Arneson v. Nordlund
| Decision Date | 03 September 2019 |
| Docket Number | No. 78053-1-I,78053-1-I |
| Court | Court of Appeals of Washington |
| Parties | PENNY ARNESON f/k/a PENNY ARNESON SWEET, on behalf of herself personally and on behalf of The 6708 Tolt Highlands Personal Residence Trust, Appellant, v. GARY NORDLUND, Respondent, MFE, LLC; COLUMBIA NORTH WEST MORTGAGE; MARK D. FLYNN; L80 COLLECTIONS, LLC; ALDENTE, LLC; ROGER MAY and "JANE DOE" MAY; McGAVICK GRAVES, P.S. and DOE DEFENDANTS 1 through 20, Defendants. |
UNPUBLISHED OPINION
DWYER, J. — Penny Arneson, in her capacity as trustee of the 6708 Tolt Highlands Personal Residence Trust (the Trust), brought suit against Gary Nordlund to enjoin Nordlund's nonjudicial foreclosure of the Trust's real property and to allege that Nordlund committed usury and unlicensed lending—both violations of the Consumer Protection Act (CPA).1 The trial court initially enjoinedthe foreclosure but subsequently granted summary judgment to Nordlund, dismissing all claims. The Trust appealed. We reversed.
On remand, the trial court granted Nordlund's motions for summary judgment dismissal of the Trust's usury and assumpsit claims and, following a jury trial, entered judgment for Nordlund, dismissing the CPA claim predicated upon a violation of the Consumer Loan Act (CLA).2 The Trust again appeals. We reverse the trial court's grants of summary judgment as to the usury and assumpsit claims but affirm the judgment as to the dismissal of the CPA claim.
The underlying facts of the parties' dispute are set forth in our opinion in Arneson v. Nordlund (Arneson I), No. 71148-1-I (Wash. Ct. App. March 30, 2015) (unpublished), http://www.courts.wa.gov/opinions/pdf/711482.pdf, but will be briefly summarized here. Arneson's former husband Kenneth Sweet, as a co-trustee of the Trust, arranged for a loan from Aldente, LLC, to the Trust. Then, to facilitate repayment of this loan, he arranged a second loan from Gary Nordlund to the Trust in the amount of $375,000.00. Nordlund's loan was secured by a deed of trust against the Trust's real property at 6708 Tolt Highlands Road N.E. in Carnation, Washington. The Trust defaulted on this loan and Nordlund initiated a nonjudicial foreclosure on the deed of trust. Arneson, both as an individual and in her capacity as trustee of the Trust, then filed this suit to enjoin the trustee's sale and to assert CPA claims against Aldente and Nordlund. The trial court granted the Trust's request to enjoin the trustee's sale but ordered theTrust to sell the property securing Nordlund's loan and to deposit the sale proceeds in the court registry.
The trial court later dismissed all of the other claims brought by Arneson and the Trust on summary judgment. In the first appeal, we affirmed the trial court in part and reversed in part. Arneson I, No. 71148-2-I, slip op. at 2. Dismissal of Arneson's individual claims was affirmed on the basis that the Trust, not Arneson in her individual capacity, was the borrower on the Nordlund loan. Thus, Arneson lacked standing to assert claims as an individual. Arneson I, No. 71148-2-I, slip op. at 20. However, the trial court's summary judgment dismissal of the Trust's claims against Nordlund and Aldente for violation of the CPA—specifically, claims predicated upon violations of the CLA and the usury statutes3—was reversed, as we held that the Trust had presented sufficient evidence to raise competing inferences from the facts. Arneson I, No. 71148-2-I, slip op. at 13, 18. Viewing the facts and all reasonable inferences therefrom in the light most favorable to the Trust, we stated that a fact finder could infer that Aldente and Nordlund were in the business of making qualifying loans, subjecting them to the CLA licensing requirement, because they had made at least two secured cash loans in the span of a year. Arneson I, No. 71148-2-I, slip op. at 13. Thus, the Trust's claims were remanded for further proceedings.
The trial court's original judgment had awarded Nordlund $604,371.72: $375,000 in unpaid loan principal, $193,263.43 in prejudgment interest at the default rate specified in the promissory note, $29,955.50 in attorney fees, and$6,152.79 in costs. Because, during the pendency of the action, the Trust had sold the property and deposited the proceeds from that sale into the court registry, the trial court entered an order directing the court clerk to disburse funds from the registry so as to satisfy Nordlund's judgment against the Trust. Thus, Nordlund's judgment against the Trust was paid in full.4 The remaining proceeds from the Trust's sale of the property were then distributed from the registry to the Trust through its counsel.
After we remanded the case, the superior court directed both parties to return to the registry the money that had been distributed to them. Nordlund did so; the Trust did not. The trial court denied Nordlund's motion for an order of contempt after finding that the Trust was unable to comply with the restitution order. Thus, only funds in the amount of Nordlund's original judgment were extant in the registry.
On remand, Nordlund again moved for summary judgment dismissal of the Trust's usury claim. He now argued that the Trust did not have standing to assert a cause of action for usury because a usury statute, RCW 19.52.032, states that "[t]he debtor, if a natural person," may commence an action, and the Trust was not a natural person. The trial court accepted this argument and granted summary judgment dismissal of the statutory usury claim.
Thereafter, the trial court granted the Trust leave to amend its complaint to add a common law assumpsit claim. Nordlund's motion for summary judgmentdismissal of this claim was also subsequently granted. Before trial, the Trust voluntarily dismissed its claims against Aldente.
The subsequent jury trial concerned the question of whether Nordlund had committed a violation of the CLA and, thus, a per se violation of the CPA, in failing to obtain a lending license. Both parties submitted proposed jury instructions. Among the factual questions submitted to the jury was whether Nordlund was in the business of making qualifying loans under the CLA. The Trust's proposed instruction on this question sought to invoke our statement in Arneson I that, viewing the evidence in the light most favorable to the Trust, making two secured cash loans in a year supported the inference that one was in the business of making qualifying loans. This proposed instruction was not given.
The jury was instructed, instead, that:
Jury Instruction 11.
On its special verdict form, the jury answered the question of whether Nordlund was "engaged in the business of making qualified secured or unsecured loans of money in January 2010[]" in the negative. This finding vitiated the viability of the Trust's CLA claim and, with it, its remaining CPA claim. The trial court entered judgment on this verdict in Nordlund's favor and awarded him attorney fees and costs, plus additional interest accruing from the date of remand to the date of entry of final judgment. Following the trial court's entry of judgment, the funds in the court registry were again disbursed to Nordlund. However, part of Nordlund's judgment remains unsatisfied.
The Trust appeals.
The first question is whether a claim or defense of usury can only be advanced by a natural person. The trial court ruled that the answer is yes. We rule that the answer is no.
We review summary judgment rulings de novo, engaging in the same inquiry as the trial court. Ruvalcaba v. Kwang Ho Baek, 175 Wn.2d 1, 6, 282 P.3d 1083 (2012). Summary judgment is warranted only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Wilkinson v. Chiwawa Cmtys. Ass'n, 180 Wn.2d241, 249, 327 P.3d 614 (2014). The facts and all reasonable inferences therefrom are viewed in the light most favorable to the nonmoving party. Ruvalcaba, 175 Wn.2d at 6.
Construction of a statute is a question of law. State v. Wentz, 149 Wn.2d 342, 346, 68 P.3d 282 (2003). When the language of a statute is clear, legislative intent is derived from the language of the statute alone. Wentz, 149 Wn.2d at 346. The "plain meaning" of a statutory provision is to be discerned from the ordinary meaning of the language at issue, the context of the statute in which that provision is found, related provisions, and the statutory scheme as a whole. State v. Jacobs, 154 Wn.2d 596, 600, 115 P.3d 281 (2005).
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