Pnc Bank, National Association v. Laura Cozza ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
PNC BANK, NATIONAL
ASSOCIATION, its successors in No. 80966-1-I
interest and/or assigns,
DIVISION ONE
Respondent,
v.
UNPUBLISHED OPINION
LAURA COZZA,
Appellant,
MATTHEW COZZA; CITIFINANCIAL,
INC.; OCCUPANTS OF THE
PREMISES,
Defendants.
CHUN, J. — Laura Cozza defaulted on her mortgage. PNC Bank, the
holder of the promissory note, brought this action seeking judicial foreclosure.
Cozza answered PNC’s complaint and asserted counterclaims broadly alleging
fraud. PNC moved for summary judgment for decree of foreclosure and to
dismiss Cozza’s counterclaims. Cozza cross-moved for summary judgment on
judicial foreclosure. The trial court granted PNC’s motion for summary judgment
and denied Cozza’s cross-motion. We affirm.
I. BACKGROUND
In 2007, Laura Cozza and her then-husband Matthew Cozza agreed to a
construction loan from National City Bank—PNC’s predecessor by merger. They
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 80966-1-I/2
used the loan to construct a home in Washington.
In February 2008, the Cozzas signed a promissory note (Note) to
refinance the construction loan into a permanent mortgage loan (Loan) payable
to National City Mortgage, a division of National City Bank. They also executed a
Deed of Trust to secure the Note. National City Mortgage, a division of National
City Bank, endorsed the Note to National City Mortgage Co., a subsidiary of
National City Bank, which endorsed the note in blank.1
National City Corporation—National City Bank’s parent company—merged
with PNC in December 2008 and, as a result, National City Bank became a
subsidiary of PNC. Before April 2013, PNC sold the Loan to Freddie Mac. In
April 2013, Freddie Mac informed PNC that because PNC overstated Laura
Cozza’s income in violation of Freddie Mac’s requirements, PNC needed to
repurchase the Loan.
The Cozzas separated in 2010 and in 2011, during their divorce
proceeding, Matthew Cozza transferred all his interest in the property to Laura
Cozza.2 After the separation, Laura Cozza stopped making mortgage payments.
While the parties dispute when Laura Cozza ceased payments, they agree she
has not made payments since 2012. In 2014, Laura Cozza moved to
Pennsylvania and has since rented out the property at issue.
1
When endorsed in blank, a note is “payable to bearer and may be negotiated by
transfer of possession alone.” Brown v. Dep’t of Commerce, 184 Wn.2d 509, 523, 359
P.3d 771 (2015) (quoting RCW 62A.3-205(b)).
2
The record does not show this transfer, but the parties agree it occurred.
2
No. 80966-1-I/3
In 2016, PNC sued the Cozzas, seeking judicial foreclosure. The Cozzas
answered, asserting counterclaims. In 2019, PNC moved for summary judgment
for judicial foreclosure and dismissal of the Cozzas’ counterclaims. The Cozzas
cross-moved for summary judgment, seeking dismissal of the foreclosure claim.
At a hearing on the motions, PNC produced the original Note signed by
the Cozzas and endorsed in blank. At a second hearing, the trial court granted
PNC’s motion and denied the Cozzas’ cross-motion. Neither the oral ruling nor
the written order on the motions includes findings of fact or conclusions of law.
The trial court then entered a Judgment and Decree of Foreclosure, which
dismisses the Cozzas’ counterclaims with prejudice.
Laura Cozza3 appeals.
II. ANALYSIS
A. PNC’s Motion for Summary Judgment
Cozza says that the trial court erred in granting PNC’s motion for summary
judgment for judicial foreclosure and dismissal of counterclaims because genuine
issues of material fact exist as to multiple issues. We disagree.
We review de novo summary judgment rulings. Matter of Estate of Ray,
15 Wn. App. 2d 353, 356, 478 P.3d 1126 (2020). “Summary judgment is
appropriate if the record shows there is no genuine issue of material fact and that
the moving party is entitled to a judgment as a matter of law.” Id. A fact is
material if the outcome of the litigation depends on it. Id. Courts “consider the
3
Below, this opinion refers to Laura Cozza as “Cozza” as Matthew Cozza is not a
party to the appeal.
3
No. 80966-1-I/4
facts submitted and all reasonable inferences from those facts in the light most
favorable to the nonmoving party.” Id. at 357. “The nonmoving party may not
rely on speculation, argumentative assertions that unresolved factual issues
remain, or having its affidavits accepted at face value.” Heath v. Uraga, 106 Wn.
App. 506, 513, 24 P.3d 413 (2001). If the nonmoving party fails to show a
genuine issue of material fact, then summary judgment is proper. Vallandigham
v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109 P.3d 805 (2005).
1. Judicial foreclosure
a. Standing
Cozza says that a genuine issue of material fact exists as to whether PNC
had standing to sue. She contends the record shows that Freddie Mac, and not
PNC, is the owner of the Note and Deed of Trust, so PNC cannot seek
foreclosure. PNC responds that it has such standing, given that it is the holder of
the Note. We agree with PNC.
“[I]t is the holder of a note who is entitled to enforce it.”4 Deutsche Bank
Nat’l Tr. Co. v. Slotke, 192 Wn. App. 166, 173, 367 P.3d 600 (2016). And one
who possesses a note holds it. Id. “A declaration by the beneficiary made under
the penalty of perjury stating that the beneficiary is the actual holder of the
promissory note or other obligation secured by the deed of trust shall be
sufficient proof [of the status to enforce the note].” Bavand v. OneWest Bank,
4
Cozza says that a related issue is “whether PNC’s fraud requires” the
application of prior law. Citing Bain v. Metro. Mortg. Grp., Inc., 175 Wn.2d 83, 285 P.3d
34 (2012), she notes that prior law required that a creditor must own and hold the note to
foreclose on a deed of trust. As discussed below, Cozza does not establish any issue of
fact as to fraud, and thus we do not address this argument.
4
No. 80966-1-I/5
196 Wn. App. 813, 824, 385 P.3d 233 (2016), as modified (Dec. 15, 2016)
(emphasis omitted) (quoting RCW 61.24.030(7)(a)).
PNC submitted evidence that it holds and owns the Note. The declaration
of PNC employee Sarah Greggerson says that PNC possessed the Note when it
initiated the complaint. During her deposition, Cozza stated that she recognized
her signature on the Note. And at the first summary judgment hearing, PNC
produced what it claimed was the original Note in its possession.5 National City
Mortgage Co., a subsidiary of National City Bank, endorsed the note in blank and
then National City Bank merged with PNC.6
Cozza submitted correspondence between Freddie Mac and PNC from
2013 in which Freddie Mac informed PNC that PNC must repurchase the Subject
Loan because PNC inflated Cozza’s income, which violated the sale guidelines.
But this merely indicates that Freddie Mac owned the Note at some point.
Nothing in this correspondence indicates that PNC did not buy back the loan.
Cozza contends that PNC should have produced evidence that it bought
back the Loan. But possession of the Note suffices for PNC to have standing.
See Deutsche Bank, 192 Wn. App. at 173.
Cozza also says that PNC cannot sue because it committed fraud by
overstating Cozza’s income and claiming ownership of the Loan when it was not
5
While Cozza disputed at the hearing that the Note was in fact the original Note,
she does not make a similar argument on appeal.
Cozza suggests that Tara Ingram, the document custodian who endorsed the
Note in blank, lacked the authority to do so, but points to no evidence to support this
suggestion.
6
When endorsed in blank, a note is “payable to bearer and may be negotiated by
transfer of possession alone.” Brown, 184 at 523 (quoting RCW 62A.3-205(b)).
5
No. 80966-1-I/6
the owner. We conclude that Cozza has not established a genuine issue of
material fact about fraud, and thus fraud cannot constitute the basis for an
argument that PNC lacks the authority to sue.7
Cozza relies only on the correspondence between Freddie Mac and PNC
in her attempt to establish a genuine issue of material fact as to the existence of
fraud. In these documents, Freddie Mac required PNC to repurchase the Loan
because PNC overstated Cozza’s income. PNC responded that it did not
overstate Cozza’s income and that Freddie Mac failed to establish that PNC must
repurchase the Loan. Freddie Mac responded by reiterating its previous position.
This exchange hardly suffices to raise a genuine issue of material fact about
fraud. Freddie Mac does not accuse PNC of fraud, and overstated income alone
is not evidence of fraud. Thus, the trial court did not err.
b. Default
Cozza says that a genuine issue of material fact exists as to whether PNC
“manufactured” her default. Cozza says that she made her mortgage payments
for January, February, and March 2011, and that this conflicts with PNC’s
contention that she made none of those payments. PNC disagrees. We
7
The elements of fraud are:
(1) a representation of existing fact, (2) its materiality, (3) its falsity, (4) the
speaker’s knowledge of its falsity, (5) the speaker’s intent that it be acted
upon by the person to whom it is made, (6) ignorance of its falsity on the
part of the person to whom the representation is addressed, (7) the latter’s
reliance on the truth of the representation, (8) the right to rely upon it, and
(9) consequent damage.
Frontier Bank v. Bingo Inv., LLC, 191 Wn. App. 43, 59, 361 P.3d 230 (2015) (quoting
Elcon Constr., Inc. v. E. Wash. Univ., 174 Wn.2d 157, 166, 273 P.3d 965 (2012)). They
“must be established by clear, cogent, and convincing evidence.” Id.6
No. 80966-1-I/7
conclude that, even assuming Cozza established an issue about when she
stopped making payments, she has not established materiality.
Greggerson’s declaration says that Cozza failed to make payments in
January and February 2011. It says that Cozza made a payment in March 2011
but PNC returned the payment as insufficient to bring the account current.
Greggerson noted that Cozza has not made a regular monthly payment under
the Note since March 2011. Financial documents from 2011 corroborate this
declaration. Greggerson stated that in 2012, Cozza made three payments under
a trial payment plan for a potential loan modification, but afterward Cozza did not
make any payments on the Loan. PNC submitted financial documents showing
that the three payments Cozza made in 2012 were combined and used to pay off
her balance from January and February 2011.
During her deposition, Cozza stated that she had made her January,
February, and March 2011 payments as well as three payments in 2012. Her
declaration makes similar statements and says that PNC returned her March
2011 payment with no explanation. Cozza submitted a series of documents PNC
sent her that state that she was in default as of March 2011. One undated
document titled “Current Loan Information,” states that the “year to date” total
payments equal $3,766.46 and that the next payment was due on March 1, 2011.
Cozza concedes that she has not made payments since 2012. But she
says she has established a genuine issue of material fact as to whether PNC
“manufactured” the default. Cozza says that PNC’s calculations for the total
amount owed “have to be off.” Assuming she has shown an issue as to the
7
No. 80966-1-I/8
timing of the default, she has not pointed to evidence showing how that issue is
material to the question of whether PNC “manufactured” the default. See Ray,
15 Wn. App. at 356 (holding that an issue is material only if it affects the outcome
of the litigation).
c. Case of equity
Cozza seemingly argues the following: this is a case of equity, the trial
court seems to have agreed, summary judgment is often inappropriate in equity
cases, thus the trial court should have “set forth” its decision to apply equity
jurisdiction in its summary judgment ruling. See Cornish Coll. of the Arts v. 1000
Virginia Ltd. P’ship, 158 Wn. App. 203, 220–21, 242 P.3d 1 (2010) (“Due to the
discretionary nature of decisions made in equity, granting equitable relief on
summary judgment may be inappropriate in many cases.”). Cozza says, based
on the trial court’s ruling, one cannot tell whether the trial court considered her
arguments that PNC lacked standing and that the trial court should exercise
equity jurisdiction.
The parties agree that the case is equitable in nature. But the trial court
did not indicate whether it was treating the case as such.8 Cozza cites no legal
authority requiring that if a court exercises equity jurisdiction, it say so in its
summary judgment ruling. We conclude that the trial court did not err.
8
During a hearing, the trial court noted, “[T]he Defendants specifically requested
that this court exercise its considerable powers in equity in their favor” and ruled that by
doing so, Cozza waived any personal jurisdiction argument. But this does not show
whether the trial court agreed that it should exercise equitable jurisdiction.
8
No. 80966-1-I/9
2. Dismissal of counterclaim for trespass
As to her claim for trespass,9 Cozza says that a genuine issue of material
fact exists as to the reason she moved out of her Washington home to
Pennsylvania. She contends that she was forced out by harassing trespassers
sent by PNC. PNC responds that she left to rent out the property. It says that
the trial court properly dismissed Cozza’s claims because no trespass occurred.
We conclude no genuine issue of material fact exists on this issue.
Cozza submitted a declaration stating that people came onto her property
“every week,” took photographs, and verbally abused her. Cozza submitted
photographs that PNC’s agents took of her house, a description of her home by
an agent, and photographs of a car allegedly belonging to someone who came to
empty the house. These establish only that PNC’s agents have been to the
property. And Section 7 of the Deed of Trust states, “Lender or its agent may
make reasonable entries upon and inspections of the Property.” Also, Section 9
states, “If (a) Borrower fails to perform the covenants and agreements contained
in this Security Instrument . . . the Lender may do and pay for whatever is
reasonable, or appropriate to protect Lender’s interest in the Property and rights
under this Security Instrument.” Cozza’s evidence falls short of establishing a
genuine issue of fact as to trespass, particularly since she must establish an
issue of fact as to each of the elements of trespass.
9
“To establish intentional trespass, a plaintiff must show (1) an invasion of
property affecting an interest in exclusive possession; (2) an intentional act; (3)
reasonable foreseeability that the act would disturb the plaintiff’s possessory interest;
and (4) actual and substantial damages.” Wallace v. Lewis County, 134 Wn. App. 1, 15,
137 P.3d 101 (2006), as corrected (Aug. 15, 2006).
9
No. 80966-1-I/10
3. Credibility
Cozza says that because this case involved issues of credibility, granting
summary judgment for PNC was error. PNC responds that Cozza introduced no
evidence creating an issue as to credibility. We conclude that the trial court did
not err in this regard.
Cozza relies on Balise v. Underwood, 62 Wn.2d 195, 381 P.2d 966(1963), for the proposition that if a party provides impeaching or contradicting
evidence, an issue of credibility arises and in such a case, a court should deny a
motion for summary judgment. But later cases clarify that “while a court should
not resolve a genuine issue of credibility at a summary judgment hearing, ‘[a]n
issue of credibility is present only if the party opposing the summary judgment
comes forward with evidence which contradicts or impeaches the movant’s
evidence on a material issue.’” Laguna v. Dep’t of Transp., 146 Wn. App. 260,
266–67, 192 P.3d 374 (2008) (alteration in original) (quoting Howell v. Spokane
& Inland Empire Blood Bank, 117 Wn.2d 619, 626–27, 818 P.2d 1056 (1991)).
“Impeachment of a witness does not establish the opposite of [their] testimony as
fact,” thus impeachment does not necessarily establish a genuine issue of
material fact. Laguna, 146 Wn. App. at 267.
Cozza purports to have impeached PNC’s contention that it may
foreclose, and that PNC has not denied multiple allegations, including that it
acted in bad faith and engaged in trespass. Cozza says that because this case
turns on whether Cozza and her business records are more credible than PNC
and its records, summary judgment is inappropriate. Cozza has not provided
10
No. 80966-1-I/11
evidence impeaching PNC’s assertion that it held the Note when it initiated the
complaint or establishing that PNC acted in bad faith10 or committed trespass.
Nor has she provided any evidence to impeach any other material factual
assertion by PNC. Cozza has not established a “genuine issue of credibility.”
See id. at 266.
4. PNC’s failure to mediate in good faith
Cozza says that because a mediator found that PNC failed to mediate in
good faith, Cozza is entitled to a defense under the Foreclosure Fairness Act.
PNC responds that the applicable statutory provision precludes such a defense
against judicial foreclosure. We agree with PNC.11
RCW 61.24.163(14)12 provides:
(14)(a) The mediator’s certification that the beneficiary failed to
act in good faith in mediation constitutes a defense to the nonjudicial
foreclosure action that was the basis for initiating the mediation. In
any action to enjoin the foreclosure, the beneficiary is entitled to rebut
the allegation that it failed to act in good faith.
(b) The mediator’s certification that the beneficiary failed to act in
good faith during mediation does not constitute a defense to a judicial
foreclosure or a future nonjudicial foreclosure action if a modification
of the loan is agreed upon and the borrower subsequently defaults.
(Emphasis added).
10
Cozza offers no evidence arguing that PNC acted in bad faith as to the
modifications. Cozza submitted a declaration alleging bad faith, but Cozza does not cite
it on appeal, nor is the declaration enough to establish a genuine issue of material fact.
See Heath, 106 Wn. App. at 513 (a party cannot reply on “having its affidavits accepted
at face value”).
11
Because we conclude that PNC’s failure to mediate in good faith is not a
defense to judicial foreclosure, we do not address Cozza’s contention that a genuine
issue of material fact exists as to “bad faith modifications.”
12
In her opening brief, Cozza cites the 2011 version of the statute, but the
current version is identical in pertinent part. Former RCW 61.24.163(11) (2011).
11
No. 80966-1-I/12
Division Two of this court held that this statute13 precludes a defense
against judicial foreclosure when a mediator decides a beneficiary failed to act in
good faith. Wells Fargo Bank, N.A. for Option One Mortg. Loan Tr. 2006-1,
Asset-Backed Certificates, Series 2006-1 v. Gardner, noted at 5 Wn. App. 2d
1011, slip op. at 10 (2018); see GR 14.1 (“Washington appellate courts should
not, unless necessary for a reasoned decision, cite or discuss unpublished
opinions in their opinions”). The court set forth two reasons why the defense
does not apply to judicial foreclosures:
First, the absence of any reference to “judicial foreclosure” in
subsection (a) suggests that the legislature did not intend to provide
an affirmative defense to judicial foreclosure. If the legislature had
intended to extend the affirmative defense to both judicial and
nonjudicial foreclosures, it could have clearly expressed that intent
by including both terms in subsection (a). Second, the last
antecedent rule is not merely a formalistic maxim based on
punctuation, but is a sign of legislative intent. Under that rule, the
qualifying phrase “if a modification of the loan is agreed upon and the
borrower subsequently defaults,” applies only to “a future nonjudicial
foreclosure action,” because that is the immediately preceding
antecedent and there is no comma before the qualifying phrase.
Id. at 9 (quoting former RCW 61.24.163(14)(b)).14 We agree with this reasoning
and conclude that Cozza was not entitled to a defense under RCW 61.24.163.
B. Cozza’s Cross-Motion for Summary Judgment
We review de novo summary judgment rulings. Ray, 15 Wn. App. at 356.
13
The court in this case interpreted the 2014 version of the statute. The
language in the pertinent part of the 2014 version is identical to the current version.
14
Gardner, slip op. at 8 (“one rule of grammar applied to statutory interpretation
is ‘the last antecedent rule, which states that qualifying or modifying words and phrases
refer to the last antecedent.’” (quoting State v. Bunker, 169 Wn.2d 571, 578, 238 P.3d
487 (2010))).
12
No. 80966-1-I/13
1. PNC’s name in the case caption
Cozza says that PNC failed to name the proper party in the complaint’s
caption by including “successors and assigns” after its name. PNC says Cozza
waived this argument and, in any event, no law prevents PNC from including
such boilerplate language in their name. We agree with PNC that Cozza waived
this argument.
“Generally, any objection to the capacity of a business to bring suit based
solely on the identity of the named plaintiff must be raised in a preliminary
pleading or by answer or the objection is deemed waived.” Bus. Serv. of Am. II,
Inc. v. WaferTech, LLC, 188 Wn.2d 846, 851, 403 P.3d 836 (2017). Cozza did
not make any such objection. Thus, she waived her argument on this issue.
2. Issues of equity
Cozza says that the trial court erred in how it resolved issues of equity.
She contends that the trial court failed to apply principles of equity by declining to
provide its reasoning for its rulings. As discussed below, the trial court did not err
in declining to enter findings of fact and conclusions of law. And Cozza cites no
law requiring any other type of reasoning in cases of equity. Aside from this
contention, Cozza does not explain how the trial court erred in resolving issues of
equity.
C. Findings of Fact and Conclusions of Law
Relying on the party presentation principle15 and the separation of powers
According to the party presentation principle, “courts are essentially passive
15
instruments of government” and should not be too involved in the adversarial process.
See United States v. Sineneng-Smith, __ U.S. __, __, 140 S. Ct. 1575, 1579, 206 L. Ed.
13No. 80966-1-I/14
doctrine, Cozza says that the trial court erred by not issuing findings of fact and
conclusions of law. Cozza asks this court to remand the case for findings and
conclusions related to whether recusal was required and whether a violation of
the separation of powers doctrine occurred. PNC responds that Cozza waived
this argument. PNC also says Washington law establishes a trial court need not
enter findings of fact and conclusions of law when granting summary judgment.
We conclude that even if Cozza did not waive this argument,16 the trial court did
not err.
The trial court relied on Sinclair v. Betlach, 1 Wn. App. 1033, 1034, 467
P.2d 344 (1970), in determining that entering findings of fact in a motion for
summary judgment would be superfluous. Cozza contends that Sinclair is
distinguishable on the facts, but other cases similarly hold. See, e.g., Davenport
v. Washington Educ. Ass’n, 147 Wn. App. 704, 716 n.23, 197 P.3d 686 (2008)
(“the Washington Supreme Court has ‘held on numerous occasions that findings
of fact and conclusions of law are superfluous in both summary judgment and
judgment on the pleadings proceedings.’” (quoting Washington Optometric Ass’n
v. Pierce County, 73 Wn.2d 445, 448, 438 P.2d 861 (1968))). Cozza relies on
State v. Agee, 89 Wn.2d 416, 419, 573 P.2d 355 (1977), but that criminal case
2d 866 (2020) (quoting United States v. Samuels, 808 F.2d 1298, 1301 (8th Cir. 1987)).
Cozza says the trial court violated this principle. But the record does not show that the
trial judge was too involved in the adversarial process or otherwise failed to act as a
neutral arbiter. And Cozza does not convincingly explain how this principle or the
separation of powers doctrine required the trial court, contrary to other law, to enter
findings and conclusions.
16
Cozza did not object below when the court declined to issue findings and
conclusions. Under RAP 2.5(a) we may decline to address issues raised for the first
time on appeal. And Cozza does not respond to this waiver contention in her reply brief.
But we address it because some of Cozza’s other arguments relate to it.
14
No. 80966-1-I/15
addresses a CrR 4.5 motion to suppress and not summary judgment. The trial
court did not err in declining to enter findings of fact and conclusions of law on its
summary judgment rulings.
D. Recusal
Cozza says the trial judge erred by failing to address a potential conflict of
interest. PNC says that the trial judge did not have an interest requiring recusal.
We conclude that the trial court acted within its discretion.
“We review a trial court’s recusal decision for an abuse of
discretion.” Tatham v. Rogers, 170 Wn. App. 76, 87, 283 P.3d 583 (2012). “The
court abuses its discretion when its decision is manifestly unreasonable or is
exercised on untenable grounds or for untenable reasons.” Id.“The Due Process Clause entitles a person to an impartial and
disinterested tribunal in both civil and criminal cases.” Id. at 90 (quoting Marshall
v. Jerrico, Inc., 446 U.S. 238, 242, 100 S. Ct. 1610, 64 L. Ed. 2d 182 (1980)).
But because “the common law and state codes of judicial conduct generally
provide more protection than due process requires” courts typically “resolve
questions about judicial impartially [sic] without using the constitution.”
JPMorgan Chase Bank, N.A. v. Stehrenberger, noted at 193 Wn. App. 1035, slip
op. at 3–4 (2016); see GR 14.1. Under the Code of Judicial Conduct, a judge
must recuse if their impartiality may reasonably be questioned. West v.
Washington Ass’n of County Officials, 162 Wn. App. 120, 136–37, 252 P.3d 406(2011). But recusal is unnecessary if a judge’s interest is de minimis. Kok v.
Tacoma Sch. Dist. No. 10, 179 Wn. App. 10, 26, 317 P.3d 481 (2013). De
15
No. 80966-1-I/16
minimis interests are insignificant and include “an interest in the individual
holdings within a mutual or common investment fund.” Stehrenberger, slip op.
at 5 (quoting Comment 6 to the CJC 2.11).
Cozza says that the trial court judge, and likely all Washington state
judges, have a conflict of interest in this case. She says that a “substantial
amount” of judges’ retirement funds are invested in mortgage-backed securities
comprised of loans such as the one at issue here. She contends that judges are
disinclined to rule against foreclosures in cases involving fraud because doing so
will impact the stability of mortgage backed securities. She says this is so given
the “rampant” fraud relating to these types of investments. She says that the
Due Process Clause of the United States Constitution prevents a judge from
hearing a case in which the judge has an interest.
Cozza raised this argument before the trial court. She did not move to
disqualify the judge—her attorney raised the issue in his declaration in support of
her cross-motion for summary judgment. She requested that if the trial court
believed a potential conflict existed, it should appoint a non-sitting Judge Pro
Tempore. And she requested that if the trial judge declined to recuse himself,
the court include reasoning for that decision in its summary judgment ruling. The
trial judge did not address this issue at the hearings or in his order and did not
recuse himself.
“[A]n interest in the individual holdings within a mutual or common
investment fund”—such as the interest at issue—is de minimis. See
Stehrenberger, slip op. at 5 (quoting Comment 6 to the CJC 2.11). This case is
16
No. 80966-1-I/17
like Stehrenberger in which the court held that the judge’s retirement fund being
invested by the state in diversified investments—including holdings in JPMorgan,
the plaintiff there—was a de minimis interest not requiring recusal. Id. at 4–5;
see GR 14.1. And while Cozza states that a failure to address a request to
recuse borders on “judicial tyranny,” she does not cite law requiring that a trial
court explicitly address such a request, which she did not make in a separate
motion. The trial court did not err by declining to address the conflicts issue or
recuse himself.
We affirm.
WE CONCUR:
17