes, including forgery, theft,

unlawful production and possession of payment instruments, extortionate extension of credit,

advancing money for use in an extortionate extension of credit, collection of an extortionate

extension of credit, and leading organized crime. Compl. TI6.5.l-6.5.9. However, Borrower

does not allege anyfacts, and has no evidence, showing that Defendants committed any ofthese crimes. See generally Compl. Therefore, there is no genuine issue of material fact on

this claim, and Defendants are entitled to summary judgment as a matter of law.

G. Def"odaotr Did Not violat* th. coo.u-e" p"otrctioo A.tBorrower makes vague and conclusory allegations of violations of the Consumer

Protection Act ("CPA"), again without alleging a single fact to support his claim. Because

Bonower cannot establish any unfair or deceptive acts by Defendants resulting in damage to

him, Defendants are entitled to summary judgment as a matter of law on his CpA claim.


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To prevail on a private CPA claim, a plaintifi must prove: (l) an unfair or deceptive

act or practice; (2) that occurs in trade or cornmerce; (3) an impact on 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 and the injury suffered. Høngman Ridge Training Stables, Inc. v.

SafecoTitle Ins- Co.,l05 Wn.2d 778,785,719P.2d,531 (1986). Thefailuretoestablisheven

one of these elements is fatal to aplaintiffs claim. Id. atT93.

Whether a defendant's conduct is an unfair or deceptive act or practice is a question oflaw. Micro Enhancement Intern., Inc. v. coopers & Lybrand, LLp,n 0 wn. App.4l2,43g,

40 P.3d 1206 (2002). An unfair or deceptive act or practice requires the plaintiff to prove that

the act "had the capacity to deceive a substantial portion of the public"" Burns v.

McClinton,l35 Wn' App. 285, 302-03, 143 P.3d 630 (2006). Although the CpA does nor

require proof of actual deceit, the practice must at a minimum, be capable of deceiving.

Holiday Resort cmty. Ass'n v. Echo Lake Assocs., LLC, 134 wn. App. 210, 226 e006).

Implicit in the definition of deceptive "is the understanding that the practice misleads or

misrepresents something of material importance,,, Id.

Here, Borrower fails to allege facts, and has no evidence, in support of a single

required element of his claim. Borrower alleges, in his usual vague and conclusory fashion,

twelve "unfair and deceptive practices." Compl. nn 7.4.1-7,4.12. However, these allegations

are wholly derivative of Borrower's other causes of action in his Complaint, and as discussed

at length throughout this Motion for Summary Judgment, those claims fail. Further, to the

extent the claim is based on alleged conduct relating to the origination of the loan, the claim is

bared by the statute of limitations, as the loan was originated on December 14, 2005, more

than four years before Borrower filed suit. ,See RCW 1g.86.n0 (CpA claims are subject to a

four year statute of limitations). To the extent Borrower alleges that defining MERS as a

beneficiary is a deceptiYe act, the court in Bain held that a plaintiff claiming a CpA violation

must still establish that he was damaged as a result of the characterization of MERS as the

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT-2I

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beneficiary. Bain,175 Wn.2d at 120 ("the mere fact MERS is listed on the deed of trust as a

beneficiary is not itself an actionable injury"); accord Zalac v. CTX Mortg. Corp.,2013 V/L

1990728, at *3 (W.D. Wn. May 13,2013) ("Bain. . , held that MERS involvement does not

by itself constitute a per se violation of the CPA.").7 Here, Borrower has no evidence that he

was damaged by MERS' presence on the Deed of Trust.

H. Borrower Cannot State a Claim for Ouiet Title Because He is in Default of His

Loan Oblisations and the Claim is Derivative of His Other Failed Claims

ln support of his cause of action to quiet title, Borrower alleges that "The interests of

defendant, Fannie Mae, and other defendants, are subordinate to the interests of [Borrower]."

Compl. u 8.2. Even if this claim were not preempted by the Brown holding, which it is, it still

fails for two reasons.

First, to maintain a quiet title action, a plaintiffmust first pay the outstanding debt on

which the subject mortgage is based. See Evans v. BAC Home Loans Servicing LP,2OlO WL

5138394, at *3 (W.D. Wn. Dec. 10,2010) ("Plaintiffs cannot assert an action to quiet title

against a purported lender without demonstrating they have satisfied their obligations under

the Deed of Trust."). Here, Borrower fails to allege, and has no evidence, that he has paid the

amounts owed or that he has the ability to pay. Rather, Borrower had total arrears of

$33,675.83 as of February 15, 2011 (Ex. E to Lorber Decl., at}), andthe Property was sold at

auction because Borrower did not cure the default. Ex. G to Lorber Decl. Because Borrower

7 See also Myers v. Mortgage Electroníc Regístrations Sys., Inc., CaseNo. 12-35218, at 6, 8(9th Cir. Sept. 9, 2013) (afñrming dismissal of CPA claim based on MERS' being listed ondeed of trust); Fletcher v. Northwest Trustee Servs., Inc., Case.No. 12-2-27475-4 SEA (KingCounty Sept. 16, 2013) (granting summary judgment on CPA claim based on MERS'assignment of deed of trust); Bain v. Metro. Mortg. Grp., Inc., Case No. a$-z-43439-9 SEA(King County Aug. 30, 2013) (granting MERS'motion for summary judgment on all claims,including for violation of the CPA).

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT _22

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cannot show that the amounts owed under the Deed of Trust have been satisfied, his quiet title

claim fails.s

In addition, the quiet title claim is derivative of Borrower's other failed claims.

Therefore, there is no genuine issue of material fact on this claim, and Defendants are entitled

to summary judgment.

I.

Without actually noting a cognizable legal cause of action, Bonower instead simply

labels his seventh cause of action "Contracts" and then goes on to make many

incomprehensible, vague, and conciusory allegations regarding the Note and Deed of Trust.

These include Borrower's claims that "[Borrower] lacked the ability to freely choose to enter

the contract," "[Borrower] had no bargaining power with regard to the 'uniform' provisions of

the 2005 promissory note," and "the Deed of Trust is against public policy because it isdesigned to facilitate mass foreclosures." Compl. TT 9.3.1, 9.4, 9.6.2. Borrower also makes

conclusory allegations that various defendants breached their duties under the Deed of Trust.

Id' nn 9.9-9 .18. There is simply no evidence to support these allegations, and Defendants are

entitled to summary judgment as a matter of law

Borrower does not allege any facts, and there is no evidence, showing why he was not

able to freely choose to contract. He offers no facts or legal authority stating that uniform

provisionse in a contract are illegal or improper. Further, he does not explain how the Deed of

Trust is against public policy, especially one containing uniform provisions. His conclusory

allegations are also belied by his deposition testimony that he was not deceived about the

terms of the Loan, was not misled into taking out the Loan, and is not aware of any kickback

8 See Bain, .I75-.Wn.2d u\1\?.("[Selkowitz] offers no authority in his opening brief for the

suggestion that listing an ineligiblè beneficiary on a deed of truit would rèndeñhe deed voidpnd entitle the borrower to quièt title.").' The Deed of Tmst states ät the bottôm of each page that it is a "Fannie Mae/Freddie MacUNIFORM INSTRUMENT." Ex. A. to Lorber Oe^cl.


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or any rrmongdoing by the broker. Bradbum Depo., 72:6-73:5,73:16-74:10, 80:4-20,93:4-9.

Thus, there is no genuine issue of material fact that there was no wrongdoing.lo

There is likewise no evidence supporting Borrower's conclusory allegations of

breaches of the Deed of Trust. ,See Compl. IT 9.9-9.18. Borrower does not allege what

provisions of the Deed of Trust were breached, and there is no evidence of any breach. In

fact, it was Borrower that failed to perform his obligations under the contract by defaulting on

the loan. BANA Decl., J[ 16, Ex. D to BANA Decl. Because Borrower himself breached the

Deed of Trust, Defendants are entitled to summary judgment as a matter of law, See l|/illener

v. Sweeting, IA7 Wn.Zd 388, 394,730P.2d 45 (1986) ("If a contract requires performance by

both parties, the party claiming nonperformance of the other must establish as a matter of fact

the party's own performance.").

J. Defendants Are Entitled to Summarv Judement on Borrower's Equitable

Estoppel and Uniust Enrichment Claims

l. Borrowerts Equitable Estopnel Claim Fails Because He IIas No Evidence

of Fraudulent Behavior or His Own Reliance

Borrower alleges that Defendants facilitated "the sales of risky loans that were likely

to result in delinquency" and committed "other acts and statements designed to induce

consumers, like [Borrower] to purchase a home that they could not afford." Compl. I 10.2.

Borrower also claims generally that "[Bonower], like millions of other consumers, acted in

reliance upon the misrepresentation made him by his mortgage broker." Id. n n3. Finally,

he alleges that Defendants misrepresented the unlikelihood of foreclosing. Id- nrc.7. This

l0 To the extent Borrower's claim could be construed as one for rescission based on Truth inLending Act violations, such a claim is subject to a three-year statute of limitations. See 15U,S.C. $ 1635(Ð ("[a]n obligor's right of rescission shall expire three years after the date ofconsummation of the transaction . . . ."). The Deed of Trusi was transacted more than threeyears before Borrower filed suit.


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claim fails because it is time-barred and because the allegations are unsupported by any

evidence and do not suffice to establish a claim for equitable estoppel.

Borrower's claim is essentially one for fraud, which is subject to a three-year statute of

limitations. RCW 4.16.080(4). All of the alleged conduct that relates to loan origination,

which occurred more than three years before Borrower filed suit, is time-barred.

Borrower also fails to allege facts, and has no evidence of, wrongdoing by Defendants

or his own reliance. Equitable estoppel or "fraudulent concealmenf' "focuses primarily on

the actions taken by the defendant [and] . . . plaintiffs actual and reasonable reliance on the

defendant's conduct or representations." Huseman v. Icicle Seafoods, Inc.,47l F.3d 1116,

ll2l (gth Cir. 2006) (quoting Santa Maria v. Pac. Bell,202 F.3d 1170,1176 (gthCir. 2000)).

Here, Borrower's allegations of wrongdoing in the loan origination are misplaced, as

Defendants were not involved in the loan origination, and there is no evidence that those who

originated the loan acted as Defendants' agent. Moreover, Borrower did not rely on any

misrepresentations in the loan origination, as he admitted that he was not deceived about the

terms of the Loan, was not misled into taking out the Loan, and is not aware of any kickback

or any wrongdoing by the broker. Bradburn Depo., 72:6-73:5,73:16-74I0, 80:4-20,93:4-9.

Borrower's allegation that Defendants misrepresented the unlikelihood of foreclosure is

unsupported by any evidence. In addition, Borrower could not have reasonably relied on any

such statement because the Deed of Trust specifically included the power to foreclose and

stated that any acts of forbearance would not waive the right to foreclose. See Ex. A to

Lorber Decl., at I l.

Accordingly, there is no genuine issue of material fact on this claim, and Defendants

are entitled to summary judgment as a matter of law.

2. Borrower's Uniust Enrichment Claim Fails

In his unjust enrichment claim, Borrower alleges only that "Defendants have been

unjustly enriched in the amounts of money which will be proved at trial." Compl. t[ 10.8. As


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he does in the rest of his Complaint, Bonower fails to include a single þct to support his

claim. Defendants are entitled to summary judgment on this claim, as there is no evidence

that Defendants received any benefit to which they were not entitled.rr

K. Defendants Did Not Commit the Various ,,Torts" Borrower Alleees

Borrower alleges that "since the alleged sale," Fannie Mae has entered the Property

and committed various torts, including but not limited to, cutting a tree in hall stealing doors,

stealing new carpeting, damaging fans and closet doors, and removing other fixtures and

personal property. Compl. flnn3-2.33.15, 11.2-11.17 All of Borrower's claims rest upon

the underlying assumption that he still owns the property or did at the time the Fannie Mae

representative allegedly entered the property and removed or altered various objects. As

discussed extensively above, Borrower did not own the Property where he failed to make the

necessary payments, and the Property was sold to Fannie Mae. BANA Decl., !f 16, Ex. D to

BANA Decl.; Ex. G Lorber Decl. Because Borrower did not own the property, he does not

have standing to assert any of the property "torts" he alleges. Accordingly, Defendants are

entitled to summary judgment as a matter of law.

I. CONCLUSION

Borrower received notice that his Property was in foreclosure nearly two years before it was

sold to Fannie Mae. Yet, Borrower failed to move to enjoin the sale of the Properly and, thus,

waived his claims not preserved under RCW 61.24.127(l). In addition, Bonower has no

evidence of any wrongdoing by Defendants. To the contrary, the evidence establishes that

Defendants were authorized to foreclose based on Borrower's default and that they complied

with the DTA at all times. The litany of allegations and claims raised by Borrower are a

smoke screen for the dearth of evidence supporting any of his claims. Because there is no

ll To establish unjust enrichment, the following requirements must be met: (1) one party musthave conferred a benef,rt to the other; (2) the párty ieceiving the benefit must have knowledgeof the benefit; and (3) the party receiving the-benefit must ãccept or retain the benefit withoutpaying its value. Dragtv. Dragt/DeTray, LLC,l39 Wn. App. 5-60, 576,16rP.3d473 (2007).

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT 26

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genuine issue of material fact on any of Borrower's claims, Defendants are entitled to

swnmary judgment as a matter of law. Therefore, Defendants respectfully request judgment

in their favor pursuant to CR 56.

DATED: October 2,2073

LANE PO'WELL pc

f,h 4"ft-John S. Devlin III, WSBANo. 23988Abraham Lorber, WSBA No.40668

Attomeys for Defendants ReconTrust Company,N.4., Mortgage Electronic Registration Systems,Inc., Bank of America, N.4., successor bymerger to BAC Home Loans Servicing, LP (alsosued erroneously as "Countrywide Bank HomesLoans Servicing, LP" and as "Bank of AmericaCorporation"), Countrywide Home Loans, Inc.(also sued erroneously as "CountrywideFinancial Corporation"), and Federal NationalMortgage Association


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CERTIFICATE OF SERVICE

I certify that on the date indicated below, I caused the foregoing document to be

served on the following person via email and legal messenger.

Scott E. StafneAndrew KrawczykStafire Law Firm239 N. Olympic Ave.Arlington, WA 98223scott. stafrre@stafnelawfi rm. [email protected] for Plaintiff

Stephan T. ToddP.O. Box 13635Mill Creek, WA 98082-1635toddlawoffice@comcast. netAttorney for Defendant Quickdraw Real Estate Services

I affïrm under penalty of perjury under the laws of the State of Washington that the

foregoing is true and correct to the best of my knowledge.

SIGNED October 2,2013 at Seattle, WA.

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT-28

I t6589.04 l l/s839482. I

- Debi WollinLegal assistant to Abraham K. Lorber

dkt 38 10.02.2013 defendants motion for summary judgment

Documents