Bavand v. OneWest Bank, FSB

• Decision Date: 28 November 2016
• Docket Number: No. 74347-3-I,74347-3-I
• Citation: 385 P.3d 233,196 Wash.App. 813
• Parties: Marisa BAVAND, Appellant, v. ONEWEST BANK, FSB, a federally chartered savings bank; Mortgage Electronic Registration Systems, Inc., a Delaware corporation; and Northwest Trustee Services, Inc., a Washington corporation, Respondents, and Doe Defendants 1-10, Defendants.
• Court: Washington Court of Appeals

196 Wash.App. 813

385 P.3d 233

Marisa BAVAND, Appellant,

v. ONEWEST BANK, FSB, a federally chartered savings bank; Mortgage Electronic Registration Systems, Inc., a Delaware corporation; and Northwest Trustee Services, Inc., a Washington corporation, Respondents,andDoe Defendants 1-10, Defendants.

No. 74347-3-I

Court of Appeals of Washington, Division 1.

Filed: November 28, 2016

As Modified December 15, 2016

Richard Llewelyn Jones, Kovac & Jones, PLLC, 1750 112th Ave. N.E., Ste. D151, Bellevue, WA, 98004-3768, for Appellant.

Ryan M. Carson, Wright Finlay & Zak LLP, 3600 15th Ave. W., Ste. 200, Seattle, WA, 98119-1330, Robert W. Norman, Jr., Houser & Allison APC, 1601 5th Ave., Ste. 850, Seattle, WA, 98101-1642, Joshua Saul Schaer, RCO Legal, P.S., 13555 S.E. 36th St., Ste. 300, Bellevue, WA, 98006-1489, for Respondents.

Cox, J.¶1 Marisa Bavand appeals the order granting summary judgment in favor of OneWest Bank, Mortgage Electronic Registration Systems, Inc. (MERS), and Northwest Trustee Services, Inc. (NWTS). The order denied Bavand's CR 56(f) motion for a continuance and dismissed with prejudice all claims against these defendants.

¶2 Bavand fails to show that the trial court abused its discretion in denying her CR 56(f) motion for a continuance. Her challenges to the trial court's consideration of certain evidence supporting the motions for summary judgment and striking Bavand's declaration in opposition are unpersuasive. She fails in her burden to show that any genuine issue of material fact exists for trial. These defendants are entitled to judgment as a matter of law. We affirm.

¶3 In August 2007, Bavand obtained a loan from IndyMac Bank. The loan was evidenced by a promissory note dated August 6, 2007 in the principal amount of $240,000. She is the only obligor on the note.

¶4 In order to secure payment of the note, Bavand, a married woman as her separate estate, executed a deed of trust that encumbers real property located in Snohomish County. Chicago Title Insurance Company is named as the trustee in this deed of trust. The deed of trust was recorded in the Auditor's Records of Snohomish County on August 16, 2007.

¶5 In July 2008, the federal Office of Thrift Supervision closed IndyMac Bank and created IndyMac Federal Bank. The Federal Deposit Insurance Corporation (FDIC) operated IndyMac Federal Bank. The FDIC then sold IndyMac Federal Bank's assets to OneWest.

¶6 OneWest took possession of Bavand's original note, which was endorsed in blank by IndyMac Federal Bank, and the original deed of trust in March 2009. OneWest has maintained possession of these loan documents at all times since then.

¶7 Bavand failed to make the monthly September 2010 payment on her note. She has not made any of the monthly payments on the note since that time. In May 2011, OneWest, through its agent NWTS, sent Bavand a notice of default.

¶8 Thereafter, MERS executed and recorded an Assignment of Deed of Trust dated June 7, 2011. It purports to assign to OneWest "all beneficial interest" under Bavand's deed of trust.

¶9 In July 2011, OneWest appointed NWTS as successor trustee to Chicago Title Insurance Company, the original trustee under Bavand's deed of trust. Thereafter, NWTS recorded a notice of trustee's sale, setting the sale date for December 2011. NWTS postponed the sale several times and eventually discontinued the sale in May 2013. No trustee's sale has occurred.

¶10 Bavand commenced this suit in December 2011. She claimed wrongful foreclosure under the Deeds of Trust Act. She also claimed violations of the Consumer Protection Act (CPA) and the federal Fair Debt Collection Practices Act. She sought to quiet title to the property subject to the deed of trust as well as declaratory and injunctive relief, damages, and attorney fees.

¶11 MERS and OneWest removed this action to the United States District Court for the Western District of Washington. The federal trial court granted summary judgment to OneWest, MERS, and NWTS on most of Bavand's claims in March 2013. The federal court remanded only Bavand's CPA claim to state court. The Ninth Circuit Court of Appeals affirmed the federal trial court's decision.¹

¶12 Thereafter, OneWest, MERS, and NWTS moved for summary judgment in state court. The trial court granted the motions in November 2015, dismissing with prejudice all of Bavand's claims and denying her CR 56(f) motion for a continuance.

¶13 Bavand appeals.

DEEDS OF TRUST ACT

Continuance

¶14 Bavand argues that the trial court abused its discretion in denying her CR 56(f) motion for continuance of the hearing on the summary judgment motions of OneWest, MERS, and NWTS. We disagree.

¶15 Under CR 56(f), a court may order a continuance to allow a party opposing summary judgment to conduct discovery. We review for abuse of discretion a trial court's denial of a CR 56(f) motion for a continuance.²

¶16 Washington courts may deny a continuance motion "when ‘(1) the requesting party does not offer a good reason for the delay in obtaining the desired evidence; (2) the requesting party does not state what evidence would be established through the additional discovery; or (3) the desired evidence will not raise a genuine issue of material fact.’ "³

¶17 Here, Bavand sought a continuance of the August 2015 hearing of the summary judgment motions. She claimed to need additional time to conduct specified discovery. The discovery she sought may be summarized as follows:

The identity of and documents related to "each and every owner " of her note and deed of trust;

The identity of and documents related to "each and every holder " of her note and deed of trust; and

The originals of her note and deed of trust.^[4]

¶18 Whether Bavand offered a " ‘good reason for the delay in obtaining the desired evidence’ " is the first question.⁵ We conclude she did not.

¶19 The request for a continuance came almost four years after she commenced this action and over two years after the federal court granted summary judgment to the same moving parties in this action. That hearing in federal court resulted in dismissal of all of Bavand's claims except for the CPA claim remanded to state court. Bavand fails to explain satisfactorily why, on this record, she needed a continuance to conduct additional discovery.

¶20 Bavand stated in her motion that she had previously requested the discovery identified in her motion, but claimed it was not provided. But no evidence suggests that she moved to compel discovery to obtain what she believed she was entitled to obtain. On this first basis alone, the trial court properly denied Bavand's motion for a continuance because she offered no " ‘good reason for the delay in obtaining the desired evidence.’ "⁶

¶21 The trial court also properly denied Bavand's motion for a second reason. That is because Bavand failed to establish that a continuance would produce any discovery that would show the existence of a genuine issue of material fact.

¶22 First, a note owner's identity is immaterial to this litigation, which was commenced to challenge a nonjudicial foreclosure of Bavand's deed of trust due to her delinquent note.⁷

¶23 Second, the identity of the note "holder" is material to enforcement of the delinquent note and deed of trust.⁸ The record establishes that OneWest has been the "holder" of Bavand's original note since March 2009. There is no evidence in this record to refute this status. All that Bavand offers is speculative and argumentative assertions that unresolved factual issues remain regarding the note holder's identity. Such unsupported assertions are not sufficient to avoid summary judgment.⁹ Thus, further discovery on this point would not have shown any genuine issue of material fact.

¶24 Third, Bavand's discovery request to see her original note is not well founded. That is because the legislature has specified that a holder of a promissory note need not produce the original note to prove the right to enforce a deed of trust under these circumstances. Specifically, RCW 61.24.030(7)(a) provides:

A declaration by the beneficiary made under the penalty of perjury stating that the beneficiary is the actual holder of the promissory note or other obligation secured by the deed of trust shall be sufficient proof [of the status to enforce the note] as required under this subsection.^{[10 ]}

¶25 This record shows that OneWest has complied with this requirement to provide a satisfactory declaration. Bavand fails to argue persuasively why she is entitled to avoid the legislature's statement of what proof is sufficient to establish the right to enforce the note under the circumstances of this case. Her "show me the note" argument is simply untenable.¹¹

¶26 For these additional reasons, the trial court properly denied Bavand's request for a continuance of the summary judgment hearing.

Summary Judgment

¶27 Bavand argues, in part, that the trial court improperly considered certain evidence in support of the motions for summary judgment. We disagree.

¶28 Summary judgment is proper "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."¹² "A genuine issue of material fact exists if ‘reasonable minds could differ on the facts controlling the outcome of the litigation.’ "¹³

¶29 Summary judgment is subject to a burden-shifting scheme.¹⁴ The moving party is entitled to summary judgment by submitting affidavits establishing that it is entitled to judgment as a matter of law.¹⁵ The nonmoving party avoids summary judgment by setting forth " ‘specific facts which sufficiently rebut the moving party's contentions and disclose the existence of a genuine issue’ " of material fact.¹⁶ To accomplish this, the nonmoving party may not rely on argumentative assertions that unresolved factual issues remain or on speculation.¹⁷

¶30 We review de novo a trial court's grant of summary judgment.¹⁸ We may affirm on any basis supported by the record whether or not the argument was made below.¹⁹

Summary...