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THE CIVIL MOTIONS ruDGE

Hearing Date: November 1,2013 Hearing Time: 9:30 a.m. With Oal Argument

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SUPERIOR COURT OF WASHINGTON

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COUNTY OF SNOHOMISH
JACOB D. BRADBURN, an individual,

Plaintift
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NO" r t-2-08345-2

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) ) ) 21 REAL ESTATE SERVICES, INC d/b/A ) HOMESTAR LENDING, a domestic ) 22:| corporation; NATIONAL CITY MORTGAGE ) CO. d/b/ a COMMONWEALTH UNITED ) MORTGAGE COMPANY, a foreign ) corporation; STEWART TITLE, a domestic ) 24:, corporation, ) ) zs Defendants. )
chartered corporation, LINDA GREEN DOES l-10, unknown persons; and QUICKDRAW
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FIDELITY TITLE, a corporarion; l.lAlIgNAL MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, NC., a foreign corporation; BAC HOME LOANS SERVICING, LP FKP COT'NTRYWIDE BANK HOME LOANS SERVTCING LP, A foreign-entity; BANK OF AMERICA, N.A., a national bank; BANK OF AMERICAq$f qRATION, a foreign corporation; COUNTRYWIDE FINACIAI CORPORATION, a foreign corporation; COUNTRYWIDE HOME LOANS,INC., A foreign corporation; FEDERAL NATIONAL MORTGAGE ASSOCIATION, a federally

pu{pose national trust bank;

RECONTRUST COMPANY, N.A., a limited-

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

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DEFENDANTS' MOTION FOR SUMMARY JUDGMENT - I

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LANEPOWELLTc
TH AVENUE, SUITE 4IOO SEATTLE, WASHINGTON 9810I.2338 206.223.7 000 F AX: 206.223.7 I 07

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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

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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

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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, Borower 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,

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Bonower has waived all claims not preserved under RCw 61.24.r27(l).

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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.)

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("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

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Mae"), the owner of the Note. Accordingly, ReconTrust company, N.A. (,.ReconTrust') was

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a valid trustee and was authorized to issue a Notice of Trustee's Sale, to conduct foreclosure, md to execute a Trustee's Deed in favor of Fannie Mae. Therefore,
foreclosure was proper and there is no genuine issue

the the

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of material fact regarding any of

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Borrower's claims, such that Defendants are entitled to summary judgment as a matter of law.

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to B-A Home Loans Si;i"g; LP (also sued erroneously--as "Countrywide Bank Fomesoans Servicing, I,;;* as..Bari of Americ3. C-q'rporafig{'), Countrywide. _Hqme_ Loans, Inc. fafso sl-.rreousty ut "Countrywide Financial Corporation'-'), and Federal Natioial tvtort!ge Association
s.ugcgss DEFENDANTS' MOTION FOR SUMMARY JUDGMENT _ 2

!Is!eps' Inc., Bank of America, N.4.,

Defendants are Defendants ReconTrust Company,

*.tu..

N.4., Mortgage Electronic Registration

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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, WashingongB2Tl (the,.property,,).

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Declaration of Abraham K. Lorber ("Lorber Decl."), Ex.

A (Deed of Trust). The

Deed

of

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Trust 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

successors and assigns."

for Lender and Lender's

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.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

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misled into obtaining

it, and further,

concedes that he

is not aware of any kickback or

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wrongdoing by the broker. Id. at72-74, g0, 93.

Following the origination of the Loan, the Note was endorsed to Countrywide Bank,

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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.

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A (Note), B (Allonge).
The Relationshio Between BANA and Fannie Mae Immediately following origination, Countrywide Home Loans Servicing, Lp began
servicing the Loan. the Loan'

Id.,n6.

On or about January 3,2006,Fannie Mae became the owner

of

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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

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The Deposiliol of Plaintiff Jacob D. Bradbum, conducted June 1 l, 20l3,is attached to the Declaration 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 to BANA Decl. Fo the sake of clarity and consistency with Borrower's refrence to the servicer as "BANA," Defendants will hereafter refer to the servicer as "BANA," regardless of the time period.
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT3

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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

of

the 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.

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Id.,n

ll.
in their own
names, the

Fannie Mae's Servicing Guide "grants servicers, acting

authority to represent Fannie Mae's interests in foreclosure proceedings as holder of the

mortgage

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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

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behalf of Fannie Mae, pursuant to Fannie Mae's servicing guidelines. January 3,2006, Fannie Mae has been the owner of the note. ("Fannie Mae is at all times the owner of the mortgage note.,').

Id.,n l0,lg, 26.

Since

1d.,nn7,25;Ex. Id. E, at I

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The original, wet-ink Note is currently in the possession of Defendants' attorneys. Id.,

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n27. Borrowerts Default and Foreclosure

Borrower defaulted on his loan obligations beginning in March 2009.

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Id.,I

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Ex. D

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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

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and certified or registered

mail.

Declaation of ReconTust 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

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, Z00g

Id. ,

5, Ex.

B to ReconTrust Decl., $ VI (First Notice of Trustee's Sale).

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Acting at the direction of BANA, the holder of the Note, MERS appointed ReconTrust
as the successor trustee, pursuant
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to an Appointment of Successo Trustee recorded on June

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2009

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BANA Decl.,

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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.

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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.

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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.

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

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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

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in a conspicuous place on the Property on February 18,2011. Id.,nnlO,

ReconTrust Decl. (Declarations

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Ex. E to

of Mailing), Ex. F to

ReconTrust Decl. (Declaration of

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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

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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 to those objections

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will

be afforded an opportunity to be heard as . . Failure to bring such a lawsuit

if they bring a lawsuit to restrain the sale.

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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
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT5

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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.,illicit
scheme" 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. ..dual rracking,,, promising a loan nn 4J-4.35); (3)

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modification while proceeding with foreclosure (id.

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5.1-5.7); (4) engaging in a ,.pattern of

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criminal profiteering activity" (td. I116.1-6.6); (5) violation of the consumer protection Act

(id'lll7'4-7.8); (6) quiet titre (id.

Defendants

ltftf

8.1-8-3); (7) unenforceability

of, and breach by

of

the Note and Deed of Tru st (id. Tll 9. 1-9. I 8); (8) equitable estoppel and unjust

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enichment

(id'ffi l0.l-10.s);

and (9) trespass, conversion, and negligence for coming onto

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the Property and stealing and destroying objects on the property

(id.nnl1.l-l l.l7). without

tying his requests for relief to his claims, Borrower seeks injunctive relief; declaratory relief,
and damages. Id. fl'l[

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and

pp. 49_50.

Defendants filed their Answer on Novemb er 3,2011.

UL

ISST'E

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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

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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

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Company, N.A. and exhibits thereto.

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT_

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V. ARGUMENT

A.

Summarv Judement Standard

Summary judgment is proper

if, after viewing all facts and

reasonable inferences in

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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 Pc. 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

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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 evidence

of

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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 of that 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

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to do so, slrlnmary judgment is proper "'since a complete failure of proof conceming

essential element
immaterial.

an

of the nonmoving party's

case necessarily renders

477

all

other

facts

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"'

Young, 1 12

wn. 2d at 225 (quoting celotex,

u.s. at

322-23).

B.

Non-judicial foreclosures such as the one

washington Deed

at issue here are

govemed

by

the

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

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corp.,146 wn. App. r57,163, 189 p.3dz33 (200g), review denied,l65 wn.2d

1023 (2009).

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"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,
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

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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 plaintiff
the

failed

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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

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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.
Chase

at 163; Gossen v. JpMorgan

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

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enacting RCW 6I.24.127

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RCW 61.24.127(lXa)-(c) preserves post-sale claims for damages

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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 ae 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:

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The court shall.require as a condition of granting the restraining order or injt'r-rction that the applicant pay to the cterk"of/hi"court the sumsThat iould be due an the obligiion secured by the deed'of trusi ir tn. r"J of *ri *ut not being foreclose:
(a)-In the case of default in making. the periodic payment of principal, intetest, and reserves, such sums shall be pid toihe clerk of th. courtvry-tfritiv "vr. (2) No grant a restraining order or injunction to restrain a trustee's -court may sale unless the perion seeking the rsffaint gives"Ji aoyt ,oili n *litttn of the time whn,. place. wherl, and the- judg'e u.for" *t"- th" ;ppriti" rthe restraining ordr or injunction is to b'e m'ade.

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RCW 61.24.130(l), (2) (emphasis added).

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT_

tt6s89.M|t5839482.1

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).

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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

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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.,

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TI4, 5, Ex. A to ReconTrust Decl., Ex. B to ReconTrust Decl.,

Notice of Trustee's sale on February

VI. ReconTrust

recorded a The

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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,

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2011. Id.,nn 10, 11, Exs. D, E

to ReconTrust Decl.; Bradburn Depo., at 46 (admitting that photographs in Declaration of

Posting are
statement

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of the Properfy), 47-48 (admitting that Borrower has no

reason

to

dispute

in Declaration of Posting that the Notice of Trustee's Sale was posted on the

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Property on February 18,2011). The Notice states:

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Anyone having any objections 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 pursuant to RCW 61.24.130. Failure to bring such a lawsuit may result in a waiver of any proper grounds for invalidating the Trustee's Sale.
Ex. D, $ IX.

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RCV/ 61.24.A requires, as condition to a trustee's sale, "[t]hat at least thirty days before -a notice of saie shall be recorded, transmitted or served, writtn notice of default'shall be transmitted by te beneficiary or trustee to the bonower and grantor at their last known addresses by joth first-class and either registered or certified mil, return receipt requested, and the btneficiary or trustee shall cause tbe posted in a conspicuus plac on tiri pr*ir"r, a copy of the notice, or personally served on th borrower and grantor."'
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT9

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Borrower's purported claims relating

to the foreclosure

documents and loan

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modifcation 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

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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,

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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.

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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

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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

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Act, and failure by the trustee

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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 Americ, N.A., z0l3

wL 64770, at *3

(W.D. Wn. Jan. 4,2013) ("Plaintif have constructive knowledge of a defense to a Trustee's
sale when, at the time

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of the sale, they knew of facts necessary to establish the elements of

defense."),

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Indeed, Borrower waived each of the following claims: engaging in a 'attern of criminal profiteering activity" (Compl.
!1fl

6.1-6.6); quiet title

(id.nn8.l-8.3); unenforceability
equitable

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of and breach by Defendants of the Note and Deed of Trust (id. 1119.l-9.18);
estoppel

(id.flI l0.l-10.7); unjust enrichment (id.n10.8);

and trespass, conversion, and

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negligence

for coming onto the Property and stealing and destroying objects on the property

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT- IO

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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)

)
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("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

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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.

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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.

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C.
single

Defendants Did Not Participate in an

Illicit

Scheme"

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Borrower's first cause of action for an "illicit scheme" fails where he does not offer a

fact to support his claim. Rather, Borrower alleges generally that Defendants and the

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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

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(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

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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.,,).

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While Borrower's frustrations are evident in his diatribe, facts are absent. Without factual allegations that Defendants committed any of these acts, and that they affected

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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.

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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 follow
required procedures under the

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DTA. Compl. ffi 4,14-4.17. However, the evidence

shows that

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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.

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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.,

I4

l5
t6

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

l7
18

. . . to bearer. RCW

62A.1-

t9
20

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

possession alone until

2l
22
23

becomes payable

to bearer and may be negotiated by transfer of

specially indorsed.").

Applying the plain language of the statutes and case law cited above, the evidence
establishes that

24
25

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., ,ll g, 9,
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT_ I2

26

l589.04t I/5839482.1

I
2 J 4
5

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 its
predecessors

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,

[]
asserts that

2013) (granting motion to dismiss where "Defendant note, even

it is the true holder of the

I
9 10
11

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 nrme - "Thus, even if Fannie Mae has an interest in Plaintiffs' loan,
[Defendant] has the authority to enforce it.,').5

l2
13

2.

MERS. as the Asent of the Beneficiaru. Was Authorized to Appoint

l4
l5
t6 t7
18

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

wrs

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

l9
20

2l
22 23

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

24
25

26

I 1.1.5^' However, behalf

1|qryo*g

there is no requjrement that BANA be licensed of Fannie Mae in enforcing the Note and Deed of Trust.

alleges that BANA was and is not licensed to do business in Washington. Compl.

d w;hi"g;n

to act on

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT_ I3

I t6589.M1t/5839482.1

agent cannot represent the holder

of the note." Id. at 106. The Court declined to find that

2 J

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.

4
5

In the present

case,

by contrast, the evidence it

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
Deed

7
8

assigned the beneficial interest under the

as the

of Trust to BANA. BANA Decl.,1l1l21, 22,Exs. F, G to BANA Decl. BANA,

holder of the Note, directed MERS to appoint ReconTrust and to assign the Deed of Trust to

l0
1l

BANA' 1d' It did so in

servicers, acting

compliance with Fannie Mae's servicing guidelines which',grant[]

o\ryr names, the authority

in their

to

represent Fannie Mae's interests in

1.

t2

foreclosure proceedings as holder of the mortgage note.,, Id.,Ex. E, at

l3
I4

Therefore, it is entirely irrelevant whether MERS was a valid beneficiary. Because it

acted as the agent

of the beneficiary, it properly appointed ReconTrust as successor

trustee

l5
t6 I7
18

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

t9
20
21

the foreclosure sale. See Bain, 175 Wn.2d, at 104 ("Washington's deed
contemplates that the security instrument

of

trust

act

will follow the note.,').

a

In addition, under Washington law, an assignment of the Deed of Trust is not

prerequisite to non-judicial foreclosure.
,See

22
23 24 25 26

Corales v. Flgstar Bank, FSB, gZZ F. Supp. 2d

such

1102, 1109

(w.D. Wn.20ll) ("Washington State does not require the recording of

transfers and assignments. . . . The purpose of recording the assgnment is to put parties who subsequently purchase an interest
secured

in the property on notice of which entity owns a debt

by the property."); In re United Home Loans, Tl B.R. gg5, g9l (Bankr. w.D. Wn.
14

DEFENDANTS'MOTION FOR SUMMARY JUDGMENT_

l 16589.04 I t/5839482.

I
2 J

1987),

aff'd 876 F.zd 897 (9th Cir. 1989) ("An

assignment

of a deed of trust ... is valid . . . Recording of

the

between the parties whether or not the assignment is ever recorded.

assignments is for the benefit of the parties.") (intemal citations omitted). For this reason as

4
5

well, the MERS assignment is irrelevant to BANA's authority to foreclosure through the
trustee"

6 7
8

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

9 10

beneficiary or lender, such that ReconTrust was not authorized

foreclosure or grant a trustee's deed to Fannie

to institute

non-judicial

Mae. compl. nn4.-4.21. However, as

trustee.

ll
12
13

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

,Se

See

supra Section

V 'D.2. Thus, ReconTrust was a valid successor trustee.

RCW 6l.24.OLAe) (..The trustee

t4
15

may resign at its own election or be replaced by the beneficiary.").

4.

l6
t7
18

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

I9
20
21

information on one or more practices described in 2.3 of this complaint.', Compl. 4.26. fl n

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

22 23

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

24
25

64.21'030(7)." Id. n 4.27. These allegations are without merit and contradicted by the
evidence.

26
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT- I5

I 16589.041 l/5839482, I

Borrower's allegation that ReconTrust failed to provide Borrower information on the

2
J

'ractices 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

4
5

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

6 7
8

violation of any duty of good faith not to inform Borrower of the securitization of his loan.
Moreover, this case.

if any loan was securitized, it

was Borrower's prior loan, which is not at issue in

9
10

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.

1t

BANA Decl. !J L0, rg,26.

l2
13

In addition, the evidence

Trustee's Sale,

establishes that when ReconTrust issued the Notices

of

it had a Declaration of Beneficiary that complied with

the

DTA.

RCW

t4 l5
16 17
18

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

t9
20

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

2l
22
23

claimed inconsistency is the result of ambiguity in the language of RCW 61.24.Ae)(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 car foreclose

24
25

in its own

nLme. See Zalac, 2013

WL

1990728, at

*3 (granting motion

to

26

dismiss where "Defendant [] asserts that

it

is the true holder of the note, even

if Fannie Mae is

DEFENDANTS'MOTION FOR SUMMARY JUDGMENT_ I6

I 1589.041 r/5839482.

the owner of the note.") (emph. in original); corales, g2z F. supp. at ll0z-0g (granting

2 J

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

re
Veal,

4
5

interest in Plaintif' loan, [Defendant] has the authority to enforce it."); see also In 450

B'R. 897, 912 (9th Cir. BAP

201 1)

("[O]ne can be an owner of a note without being a

6
7
8

'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

9 10
11

the owner of a note and the person entitled to enforce

always the case.").

it

are one and the same, this is not

Indeed,

it is fairly typical for Fannie Mae to require, under its servicing

guidelines,

t2

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

l3 t4
15

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

l6
I7 l8

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. thus, was entitled to foreclose.
5.

BANA was the holder of the Note

and,

l9
20
2T

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.

22
23

24 25 26

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 car
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT_ 17

I I 6589.041 t/5839482.1

I
/a

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

4
5

transmit a notice of default to the borrower or grantor at least thirty days before the notice of
trustee sale. RCW 61.24,030(3), nnder the deed of trust" at the

(8).

There must not be a "pending action by the beneficiary

trustee musr have proof

6 7

time. RCW 61.24.030(4). Finally, the

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.

I
9 10

RCW 6r.24.030(6)-(7).
The evidence shows that all non-judicial foreclosure requirements were followed. The

ll
t2

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 to Lorber Decl', at

l3
L4 15

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,

l6
17 18

2009, and the Notice was personally served on Borower or posted in a conspicuous place on
the Property on June

9,2009. ReconTrust Decl., !f 5, Ex. B to ReconTrust Decl., $ vI. This

,See

was more than 30 days before the Notices of Trustee's Sale were recorded.

Exs. B, E to

t9
20

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,

2t
22
23

Ex' C to

ReconTrust

Deci.

Finally, ReconTrust maintained

physical presence in

Washington'6 Therefore, BANA had the right to foreclose, and, per the power of sale in the

24 25 26

As shown in the Notices of Trustee's Sale, ReconTrust maintains a physical address and Fl".plqlq_number ^t::c-T,grygtqttol system, LBOI v/est Bay Drive rilst. 06;iptt WA 98502, Phone: (360) 351-6794;' xs. B, E to Lorber decl., at 4. rtis Ir s,im"i"ni t Pjffy.Lh-"-qhysig{ Prglgnce_ requirement. See Douglas v. ReconTrust Co.,y'.1., Case No. cl1-147sRAI, .2012 wn. Nov. itzj ir,i,irl ir,i .wL s470360, at ReconTrust satisfies the requirements of t-_l RCW et.Z+.OZO6) by mani"i"g ; ug.irt fot (continued. . .)

ffb.

t,

DEFENDANTS'MOTION FOR SUMMARY JUDGMENT_ I8

I 16589.04 I l/5839482.

I
2 J

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

4
5

for violations of the Deed of Trust Act, such that Defendants are entitled to
judgment as a matter of law.

summary

6
7

E.

Borrower's Claim That Defendants Eneaeed in Dual Tracking Lacks Merit Borrower alleges that Defendants engaged in "dual tracking" when

it

allegedly

I
9

"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.-2.21,
5.2-5.4. The claim fails as a matter of law.

l0
1l
12
13

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

t4
15

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

t6

t7
18 T9

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 modifcation, do not waive the Lender's right to enforce the terms of the

2A 2L

Deed of Trust. Id. at

ll (12. Borrower Not Released; Forbearance

by Lender Not

Waiver. . . . Any forbearance by Lender in exercising any right or remedy . . . shall not be a
(. . . continued)
proc_ess with telephone number and a physical address in Washington): Mikhqy v. -of of Am., N.A., Case No. 2:1O-cv-01464 RAJ;20il WL 167064, at *3 (W.D. 'Wn. Jan 12, lqr,rk 2011)_.(recogni4ing information of registered agent for service of process to be evidence of compliance with RCW 61.24.030); Ramirez-Melgoze v. Countrywlde Home Loan Servicing,

22 23 24 25 26 service

IP, No. CV-10-0049-LRS, 2010 WL 4641948,-at *7 (E.D. Wn. Nov. 8, 2010) (affrming bankruptcy court ruling that existence in state of registered agent for service of process satisfies physical presence requirement of RCW 61.24.030(6)).
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT_ I9

I t6589.04 r l/5839482. I

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 default, which he did released

)
3

4
5

if

Borrower did not cure the

be

not.

Furthennore, the Deed

of Trust provides, "Borrower shall not

6 7

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

I
9

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,

t0
11

75:9-ll, 83: 8-11.

F.

12

l3
t4
15

In support of his fourth cause of action for a'attem 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

16

of credit, collection of an extortionate TI6.5.l-6.5.9. However, Borrower

t7
18

extension of credit, and leading organized crime. Compl.

does not allege these

anyfacts, and has no evidence, showing that Defendants committed any of Compl. Therefore, there is no genuine issue of material fact on

l9
20

crimes.

See generally

this claim, and Defendants are entitled to summary judgment as a matter of law.

2t
22 23

G.

Def"odaotr Did Not violat* th. coo.u-e" p"otrctioo

A.t

Borrower makes vague and conclusory allegations of violations of the Consumer

Protection

Act ("CPA"), again without alleging a single fact to support his claim.

Because

24
25

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.

26
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT _ 20

l 16589.04 I t/5839482. I

I
2
3

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. Hngman Ridge Training Stables, Inc.
v.

4
5

SafecoTitle Ins- Co.,l05 Wn.2d 778,785,719P.2d,531 (1986). Thefailuretoestablisheven

one of these elements is fatal to

6 7

aplaintiffs claim. Id. atT93.

Whether a defendant's conduct is an unfair or deceptive act or practice is a question

of

I
9
10
11

law. 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.

t2
13

Holiday Resort cmty. Ass'n v. Echo Lake Assocs., LLC, 134 wn. App. 210, 226 e006).

t4
15

Implicit in the definition of deceptive "is the understanding that the practice misleads or
misrepresents something of material importance,,, Id.

t6

Here, Borrower fails to allege facts, and has no evidence,

in support of a single

l7
18

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

t9
20

at length throughout this Motion for Summary Judgment, those claims

fail.

Further, to the

2t
22
23

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

24 25 26

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
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT-2I

l I 6589.04r l/5839482. I

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)

2
3

("Bain. . , held that MERS involvement

does not

4
5

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.

6 7
8

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 Compl. u 8.2. Even

of [Borrower]."

l0
l1
12
13

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

14
15

*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

l6
t7

amounts owed or that he has the ability to

pay.

Rather, Borrower had total arrears of

l8
I9
20

$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

2t
22
23 See also Myers v. Mortgage Electronc Regstrations Sys., Inc., CaseNo. 12-35218, at 6, 8 (9th Cir. Sept. 9, 2013) (afrming dismissal of CPA claim based on MERS' being listed on deed of trust); Fletcher v. Northwest Trustee Servs., Inc., Case.No. 12-2-27475-4 SEA (King County 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). DEFENDANTS' MOTION FOR SUMMARY JUDGMENT _22
7

24 25

26

l 16589.041 l/s839482.1

I
2
3

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

4
5

to summary judgment.

6 7
8

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

9 10
11

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
is

T2 13

the 2005 promissory note," and "the Deed of Trust is against public policy because
designed to facilitate mass foreclosures." Compl. TT 9.3.1, 9.4,

it

9.6.2. Borrower also makes

t4
15

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

16 17

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

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of

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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

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23

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25

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UNIFORM INSTRUMENT." Ex. A. to Lorber Oe^cl.

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

See Bain, .I75-.Wn.2d u\1\?.("[Selkowitz] offers no authority in his opening brief for the suggestion that listing an ineligibl beneficiary on a deed of truit would rndehe deed void pnd entitle the borrower to quit title."). ' The Deed of Tmst states t the bottm of each page that it is a "Fannie Mae/Freddie Mac

23

I 16589.041 l/5839482.

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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
breaches

is likewise no

evidence supporting Borrower's conclusory allegations of

,See

4
5

of the Deed of Trust.

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

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Deed of Trust, Defendants are entitled to summary judgment as a matter of

v. Sweeting, IA7 Wn.Zd 388, 394,730P.2d 45 (1986)

law,

See l|/illener

("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.").

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13

J.

Defendants Are Entitled to Summarv Judement on Borrower's Equitable Estoppel and Uniust Enrichment Claims

t4
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l.

Borrowerts Equitable Estopnel Claim Fails Because He IIas No Evidence

of Fraudulent Behavior or His Own Reliance

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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

consumers,

induce

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like [Borrower] to

purchase a home that they could not

afford." Compl.

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, This

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he alleges that Defendants misrepresented the unlikelihood of foreclosing. Id-

nrc.7.

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25

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To the extent Borrower's claim could be construed as one for rescission based on Truth in Lending Act violations, such a claim is subject to a three-year statute of limitations. See 15 U,S.C. $ 1635( ("[a]n obligor's right of rescission shall expire three years after the date of consummation of the transaction . . . ."). The Deed of Trusi was transacted more than three years before Borrower filed suit.
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT _ 24

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I r6589.041 ris839482.1

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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

4
5

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

6 7 8 9

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,

l0
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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

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15

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

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18

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

19

such statement because the Deed of Trust specifically included the power to foreclose and
stated that any acts

20

of

forbearance would not waive the right

to foreclose. See Ex. A to

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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.

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2.

Borrower's Uniust Enrichment Claim Fails

been

In his unjust enrichment claim, Borrower alleges only that "Defendants have

26

unjustly enriched in the amounts of money which will be proved at trial." Compl. t[ 10.8. As
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

25

I 16589.04 I I/5839482.

he does in the rest of his Complaint, Bonower fails to include a single

ct

to support his is no evidence

2
J

claim. Defendants are entitled to summary judgment on this claim,

that Defendants received any benefit to which they were not entitled.rr

as there

4
5

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

6 7
8

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 still owns the property or did at the time the Fannie Mae

9
10
11

the underlying assumption that he

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

t2 l3 t4
15

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.

16 17
18

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,

19

waived his claims not preserved under RCW 61.24.127(l). In addition, Bonower has no
evidence

20

of any wrongdoing by Defendants. To the contrary, the evidence establishes that

2I
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23

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

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25 26

To establish unjust enrichment, the following requirements must be met: (1) one party must have conferred a benef,rt to the other; (2) the prty ieceiving the benefit must have knowledge of the benefit; and (3) the party receiving the-benefit must ccept or retain the benefit without paying its value. Dragtv. Dragt/DeTray, LLC,l39 Wn. App. 5-60, 576,16rP.3d473 (2007).
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT 26

ll

I 16589.041 l/5839482.

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genuine issue

of material fact on any of Borrower's claims, Defendants are entitled to

law.
Therefore, Defendants respectfully request judgment

swnmary judgment as a matter of

in their favor pursuant to CR 56.

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5

DATED: October 2,2073

LANE PO'WELL pc

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7

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By John S. Devlin III, WSBANo. 23988 Abraham Lorber, WSBA No.40668 Attomeys for Defendants ReconTrust Company, N.4., Mortgage Electronic Registration Systems, Inc., Bank of America, N.4., successor by merger to BAC Home Loans Servicing, LP (also sued erroneously as "Countrywide Bank Homes Loans Servicing, LP" and as "Bank of America Corporation"), Countrywide Home Loans, Inc. (also sued erroneously as "Countrywide Financial Corporation"), and Federal National Mortgage Association

f,h 4"ft-

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DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

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l 16589.04 I t/5839482. I

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CERTIFICATE OF SERVICE

I certify that on the date indicated

Scott E. Stafne Andrew Krawczyk Stafire Law Firm 239 N. Olympic Ave. Arlington, WA 98223 scott. stafrre@stafnelawfi rm. com andrew@stafnelawfirm.com Attomeys for Plaintiff
Stephan T. Todd P.O. Box 13635

below,

I caused the foregoing document to be

served on the following person via email and legal messenger.

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5

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i1

Mill Creek, WA 98082-1635 toddlawoffice@comcast. net Attorney for Defendant Quickdraw Real Estate Services I affrm 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.

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SIGNED October 2,2013 at Seattle, WA.

r6

I7

- Debi Wollin
Legal assistant to Abraham K. Lorber

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DEFENDANTS' MOTION FOR SUMMARY JUDGMENT-28

I t6589.04 l l/s839482. I