First-citizens Bank & Trust Co, V Bruce A & Sandra J. Reikow ( 2013 )


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  •                                                                                                  FILED
    COURT OF APPEALS
    2013100 13     AM 11:   14
    IN THE COURT OF APPEALS OF THE STATE OF W                                                       WASHINGT0
    DIVISION II
    T
    FIRST -CITIZENS            BANK &                TRUST                 No. 43181 -5 - II
    COMPANY,            successor      in      interest   to
    VENTURE BANK,
    Appellant,                      PUBLISHED OPINION
    V.
    BRUCE       A.    REIKOW         and    SANDRA        J.
    REIKOW,          individually     and      the   marital
    community        comprised      thereof;    KARL      R.
    ZETTERBERG           and   JANE     ZETTERBERG,
    individually      and   the     marital     community
    comprised thereof,
    Citizens Bank &
    BJORGEN, J. — First -                          Trust Company sued Bruce and Sandra Reikow for
    a deficiency judgment following a trustee' s sale of real property securing a commercial loan,
    then in default, which the Reikows had guaranteed. The trial court granted partial summary
    judgment to First -
    Citizens as to the amount of the debt and the Reikows' liability for any
    deficiency, but ultimately dismissed the complaint after holding an evidentiary hearing and
    finding that the fair value of the property exceeded the amount owing on the loan.
    First -
    Citizens appeals, alleging that the trial court erred in denying it summary judgment
    as to all issues, and, in the alternative, that the court abused its discretion in determining the fair
    value of the foreclosed property. Because the trial court properly declined to determine the
    amount of deficiency on summary judgment and because substantial evidence in the record
    supports the trial court' s fair value determination, we affirm.
    No. 43181 -5 -II
    FACTS
    I. THE COMMERCIAL LOAN AND ASSOCIATED GUARANTIES
    Venture Bank made a $ 6, 746, 803. 53 commercial construction loan to NBP LLC, an
    entity in which the Reikows had a 50 percent interest and in which Bruce Reikow served as a
    managing member. To secure the promissory note, NBP granted the bank a deed of trust for the
    property under development, known as Narrows Business Park.
    The Reikows also executed personal guaranties for the entire amount of the loan. These
    I
    include language                        the Reikows               to                    other   things,
    guaranties                              by   which                 purported        waive,   among
    any and all rights or defenses arising by reason of (A) any " one action" or " anti -
    deficiency" law or any other law which may prevent Lender from bringing any
    action, including a claim for deficiency, against Guarantor, ... or ( F) any
    defenses given to guarantors at law or in equity other than actual payment and
    performance of the indebtedness.
    Clerk' s Papers ( CP) at 42, 45. The guaranties also required the Reikows to pay the lender' s costs
    and legal fees incurred in enforcing the loan obligation.
    II. NONJUDICIAL FORECLOSURE OF DEED OF TRUST
    The Washington State Department of Financial Institutions subsequently closed Venture
    Bank and placed it in receivership. The receiver sold all of the failed bank' s assets, including the
    note and associated guaranties at issue here, to First -
    Citizens. After NBP began missing
    scheduled loan payments, First -Citizens declared the promissory note in default and initiated
    nonjudicial foreclosure of the deed of trust under chapter 61. 24 RCW.
    1
    The document       states,   for   example,   that "[e] xcept as prohibited by applicable law, Guarantor
    waives   any   right   to   require    Lender ...    to commit any act or omission of any kind, or at any time,
    with respect to any matter whatsoever."
    2
    No. 43181 -5 -II
    First- Citizens submitted the sole bid at the trustee' s sale, purchasing the property for
    5, 215, 000. 00 on July 9, 2010. At the time of the sale, the amount due on the note, including
    interest, foreclosure costs, charges, and fees stood at $ 7, 168, 710. 74.
    III. FIRST -CITIZENS' LAWSUIT AGAINST REIKOWS FOR DEFICIENCY
    Following the trustee' s sale, First -Citizens sued the Reikows personally for a deficiency
    judgment
    in an amount to be proven at trial, representing the outstanding balance on the
    Note ...     less the fair value of the Property sold at the trustee' s sale or the price
    paid at    the trustee's sale ... plus [ costs and attorney fees].
    CP at 4. The Reikows answered the complaint, admitting to the amount due on the promissory
    note, to NBP' s default, and to their guarantee of the loan, but denying any remaining liability and
    requesting judicial determination of the fair value of the property sold.
    First -Citizens then moved for summary judgment. In its motion, First -Citizens argued
    that the Reikows had waived any right to request a fair value hearing by virtue of the guaranties'
    waiver provisions, and therefore, the deficiency amounted to the difference between the
    outstanding debt and the sale price as a matter of law.
    Bruce Reikow filed a declaration in opposition to the summary judgment motion,
    attaching an Internal Revenue Service ( IRS) form he had received from First -Citizens concerning
    the trustee' s sale. The preparer, a First -Citizens employee, had listed the " fair market value" of
    the property as $ 7, 820,000 on the form. CP at 150. Reikow also attached documents from the
    Pierce County Assessor' s office showing the 2010 " assessed value" of the property as
    7, 521, 000. CP at 154 -56. In its reply, First -Citizens submitted a professional appraisal dated
    December 30, 2009, giving a " Prospective Market Value at Stabilization" of $7, 820, 000 and an
    As - Market Value"
    Is                    of $6,   630, 000. CP   at   207 -09.
    No. 43181 -5 -II
    see
    At the                        Citizen' s summary judgment
    First -                             motion,    the Reikows   argued pro
    hearing   on
    that the court should hold First -Citizens to its statement of fair market value on the IRS form.
    First- Citizens maintained that the Reikows had waived any right to dispute the amount of the
    deficiency and that the court should not hold a fair value hearing or consider the IRS form. The
    court entered an order granting partial summary judgment to First -
    Citizens as to the amount of
    the debt and the Reikows' liability for any deficiency, but decided to hold a hearing to determine
    the fair value of the property.
    At the fair value hearing, First- Citizens presented the testimony of one of the
    professionals who had prepared the December 2009 appraisal. One of First -
    Citizens' employees
    also testified to the bank' s opinion that the " estimated as -is market value" of the property shortly
    before the trustee'    s sale stood at $ 6, 370, 000.   Verbatim Report   of   Proceedings ( VRP) ( Feb. 21,
    2012) at 41.
    Bruce Reikow testified on the Reikows' behalf, describing the difficulties he had
    obtaining and retaining tenants during the nonjudicial foreclosure, which he attributed in part to
    the conduct of First -
    Citizens. Reikow also discussed receiving the IRS form from First -Citizens,
    stating his belief that the amount on the form was correct. The court admitted the form into
    evidence.
    The court found the fair value of the property as of the trustee' s sale to have been
    7, 820, 000. 00, a sum exceeding the amount due on the note by $651, 289. 26, and therefore
    dismissed the complaint. Based on the fee -shifting provision in the guaranties, the court entered
    2
    The Reikows' counsel filed a notice of intent to withdraw on September 13, 2011.
    4
    No. 43181 -5 -II
    judgment in favor of the Reikows for reasonable costs and attorney fees incurred in defending
    against First -
    Citizens' deficiency suit. First- Citizens timely appeals.
    ANALYSIS
    First -Citizens' claim that the trial court erred in holding a fair value hearing, if correct,
    would dispose of the question of whether the court' s value determination amounted to an abuse
    of discretion. We therefore first address the trial court' s grant of partial summary judgment, then
    consider the trial court' s finding as to the fair value of the foreclosed property
    I. TRIAL COURT' S DECISION TO HOLD A FAIR VALUE HEARING
    We   review a   trial    court' s   denial   of   summary judgment de        novo.         Walston v. Boeing Co.,
    
    173 Wash. App. 271
    ,' 279, 
    294 P.3d 759
    , review granted, 
    177 Wash. 2d 1019
    , 
    304 P.3d 115
    ( 2013)
    citing Baker v. Schatz, 
    80 Wash. App. 775
    , 782, 
    912 P.2d 501
    ( 1996)).
    Summary judgment should only be granted if after considering all the pleadings,
    affidavits,   depositions or admissions and all reasonable inferences drawn
    therefrom     in favor     of   the nonmoving party,        it   can   be   said (   1)    that there is no
    genuine    issue   as   to any     material   fact, ( 2) that all reasonable persons could reach
    only one conclusion, and ( 3) that the moving party is entitled to judgment [ sic] as
    a matter of law.
    
    Baker, 80 Wash. App. at 782
    .
    Washington statutes allow deficiency judgments against a borrower or guarantor
    following nonjudicial foreclosure on a deed of trust securing a commercial loan. RCW
    61. 24. 100( 3).   In actions against a guarantor for a deficiency,
    the guarantor may request the court or other appropriate adjudicator to determine,
    or the court or other appropriate adjudicator may in its discretion determine, the
    fair value of the property sold at the sale and the deficiency judgment against the
    guarantor shall be for an amount equal to the sum bf the total amount owed to the
    beneficiary by the guarantor as of the date of the trustee' s sale, less the fair value
    the trustee' s sale or the     sale price paid at           the trustee'   s
    of the property         sold at
    No. 43181 -5 -II
    sale, whichever is greater, plus [ interest, costs, expenses, and fees, to the extent
    provided for in the guaranty or related contract].
    RCW 61. 24. 100( 5) (         emphasis added).           The plain language of the statute thus limits the
    deficiency judgment to the difference between the outstanding loan balance and the " fair value"
    of   the                               related costs
    collateral, plus collection -                         explicitly   allowed     by   contract.   3 As First -
    Citizens
    properly concedes, the statute also expressly grants courts discretion to determine the fair value
    even when the guarantor does not request such a determination.
    First -
    Citizens devotes considerable argument to its claim that the Reikows waived any
    right they may have had to request a judicial determination of fair value. Nowhere, however,
    4
    does First -
    Citizens          explain     how this   questionable proposition,             were it established, would entitle
    3 Professor Marjorie Rombauer articulates the rationale behind this rule as follows:
    A     nonjudicial      foreclosure     sale (   indeed, any foreclosure            sale)    always       carries   a
    certain       danger    of   a    windfall    to   the   beneficiary.         When the debt owed the
    beneficiary is large, and /or when a secondary lienor is a taxing agency also owed
    a significant sum, junior lienors and unrelated bidders are much less likely to be
    able to bid a sufficient amount to prevail at the sale, even when there is equity in
    the property.         A foreclosing beneficiary could choose to bid a large amount, but
    less than its loan balance.            Should another bidder bid higher, the beneficiary can
    protect its position by raising its bid to the amount owed it with no actual outlay.
    Should the beneficiary prevail on its " lowball" bid, arguably she will benefit in
    two     ways.     First,     as   the prevailing bidder —she         will have obtained a windfall -
    of    the property at       less than its fair     market         value.     Second, as the
    ownership
    foreclosing beneficiary —she will have received less than the full amount owed
    her and can thus proceed to foreclosure on the other real property collateral.
    27 WASHINGTON PRACTICE: CREDITORS' REMEDIES -                                DEBTORS' RELIEF, § 3. 3 7, at 177. In the
    context of commercial loans, a foreclosing lender could also, absent this rule, gain such a
    windfall by obtaining a deficiency judgment against the debtor or a guarantor.
    4
    We    note   that,   under   Washington law, " a          guaranty agreement should receive a fair and
    reasonable interpretation reflecting the purpose of the agreement and the right ofthe guarantor
    not   to   have his      obligation enlarged."          Old Nat' l Bank of Wash. v. Seattle Smashers Corp., 36
    Wn.       App.   688, 691, 
    676 P.2d 1034
    ( 1984) (            emphasis added).          Our Supreme Court has shown
    great reluctance to allow waiver of the statutory requirements governing nonjudicial foreclosure.
    Schroeder        v.   Excelsior Mgmt.         Grp., LLC,      
    177 Wash. 2d 94
    , 106- 07, 
    297 P.3d 677
    ( 2013) ( stating
    that "``    [w] e will not allow waiver of [chapter              61. 24 RCW'     s]   protections       lightly "'   and citing
    6
    No. 43181 -5 -II
    the bank to a larger deficiency judgment than the statute allows. First -
    Citizens merely asserts
    that "[   t] he only reason there was a fair value hearing in this case is because the Reikows
    requested one."        Br. of Appellant at 15.
    The record does not support First -
    Citizens' assertion. To begin with, First -Citizens'
    complaint itself calls for a fair value hearing, although the Reikows also requested a judicial
    determination of fair value in their answer to the complaint. At the hearing on First -
    Citizens'
    motion for summary judgment, however, the Reikows, then proceeding pro se, did not mention
    their prior request for a fair value determination. Instead, they argued that the court should
    prohibit First -Citizens from asserting a value lower than that stated in the IRS form that the bank
    had prepared.
    The court on its own initiative expressed the concern that, having already foreclosed on
    the   collateral and obtained a settlement           from   a   different   guarantor,   5 First -
    Citizens might be
    double- dipping,"       particularly as it bid " some hundreds of thousands less than the bank' s
    appraisal"     at   the trustee' s sale.'    VRP ( Jan. 27, 2012) at 4 -6. Indeed, the record indicates that the
    cases) (    quoting Bain     v.   Metro.    Mortg. Grp.,    
    175 Wash. 2d 83
    , 108, 
    285 P.3d 34
    ( 2012)). A valid
    waiver, furthermore, requires " intentional abandonment or relinquishment of a known right, and
    intent to waive must be shown by unequivocal acts or conduct which are inconsistent with any
    intention    other   than to     waive."    Harmony at Madrona Park Owners Ass' n v. Madison Harmony
    Dev., Inc., 143 Wn.       App. 345, 361, 
    177 P.3d 755
    ( 2008), appeal after remand, 
    160 Wash. App. 728
    ( 2011).       Thus, were we to find the issue relevant to this dispute, the broad, boilerplate waiver
    in the guaranties' fine print could hardly defeat the explicit and specific provisions of RCW
    61. 24. 100( 5), which plainly aim to protect guarantors from having their obligations enlarged.
    5 First -Citizens' complaint also named Karl and Jane Zetterberg, the Reikows' business partners,
    who had also guaranteed the loan at issue here. First -
    Citizens voluntarily dismissed the
    Zetterbergs, apparently as part of a package settlement involving multiple claims. Neither party
    alleges that the dismissal has any bearing on this dispute.
    Citizens bid $ 1,
    In fact, First -                         415, 000 less at the trustee' s sale than the " As -Is Fair Market
    Value"     given    in the bank'    s professional appraisal, and $        1, 145, 000 less than its own " estimated
    as -is market value."        CP at 18, 207 -09; VRP (Feb. 21, 2012) at 41.
    7
    No. 43181 -5 -II
    trial   court set   the fair   value   hearing   sua sponte: "      I' m going to deny the motion for a deficiency
    judgment. I think        what we need      to    do is   set a   hearing   for this." VRP ( Jan. 27, 2012) at 12
    emphasis added). -       First -
    Citizens concedes the court had the power to order such a hearing sua
    sponte. Reply Br. of Appellant at 14 -15 ( arguing that enforcing the waiver provision would not
    violate public policy because " the trial court could still sua sponte order a fair value hearing ").
    VRP ( Jan. 27, 2012) at 12. Even if the Reikows, arguendo, had waived their right to request a
    fair value hearing, the court retained its authority to hold one.
    The statute limits a deficiency judgment following nonjudicial foreclosure based on the
    fair value of the foreclosed collateral and gives courts discretion to determine that value. Cases
    where the fair value might exceed the price obtained at the trustee' s sale plainly call for such
    judicial determination. Here, First -
    Citizens submitted the only bid at the trustee' s sale, a bid
    over $    1, 000, 000 less than its own valuation of the property. The trial court had before it the
    county assessor' s valuation and a tax document prepared by First -Citizens itself, both giving
    values substantially higher than that bid and well in excess of the outstanding loan balance.
    First -Citizens had, furthermore, presented two widely divergent values. Thus, reasonable minds
    plainly differed as to the fair value of the property, a question of fact diapositive of the entire
    action.
    Under these circumstances First -Citizens' argument, that no issue of material fact
    remained and that reasonable persons could have concluded only that the law entitled First -
    Citizens to a specific sum of money, has no merit. We hold that the trial court properly denied
    summary judgment as to the amount of the deficiency and thus did not err in holding a fair value
    hearing.
    No. 43181 -5 -II
    II. THE TRIAL COURT' s FAIR VALUE DETERMINATION
    In an action for a deficiency judgment following a nonjudicial foreclosure, the plaintiff
    bears the burden of establishing a deficiency between the debt and the value of the collateral
    sold.    See Sec. State Bank      v.   Burk, 100 Wn.      App.   94, 101, 
    995 P.2d 1272
    ( 2000) ( interpreting    an
    analogous provision        in the Uniform Commercial Code). The statute at issue here defines " fair
    value" as
    the value of the property encumbered by a deed of trust that is sold pursuant to a
    trustee' s sale. This value shall be determined by the court or other appropriate
    adjudicator by reference to the most probable price, as of the date of the trustee' s
    sale, which would be paid in cash or other immediately available funds, after
    deduction of prior liens and encumbrances with interest to the date of the trustee' s
    sale, for which the property would sell on such date after reasonable exposure in
    the market under conditions requisite to a fair sale, with the buyer and seller each
    acting prudently, knowledgeably, and for self -
    interest, and assuming that neither
    is under duress.
    RCW 61. 24. 005( 6).
    Because this provision and RCW 61. 24. 100( 5) by their terms grant courts discretion to
    determine fair value, we review such determinations under the abuse -of-discretion standard. See,
    of Matthews, 156 Wn.        App.    201, 214, 
    232 P.3d 1140
    ( 20 10) (   noting that
    e.   g., In   re   Guardianship
    where a " statute       explicitly   grants   the   superior court   discretion," we review for abuse of
    discretion).       Under this deferential standard, an abuse of discretion occurs when a decision is
    unreasonable, or exercised on untenable grounds, or           for   untenable reasons."    Mayer
    manifestly
    v.   Sto Indus., Inc., 
    156 Wash. 2d 677
    , 684, 
    132 P.3d 115
    ( 2006) ( quoting               Assoc. Mortg. Investors v.
    GP Kent Constr. Co., 15 Wn.             App.   223, 229, 
    548 P.2d 558
    ( 1976)).       A discretionary decision
    rests on untenable grounds or is based on untenable reasons if the trial court relies on
    unsupported facts or applies the wrong legal standard; the court' s decision is manifestly
    unreasonable if the court, despite applying the correct legal standard to the supported facts,
    9
    No. 43181 -5 -II
    adopts a view that no reasonable person would take. 
    Mayer, 156 Wash. 2d at 684
    . We defer to the
    trial court regarding witness credibility and conflicting testimony, viewing the evidence in the
    light   most   favorable to the prevailing party: here, the Reikows.       City of Walla Walla v.
    401, 333. 44, 
    164 Wash. App. 236
    , 256, 
    262 P.3d 1239
    ( 2011).
    First -Citizens presented expert testimony concerning the professional appraisal it had
    commissioned. The appraiser explained that the difference between the two values given, the
    as -is fair market value" of $6, 630, 000 and the " prospective market value at stabilization" of
    7, 820, 000, resulted largely from the fact that he calculated the latter figure assuming the
    property were fully leased out, but based the former on the actual tenancy status at the time of
    the appraisal. VRP ( Feb. 21, 2012) at 23 -25.
    Fair value" presumes " reasonable exposure in the market under conditions requisite to a
    fair    sale," not a price   based   on   duress. RCW 61. 24. 005( 6). Bruce Reikow testified that his
    inability to obtain tenants for some of the vacant portions of the property resulted from the
    actions of First -
    Citizens itself. the bank' s refusal to cooperate with NBP and the prospective
    tenants' uncertainty about the foreclosure process. First -
    Citizens did not present any contrary
    evidence.
    The Reikows also presented a document prepared and submitted to the IRS by First-
    Citizens itself, admitting that the fair market value of the property at issue exceeded the amount
    of the debt. First -
    Citizens presented opinion testimony that someone erroneously entered that
    figure on the IRS form, but the witness admitted that he did not know who prepared the form or
    whether First -
    Citizens had issued a correction. The witness also admitted that, had a corrected
    10
    No. 43181 -5 -II
    form issued, the Reikows would have received a copy. Bruce Reikow disputed the claim of
    mistake and testified that he had never received a correction.
    Thus, the uncontroverted evidence showed that First -
    Citizens' appraisers based the lower
    valuation on the then -current reduced tenancy status, which resulted in part from the foreclosure
    process itself. The trial court could reasonably have concluded that this assumption did not
    comport with the statutory requirement of "reasonable exposure in the market under conditions
    requisite   to   a   fair   sale,"   but instead   reflected a seller under "   duress."   RCW 61. 24. 005( 6).
    Further, the resolution of the conflicting testimony concerning First Citizens' apparent admission
    on the IRS form lies in the province of the trial court. We hold that the trial court' s fair value
    determination was not an abuse of discretion.
    First -
    Citizens points out that the trial court did not discuss the unpaid taxes owed on the
    property, which the statute requires the court to deduct in determining fair value. Because the
    value accepted by the court exceeded the outstanding debt by over $650, 000. 00, and the unpaid
    taxes   amounted        to only $ 133,     358. 14, the court had no reason to explicitly perform this
    calculation. The evidence and the findings of fact thus support the trial court' s conclusion that
    the Reikows had no remaining liability to First -
    Citizens.
    First -
    Citizens' claim that the trial court abused its discretion fails. The evidence supports
    the trial court' s determination of the fair value of the property as of the trustee' s sale, a sum
    exceeding the outstanding debt plus the unpaid taxes. The trial court' s conclusions of law
    properly followed from its findings and required dismissal of the suit. For these reasons, we
    affirm.
    11
    No. 43181 -5 -II
    ATTORNEY FEES
    Washington law requires courts to apply one -way fee- shifting provisions bilaterally.
    RCW 4. 84. 330. The guaranties at issue here contain such one -way fee -shifting provisions.
    Having obtained dismissal with prejudice of First -Citizens' lawsuit against them, the Reikows
    plainly prevailed below. Thus, the trial court properly awarded the Reikows their costs, as well
    as the attorney fees they incurred before proceeding pro se.
    Both parties request fees on appeal. When a contract provides for a fee award in the trial
    court, the party prevailing before us may seek reasonable costs and attorney fees incurred on
    appeal.     RAP 18. 1; Reeves     v.   McClain, 56 Wn.   App.   301, 311, 
    783 P.2d 606
    ( 1989). The
    Reikows prevail here and have complied with applicable procedural requirements. We therefore
    award the Reikows the reasonable costs and attorney fees they incurred in this appeal and deny
    First -
    Citizens' fee request.
    Affirmed.
    EJ; cGEN, J             r
    We (=
    oncur:      ,+ ``
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