Ryan Howard, V. Jp Morgan Chase Bank, N.a. ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
RYAN HOWARD,
DIVISION ONE
Appellant,
No. 81968-2-I
v.
UNPUBLISHED OPINION
JP MORGAN CHASE BANK, N.A.,
successor in interest to WASHINGTON
MUTUAL BANK FA and QUALITY
LOAN SERVICE CORP. OF WASH.,
Respondent.
DWYER, J. — Ryan Howard appeals from an order granting summary
judgment and dismissing his fraud and quiet title claims. Howard contends that
JP Morgan Chase Bank (Chase) engaged in fraud when it credited his account
$213,378.60. This is so, he asserts, because Chase did not disclose the source
of the credited payments. However, because Chase provided the credits itself,
notified Howard of the credits, and Howard suffered no damages from receiving
the credits, Howard fails to establish that crediting his account was fraudulent.
Howard also asserts that the trial court erred by dismissing his quiet title
claim. He contends that Chase accelerated the due date of his loan from Chase
when it initiated foreclosure in 2013.1 Thus, Howard avers, the statutory
limitation period applicable to enforcement of the promissory note commenced in
2013 and expired in 2019. However, because Chase took no unequivocal and
1 It subsequently ceased these efforts due to ongoing litigation.
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affirmative act to accelerate the loan, Howard lacks a basis to quiet title to his
property based upon this claim.
Accordingly, we affirm.
I
In November 2007, Howard obtained a $520,000 home equity line of
credit (the Bothell Note) from Washington Mutual, secured by a deed of trust on
his Bothell property.2 The Bothell Note matures in 2037. It is an installment
note, meaning that “[p]ayments for both Variable Rate Advances and any Fixed
Rate Loans are due monthly.” In 2009, Howard defaulted on the Bothell loan. In
response, Chase attempted to collect payments and contacted him about loss
mitigation.
In 2013, Chase attempted to foreclose on the Bothell property. To prevent
this, Howard filed a lawsuit against Chase in Snohomish County Superior Court
seeking to restrain the sale. This complaint alleged (1) that Chase violated the
Criminal Profiteering Act,3 (2) that Chase engaged in deceptive practices that
violated the Consumer Protection Act,4 (3) that Chase’s action “constitute[d] a
breach of the loan agreement and [Chase is] estopped to deny said
representations as the Plaintiff relied upon such promises,” (4) that Howard was
induced to enter into the loan agreement by fraudulent promises, and (5) that
Howard was entitled to proceed on a cause of action for an injunction.
2 Chase acquired this loan from the Federal Deposit Insurance Corporation, acting as
receiver, after Washington Mutual’s failure in September 2008.
3 Ch. 9A.82 RCW.
4 Ch. 19.86 RCW.
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The trial court initially dismissed Howard’s claims of promissory estoppel
and fraud in the inducement of the loan. Later, the trial court granted Chase’s
motion for summary judgment dismissal of Howard’s claims of Criminal
Profiteering Act violations, Consumer Protection Act violations, and for an
injunction, thus dismissing the 2013 lawsuit with prejudice. Howard did not
appeal from that final judgment, and Chase did not immediately resume
foreclosure efforts on the Bothell property.
Between September 2014 and December 2015, Chase continued to
contact Howard about his default on the Bothell loan. Because of Howard’s
continued loan default, on February 1, April 1, June 1, and August 1 of 2016,
Chase informed Howard that it might initiate foreclosure proceedings.
In 2017, Chase credited Howard’s account for any unpaid amounts that
were more than six years past due. It also issued various tax forms associated
with those credits. It notified Howard of these actions by sending him various
letters detailing the credits. Chase did this in order to avoid litigating any
statutory limitation period issue concerning whether Howard remained liable for
all past due amounts stemming from his 2009 default and failure to make
payments thereafter. These credits were also listed in an April 2018 letter
responding to a question from Howard regarding the Bothell loan. Chase also
sent similar letters to Howard in June and August of 2018. Chase sent Howard
another letter in April 2019, with a payment history, which again informed Howard
about the credits Chase had applied to his account crediting unpaid amounts
incurred beyond the six-year limitation period.
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Nevertheless, Howard continued in default, making no monthly payments.
In June 2019, Chase resumed nonjudicial foreclosure efforts. The Bothell
property was sold as a result of the foreclosure. The foreclosure trustee
recorded a June 2019 notice of trustee’s sale, which it rescinded in October 2019
after Howard filed this lawsuit.
Howard filed this second lawsuit against Chase in October 2019, seeking
to restrain the foreclosure sale based on claims of fraud, Consumer Protection
Act violations, and a claim to quiet title to the Bothell property. Chase filed a
motion for summary judgment appending numerous declarations in support of its
motion. The superior court granted summary judgment. Howard moved for
reconsideration. That motion was denied.
Howard appeals.
II
Three matters are referenced in Howard’s briefing that are not properly at
issue in this appeal. None of these rulings was the subject of an assignment of
error as required. Our rules require an appellant to set forth “[a] separate
concise statement of each error a party contends was made by the trial court,
together with the issues pertaining to the assignments of error.” RAP 10.3(a)(4).
We “will only review a claimed error which is included in an assignment of error
or clearly disclosed in the associated issue pertaining thereto.” RAP 10.3(g).
Moreover, these issues were not the subject of developed briefing in Howard’s
opening brief, as is also required. Cowiche Canyon Conservancy v. Bosley, 118
Wn.2d 801, 809, 828 P.2d 549 (1992); State v. Donaghe, 172 Wn.2d 253,
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263 n.11, 256 P.3d 1171 (2011) (“‘We do not review issues inadequately briefed
or mentioned in passing’” (quoting State v. Donaghe, 152 Wn. App. 97, 111 n.23,
215 P.3d 232 (2009))).
The first of these matters is Howard’s claim that he has a cause of action
for an injunction. However, in addition to both the lack of an assignment of error
and the inadequate briefing, “an injunction is a remedy, not an independent
cause of action.” Markoff v. Puget Sound Energy, Inc., 9 Wn. App. 2d 833, 851,
447 P.3d 577 (2019), review denied, 195 Wn.2d 1013 (2020). Therefore, were
we to entertain the issue (which we do not) we would rule that the superior court
properly dismissed this cause of action.
The second matter is Howard’s Consumer Protection Act cause of action.
The trial court dismissed this cause of action, and Howard did not assign error to
the trial court’s ruling. Thus, the issue is not properly preserved for us for review.
The third matter is the question of the legality of the Bothell loan. In
addition to being waived by the absence of an assignment of error and the
absence of developed briefing, this issue is also barred by both issue and claim
preclusion. The superior court relied, in part, on these principles when it granted
Chase summary judgment. Thus, even were we to reach the merits of this issue
(which we decline to do), we would affirm the trial court’s ruling.
III
The trial court dismissed on summary judgment two claims that Howard
has properly preserved for appeal. We address each of these claims separately.
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A
“We engage in a de novo review of a ruling granting summary judgment.
Thus, we engage in the same inquiry as the trial court.” Green v. Normandy
Park, 137 Wn. App. 665, 681, 151 P.3d 1038 (2007) (citation omitted).
“Summary judgment is properly granted when the pleadings, affidavits,
depositions, and admissions on file demonstrate that there is no genuine issue of
material fact and that the moving party is entitled to summary judgment as a
matter of law.” Green, 137 Wn. App. at 681. “The ‘facts’ required . . . to defeat a
summary judgment motion are evidentiary in nature. Ultimate facts or
conclusions of fact are insufficient. Likewise, conclusory statements of fact will
not suffice.” Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 359, 753
P.2d 517 (1988) (citation omitted), abrogated on other grounds by Mikkelsen v.
Pub. Util. Dist. No. 1 of Kittitas County, 189 Wn.2d 516, 404 P.3d 464 (2017);
accord Overton v. Consol. Ins. Co., 145 Wn.2d 417, 430, 38 P.3d 322 (2002).
We construe all reasonable inferences from the evidence in the light most
favorable to the nonmoving party. Green, 137 Wn. App. at 681.5
B
Howard next contends that the trial court erred by granting Chase’s motion
for summary judgment, thus dismissing his fraud claim. Howard focuses on the
fact that Chase credited his loan for possible time-barred past-due payments in
2017. However, because Howard fails to show either falsity, misrepresentation,
5 In his opening brief, Howard asserts that the trial court did not construe the evidence in
his favor, as required on a summary judgment motion. This argument is of no moment. De novo
review applies to our inquiry. We properly apply the summary judgment standards in our
analysis.
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or damages, he necessarily fails to establish that Chase engaged in fraud by
crediting his account.
To establish fraud, a plaintiff must show: (1) a misrepresentation of an
existing fact; (2) materiality; (3) falsity; (4) the speaker’s knowledge of its falsity;
(5) intent of the speaker that it should be acted upon by the plaintiff; (6) plaintiff’s
ignorance of its falsity; (7) plaintiff’s reliance on the truth of the representation; (8)
plaintiff’s right to rely upon it; and (9) damages suffered by the plaintiff. Stiley v.
Block, 130 Wn.2d 486, 505, 925 P.2d 194 (1996). Each of these elements is
necessary, and the lack of any is dispositive. Repin v. State, 198 Wn. App. 243,
262, 392 P.3d 1174 (2017).
The trial court correctly granted summary judgment on two bases. First,
no falsity or misrepresentation was shown. Chase alerted Howard that it had
credited his account and sent him payment histories and documents detailing
those credits. Chase explained that it credited the amounts to avoid including
unpaid amounts beyond the six-year statutory limitation period when it
foreclosed. Therefore, Howard did not prove fraud because he did not prove a
misrepresentation of fact or falsity.
Second, Howard did not demonstrate that he suffered any damages. To
the contrary, the evidence tends to show that Howard benefited from the credits
because they reduced the balance he owed. Indeed, Howard did not argue that
he was damaged in the superior court. And he does not attempt to explain on
appeal what damages he suffered. Instead, Howard makes the claim that, by
decreasing the amount of its monetary claims against him, Chase thereby
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No. 81968-2-I/8
deprived him of the ability to contest his liability for a greater amount. This is
nonsensical. By reducing its monetary claim against Howard, Chase conceded
any possible contested amount. It gave Howard the benefit of the argument prior
to initiating the foreclosure proceeding. Plainly, Howard was done no damage.
Howard’s fraud claim fails on these two counts, as he does not show
either damages or falsity. Accordingly, the trial court correctly granted Chase’s
motion for summary judgment, dismissing the claim of fraud.
C
Howard finally contends that the trial court erred by dismissing his cause
of action seeking to quiet title to the property. Quiet title actions are “designed to
resolve competing claims of ownership . . . [or] the right to possession of real
property.” Kobza v. Tripp, 105 Wn. App. 90, 95, 18 P.3d 621 (2001). A pertinent
statute provides:
The record owner of real estate may maintain an action to quiet title
against the lien of a mortgage or deed of trust on the real estate
where an action to foreclose such mortgage or deed of trust would
be barred by the statute of limitations, and, upon proof sufficient to
satisfy the court, may have judgment quieting title against such a
lien.
RCW 7.28.300.6
An action on a contract or agreement in writing must be
commenced within six years. RCW 4.16.040. “As an agreement in
writing, [a] deed of trust foreclosure remedy is subject to a six-year
statute of limitations.” Edmundson v. Bank of Am., NA, 194 Wn.
App. 920, 927, 378 P.3d 272 (2016).
6 We presume that Howard sought to quiet title under RCW 7.28.300, although this remains
unclear from the record.
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Merceri v. Bank of New York Mellon, 4 Wn. App. 2d 755, 759, 434 P.3d 84(2018).
Washington law distinguishes between demand promissory
notes and installment promissory notes. Edmundson, 194 Wn.
App. at 928-32. “‘A demand [promissory] note is payable
immediately on the date of its execution.’” Edmundson, 194 Wn.
App. at 929 (internal quotation marks omitted) (quoting GMAC v.
Everett Chevrolet, Inc., 179 Wn. App. 126, 135, 317 P.3d 1074(2014)). As such, the statutory limitation period begins to run on a
demand note when it is executed. Walcker v. Benson &
McLaughlin, PS, 79 Wn. App. 739, 741-42, 904 P.2d 1176 (1995).
An installment promissory note, on the other hand, is payable in
installments and matures on a future date. See Edmundson, 194
Wn. App. at 929; see also Herzog v. Herzog, 23 Wn.2d 382, 388,
161 P.2d 142 (1945). “‘[W]hen recovery is sought on an obligation
payable by installments, the statute of limitations runs against each
installment from the time it becomes due; that is, from the time
when an action might be brought to recover it.’” Edmundson, 194
Wn. App. at 930 (quoting Herzog, 23 Wn.2d at 388).
Merceri, 4 Wn. App. 2d at 759-60.
The Bothell Note required Howard to make monthly installment payments.
Therefore, the statutory limitation period commences separately as to each
missed payment up to the 2037 maturation date. Thus, the statutory limitation
period will not expire until 2043. Herzog, 23 Wn.2d at 388; Cedar W. Owners
Ass’n v. Nationstar Mortg., LLC, 7 Wn. App. 2d 473, 484-85, 434 P.3d 554(2019).
Acceleration of payments due on an installment note does not take place
by chance. Long ago, our Supreme Court made clear that for the entire
obligation on the note to become due, “[s]ome affirmative action is required,
some action by which the holder of the note makes known to the payors that he
intends to declare the whole debt due.” Weinberg v. Naher, 51 Wash. 591, 594,
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99 P. 736 (1909). We repeated this rule seven decades later, Glassmaker v.
Ricard, 23 Wn. App. 35, 37-38, 593 P.2d 179 (1979), and again four decades
after that. Merceri, 4 Wn. App. 2d at 759-60.
Thus, it is clear that, “acceleration must be made in a clear and
unequivocal manner which effectively apprises the maker that the holder has
exercised his right to accelerate the payment date.” Glassmaker, 23 Wn. App. at
38.
However, “a lender is not required to accelerate the loan in order to
pursue a nonjudicial foreclose. . . . [A]cceleration does not occur automatically
by invoking the power of sale.” 4518 S. 256th, LLC v. Karen L. Gibbon, PS, 195
Wn. App. 423, 445, 382 P.3d 1 (2016); accord Terhune v. N. Cascade Tr. Servs.,
Inc., 9 Wn. App. 2d 708, 719, 446 P.3d 683 (2019) (“And even the initiation of
nonjudicial foreclosure proceedings does not automatically accelerate a note.”).
Howard contends that the statutory limitation period applicable to the
enforcement of the Bothell Note expired because Chase accelerated the debt,
thus essentially turning the installment note into a demand note. In support of
this contention, Howard argues that language in the 2013 notice of trustee’s sale
and the unconsummated foreclosure sale in 2013 necessarily accelerated the
due date of the Bothell Note. Thus, he claims, the six-year statutory limitation
period began in 2013 and expired in 2019.
Howard’s assertion fails. His first claim, that the Bothell loan was
accelerated because the wording of the 2013 notice of trustee sale states that it
was collecting on the “Obligation,” does not support his argument. He contends
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that the capitalization of the word “Obligation” in the 2013 notice of trustee sale
implies that it was a demand for the payment of the entirety of the amount due on
the note. To the contrary, the capitalization of a statutorily required word does
not clearly and unequivocally indicate that Chase accelerated the loan. See
Merceri, 4 Wn. App. 2d at 761 (“[C]lear and unequivocal” action required to
accelerate). Acceleration cannot be established by implication.
Howard next argues that, because Chase initiated the 2013 sale, Chase
accelerated the Bothell loan. But the initiation of a foreclosure proceeding does
not have this effect. Terhune, 9 Wn. App. 2d at 719. There is no authority for the
proposition that Howard advances. All legal authority is to the contrary.
Because Chase did not act to unequivocally and affirmatively accelerate
the Bothell loan, the statutory limitation period applicable to the promissory note
and deed of trust securing it was not altered. The limitation period does not
expire until 2037. The trial court correctly granted summary judgment in favor of
Chase.
Affirmed.
WE CONCUR:
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