dkt 38 10.02.2013 defendants motion for summary judgment
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JACOB D. BRADBURN, an individual,
Plaintift
V.
RECONTRUST COMPANY, N.A., a limited-pu{pose national trust bank; FIDELITYl.lAlIgNAL TITLE, a corporarion;MORTGAGE ELECTRONICREGISTRATION SYSTEMS, NC., a foreigncorporation; BAC HOME LOANSSERVICING, LP FKP COT'NTRYWIDEBANK HOME LOANS SERVTCING LP, Aforeign-entity; BANK OF AMERICA, N.A., anational bank; BANK OF AMERICA-çq$f qRATION, a foreign corporation;COUNTRYWIDE FINAÑCIAICORPORATION, a foreign corporation;COUNTRYWIDE HOME LOANS,INC., Aforeign corporation; FEDERAL NATIONALMORTGAGE ASSOCIATION, a federallychartered corporation, LINDA GREEN DOESl-10, unknown persons; and QUICKDRAWREAL ESTATE SERVICES, INC d/b/AHOMESTAR LENDING, a domesticcorporation; NATIONAL CITY MORTGAGECO. d/b/ a COMMONWEALTH UNITEDMORTGAGE COMPANY, a foreigncorporation; STEWART TITLE, a domesticcorporation,
SUPERIOR COURT OF WASHINGTON
COUNTY OF SNOHOMISH
THE CIVIL MOTIONS ruDGEHearing Date: November 1,2013
Hearing Time: 9:30 a.m.With O¡al Argument
LANEPOWELLTcI42O FI TH AVENUE, SUITE 4IOO
SEATTLE, WASHINGTON 9810I.2338206.223.7 000 F AX: 206.223.7 I 07
NO" r t-2-08345-2
DEFENDANTS' MOTION FORSUMMARY JUDGMENT
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Defendants.
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In 2005, Plaintiff Jacob D. Bradburn ("Borrower',) obtained a $200,900 loan to
finance real property located in Snohomish County. After Borrower defaulted, the property
was sold at a trustee's sale in May 2011. Four months later, Borrower filed this lawsuit
against Defendants,l raising claims attacking the underlying loan transaction, the denial of his
application for a loan modification, and the foreclosure.
Borrower claims that he never received notice of the sale, but the Notice of Trustee's
Sale and pictures of it posted on the Property belie this contention, Therefore, Bor¡ower had
proper notice of the Trustee's Sale and, as discussed below, had a duty to take action before
the sale, either by curing his default or enjoining the sale. Borrower did neither. Therefore,
Bonower has waived all claims not preserved under RCw 61.24.r27(l).
ln addition, Borrower's claims are unsupported by any evidence. In fact, the evidence
conclusively establishes that BAC Home Loans Servicing, LP (now Bank of America, N.A.)
("BANA") was at all relevant times the holder of the Note and that all actions taken by
Mortgage Electronic Registration Systems, Inc. ("MERS") were done at BANA,s direction in
accordance with the servicing guidelines of Federal National Mortgage Association (..Fannie
Mae"), the owner of the Note. Accordingly, ReconTrust company, N.A. (,.ReconTrust') was
a valid trustee and was authorized to issue a Notice of Trustee's Sale, to conduct the
foreclosure, md to execute a Trustee's Deed in favor of Fannie Mae. Therefore, the
foreclosure was proper and there is no genuine issue of material fact regarding any ofBorrower's claims, such that Defendants are entitled to summary judgment as a matter of law.
l Defendants are Defendants ReconTrust Company, N.4., Mortgage Electronic Registration!Is!eps' Inc., Bank of America, N.4., s.ugcgssä¡ þÍ *.tu.. to B-Aó Home Loans Sãi;i"g;LP (also sued erroneously--as "Countrywide Bank Fíomesîoans Servicing, I,Þ;;*¿ as..Baríiof Americ3. C-q'rporafig{'), Countrywide. _Hqme_ Loans, Inc. fafso süäl-.rrãìeousty ut"Countrywide Financial Corporation'-'), and Federal Natioial tvtort!áge Association
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT _ 2
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II. F.'ACTUALBACKGROUND
On December 14,2005, Bonowe¡ obtained a $200,900 loan (the "Loan") to refinance
real property located at4819l36th Place NE, Marysville, Washing¡ongB2Tl (the,.property,,).
Declaration of Abraham K. Lorber ("Lorber Decl."), Ex. A (Deed of Trust). The Deed ofTrust lists Jacob D. Bradburn as the borrower, HomeStar Lending as the lender, Fidelity Title
as the trustee, and MERS as the beneficiary, "as a nominee for Lender and Lender's
successors and assigns." .Id Borrower admits signing the Note and Deed of Trust. Ex. H to
Lorber Decl., Bradburn Deposition ("Bradburn Dep.,'), at lg:5-6, lg:14-15, l9:g-10, 3g:l-2,
39:15-19, Exs. l, 2.2 He also admits that he was not deceived about the terms of the Loan or
misled into obtaining it, and further, concedes that he is not aware of any kickback or
wrongdoing by the broker. Id. at72-74, g0, 93.
Following the origination of the Loan, the Note was endorsed to Countrywide Bank,
N.A, which then endorsed the Note to Counhywide Home Loans, Inc., which subsequently
endorsed the Note in blank. Declaration of Heather Dispenza (,.BANA Decl.',), tffl g, 9, Exs.
A (Note), B (Allonge).
The Relationshio Between BANA and Fannie Mae
Immediately following origination, Countrywide Home Loans Servicing, Lp began
servicing the Loan. Id.,n6. On or about January 3,2006,Fannie Mae became the owner ofthe Loan' Id',n7. BAC Home Loans Servicing LP fka Countrywide Home Loans Servicing
LP (now BANA)3 continued to service the Loan on behalf of Fannie Mae, pursuant to Fannie
2 The Deposiliol of Plaintiff Jacob D. Bradbum, conducted June 1 l, 20l3,is attached to theDeclaration of Abraham K. Lorber as Exhibit H.'3 on J.rly 1,2011, BAC Home Loans servicing, Lp merged with BANA . Irt.,1[23, Ex. H toBANA Decl. Fo¡ the sake of clarity and consistency with Borrower's refèrence to theservicer as "BANA," Defendants will hereafter refer to the servicer as "BANA," regardless ofthe time period.
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT- 3
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Mae's servicing guidelines. Id., nn11-15; Ex. I to Lorber Dect. This anangement was
designed to allow BANA to take all actions necessary for the collection and enforcement ofthe Loan, including receiving and processing loan payments, communicating regarding the
Loan, and should such action be necessary, initiating foreclosure consistent with the Note,
Deed of Trust, and Fannie Mae's servicing guidelines. Id.,n ll.Fannie Mae's Servicing Guide "grants servicers, acting in their own names, the
authority to represent Fannie Mae's interests in foreclosure proceedings as holder of the
mortgage note." Id.,Ex. E to BANA Decr., at l. since January 3,2006, the original,
endorsed-in-blank Note has been maintained by BANA and its predecessors in interest on
behalf of Fannie Mae, pursuant to Fannie Mae's servicing guidelines. Id.,n l0,lg, 26. Since
January 3,2006, Fannie Mae has been the owner of the note. 1d.,nn7,25;Ex. Id. E, at I
("Fannie Mae is at all times the owner of the mortgage note.,').
The original, wet-ink Note is currently in the possession of Defendants' attorneys. Id.,
n27.
Borrowerts Default and Foreclosure
Borrower defaulted on his loan obligations beginning in March 2009. Id.,I 16; Ex. D
to BANA Decl' (Loan Payment History). On or about June 8,2}}g,ReconTrust, as agent for
the beneficiary under the Deed of Trust, issued a Notice of Default to Borrower by first class
and certified or registered mail. Decla¡ation of ReconT¡ust Company, N.A. (.,ReconTrust
Decl."), !f 4, Ex. A to ReconTrust Decl. (Notice of Default). The Notice of Default was sent
to Borrower by first class and certified or registered mail on June 8,2009, and personally
served on him or posted in a conspicuous place on the Property on June g , Z00g Id. , \ 5, Ex.
B to ReconTrust Decl., $ VI (First Notice of Trustee's Sale).
Acting at the direction of BANA, the holder of the Note, MERS appointed ReconTrust
as the successor trustee, pursuant to an Appointment of Successo¡ Trustee recorded on June
17 ' 2009 ' BANA Decl., fl 2 I , Ex. F to BANA Decl. (Appointment of Successor Trustee).
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT _ 4
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Again acting at BANA's direction, MERS then assigned the interest under the Deed of Trust
to BANA, as reflected in a Corporation Assignment of Deed of Trust recorded on March 30,
2014. Id.,fl22,Ex.G.
On July 29, 2010, ReconTrust recorded a Notice of Trustee's Sale, indicating total
arrears of 522,713.95 and scheduling a sale for October 29,20rc. ReconTrust Decl., tf 6, Ex.
B to ReconTrust Decl. Prior to and at the time of recording the first Notice of Trustee's Sale,
ReconTrust had proof that Fannie Mae was the owner of the Note. Id., n7, Ex. c to
ReconTrust Decl. @eclaration of Beneficiary). The sale was postponed and ReconTrust
recorded a second Notice of Trustee's Sale on February 17,2011, scheduling a sale for May
20,2011. Id., fl 8, Ex. D to ReconTrust Decl. (Second Notice of Trustee's Sale). Prior to and
at the time of recording the second Notice of Trustee's Sale, ReconTrust had proof that
Fannie Mae was the owner of the Note. 1d., fl 9, Ex. C. The second Notice of Trustee's Sale
was mailed to Borrower by first class and certified mail on February !7,2011 and was posted
in a conspicuous place on the Property on February 18,2011. Id.,nnlO, ll, Ex. E to
ReconTrust Decl. (Declarations of Mailing), Ex. F to ReconTrust Decl. (Declaration of
Posting); Bradburn Dep., at 46:3-5 (admitting that photographs in Declaration of Posting are
of the Property), 47:22-48:2 (admitting that Borrower has no reason to dispute statement in
Declaration of Posting that the Notice of Trustee's Sale was posted on the Property on
February 18, 2011). The Second Notice of Trustee's Sale advised: "Anyone having any
objection to the sale on any grounds whatsoever will be afforded an opportunity to be heard as
to those objections if they bring a lawsuit to restrain the sale. . . Failure to bring such a lawsuit
may result in a waiver . . ." Ex. D to ReconTrust Decl., $ IX.
Borrower did not bring a lawsuit to restrain the sale and the Property was sold on May
20,20L1 to Fannie Mae, as evidenced by the Trustee's Deed, recorded on June 9,2A11. Ex.
G. to Lorber Decl. (Trustee's Deed). BANA assigned the interest under the Deed of Trust to
Fannie Mae pursuant to a Corporation Assignment of Deed of Trust recorded on June 9,2011,
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immediately prior to the recording of the Trustee's Deed. Ex. F to Lorber Decl. (Corporation
Assignment of Deed of Trust).
Nearly fourmonths after the sale of the Property, on September 19,2011, Borrower
filed this action, asserting the following claims against Defendants: (l) engaging in an.,illicitscheme" to profit from Borrower's inability to make his loan payments (Compl. 1lI3.l-3.3;(2) violation of the Deed of Trust Act (id. nn 4J-4.35); (3) ..dual rracking,,, promising a loan
modification while proceeding with foreclosure (id. tt.1¡ 5.1-5.7); (4) engaging in a ,.pattern ofcriminal profiteering activity" (td. I116.1-6.6); (5) violation of the consumer protection Act(id'lll7'4-7.8); (6) quiet titre (id. ltftf 8.1-8-3); (7) unenforceability of, and breach by
Defendants of the Note and Deed of Tru st (id. Tll 9. 1-9. I 8); (8) equitable estoppel and unjust
en¡ichment (id'ffi l0.l-10.s); and (9) trespass, conversion, and negligence for coming onto
the Property and stealing and destroying objects on the property (id.nnl1.l-l l.l7). withouttying his requests for relief to his claims, Borrower seeks injunctive relief; declaratory relief,
and damages. Id. fl'l[ tL.t-tZ.t2 and pp. 49_50.
Defendants filed their Answer on Novemb er 3,2011.
UL ISST'E
Are Defendants entitled to summary judgment where Borrower received notice of the
foreclosure sale but did not move to enjoin the sale or cure his default and where there is no
genuine issue of material fact regarding the essential elements of his claims?
IV. EVIDENCE RELIED UPON
This Motion for Summary Judgment relies upon the pleadings and papers on file with
the Court in this matter, the Declaration of Abraham K. Lorber and exhibits thereto, the
Declaration of Heather Dispenza and exhibits thereto, and the Declaration of ReconTrust
Company, N.A. and exhibits thereto.
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V. ARGUMENT
A. Summarv Judement Standard
Summary judgment is proper if, after viewing all facts and reasonable inferences in
the light most favorable to the nonmoving party, no genuine issues exist as to any material
fact and the moving party is entitled to judgment as a matter of law" CR 56(c); Torgerson v"
North Pøc. Ins. co., L09'wn. App. 131, 136, 34 p.3d s30 (2001). The non-rnoving parry may
not rest upon mere allegations or denials, but must instead set forth specific facts showing the
existence of a genuine issue for trial. CR 56(c); McBride v. Walla Wqlla Cnty., 95 Wn. App.
33,36,975 P.2d L02g (1999).
Where, as here, a defendant moves for summary judgment and shows an absence ofevidence to support an essential element of the plaintiffs claim, the burden shifts to the
plaintiff to provide evidence sufficient to establish the existence of the challenged element ofthat party's case. Young v. Key pharm., Inc., ll2 wn. zd,216, zz5 & n.l, 770 p.zd rg2
(1989) (quoting Celotex Corp. v. Catrett,477 U.5.317,325 (1986). Where the plainriff fails
to do so, slrlnmary judgment is proper "'since a complete failure of proof conceming an
essential element of the nonmoving party's case necessarily renders all other facts
immaterial. "' Young, 1 12 wn. 2d at 225 (quoting celotex, 477 u.s. at 322-23).
Non-judicial foreclosures such as the one at issue here are govemed by the
washington Deed of Trust Act ("DTA"), codified at RCw 6r.24.a0s, et seq. when a
borrower has reason to challenge the foreclosure of his property, RCW 61.24.130 governs the
procedure that the borrower must follow to enjoin the sale. See Brown v. Household Realty
corp.,146 wn. App. r57,163, 189 p.3dz33 (200g), review denied,l65 wn.2d 1023 (2009).
"This statutory procedure is 'the only means by which a grantor may preclude a sale once
foreclosure has begun with receipt of the notice of sale and foreclosure."' /d (quoting Cox v.
Helenius,l03 Wn'2d 383, 388, 693 P.2d 6S3 (1985)). If a bonower fails to enjoin the sale,
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the borrower waives any claims related to the underlying obligation and the sale itself. plein
v' Lackey, I49 Wn.2d 214, 227-28, 67 P.3d 1061 (2003) (frnding waiver even though the
plaintifffiled a lawsuit seeking to enjoin the sale prior to the sale because the plaintiff failed
to meet all of the DTA's requirements.) "A party waives the right to postsale remedies where
the party (l) 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." Brown,146 Wn. App. at 163; Gossen v. JpMorgan
Chase Bank,819 F. Supp. 2d lt6L, tl69 (W.D. Wn. 2011) (same).
The Washington legislature responded to the Court of Appeals' holding in Brown by
enacting RCW 6I.24.127 ' RCW 61.24.127(lXa)-(c) preserves post-sale claims for damages
based on alleged fraud, violations of the Consumer Protection Act, and failure by the trustee
to materially comply with the DTA in cases of owner-occupied property. However, by its
very language, claims other than for damages a¡e all waived. ^gee
RCW 61.24.127(l) (., . . .
may not be deemed a waiver of a claim for damage^' . . .,, (emph. added)),
Additionally, to preserve its claims against the lender, the borrower must comply with
all of the following requirements of the DTA:
The court shall.require as a condition of granting the restraining order orinjt'r-rction that the applicant pay to the cterk"of/hi"court the sumsThat iouldbe due an the obligàiion secured by the deed'of trusi ir tn. ¿r"J of î*ri *utnot being forecloseã:
(a)-In the case of default in making. the periodic payment of principal, intetest,and reserves, such sums shall be pãid toihe clerk of th. courtïvãry-tfritiv ¿"vr.
(2) No -court may grant a restraining order or injunction to restrain a trustee'ssale unless the perion seeking the rísffaint gives"Jìià aoyt ,oilià n *lîitttnof the time whèn,. place. wherl, and the- judg'e u.for" *tí"- th" ;ppriããtiã" r-the restraining ordèr or injunction is to b'e m'ade.
RCW 61.24.130(l), (2) (emphasis added).
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Here, Borrower waived his right to post-sale remedies under Brown because he
received notice of the sale, failed to bring an action to enjoin the sale, and failed to make
payments to the Clerk of Courr as required by RCW 61.24.130(l).
Borrower alleges that he did not receive notice of the sale. Compl. nn232, 4.35.
However, the evidence establishes that Defendants complied with all the notice requirements
under the DTA. First, as required by RCW 6I2.24.030(8),a a Notice of Default was sent to
Borrower flrrst class and certified or registered mail, return receipt requested, on June B, 2009
and personally served on him or posted on the Property on June g,2009. ReconTrust Decl.,
TI4, 5, Ex. A to ReconTrust Decl., Ex. B to ReconTrust Decl., $ VI. ReconTrust recorded a
Notice of Trustee's sale on February 17,z0rr. Id.,nB, Ex. D to ReconTrust Decl. The
Notice was mailed to Borrower by first class and certified mail on February 17,2071 and was
posted in a conspicuous place on the property on February lg, 2011. Id.,nn 10, 11, Exs. D, E
to ReconTrust Decl.; Bradburn Depo., at 46 (admitting that photographs in Declaration of
Posting are of the Properfy), 47-48 (admitting that Borrower has no reason to dispute
statement in Declaration of Posting that the Notice of Trustee's Sale was posted on the
Property on February 18,2011). The Notice states:
Anyone having any objections to the sale on any grounds whatsoever will beafforded an opportunity to be heard as to those objections if they bring alawsuit to restrain the sale pursuant to RCW 61.24.130. Failure to bring such alawsuit may result in a waiver of any proper grounds for invalidating theTrustee's Sale.
Ex. D, $ IX.
4 RCV/ 61.24.ßA requires, as -a
condition to a trustee's sale, "[t]hat at least thirty days beforenotice of saie shall be recorded, transmitted or served, writtön notice of default'shall betransmitted by tþe beneficiary or trustee to the bonower and grantor at their last knownaddresses by joth first-class and either registered or certified mãil, return receipt requested,and the btneficiary or trustee shall cause tõbe posted in a conspicuóus placè on tiri prä*ir"r,a copy of the notice, or personally served on thé borrower and grantor."'
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Borrower's purported claims relating to the foreclosure documents and loan
modifìcation necessarily existed before the sale. Borrower must have been aware of those
claims because he alleges that he "had sufficient funds in his account to cover the regular
payments of the obligation" and that he "believed he was current on the obligation," yet he
acknowledges that he received the July 2009 Notice of Trustee's Sale. Compl. TI2.l l-2.12,
2'30' lf Borrower truly believed he was current on his loan payments, as he alleges, then he
also must have believed that he had a defense to foreclosure when he received said notice.
Moreover, Borrower admitted in his deposition that he knew of his elaims in May of 2011,
prior to the foreclosure sale. Bradbum Dep., at 46:14-rg,5g:10-14.
Nevertheless, Borrower did not seek a preliminary injunction or other restraining order
to bar the sale of the Properly as required under RCW 61.24.130 in the nearly two years that
elapsed between the first Notice of Trustee's Sale and the sale of the property. Therefore, he
waived all but damages claims under RCW 61.24.127(lXa)-(c) (i.e., claims for damages
based on alleged fraud, violations of the Consumer Protection Act, and failure by the trustee
to materially comply with the DTA). Brown,146 wn. App. at 164 (,,inapplying the waiver
doctrine, a person is not required to have knowledge of the legal basis for his claim, but
merely knowledge of the facts sufficient to establish the elements of a claim that could serve
as a defense to foreclosure"); see qlso Tran v. Bank of Americø, N.A., z0l3 wL 64770, at *3
(W.D. Wn. Jan. 4,2013) ("Plaintifß have constructive knowledge of a defense to a Trustee's
sale when, at the time of the sale, they knew of facts necessary to establish the elements of a
defense."),
Indeed, Borrower waived each of the following claims: engaging in a 'þattern of
criminal profiteering activity" (Compl. !1fl 6.1-6.6); quiet title (id.nn8.l-8.3); unenforceability
of and breach by Defendants of the Note and Deed of Trust (id. 1119.l-9.18); equitable
estoppel (id.flI l0.l-10.7); unjust enrichment (id.n10.8); and trespass, conversion, and
negligence for coming onto the Property and stealing and destroying objects on the property
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Qd.nn 11.1-11.17). In addition, while RCW 61.24.127 provides that a failure to bring an
action to enjoin foreclosure does not waive certain claims, that exception does not apply
where the claiming party is seeking remedies other than damages. .lee RCW 61.24.127(2)(b)
("The nonwaived claims listed under subsection (l) of this section are subject to the following
limitations:...(b) the claim may not seek any remedy at law or in equity other than monetary
damages."). Here, Borrower seeks injunctive and declaratory relief. .!ee Compl. ff 12.1-
12.12. This relief is simply not available. Accordingly, Defendants are entitled to summary
judgment as a matter of law on all waived claims, including claims for injunctive or
declaratory relief.
Even if Bolrower had not waived certain claims, there is no genuine issue of material
fact as to such claims or as to the remainder of his claims, such that Defendants are entitled to
summary judgment as a matter of law.
C. Defendants Did Not Participate in an íIllicit Scheme"
Borrower's first cause of action for an "illicit scheme" fails where he does not offer a
single fact to support his claim. Rather, Borrower alleges generally that Defendants and the
banking industry at large committed various acts of misconduct. See generally Compl. T 3.1-
3.3' Borrower does not once allege a single instance where Defendants' conduct
(participation in an "illicit scheme") caused harm to him. Instead, he seems to allege that
Defendants acted tortiously to the public in general. ,See Compl . n 3.2 ("the Defendants and
the home residential lending, servicing, collections, and foreclosure industry, in general, wffi,
and still is, engaged in a broad range of unfair, deceptive, and criminal practices that have
injured U.S. and Washington consumers, including himself personally), 113.3 ("[Borrower],
like many others, has been injured by . . . toxic home lending practices.,,).
While Borrower's frustrations are evident in his diatribe, facts are absent. Without
any factual allegations that Defendants committed any of these acts, and that they affected
Borrower in particular, Bolrower's claim must fail.
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D.
In his second cause of action, Borrower alleges various violations of the DTA.
Compl' ulJ4.1-4.35. Defendants are entitled to summary judgment on this claim because
there is no evidence to support Borrower's conclusory allegations. To the contrary, the
evidence shows that Defendants complied with the DTA.
1.
Borrower alleges that neither BANA nor "other concealed defendant alleging
'beneficiary' status" was a "note holder," ,.lender," or ..holder in due course,', that BANA was
not and is not licensed to do business in Washington, and that Defendants filed to followrequired procedures under the DTA. Compl. ffi 4,14-4.17. However, the evidence shows that
BANA was and is the holder of the Note and was authorized to foreclose on behalf of the
owner of the Note, Fannie Mae, and that all required procedures were followed.
Since 1998, the DTA has defined a "beneficiary" as "the holder of the instrument or
document evidencing the obligations secured by the deed of trust, excluding persons holding
the same as security for a different obligati on." Bain v. Metro. Mortg. Grp., Inc.,l75 Wn.2d
83, 98-99, 285 p.3d 34 (Z}tZ) (quoting RCW 61.24.005e)) (emphasis added). The
Washington U.C'C. defines the "Holder" of a negotiable instrument in relevant part as ,.[t]he
person in possession of a negotiable instrument that is payable . . . to bearer. RCW 62A.1-
201(21); Bain, 775 Wn.2d at 104. A negotiable instrument is payable to bearer if it is
indorsed in blank. .See RCW 62.A3-2A5ft) ("When indorsed in blank, an instrument
becomes payable to bearer and may be negotiated by transfer of possession alone until
specially indorsed.").
Applying the plain language of the statutes and case law cited above, the evidence
establishes that BANA was the holder of the Note. Following the Loan,s origination, the
Note was endorsed to Countrywide Bank, N.A, which endorsed the Note to Countrywide
Home Loans, Inc', which subsequently endorsed the Note in blank. BANA Decl., ,llï g, 9,
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Exs. A, B to BANA Decl. Since January 3,2006, when Fannie Mae became the owner of the
Note, the original, endorsed-in-blank Note has been maintained by BANA and itspredecessors in interest on behalf of Fannie Mae, pursuant to Fannie Mae's servicing
guidelines. Id.,n 10,18,26,8x. E.
Because it was the holder of the Note, BANA had the right to foreclose. See Zalqc v.
crx Mortg. corp., case No. cl2-0r474 MJp, 2013 wL lgg072g, at *3 (w.D. wn. May 13,
2013) (granting motion to dismiss where "Defendant [] asserts that it is the true holder of the
note, even if Fannie Mae is the owner of the note.") (emph. in original) ; Corales v. Flagstar
Banh FSB, 822 F. Supp. 2d 1,102, 1107-08 (W.D. Wn. 20l l) (granting motion to dismiss in
functionally identical circumstances where lender sold loan to Fannie Mae but then proceeded
to foreclose in its own n¿rme - "Thus, even if Fannie Mae has an interest in Plaintiffs' loan,
[Defendant] has the authority to enforce it.,').5
2. MERS. as the Asent of the Beneficiaru. Was Authorized to Appoint
Borrower asserts that MERS was not a lawful benef,rciary, such that its appointment of
ReconTrust ¿ts successor trustee was invalid, and "any assignment of the beneficial interest to
Bank of America or other Defendant w¿rs invalid." compl. TT4.9-4.10, 4.lg-4.20.
However, these assertions ignore the fact that MERS was acting as an agent of and at the
direction of the beneficiary, BANA, the holder of the Note.
In Bain, the Washington Supreme Court held that MERS cannot be a valid beneficiary
if it does not hold the Note. Bain, 175 Wn.2d at 110. However, the Court concluded that it
could not decide the legal effect of MERS's acting as an unlawful beneficiary. Id. at 110-14.
In addition, the Court noted that "nothing in this opinion should be construed to suggest an
1|qryo*g alleges that BANA was and is not licensed to do business in Washington. Compl.I 1.1.5^' However, there is no requjrement that BANA be licensed d w;hi"g;ón to act onbehalf of Fannie Mae in enforcing the Note and Deed of Trust.
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agent cannot represent the holder of the note." Id. at 106. The Court declined to find that
MERS was acting as the agent of the beneficiary only because there was no evidence in either
of the cases it was reviewing showing that MERS was acting on behalf of identifiable
beneficiaries. Id. at 107.
In the present case, by contrast, the evidence establishes both BANA as the
beneficiary (as the holder of the Note) and MERS acting as BANA's agent when it appointed
ReconTrust as the successor trustee and when it assigned the beneficial interest under the
Deed of Trust to BANA. BANA Decl.,1l1l21, 22,Exs. F, G to BANA Decl. BANA, as the
holder of the Note, directed MERS to appoint ReconTrust and to assign the Deed of Trust to
BANA' 1d' It did so in compliance with Fannie Mae's servicing guidelines which',grant[]
servicers, acting in their o\ryïr names, the authority to represent Fannie Mae's interests in
foreclosure proceedings as holder of the mortgage note.,, Id.,Ex. E, at 1.
Therefore, it is entirely irrelevant whether MERS was a valid beneficiary. Because itacted as the agent of the beneficiary, it properly appointed ReconTrust as successor trustee
and properly assigned the Deed of Trust to BANA. As the authorized trustee, ReconTrust had
the power to issue the Notices of Trustee's Sale, to carry out the foreclosure sale, and to issue
the Trustee's Deed transferring the property to Fannie Mae. In addition, as the holder of the
Note, BANA had the power to assign the interest under the Deed of Trust to Fannie Mae after
the foreclosure sale. See Bain, 175 Wn.2d, at 104 ("Washington's deed of trust act
contemplates that the security instrument will follow the note.,').
In addition, under Washington law, an assignment of the Deed of Trust is not a
prerequisite to non-judicial foreclosure. ,See Corales v. Fløgstar Bank, FSB, gZZ F. Supp. 2d
1102, 1109 (w.D. Wn.20ll) ("Washington State does not require the recording of such
transfers and assignments. . . . The purpose of recording the assìgnment is to put parties who
subsequently purchase an interest in the property on notice of which entity owns a debt
secured by the property."); In re United Home Loans, Tl B.R. gg5, g9l (Bankr. w.D. Wn.
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1987), aff'd 876 F.zd 897 (9th Cir. 1989) ("An assignment of a deed of trust ... is valid
between the parties whether or not the assignment is ever recorded. . . . Recording of the
assignments is for the benefit of the parties.") (intemal citations omitted). For this reason as
well, the MERS assignment is irrelevant to BANA's authority to foreclosure through the
trustee"
3. ReconTrust Was a Valid Successor Trustee
Borrower asserts that "[a]ny assignment of trustee powers to ReconTrust did not
comply with RCW 61.24.010(2)" because the assignment was made by aparty other than the
beneficiary or lender, such that ReconTrust was not authorized to institute non-judicial
foreclosure or grant a trustee's deed to Fannie Mae. compl. nn4.ß-4.21. However, as
discussed above, the evidence shows MERS acted as the agent of and at the direction of the
beneficiary, BANA, when it appointed ReconTrust as successor trustee. See supra Section
V 'D.2. Thus, ReconTrust was a valid successor trustee. ,S¿e RCW 6l.24.OLAe) (..The trustee
may resign at its own election or be replaced by the beneficiary.").
4.
Borrower next asserts that "defendants Trustees Fidelity, Stewart and/or ReconTrust
breached their duties of Good Faith to [Bonower] by permitting ReconTrust's non-judicial
foreclosure to occur on the [Borrower's] Property and not providing [Bonower] with
information on one or more practices described in fl 2.3 of this complaint.', Compl. n 4.26.
He further alleges that "ReconTrust willfully, knowingly, or intentionally initiated and
continued a non-judicial foreclosure for the servicer when ReconTrust knew or should have
known that BAC Home Loans was not the beneficiary andlor that proof of the beneficiary
and/or a declaration of the beneficiary had not been provided as is required by RCW
64.21'030(7)." Id. n 4.27. These allegations are without merit and contradicted by the
evidence.
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Borrower's allegation that ReconTrust failed to provide Borrower information on the
'þractices described in l[2.3 of this complaint" is nonsensical. Paragraph 2.3 of the
Complaint alleges that "[o]ne or more parties acquired certain rights, and/or legal or equitable
interests in [Borrower's] prior mortgage on one or more secondary markets." Id. n23.However, there is nothing illegal or improper in securitizing a loan. Thus, it was not a
violation of any duty of good faith not to inform Borrower of the securitization of his loan.
Moreover, if any loan was securitized, it was Borrower's prior loan, which is not at issue in
this case.
Borrowet's allegation that ReconTrust "knew or should have known that that BAC
Home Loans was not the beneficiary" is contradicted by the evidence confirming that BANA
was the holder of the Note and the beneficiary. BANA Decl. !J L0, rg,26.
In addition, the evidence establishes that when ReconTrust issued the Notices of
Trustee's Sale, it had a Declaration of Beneficiary that complied with the DTA. RCW
61.24'030(7)(a) provides "[t]hat, for 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." Here, the
Declaration of Beneficiary accurately identifies Fannie Mae as the owner of the Note. Ex. C
to ReconTrust Decl.; see BANA Decl., fln 7, 25. While Borrower may contend that the
Declaration does not identiff BANA, the beneficiary, as the owner of the Note, it would be
inaccurate for the Declaration to so state because BANA was the holder of the Note. Any
claimed inconsistency is the result of ambiguity in the language of RCW 61.24.üAe)(a), i.e.,
that it fails to take into account the rather common scenario where the holder of the Note and
the owner of the Note are not one and the same. As noted above, the Western District has
recognized the reality that when Fannie Mae is the owner of the Note, the holder of the Note
ca¡r foreclose in its own n¿Lme. See Zalac, 2013 WL 1990728, at *3 (granting motion to
dismiss where "Defendant [] asserts that it is the true holder of the note, even if Fannie Mae is
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the owner of the note.") (emph. in original); corales, g2z F. supp. at ll0z-0g (granting
motion to dismiss in functionally identical circumstances where lender sold loan to Fannie
Mae but then proceeded to foreclose in its own name - "Thus, even if Fannie Mae has an
interest in Plaintifß' loan, [Defendant] has the authority to enforce it."); see also In re Veal,
450 B'R. 897, 912 (9th Cir. BAP 201 1) ("[O]ne can be an owner of a note without being a
'person entitled to enforce.' The converse is also true: one can be a .person entitled to
enforce' without having any ownership interest in the negotiable instrument. This distinction
may not be an easy one to draw, but it is one the UCC clearly embraces. While in many cases
the owner of a note and the person entitled to enforce it are one and the same, this is not
always the case.").
Indeed, it is fairly typical for Fannie Mae to require, under its servicing guidelines,
that the servicer hold the Note and foreclose in its own name. ReconTrust would certainly
have been familiar with that accepted practice. In addition, Borrower did not know of the
Declaration of Beneficiary until after the sale, so he can hardly claim that he relied on it or
was prejudiced by it. It is not as if a stranger to the Loan foreclosed on the property; the
holder of the Note and loan servicer did so, as expressly required by the servicing guidelines
of the owner of the Note. In the end, any claimed contradiction or claimed ambiguity in who
was the beneficiary is no more than a red herring. BANA was the holder of the Note and,
thus, was entitled to foreclose.
Borrower alleges that Defendants failed to follow non-judicial foreclosure procedures.
Compl. Tn4-28-4.35. However, there is simply no evidence to support Borrower's conclusory
allegations. To the contrary, the evidence shows that Defendants followed proper foreclosure
procedures.
Non-judicial foreclosures in Washington are governed by DTA chapter RCV/ 61.24 et
seq., which sets out the procedural requirements necessary before a notice of trustee sale ca¡r
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be recorded. First, for this section to be applicable, the deed of trust must be recorded,
contain a power of sale, and not be for property primarily used for agricultural purposes. ,See
RCw 61.24.030(1), (2), (5). Once a default has occurred, the beneficiary or trustee must
transmit a notice of default to the borrower or grantor at least thirty days before the notice oftrustee sale. RCW 61.24,030(3), (8). There must not be a "pending action by the beneficiary
nnder the deed of trust" at the time. RCW 61.24.030(4). Finally, the trustee musr have proof
that the beneficiary is the owner of the promissory note and have a physical presence in the
state where service of process is made which includes a sheet address and telephone service.
RCW 6r.24.030(6)-(7).
The evidence shows that all non-judicial foreclosure requirements were followed. The
Deed of Trust was recorded on December 21,2005, it contained. a power of sale, and the
property was used primarily for residential purposes, not agricultural purposes. Ex. A toLorber Decl', at 3. When Borrower defaulted on his loan obligations beginning in March
2009 (BANA Decl', tI 16, Ex. D to BANA Decl.), ReconTrust, as agent for the beneficiary,
sent Borrower a Notice of Default by first class and certified or registered mail on June 8,
2009, and the Notice was personally served on Bor¡ower or posted in a conspicuous place on
the Property on June 9,2009. ReconTrust Decl., !f 5, Ex. B to ReconTrust Decl., $ vI. This
was more than 30 days before the Notices of Trustee's Sale were recorded. ,See Exs. B, E to
Lorber Decl. There was no pending action by the beneficiary under the Deed of Trust, and
ReconTrust had proof that Farurie Mae was the owner of the Note. ReconTrust Decl., nn7,g,
Ex' C to ReconTrust Deci. Finally, ReconTrust maintained a physical presence in
Washington'6 Therefore, BANA had the right to foreclose, and, per the power of sale in the
6 As shown in the Notices of Trustee's Sale, ReconTrust maintains a physical address andFl".plqlq_number ^t::c-T,Çgrygtqttol
system, LBOI v/est Bay Drive ñri¡lst. à06;óiñpttWA 98502, Phone: (360) 351-6794;' Éxs. B, E to Lorber decl., at 4. Írtis Ir s,im"i"ni tóPjffy.Lh-"-qhysig{ Prglgnce_ requirement. See Douglas v. ReconTrust Co.,ìy'.1., Case No.cl1-147sRAI, .2012 .wL s470360, at ït-_l ffb. wn. Nov. t, iõtzj ir,i,¿irl ir,ãiReconTrust satisfies the requirements of RCW et.Z+.OZO6) by maínøi"i"g ; ug.irt fot
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Deed of Trust, directed ReconTrust to sell the property. Ex. A to Lorber Decl., at 1-2.
ReconTrust sold the Property to Fannie Mae on May 20,2011. Ex. F to Lorber Decl.
For all these reasons, there is no genuine issue of material fact on Borrower's claim
for violations of the Deed of Trust Act, such that Defendants are entitled to summary
judgment as a matter of law.
E. Borrower's Claim That Defendants Eneaeed in Dual Tracking Lacks Merit
Borrower alleges that Defendants engaged in "dual tracking" when it allegedly
"assuled [Bonower] that his home would not be foreclosed upon while he sought a
modification" while at the same time moving forward with foreclosure. Compl.nn2.ß-2.21,
5.2-5.4. The claim fails as a matter of law.
First, Bonower has no evidence of any alleged promise by BANA that his home
would not be foreclosed while he sought a modification, such as when, how, and by whom it
was made. Further, the Deed of Trust expressly grants the Lender, and its successors and
assigns, the right to invoke a power of sale in the event of uncured default: "If the default is
not cured . . . Lender at its option may require immediate payment in full of all sums secured
by this Security Instrument without further demand and may invoke the power of sale and any
other remedies permitted by Applicable Law." Ex. A to Lorber Decl., at 14. In addition, the
Deed of Trust contains explicit language that acts of forbearance, including activities in
firrtherance of loan modifïcation, do not waive the Lender's right to enforce the terms of the
Deed of Trust. Id. at ll (12. Borrower Not Released; Forbearance by Lender Not a
Waiver. . . . Any forbearance by Lender in exercising any right or remedy . . . shall not be a
(. . . continued)service
-of proc_ess with telephone number and a physical address in Washington): Mikhqy v.
lqr,rk of Am., N.A., Case No. 2:1O-cv-01464 RAJ;20il WL 167064, at *3 (W.D. 'Wn. Jan 12,2011)_.(recogni4ing information of registered agent for service of process to be evidence ofcompliance with RCW 61.24.030); Ramirez-Melgoze v. Countrywlde Home Loan Servicing,IP, No. CV-10-0049-LRS, 2010 WL 4641948,-at *7 (E.D. Wn. Nov. 8, 2010) (affïrmingbankruptcy court ruling that existence in state of registered agent for service of processsatisfies physical presence requirement of RCW 61.24.030(6)).
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waiver of or preclude the exercise of any right to remedy.") (emph. in original). Thus, even
assuming that Borrower was told "that his home would not be foreclosed upon while he
sought a modification," he could not reasonably have relied on such a statement where the
Deed of Trust he signed states that the Lender could foreclose if Borrower did not cure the
default, which he did not. Furthennore, the Deed of Trust provides, "Borrower shall not be
released from Borrower's obligations and liability under this Security Instrument unless
Lender agrees to such release in writing." Id. There is no evidence of any writing waiving
the right to foreclose based on Borrower's default.
Finally, Borrower's allegations are belied by his admission that he received notice that
his request for a loan modification was denied prior to the sale. Bradbum Dep., 59:11-13,
75:9-ll, 83: 8-11.
F.
In support of his fourth cause of action for a'þattem of criminal profiteering activity,,,
Borrower alleges that Defendants committed various crimes, including forgery, theft,
unlawful production and possession of payment instruments, extortionate extension of credit,
advancing money for use in an extortionate extension of credit, collection of an extortionate
extension of credit, and leading organized crime. Compl. TI6.5.l-6.5.9. However, Borrower
does not allege anyfacts, and has no evidence, showing that Defendants committed any ofthese crimes. See generally Compl. Therefore, there is no genuine issue of material fact on
this claim, and Defendants are entitled to summary judgment as a matter of law.
G. Def"odaotr Did Not violat* th. coo.u-e" p"otrctioo A.tBorrower makes vague and conclusory allegations of violations of the Consumer
Protection Act ("CPA"), again without alleging a single fact to support his claim. Because
Bonower cannot establish any unfair or deceptive acts by Defendants resulting in damage to
him, Defendants are entitled to summary judgment as a matter of law on his CpA claim.
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To prevail on a private CPA claim, a plaintifi must prove: (l) an unfair or deceptive
act or practice; (2) that occurs in trade or cornmerce; (3) an impact on the public interest; (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 suffered. Høngman Ridge Training Stables, Inc. v.
SafecoTitle Ins- Co.,l05 Wn.2d 778,785,719P.2d,531 (1986). Thefailuretoestablisheven
one of these elements is fatal to aplaintiffs claim. Id. atT93.
Whether a defendant's conduct is an unfair or deceptive act or practice is a question oflaw. Micro Enhancement Intern., Inc. v. coopers & Lybrand, LLp,n 0 wn. App.4l2,43g,
40 P.3d 1206 (2002). An unfair or deceptive act or practice requires the plaintiff to prove that
the act "had the capacity to deceive a substantial portion of the public"" Burns v.
McClinton,l35 Wn' App. 285, 302-03, 143 P.3d 630 (2006). Although the CpA does nor
require proof of actual deceit, the practice must at a minimum, be capable of deceiving.
Holiday Resort cmty. Ass'n v. Echo Lake Assocs., LLC, 134 wn. App. 210, 226 e006).
Implicit in the definition of deceptive "is the understanding that the practice misleads or
misrepresents something of material importance,,, Id.
Here, Borrower fails to allege facts, and has no evidence, in support of a single
required element of his claim. Borrower alleges, in his usual vague and conclusory fashion,
twelve "unfair and deceptive practices." Compl. nn 7.4.1-7,4.12. However, these allegations
are wholly derivative of Borrower's other causes of action in his Complaint, and as discussed
at length throughout this Motion for Summary Judgment, those claims fail. Further, to the
extent the claim is based on alleged conduct relating to the origination of the loan, the claim is
bared by the statute of limitations, as the loan was originated on December 14, 2005, more
than four years before Borrower filed suit. ,See RCW 1g.86.n0 (CpA claims are subject to a
four year statute of limitations). To the extent Borrower alleges that defining MERS as a
beneficiary is a deceptiYe act, the court in Bain held that a plaintiff claiming a CpA violation
must still establish that he was damaged as a result of the characterization of MERS as the
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beneficiary. Bain,175 Wn.2d at 120 ("the mere fact MERS is listed on the deed of trust as a
beneficiary is not itself an actionable injury"); accord Zalac v. CTX Mortg. Corp.,2013 V/L
1990728, at *3 (W.D. Wn. May 13,2013) ("Bain. . , held that MERS involvement does not
by itself constitute a per se violation of the CPA.").7 Here, Borrower has no evidence that he
was damaged by MERS' presence on the Deed of Trust.
H. Borrower Cannot State a Claim for Ouiet Title Because He is in Default of His
Loan Oblisations and the Claim is Derivative of His Other Failed Claims
ln support of his cause of action to quiet title, Borrower alleges that "The interests of
defendant, Fannie Mae, and other defendants, are subordinate to the interests of [Borrower]."
Compl. u 8.2. Even if this claim were not preempted by the Brown holding, which it is, it still
fails for two reasons.
First, to maintain a quiet title action, a plaintiffmust first pay the outstanding debt on
which the subject mortgage is based. See Evans v. BAC Home Loans Servicing LP,2OlO WL
5138394, at *3 (W.D. Wn. Dec. 10,2010) ("Plaintiffs cannot assert an action to quiet title
against a purported lender without demonstrating they have satisfied their obligations under
the Deed of Trust."). Here, Borrower fails to allege, and has no evidence, that he has paid the
amounts owed or that he has the ability to pay. Rather, Borrower had total arrears of
$33,675.83 as of February 15, 2011 (Ex. E to Lorber Decl., at}), andthe Property was sold at
auction because Borrower did not cure the default. Ex. G to Lorber Decl. Because Borrower
7 See also Myers v. Mortgage Electroníc Regístrations Sys., Inc., CaseNo. 12-35218, at 6, 8(9th Cir. Sept. 9, 2013) (afñrming dismissal of CPA claim based on MERS' being listed ondeed of trust); Fletcher v. Northwest Trustee Servs., Inc., Case.No. 12-2-27475-4 SEA (KingCounty Sept. 16, 2013) (granting summary judgment on CPA claim based on MERS'assignment of deed of trust); Bain v. Metro. Mortg. Grp., Inc., Case No. a$-z-43439-9 SEA(King County Aug. 30, 2013) (granting MERS'motion for summary judgment on all claims,including for violation of the CPA).
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cannot show that the amounts owed under the Deed of Trust have been satisfied, his quiet title
claim fails.s
In addition, the quiet title claim is derivative of Borrower's other failed claims.
Therefore, there is no genuine issue of material fact on this claim, and Defendants are entitled
to summary judgment.
I.
Without actually noting a cognizable legal cause of action, Bonower instead simply
labels his seventh cause of action "Contracts" and then goes on to make many
incomprehensible, vague, and conciusory allegations regarding the Note and Deed of Trust.
These include Borrower's claims that "[Borrower] lacked the ability to freely choose to enter
the contract," "[Borrower] had no bargaining power with regard to the 'uniform' provisions of
the 2005 promissory note," and "the Deed of Trust is against public policy because it isdesigned to facilitate mass foreclosures." Compl. TT 9.3.1, 9.4, 9.6.2. Borrower also makes
conclusory allegations that various defendants breached their duties under the Deed of Trust.
Id' nn 9.9-9 .18. There is simply no evidence to support these allegations, and Defendants are
entitled to summary judgment as a matter of law
Borrower does not allege any facts, and there is no evidence, showing why he was not
able to freely choose to contract. He offers no facts or legal authority stating that uniform
provisionse in a contract are illegal or improper. Further, he does not explain how the Deed of
Trust is against public policy, especially one containing uniform provisions. His conclusory
allegations are also belied by his deposition testimony that he was not deceived about the
terms of the Loan, was not misled into taking out the Loan, and is not aware of any kickback
8 See Bain, .I75-.Wn.2d u\1\?.("[Selkowitz] offers no authority in his opening brief for the
suggestion that listing an ineligiblè beneficiary on a deed of truit would rèndeñhe deed voidpnd entitle the borrower to quièt title.").' The Deed of Tmst states ät the bottôm of each page that it is a "Fannie Mae/Freddie MacUNIFORM INSTRUMENT." Ex. A. to Lorber Oe^cl.
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or any rrmongdoing by the broker. Bradbum Depo., 72:6-73:5,73:16-74:10, 80:4-20,93:4-9.
Thus, there is no genuine issue of material fact that there was no wrongdoing.lo
There is likewise no evidence supporting Borrower's conclusory allegations of
breaches of the Deed of Trust. ,See Compl. IT 9.9-9.18. Borrower does not allege what
provisions of the Deed of Trust were breached, and there is no evidence of any breach. In
fact, it was Borrower that failed to perform his obligations under the contract by defaulting on
the loan. BANA Decl., J[ 16, Ex. D to BANA Decl. Because Borrower himself breached the
Deed of Trust, Defendants are entitled to summary judgment as a matter of law, See l|/illener
v. Sweeting, IA7 Wn.Zd 388, 394,730P.2d 45 (1986) ("If a contract requires performance by
both parties, the party claiming nonperformance of the other must establish as a matter of fact
the party's own performance.").
J. Defendants Are Entitled to Summarv Judement on Borrower's Equitable
Estoppel and Uniust Enrichment Claims
l. Borrowerts Equitable Estopnel Claim Fails Because He IIas No Evidence
of Fraudulent Behavior or His Own Reliance
Borrower alleges that Defendants facilitated "the sales of risky loans that were likely
to result in delinquency" and committed "other acts and statements designed to induce
consumers, like [Borrower] to purchase a home that they could not afford." Compl. I 10.2.
Borrower also claims generally that "[Bonower], like millions of other consumers, acted in
reliance upon the misrepresentation made him by his mortgage broker." Id. n n3. Finally,
he alleges that Defendants misrepresented the unlikelihood of foreclosing. Id- nrc.7. This
l0 To the extent Borrower's claim could be construed as one for rescission based on Truth inLending Act violations, such a claim is subject to a three-year statute of limitations. See 15U,S.C. $ 1635(Ð ("[a]n obligor's right of rescission shall expire three years after the date ofconsummation of the transaction . . . ."). The Deed of Trusi was transacted more than threeyears before Borrower filed suit.
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT _ 24
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claim fails because it is time-barred and because the allegations are unsupported by any
evidence and do not suffice to establish a claim for equitable estoppel.
Borrower's claim is essentially one for fraud, which is subject to a three-year statute of
limitations. RCW 4.16.080(4). All of the alleged conduct that relates to loan origination,
which occurred more than three years before Borrower filed suit, is time-barred.
Borrower also fails to allege facts, and has no evidence of, wrongdoing by Defendants
or his own reliance. Equitable estoppel or "fraudulent concealmenf' "focuses primarily on
the actions taken by the defendant [and] . . . plaintiffs actual and reasonable reliance on the
defendant's conduct or representations." Huseman v. Icicle Seafoods, Inc.,47l F.3d 1116,
ll2l (gth Cir. 2006) (quoting Santa Maria v. Pac. Bell,202 F.3d 1170,1176 (gthCir. 2000)).
Here, Borrower's allegations of wrongdoing in the loan origination are misplaced, as
Defendants were not involved in the loan origination, and there is no evidence that those who
originated the loan acted as Defendants' agent. Moreover, Borrower did not rely on any
misrepresentations in the loan origination, as he admitted that he was not deceived about the
terms of the Loan, was not misled into taking out the Loan, and is not aware of any kickback
or any wrongdoing by the broker. Bradburn Depo., 72:6-73:5,73:16-74I0, 80:4-20,93:4-9.
Borrower's allegation that Defendants misrepresented the unlikelihood of foreclosure is
unsupported by any evidence. In addition, Borrower could not have reasonably relied on any
such statement because the Deed of Trust specifically included the power to foreclose and
stated that any acts of forbearance would not waive the right to foreclose. See Ex. A to
Lorber Decl., at I l.
Accordingly, there is no genuine issue of material fact on this claim, and Defendants
are entitled to summary judgment as a matter of law.
2. Borrower's Uniust Enrichment Claim Fails
In his unjust enrichment claim, Borrower alleges only that "Defendants have been
unjustly enriched in the amounts of money which will be proved at trial." Compl. t[ 10.8. As
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he does in the rest of his Complaint, Bonower fails to include a single þct to support his
claim. Defendants are entitled to summary judgment on this claim, as there is no evidence
that Defendants received any benefit to which they were not entitled.rr
K. Defendants Did Not Commit the Various ,,Torts" Borrower Alleees
Borrower alleges that "since the alleged sale," Fannie Mae has entered the Property
and committed various torts, including but not limited to, cutting a tree in hall stealing doors,
stealing new carpeting, damaging fans and closet doors, and removing other fixtures and
personal property. Compl. flnn3-2.33.15, 11.2-11.17 All of Borrower's claims rest upon
the underlying assumption that he still owns the property or did at the time the Fannie Mae
representative allegedly entered the property and removed or altered various objects. As
discussed extensively above, Borrower did not own the Property where he failed to make the
necessary payments, and the Property was sold to Fannie Mae. BANA Decl., !f 16, Ex. D to
BANA Decl.; Ex. G Lorber Decl. Because Borrower did not own the property, he does not
have standing to assert any of the property "torts" he alleges. Accordingly, Defendants are
entitled to summary judgment as a matter of law.
I. CONCLUSION
Borrower received notice that his Property was in foreclosure nearly two years before it was
sold to Fannie Mae. Yet, Borrower failed to move to enjoin the sale of the Properly and, thus,
waived his claims not preserved under RCW 61.24.127(l). In addition, Bonower has no
evidence of any wrongdoing by Defendants. To the contrary, the evidence establishes that
Defendants were authorized to foreclose based on Borrower's default and that they complied
with the DTA at all times. The litany of allegations and claims raised by Borrower are a
smoke screen for the dearth of evidence supporting any of his claims. Because there is no
ll To establish unjust enrichment, the following requirements must be met: (1) one party musthave conferred a benef,rt to the other; (2) the párty ieceiving the benefit must have knowledgeof the benefit; and (3) the party receiving the-benefit must ãccept or retain the benefit withoutpaying its value. Dragtv. Dragt/DeTray, LLC,l39 Wn. App. 5-60, 576,16rP.3d473 (2007).
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genuine issue of material fact on any of Borrower's claims, Defendants are entitled to
swnmary judgment as a matter of law. Therefore, Defendants respectfully request judgment
in their favor pursuant to CR 56.
DATED: October 2,2073
LANE PO'WELL pc
f,h 4"ft-John S. Devlin III, WSBANo. 23988Abraham Lorber, WSBA No.40668
Attomeys for Defendants ReconTrust Company,N.4., Mortgage Electronic Registration Systems,Inc., Bank of America, N.4., successor bymerger to BAC Home Loans Servicing, LP (alsosued erroneously as "Countrywide Bank HomesLoans Servicing, LP" and as "Bank of AmericaCorporation"), Countrywide Home Loans, Inc.(also sued erroneously as "CountrywideFinancial Corporation"), and Federal NationalMortgage Association
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT - 27
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CERTIFICATE OF SERVICE
I certify that on the date indicated below, I caused the foregoing document to be
served on the following person via email and legal messenger.
Scott E. StafneAndrew KrawczykStafire Law Firm239 N. Olympic Ave.Arlington, WA 98223scott. stafrre@stafnelawfi rm. comandrew@stafnelawfirm.comAttomeys for Plaintiff
Stephan T. ToddP.O. Box 13635Mill Creek, WA 98082-1635toddlawoffice@comcast. netAttorney for Defendant Quickdraw Real Estate Services
I affïrm under penalty of perjury under the laws of the State of Washington that the
foregoing is true and correct to the best of my knowledge.
SIGNED October 2,2013 at Seattle, WA.
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT-28
I t6589.04 l l/s839482. I
- Debi WollinLegal assistant to Abraham K. Lorber
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