Paul A. & Gloria Malloy v. Quality Loan Service Of Washington

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
PAUL AND GLORIA MALLOY,
husband and wife,
No. 75136-1-1
ru
Appellants, C
.)
(Consolidated with
V. No. 76331-8-1) .93
=C.
QUALITY LOAN SERVICE OF DIVISION ONE ••
WASHINGTON, a Washington
corporation; MORTGAGE
ELECTRONIC REGISTRATION UNPUBLISHED OPINION
SYSTEMS, INC., a Delaware
corporation; GREEN TREE
SERVICING LLC, a Delaware
corporation; FEDERAL NATIONAL
MORTGAGE ASSOC.; a Washington )
D.C. corporation; BANK OF AMERICA, )
NA, a North Carolina corporation; and )
JOHN DOES 1-20, )
)
Respondents. ) FILED: December 11,2017
)
LEACH, J. — Paul and Gloria Malloy lost their property in a nonjudicial
foreclosure. They then sued their lender and other entities for alleged violations
of the Consumer Protection Act (CPA)1 and the deeds of trust act (DTA).2 The
court dismissed the claims against respondent Bank of America NA (B of A) by
stipulated order, granted summary judgment dismissing the claims against
ICh. 19.86 RCW.
2 Ch. 61.24 RCW.
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Quality Loan Service of Washington, and dismissed all claims against the
remaining defendants under CR 12(b)(6). The Malloys appeal all the decisions
except the stipulated dismissal. We affirm.
BACKGROUND
In March 2006, the Malloys borrowed $325,000 from Quicken Loans Inc.
and signed a note and deed of trust (DOT). The DOT named Orange Coast Title
Co. as trustee and Mortgage Electronic Registration Systems Inc.(MERS)as the
beneficiary. The DOT recited that MERS was "acting solely as a nominee for
Lender and Lender's successors and assigns."
In June 2011, MERS recorded an "Assignment of Deed of Trust,"
assigning its interest in the DOT to BAC Home Loans Servicing LP.
In January 2013, B of A, successor-in-interest by merger to BAC,
assigned its interest in the note and DOT to Green Tree Servicing LLC. In June
2013, Green Tree recorded an "Appointment of Successor Trustee," appointing
Quality as the new trustee.
In September 2013, Quality mailed the Malloys a "Notice of Default,"
stating that they had made no loan payments since November 2012. Before
doing this, Green Tree filed a "Declaration of Beneficiary," stating it was "the
actual holder" of the promissory note.
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In February 2015, Quality recorded a "Notice of Trustee's Sale." It
scheduled a sale for June 12, 2015. Later, Quality discontinued the sale by
recording a "Notice of Discontinuance of Trustee's Sale."
In August 2015, Quality recorded a second notice of sale. It scheduled a
sale for December 11, 2015. Quality later postponed the sale to January 15,
2016.
Shortly before the sale, the Malloys filed this lawsuit, alleging violations of
the DTA and CPA and seeking an injunction and damages. After the court
denied the injunction, the property sold to a third party at the trustee's sale.
In September 2016, the court entered a stipulated order dismissing
defendant B of A from the suit.
On March 30, 2016, the court dismissed the claims against Quality on
summary judgment.
On December 14, 2016, the court dismissed MERS, Green Tree, and
Federal National Mortgage Association (Fannie Mae) under CR 12(b)(6), ruling
that the complaint failed "to state a claim . . . upon which relief can be granted."3
The Malloys appeal.
3 Wenote the Malloys did not file a response to the defendants' motion to
dismiss under CR 12(b)(6). After the hearing on the motion, the Malloys filed a
proposed order and findings asserting various facts and legal analyses. In its
order granting the motion to dismiss, the court expressly considered the Malloys'
proposed order and findings. It is not entirely clear whether the court considered
the proposed order and findings as timely, substantive argument on the motion
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STANDARDS OF REVIEW
We review a dismissal under CR 12(b)(6) de novo.4 We assume the truth
of all facts alleged in the complaint and may consider hypothetical facts
supporting the plaintiff's claim.5 But if a plaintiffs claim remains legally
insufficient even under hypothetical facts, dismissal pursuant to CR 12(b)(6) is
appropriate.6 Dismissal is appropriate "when it appears beyond doubt" that the
plaintiff cannot prove any set of facts that "would justify recovery."7
We review a summary judgment order de novo, engaging in the same
inquiry as the trial court.8 We view the facts and all reasonable inferences from
them in the light most favorable to the nonmoving party.9 Summary judgment is
proper if there are no genuine issues of material fact and the moving party is
and/or a summary of the Malloys' oral arguments at the hearing, which have not
been transcribed. Nor is it clear that the court considered the Malloys' earlier
motion for injunctive relief in deciding the motion to dismiss. Because the court
listed the proposed order as part of the "evidence" it considered and because the
court "considered the pleadings filed in this action," we consider the Malloys'
earlier motion and treat the proposed order as a timely, substantive response to
the motion to dismiss.
4 Wash. Trucking Ass'ns v. Emp't Sec. Dep't, 188 Wn.2d 198, 207, 393
P.3d 761 (2017), cert. denied, No. 17-145, 2017 WL 3324734 (U.S. Oct. 2,
2017).
5 Wash. Trucking Ass'ns, 188 Wn.2d at 207.
6 FutureSelect Portfolio Mgmt., Inc. v. Tremont Grp. Holdings, Inc., 180
Wn.2d 954, 963, 331 P.3d 29 (2014).
7 San Juan County v. No New Gas Tax, 160 Wn.2d 141, 164, 157 P.3d
831 (2007).
8 Lybbert v. Grant County, 141 Wn.2d 29, 34, 1 P.3d 1124 (2000).
9 Lvbbert, 141 Wn.2d at 34.
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entitled to judgment as a matter of law.1° Mere allegations or conclusory
statements of fact unsupported by evidence are not sufficient to establish a
genuine issue of fact.11
ANALYSIS
We note first that the Malloys' briefing on appeal does not comply with the
Rules of Appellate Procedure. Despite the clear requirements of RAP 10.3(a)(2)
(5), and (6), 10.4(b), and 10.4(f),12 the Malloys' opening briefs, which total 70
pages, contain only one citation to nearly 400 pages of clerk's papers, provide a
table of cases lacking numerous references to page numbers in the briefs, do not
identify or apply the correct standard of review for the dismissal under CR
12(b)(6), and exceed the 50-page limit without permission of the court.13 These
violations significantly hamper our review and are fatal to the appea1.14 But even
if the Malloys had complied with the rules, their arguments do not warrant relief.
10 Lybbert, 141 Wn.2d at 34.
11 Baldwin v. Sisters of Providence in Wash., Inc., 112 Wn.2d 127, 132,
769 P.2d 298 (1989).
12 RAP 10.3(a)(5) requires references to the record for each factual
statement in a party's statement of the case. RAP 10.3(a)(6) requires arguments
"together with citations to legal authority and references to relevant parts of the
record." RAP 10.4(b) limits opening briefs to 50 pages, and RAP 10.4(f) requires
references to both the page and part of the record cited. RAP 10.3(a)(2) requires
"a table of cases. . . with references to the pages of the brief where cited."
13 Contrary to counsel's assertions, this court did not authorize a
"Supplemental Opening Brief" but instead authorized the filing of an amended
opening brief.
14 Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 819,
828 P.2d 549 (1992)(refusing to consider claims unsupported by references to
the record or citation to authority); accord State v. Reeder, 181 Wn. App. 897,
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Dismissal under CR 12(b)(6)
Authority To Foreclose. The Malloys first challenge the superior court's
dismissal of their claims against MERS, Green Tree, and Fannie Mae. They
argue that Green Tree lacked authority to appoint Quality as trustee and to direct
the foreclosure because it was not the holder and owner of the note. They
acknowledge the Washington Supreme Court's contrary holdings in Brown v.
Department of Commerce15 and Bain v. Metropolitan Mortgage Group, Inc.15 that
a foreclosing entity need only be the holder of the note. They claim that those
cases conflict with RCW 62A.9A-203, are wrongly decided, and unconstitutionally
encroach on the legislature's authority. Specifically, they contend "the security
follows the note doctrine is. . . a security-follows-the-sale-of-a-note concept, not
a security-follows-the-transfer-of-the-right-to-enforce-the-note concept."
But Brown expressly addressed RCW 62A.9A-203 in its decision and held
that the holder of a note can enforce a deed of trust even if the holder is not the
owner.17 And we must follow the decisions of our state Supreme Court.15
910 n.15, 330 P.3d 786 (2014); see also Mills v. Park, 67 Wn.2d 717, 721, 409
P.2d 646 (1966) ("We are not required to search the record for applicable
portions thereof in support of the plaintiffs' arguments."); Fishburn v. Pierce
County Planning & Land Servs. Dep't, 161 Wn. App. 452, 468, 250 P.3d 146(courts will not comb the record to find support for appellant's arguments).
15 184 Wn.2d 509, 524-25, 359 P.3d 771 (2015).
16 175 Wn.2d 83, 104, 285 P.3d 34 (2012).
17 Brown, 184 Wn.2d at 540.
18 River Stone Holdings NW, LLC v. Lopez, 199 Wn. App. 87, 97, 395
P.3d 1071 (2017)("We reject Lopez's argument that Brown must yield to what
Lopez believes is an inconsistent statute. The court in Brown expressly
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Alternatively, the Malloys contend "the terms of the Note itself, which is a
contract, require Green Tree to be both the holder and owner of the secured note
to be entitled to enforce the DOT that secures it." They support this claim with
the following language in the note: "I understand that the Lender may transfer
this Note. The Lender or anyone who takes this Note by transfer and who is
entitled to receive payments under this Note is called the 'Note Holder." This
language does not purport to govern the authority to foreclose. It does not
require a foreclosing entity to be both the owner and holder of the note. Nor
does it change who the "holder" is for purposes of the Uniform Commercial Code
or who the "beneficiary" is for purposes of the DTA. Under the DTA, the
"beneficiary" is "the holder of the instrument or document evidencing the
obligations secured by the deed of trust."19 The "holder" of a note is "Mlle person
in possession of a negotiable instrument that is payable either to bearer or to an
identified person that is the person in possession."2°
discussed the requirements of RCW 62A.9A-203. Brown, 184 Wn.2d at 528-29.
Nevertheless, the court held that a holder of a deed of trust that is not the owner
can enforce a deed of trust. Brown, 184 Wn.2d at 540. We are bound to follow
Brown.").
19 RCW 61.24.005(2).
29 RCW 62A.1-201(b)(21)(A). The Malloys maintain the note was not a
"negotiable instrument" due to provisions in the DOT regarding taxes, insurance,
maintenance of the property, interest on disbursements, and other charges.
They claim these provisions render the amount of the debt uncertain and
conditional. This argument fails for several reasons. First, it was not preserved
by the Malloys' extremely conclusory argument below in their proposed order and
findings. Second, the argument is not supported by citation to authority or the
record. Third, though a copy of the note is attached to the Malloys' brief, it is not
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Here, the record establishes that Green Tree possessed the note. In its
"Declaration of Beneficiary," Green Tree declared it was "the actual holder" of the
Malloys' note. The Malloys do not allege otherwise in their complaint. 21 Nor do
they allege that the note was not endorsed in blank or payable to Green Tree.
The Malloys also contend possession of the note is insufficient to bestow
authority to foreclose "where the actual Owner is known." They assert that '[t]he
test of RCW 61.24.030(7)(a) is that where the Owner is known then the Trustee
can conduct the foreclosure [on] the security for the Note only when instructed by
the Owner of the Note who also holds the Note." They further assert, "If the
trustee cannot ascertain who the Owner of the Note is, only then may the trustee
a part of the record on appeal. And fourth, the complaint does not allege this
theory or any facts supporting it. The Malloys' related claim that the note is not
negotiable due to its "negative amortization" is also unsupported and/or
unpreserved and is, in any event, contrary to our decision in Bucci v. Nw. Tr.
Servs., Inc., 197 Wn. App. 318, 328-32, 387 P.3d 1139 (2016), review denied,
188 Wn.2d 1012(2017).
21 Citing RCW 62A.9A-313, the complaint alleges that Green Tree was
never the "legal Owner or legal Holder" because Green Tree had only temporary
custody of the note and "[t]he legal holder remains the owner even if possession
is with another entity." This court rejected the same argument in Trujillo v.
Northwest Trustee Services. Inc., 181 Wn. App. 484, 503, 326 P.3d 768 (2014)
(RCW 62A.9A-313, which addresses security interests in personal property, "has
nothing to do with the nonjudicial foreclosure proceeding . . . . Rather, the
security interest underlying the foreclosure proceeding is the lien created by the
deed of trust in the real property securing the note that is in the possession of
[the defendant]. Thus, UCC § 9-313, which is concerned with security interests
in notes, has no bearing on this case."), reversed in part on other grounds, 183
Wn.2d 820, 355 P.3d 1100 (2015).
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rely on the 'safe harbor' provided the trustee to rely on a Declaration of the
alleged Beneficiary that it holds the Note."
But RCW 61.24.030(7)(a) does not support the Malloys' assertion. It
states,
[F]or residential real property, before the notice of trustee's sale is
recorded, transmitted, or served, the trustee shall have proof that
the beneficiary is the owner of any promissory note or other
obligation secured by the deed of trust. 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 as
required under this subsection.
Nothing in the statute limits a trustee's authority to rely on a beneficiary's
declaration to situations where the note's owner is unknown. To the contrary, in
the portion of its opinion addressing this statute, the Brown court concluded that
the holder of a promissory note is entitled to enforce it regardless of who owns
it22 or whether the owner is known.23
Finally, the Malloys contend Green Tree lacked authority to appoint
Quality and to direct the foreclosure because of earlier ineffective assignments of
the DOT and note, including an assignment from MERS.24 But again, as
22 Brown, 184 Wn.2d at 541-44.
23 See Brown, 184 Wn.2d at 542 n.18.
24 Respondents argued below that the Malloys lacked standing to
challenge the validity of any assignment of the DOT. They do not reassert this
argument on appeal. We note that we recently declined to follow federal
decisions, including decisions cited by respondents below, finding no standing
because they do not apply Washington's test for standing. Bavand v. OneWest
Bank, FSB, 196 Wn. App. 813, 385 P.3d 233(2016).
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discussed above, possession of the note in bearer status provides the possessor
with power to foreclose and to appoint a trustee. The validity of any prior
assignments had no effect on Green Tree's authority to foreclose.25
CPA Violations. The Malloys argue alternatively that even if earlier
assignments or appointments did not affect the validity of the sale, those actions
violated the CPA because they were deceptive. To prevail on a CPA claim, a
plaintiff must show (1) an unfair or deceptive act or practice,(2) occurring in trade
or commerce, (3) a public interest impact, (4) injury to the plaintiff in his or her
business or property, and (5) a causal link between the unfair or deceptive act
and the injury.26 The causal link must demonstrate that the alleged injury would
not have occurred "but for" the defendant's unlawful acts.27 An appellate court
25 In re Butler, 512 B.R. 643, 656 (Bankr. W.D. Wash. 2014)(under the
DTA, "a security interest follows the obligation it secures," and this is true
whether the DOT was assigned properly or at all), aff'd, 550 B.R. 860 (W.D.
Wash. 2015); In re Jacobson, 402 B.R. 359, 367 (Bankr. W.D. Wash. 2009)
(holding that "[i]n Washington, only the holder of the obligation secured by the
deed of trust is entitled to foreclose. . . . '[T]ransfer of the note carries with it the
security, without any formal assignment or delivery, or even mention of the latter"
(third alteration in original) (quoting Carpenter v. Longan, 16 Wall. 271, 83 U.S.
271, 275, 21 L. Ed. 313 (1872))); Ukpoma v. U.S. Bank Nat'l Ass'n, 2013 WL
1934172, at *3 (E.D. Wash. May 9, 2013)("[B]y virtue of being in possession of
the note, U.S. Bank is the lawful owner. Its right to receive payment on the note
does not depend upon any assignment of the note from MERS.").
26 Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105
Wn.2d 778, 780, 719 P.2d 531 (1986).
27 Schnall v. AT&T Wireless Servs., Inc., 171 Wn.2d 260, 278, 259 P.3d
129 (2011) (quoting Indoor Billboard/Wash., Inc. v. Integra Telecom of Wash.,
Inc., 162 Wn.2d 59, 82, 170 P.3d 10(2007)).
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reviews whether a particular action gives rise to a CPA violation as a question of
law.28
The Malloys' complaint alleges that invalid assignments of the note and
DOT, along with violations of foreclosure procedures under the DTA, were unfair
or deceptive acts that violated the CPA. The complaint further alleges that these
acts caused injuries, including the foreclosure sale and
injury due to the distractions and loss of time to pursue business
and personal activities necessitated by the need to address the
wrongful conduct [a]nd due to the need to employ the services of
experts in the foreclosure field to determine whether [the] conduct
was lawful.
These allegations are insufficient to state a CPA claim.
The Malloys do not dispute that they defaulted on the loan and failed to
cure their defaults despite receiving notice of foreclosure. This was the "but for"
cause of the foreclosure.29 Even if true, the allegations in the complaint would
28Leinganq v. Pierce County Med. Bureau, Inc., 131 Wn.2d 133, 150, 930
P.2d 288 (1997).
28 See Patrick v. Wells Fargo Bank, NA, 196 Wn. App. 398, 410, 385 P.3d
165 (2016), review denied, 187 Wn.2d 1022 (2017); Gelinas v. Bank of Am.,
NA, No. 16-1355-RAJ, 2017 WL 1153859, at *5 (W.D. Wash. Mar. 28, 2017)
("Plaintiffs' failure to meet their debt obligation is the ``but for' cause of their
purported damages. Therefore, any alleged damages cannot be attributed to
MERS."); Babrauskas v. Paramount Equity Mortg., No. C13-0494-RSL, 2013 WL
5743903, at *4 (W.D. Wash. Oct. 23, 2013) ("Any damage to plaintiff's credit,
cloud on his title, or monetary effect of the threat of foreclosure cannot be laid at
MERS' door. . ..[P]laintiff's failure to meet his debt obligations is the ``but for'
cause of the default [and] foreclosure."); Wear v. Sierra Pac. Mortq. Co., No.
C13-535-MJP, 2013 WL 6008498, at *3 (W.D. Wash. Nov. 12, 2013)("The only
injury identified by Plaintiff is the pending foreclosure of his home... . Plaintiff
does not claim that any action by the Defendants caused or induced Plaintiff to
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not establish that the allegedly deceptive acts caused the Malloys' default or
failure to cure. Nor would the allegations demonstrate that the allegedly
deceptive assignments or appointment caused the Malloys to incur compensable
expert or legal expenses. As discussed above, an entity has authority to
foreclose because it possesses the note; the invalidity of earlier assignments or
appointments does not change that.
These legal principles were well established by Washington case law
when the foreclosure in this case occurred. Thus, the only issue the Malloys
might theoretically need to investigate would be possession of the note and its
bearer status. They do not allege, however, that a deceptive act caused them to
incur legal or other expenses to determine who possessed the note. The
complaint thus fails to allege facts establishing a "but for" causal connection
between the alleged deceptive acts and the Malloys' alleged injuries.30
default on the loan, or that no party was entitled to foreclose on his property.
Therefore, regardless of who the actual beneficiary was that had the right to
foreclose on the property, Plaintiff's property would still face foreclosure."); Marts
v. U.S. Bank N.A., 166 F. Supp. 3d 1204, 1208-09 (W.D. Wash. 2016)
(dismissing CPA claim where plaintiffs failed to show that "but for their alleged
confusion regarding who owned their Note, they would have brought their loan
current").
30 See Bavand, 196 Wn. App. at 843, 846 (where possession of note was
not in dispute, "authority to enforce the note and deed of trust arose by operation
of law" and alleged invalid assignment of a nonexistent beneficial interest in the
deed of trust was immaterial; therefore, the court held that "expenses incurred to
determine the 'owner' of a promissory note .. . are not compensable under the
CPA" and plaintiff failed to demonstrate "but for" causation.). To the extent the
Malloys' alleged use of an expert "to determine whether or not Defendants'
conduct was lawful" amounted to determining whether the Malloys had a CPA
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Fannie Mae. In the "Underlying Facts" section of one of their opening
briefs, the Malloys provide the following "argument" regarding the dismissal of
Fannie Mae:
A material question of fact exists as to Fannie Mae's obligation to
Malloy's [sic] to assure any successors beneficiaries adhere to
Fannie Mae guidelines mandating good faith modification of the
Malloy loan by efforts of the beneficiaries in order to act on behalf
of Fannie Mae if Fannie Mae is in fact the owner of the Note and
Deed of Trust. Fannie Mae, if the owner of the Note and Deed of
Trust was obligated to enforce its guidelines and that they be
adhered to by the person attempting to enforce the Note and Deed
of Trust. Fannie Mae may have breached that obligation to Malloy,
as the Owner of the Note and Deed of Trust. Dismissal of Fannie
Mae was premature and therefore their dismissal should be
reversed.
In addition to applying the incorrect standard of review for a CR 12(b)(6)
dismissal, the Malloys present this "argument" as underlying facts, not as
argument, and do not support it with any authority. The argument and authority
the Malloys offer in their reply brief comes too late.31 We note, moreover, that
federal courts have uniformly held that "to the extent that the [Fannie Mae]
servicing guidelines can be read as creating enforceable contractual
claim, that alleged injury was not compensable under the CPA. See Panag v.
Farmers Ins. Co. of Wash., 166 Wn.2d 27, 62, 204 P.3d 885 (2009)(consulting
attorney to institute a CPA claim is insufficient to show injury to business or
property and is not compensable under the CPA). Similarly, the Malloys' claims
of "distractions and loss of time to pursue business and personal activities" also
fail to allege injury to business or property. Taking time off work is compensable
only when it results in lost business or lost profits. Panaq, 166 Wn.2d at 62;
Siqn-O-Lite Siqns, Inc. v. DeLaurenti Florists, Inc., 64 Wn. App. 553, 563-64, 825
P.2d 714 (1992).
31 Cowiche Canyon Conservancy, 118 Wn.2d at 809.
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duties, . . . borrowers are neither parties nor third-party beneficiaries entitled to
enforce the. . . servicing guidelines."32
Violations of DTA / CR 56 Dismissal of Quality
The complaint also alleges the "[d]efendants" violated the DTA and the
CPA by failing to follow the notice procedures for trustee sales set forth in RCW
61.24.030.33 Respondents correctly point out that while the complaint broadly
accuses the "defendants" of these violations, its specific factual allegations about
notice failures apply only to Quality. In any event, the court did not err in
dismissing the DTA claims.
Under the DTA, the trustee must send the borrower a written notice of
default at least 30 days before the trustee schedules a sale.34 Only then can the
trustee record a notice of trustee's sale.35 The notice of sale must contain the
date of the sale.36 If the sale is not held within 120 days of that date, the trustee
must issue a new notice of sale.37
32 McKenzie v. Wells Fargo Bank, N.A., 931 F. Supp. 2d 1028, 1044 (N.D.
Cal. 2013).
33 DTA violations may be actionable under the CPA and are governed by
the ordinary principles applicable to all CPA claims. Frias v. Asset Foreclosure
Servs., Inc., 181 Wn.2d 412, 432-33, 334 P.3d 529 (2014).
34 RCW 61.24.030(8).
35 RCW 61.24.030(8).
36 RCW 61.24.040(1)(f).
37 RCW 61.24.040(6); Albice v. Premier Mortg. Servs. of Wash., Inc., 174
Wn.2d 560, 568, 276 P.3d 1277(2012).
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Here, it is undisputed that Quality followed these procedures for the initial
sale date. The parties disagree, however, as to whether Quality was required to
issue a second notice of default when, after discontinuing the original sale, it
issued a second notice of sale. Citing Albice v. Premier Mortgage Services of
Washington, Inc.,38 the Malloys maintain that Quality was required to issue a new
notice of default once the 120-day time limit for the first sale expired.
We rejected the same argument in Leahy v. Quality Loan Service Corp. of
Washington39 There, we held that neither Albice nor the plain language of the
statutes require a new notice of default when a sale is rescheduled after
expiration of the 120-day time limit; rather, they simply require a new notice of
trustee's sale.4° We explained that the notice of default serves a different
purpose than the notice of trustee's sale.41 The notice of default notifies the
debtor of the amount owed and declares a default.42 By contrast, the notice of
trustee's sale notifies the world of the foreclosure sale.43 "In light of the function
served by the notice of default as compared to the notice of trustee's sale, it
38 174 Wn.2d 560, 276 P.3d 1277 (2012).
39 190 Wn. App. 1, 359 P.3d 805 (2015), review denied, 185 Wn.2d 1011(2016).
40 Leahy, 190 Wn. App. at 6-7.
41 Leahy, 190 Wn. App. at 6-7.
42 Leahy, 190 Wn. App. at 7.
43 Leahy, 190 Wn. App. at 7.
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would not make sense to interpret the act as requiring reissuance of the notice of
default."44
Despite the centrality of Leahy to this issue, the Malloys' opening briefs
only mention it in passing and state in extremely conclusory fashion that its
holding does not apply to owner-occupied residential properties. These
arguments are insufficient to present this issue for review.45 The additional
conclusory argument offered in the Malloys' reply brief adds little and, in any
event, comes too late.46
To the extent the Malloys claim the alleged DTA violations were either
violations of the CPA or supportive of a postsale damages claim for "material
violation" of the DTA,47 their claims fail because, as previously noted, the "but for"
cause of their injuries was their default and failure to cure, not any alleged defect
in the foreclosure process. This is particularly true with respect to the alleged
44 Leahy, 190 Wn. App. at 7. The Malloys also argue that a new notice of
default is required whenever a sale is discontinued or terminated, as opposed to
postponed. The Malloys cite no authority for this proposition. In light of Leahy's
discussion regarding the different purposes of the notices, this argument is
controlled by Leahy.
45 Norcon Builders, LLC v. GMP Homes VG, LLC, 161 Wn. App. 474, 486,
254 P.3d 835 (2011)("We will not consider an inadequately briefed argument."
(citing Bohn v. Cody, 119 Wn.2d 357, 368, 832 P.2d 71(1992))); State v. Rafav,
168 Wn. App. 734, 843, 285 P.3d 83 (2012)(rejecting claim due to absence of
meaningful argument or authority to support conclusory claim); Cowiche Canyon
Conservancy, 118 Wn.2d at 809 (arguments not supported by authority or
analysis need not be considered).
46 Cowiche Canyon Conservancy, 118 Wn.2d at 809.
47 See RCW 61.24.127(1)(c).
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No. 75316-1-1 (consol.
w/ No. 76331-8-1/ 17
failure to issue a second notice of default because the Malloys do not deny
receiving the original notice of default or the second notice of sale. The latter
contained an updated default amount and specified a date by which the default
could be cured. The Malloys fail to demonstrate error in the superior court's
dismissal of their DTA claims.
Affirmed.
WE CONCUR:
1
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