Beneficial Financial I Inc. v. Patricia Chatman ( 2019 )

Filed
Washington State
Court of Appeals
Division Two
January 3, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
BENEFICIAL FINANCIAL I INC., No. 50755-2-II
Respondent,
v.
PATRICIA A. CHATMAN; HARRISON W. UNPUBLISHED OPINION
CHATMAN; HUNTER ROAD COMMITTEE; AND
PERSONS OR PARTIES UNKNOWN CLAIMING
ANY RIGHT, TITLE, LIEN, OR INTEREST IN THE
PROPERTY DESCRIBED IN THE COMPLAINT,
Appellants.
SUTTON, J. — Patricia A. Chatman appeals the superior court’s denial of her CR 60(b)(4)
motion to vacate default judgment on the basis of fraud. Because Chatman failed to produce clear
and convincing evidence that the default judgment was obtained by fraud, we hold that the superior
court did not abuse its discretion and affirm the superior court’s denial of Chatman’s motion.
FACTS
Beneficial Financial I Inc. filed a complaint for judicial foreclosure on Chatman’s property
on February 24, 2015. Beneficial Financial filed a declaration of service indicating that Chatman
was personally served the summons and complaint on February 28, 2015. Chatman failed to
respond, and the superior court entered an order of default on June 8, 2015. Nearly a year later,
on March 9, 2016, the superior court entered a final order granting a foreclosure judgment. The
No. 50755-2-II
court clerk issued an order of sale, and the Kitsap County sheriff levied upon the judgment in May
2017.
On June 29, 2017, over two years after the superior court entered its order of default,
Chatman moved to vacate the order of default. Chatman argued, in relevant part, that she “was
never served with any of the papers leading up to this foreclosure,” and as such the order should
be vacated pursuant to CR 60(b)(4) because it was obtained by fraud. Clerk’s Papers (CP) at 7.
In response to Chatman’s motion to vacate, Beneficial Financial submitted the declaration
of service that had been filed in superior court on March 11, 2015, stating that on February 28,
2015, a registered process server served Chatman with the summons, the complaint, the lis
pendens, and a declaration of military search, in the foreclosure action. The declaration described
Chatman as female, having black skin and hair, in her 50s, five feet and seven inches tall, and 125
pounds. Chatman replied that “on the evening in question, I was out to dinner. My home is
protected by a locked gate . . .which only I can open. Since I was not there, he could not have
approached my home.” CP at 286.
On July 28, 2017, the parties appeared in superior court on Chatman’s motion to vacate.
At the hearing, the superior court pressed Chatman on her contention that she had not been served
by Beneficial Financial because she had been out to dinner that night. The court asked Chatman,
“What do you have to show to prove that?” Verbatim Report of Proceedings (VRP) (07-28-207)
at 3. Chatman told the superior court, “I have nothing.” VRP (07-28-207) at 10.
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The superior court ultimately denied Chatman’s CR 60(b)(4) motion, concluding Chatman
had not provided clear and convincing evidence that the default judgment was entered due to fraud.
The court explained:
But what I’ve got is “I usually go out to dinner on Fridays” and “I don’t” --
“I wasn’t served.” I’ve got them saying “We served her. I’m signing an affidavit.
We served her.” I’ve got a description. It may be the same one on your driver’s
license. I don’t know. But the problem is I can’t find that the court erred when it
entered [the default judgment], based upon the sworn testimony of someone who
said, “We served her.” I do not have clear -- and you have the burden, not her.
I do not have clear and convincing evidence from you that you were not
served.
VRP (07-28-207) at 7.
ANALYSIS
Chatman argues that the superior court erred by denying her CR 60(b)(4) motion to vacate
the default judgment entered against her. We disagree.
We review a superior court’s decision on a motion to vacate a default judgment for an
abuse of discretion. Morin v. Burris, 160 Wn.2d 745, 753, 161 P.3d 956 (2007). A superior court
abuses its discretion when it is exercised on untenable grounds or for untenable reasons. Morin,
160 Wn.2d at 753. Our review is limited to the decision on the motion, not the underlying
judgment. Bjurstrom v. Campbell, 27 Wn. App. 449, 450–51, 618 P.2d 533 (1980).
Under CR 60(b)(4), the superior court may vacate a judgment due to fraud,
misrepresentation, or other misconduct of an adverse party. A party seeking relief under CR
60(b)(4) must establish fraud, misrepresentation, or misconduct by clear and convincing evidence.
Lindgren v. Lindgren, 58 Wn. App. 588, 596, 794 P .2d 526 (1990). Clear and convincing evidence
is that which shows the ultimate fact at issue to be highly probable. Dalton v. State, 130 Wn. App.
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653, 666, 124 P.3d 305 (2005). We defer to the superior court’s credibility determinations.
Mitchell v. Wash. State Inst. of Pub. Policy, 153 Wn. App. 803, 814, 225 P.3d 280 (2009). The
fraud must cause the entry of the judgment the party seeks to vacate. Lindgren, 58 Wn. App. at
596.
As an initial matter, Chatman dedicates the majority of her briefing to argument on the
merits of the foreclosure action. However, our review is limited to the decision on the CR 60(b)(4)
motion, not the underlying judgment. Bjurstrom, 27 Wn. App. at 450-51. Consequently, her
arguments as to the underlying foreclosure action are immaterial to our review.
Here, the superior court did not abuse its discretion by finding that Chatman had not proved
Beneficial Financial’s fraud by clear and convincing evidence. Chatman, without any supporting
evidence, contended that she was never personally served with Beneficial Financial’s summons
and complaint. She provided no dinner receipts or corroborating evidence supporting her
contention that she was out to dinner that night. On the other hand, Beneficial Financial provided
the superior court with a copy of the sworn declaration of service purporting to have personally
served Chatman and describing her.
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We hold that the superior court had tenable grounds and reasons for finding that Chatman
failed to prove fraud by clear and convincing evidence. Accordingly, we hold that the superior
court did not err when it denied Chatman’s motion to vacate under CR 60(b)(4). We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
SUTTON, J.
We concur:
MAXA, C.J.
LEE, J.
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