Brad L. And Johnita D. Billings v. Bank Of New York Mellon ( 2018 )

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
BRAD L. BILLINGS and JOHNITA D.)
BILLINGS, )
) No. 77739-4-1
Appellant, )
) DIVISION ONE
v. )
)
BANK OF NEW YORK MELLON F/K/A ) UNPUBLISHED OPINION
THE BANK OF NEW YORK AS )
TRUSTEE FOR THE CERTIFICATE )
HOLDERS OF THE C. WALT, INC. )
ALTERNATIVE LOAN TRUST 2007- )
0A17 MORTGAGE PASS-THROUGH )
C)
CERTIFICATES SERIES 2006-0A17, ) 1=, C,.)
C:
QUALITY LOAN SERVICING OF ) ••
WASHINGTON, INC., and JOHN DOES)
1-10, )
)
Respondents. ) FILED: March 19, 2018
SPEARMAN, J. — A borrower who fails to challenge a trustee's sale prior
foreclosure waives his or her right to contest the sale. Brad and Johnita Billings
did not bring an action to enjoin the trustee's sale of their home until after it was
completed. As a result, they waived their wrongful foreclosure claim. Their claims
that are exempt from waiver either lack merit or were not argued on appeal. We
therefore affirm the trial court's summary judgment dismissal of the Billings'
complaint.
No. 77739-4-1/2
FACTS
Brad and Johnita Billings owned a home in Puyallup, Washington
("Property"). In 2006, they borrowed $674,500 from Countrywide Bank, executing
a promissory note secured by a deed of trust that encumbered the home. The
beneficiary listed in the deed of trust is Mortgage Electronic Registration
Systems, Inc.(MERS). Countrywide Bank endorsed the note to Countrywide
Home Loans. Countrywide Home Loans then endorsed the note in blank.
Bank of New York Mellon ("Bank") asserts that the note was transferred to
C. Walt, Inc. Alternative Loan Trust ("Trust"). On June 15, 2011, MERS assigned
the deed of trust to the Bank as trustee. On February 26, 2015, Select Portfolio
Servicing, Inc. issued a beneficiary declaration attesting that the Bank, as trustee
to the securitized trust, was holder of the note on behalf of the Trust. On
February 28, 2015, the Bank appointed Quality Loan Service(QLS) as
Successor Trustee.
The Billings defaulted on their loan in 2011. The Trust commenced
nonjudicial foreclosure. A Notice of Trustee's Sale was issued on October 13,
2015. The Trust was the winning bidder at the February 12, 2016 sale, and
moved to evict the Billings. The Billings moved for a temporary restraining order
to stay the eviction. They filed a complaint against the Bank and other entities
alleging numerous causes of action, including violations of the deeds of trust act,
(DTA), chapter 61.24 RCW,Washington's Consumer Protection Act,(CPA,
chapter 19.86 RCW, Uniform Commercial Code, Title 62A RCW (UCC),fraud,
breach of contract, and wrongful foreclosure.
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The Bank moved for summary judgment. The trial court granted the
motion and dismissed the complaint. The court denied their motion for
reconsideration. The Billings appeal.
DISCUSSION
We review an order granting summary judgment de novo. Deutsche Bank
Nat. Trust Co. v. Slotke, 192 Wash. App. 166, 170, 367 P.3d 600, rev. denied, 185
Wash. 2d 1037, 377 P.3d 746 ((2016). Summary judgment is appropriate if there is
no genuine issue as to any material fact and the moving party is entitled to a
judgment as a matter of law. CR 56(c). We review the facts and all reasonable
inferences from those facts in the light most favorable to the nonmoving party.
Ranger Ins. Co. v. Pierce County, 164 Wash. 2d 545, 552, 192 P.3d 886(2008)
(quoting Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wash. 2d 1, 13, 721 P.2d
1(1986)).
The Bank argues that the Billings waived their challenge to the trustee
sale because they did not attempt to enjoin the foreclosure sale before it
occurred.' The Billings do not respond to this argument.
1 The Bank offers an additional threshold argument that the Billings lack standing to
challenge the assignment of the deed of trust. To establish standing in Washington, the claimant
must show a personal injury fairly traceable to the challenged conduct and likely to be redressed
by the requested relief, and that his or her interest is within the zone of interests protected by the
statute at issue. Bavand v. OneWest Bank, 196 Wash. App. 813, 834, 385 P.3d 233(2016)(citing
State v. Johnson, 179 Wash. 2d 534, 552, 315 P.3d 1090(2014)). In Bavand II, this court specifically
declined to follow Brodie v. Nw. Tr. Servs., Inc., 12—CV-0469—TOR,2012 WL 6192723 at *3
(E.D.Wash. Dec.12, 2012), one of the federal cases cited by the Bank that does not apply
Washington's test for standing.
Here, the Billings' loss of the Property is fairly traceable to a foreclosure by the Bank, and
is likely to be redressed by the requested relief for damages. OP at 321. In addition, the Billings
are within the zone of interests protected by the DTA, which aims to provide adequate
opportunities for parties to prevent wrongful foreclosure. Albice v. Premier Mortq. Servs. of
Wash. Inc., 174 Wash. 2d 560, 567, 276 P.3d 1277(20121 The Billings have standing to maintain
this action.
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The DTA "creates a three-party mortgage system allowing lenders, when
payment default occurs, to nonjudicially foreclose by trustee's sale." Albice v.
Premier Mortg. Servs. of Wash., Inc., 174 Wash. 2d 560, 567, 276 P.3d 1277
(2012). The DTA has three goals: an efficient and inexpensive process, adequate
opportunities for parties to prevent wrongful foreclosure, and stability of land
titles. Id. at 567. To further these goals, RCW 61.24.130 provides a procedure for
stopping a trustee's sale to contest default. Plein v. Lackey, 149 Wash. 2d 214, 225,
67 P.3d 1061 (2003). The DTA requires that borrowers use this procedure or risk
waiving objections to the sale and claims arising out of the underlying obligation.
Id. at 227; RCW 61.24.040(1)(f)(IX). Courts may apply waiver where it "is
equitable under the circumstances and where it serves the goals of the act."
Albice, 174 Wash. 2d at 570. The borrower must have "(1) 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." Plein, 149 Wash. 2d at 227. RCW 61.24.127(1)(a)-(d)
preserves four types of claim that a plaintiff "may not" waive by failing to use the
DTA restraint procedure, including claims for fraud and CPA violations, and a
claim for damages asserting the trustee's material non-compliance with the DTA.
In Merry v. Nw. Tr. Servs., Inc., 188 Wash. App. 174, 176, 352 P.3d 830
(2015), a borrower failed to challenge a nonjudicial foreclosure as authorized by
the DTA, and then brought an action to enjoin the foreclosure after the sale
occurred. As here, the plaintiff challenged the deed of trust's designation of
MERS as beneficiary and MERS's purported assignment of its interest. Merry
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applied waiver under these circumstances, reasoning that it was not inequitable
because the owner's challenge involved a hypertechnical argument under the
DTA that would lead to an inequitable result.
The Billings do not contest the elements of waiver: that they received
notice of their right to enjoin the sale, knew of the defenses to foreclosure that
they now assert, and did not bring an action to stop the sale as authorized by the
DTA. And like the plaintiffs in Merry, the Billings base their claims on a deed of
trust's designation of MERS as beneficiary and its assignment of its interest to a
company that later appointed a successor trustee. As in Merry, waiver is
appropriate here given the same alleged "hypertechnical" violation of the DTA.
We conclude that the Billings waived any claims not exempted by RCW
61.24.127(1).2
The Billings argue that they raise a genuine issue of material fact
regarding whether the signatures endorsing the Note are undated and
unauthenticated. The authenticity of each signature on an instrument is admitted
unless specifically denied in the pleadings. RCW 62A.3-308. The Billings did not
2 As to the exempted claims for fraud and violation of the CPA, the Billings make no
argument to this court that the trial court erred by dismissing them. And the Billings fail to make
any meritorious argument that the trustee failed to "materially comply with the provisions of[the
DTA]." RCW 61.24.127(1)(c). The Billings argue that the Notice of Trustee Sale did not include
information on the Bank's authority to foreclose and that the timing of the Trust's purchase of the
loan violated 26 U.S.C. § 860(G)(a)(3). But they cite no persuasive authority that these alleged
acts violate any provision of the DTA. The Billings also argue that, for a number of reasons, the
Bank lacked authority to foreclose on the residence. But it is undisputed that the Bank was the
holder of the note and as such it was entitled to enforce the deed of trust through the nonjudicial
foreclosure procedure set out in the DTA. Bucci v. Nw. Tr. Servs., Inc., 197 Wash. App. 318, 326-
27, 387 P.3d 1139(2016), rev. denied, 188 Wash. 2d 1012, 394 P.3d 1011 (2017)(citing Bain V.
Metropolitan Mortgage Group, Inc., 175 Wash. 2d 83, 104, 285 P.3d 34 (2012)). The trial court did
not err in concluding that the Billings failed to establish a disputed material fact as to these
claims.
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contest the authenticity of the note in their complaint. They cannot raise the
matter now.
Finally, the Billings contend that the trial court erred in granting summary
judgment to the Bank because the affidavit of their expert witness created
genuine issues of material fact. But beyond this general assertion, they fail to
specify what factual disputes the affidavit raises or why they are material to the
issues in this case. The trial court properly found that the expert's testimony
failed to create a disputed issue of material fact. There was no error.
Affirmed.
Ce-e0-
WE CONCUR:
Li'
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