Beverick v. Landmark Bldg. & Dev. Inc.

MICHAEL J. BEVERICK and CINDY M. BEVERICK, husband and wife, Appellants, v. LANDMARK BUILDING & DEVELOPMENT INC.,and LAND TITLE & ESCROW COMPANY, and WMC MORTGAGE CORP.,and AURORA BANK FSB, and U.S. BANK NATIONAL ASSOCIATIONAS TRUSTEE for STRUCTURED ASSET CORPORATION MORTGAGE PASS CERTIFICATES,SERIES 2007-GEL1 60 Acct. No. 0122944200, and BISHOP AND LYNCH OF KING COUNTY,and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.,and NATIONSTAR MORTGAGE LLC, Respondents.

No. 74210-8-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

July 3, 2017

UNPUBLISHED OPINION

TRICKEY, A.C.J. — Cindy and Michael Beverick appeal the trial court's grant of summary judgment in favor of Nationstar Mortgage LLC and other parties (collectively, Nationstar)¹ and the trial court's grant of summary judgment in favor of WMC Mortgage Corp. They argue that summary judgment was inappropriate because genuine issues ofmaterial fact remained and that the trial court relied on improper testimony and erred in dismissing certain defendants.

No genuine issues of material fact existed because the Bevericks admitted to the authenticity of the purported original promissory note offered at summary judgment, did not offer sufficient evidence to challenge Nationstar Mortgage's status as holder of the promissory note, and did not offer sufficient evidence in support of their Consumer Protection Act, chapter 19.86 RCW, claims. The testimony challenged by the Bevericks contained facts that would have been admissible at trial as business records and the declarants offered sufficient foundation supporting their personal knowledge. The Bevericks waived their claims against Mortgage Electronic Registration Systems, Inc., Bishop & Lynch of King County, and U.S. Bank National Association. We affirm.

FACTS

In May 2006, the Bevericks executed an adjustable rate note in the amount of $409,600 in favor of WMC Mortgage Corp. (WMC). The note was secured by a deed of trust, which identified WMC as "Lender," Bishop & Lynch of King County (Bishop & Lynch) as "Trustee," and Mortgage Electronic Registration Systems, Inc. (MERS) as "[B]eneficiary" as the nominee for WMC.² The deed of trust encumbered real property owned by the Bevericks. The deed of trust was recorded in May 2006.

The Bevericks did not communicate or interact with WMC during the loan application process or during the life of the loan. The Bevericks made payments on the loan to Aurora Bank, FSB (Aurora), the servicer of the loan, from closing until September 2011.

In September and October 2011, Aurora acted as the servicer of the loan and U.S. Bank National Association (U.S. Bank) as trustee for Structured Asset Securities Corporation Mortgage Pass-Through Certificates, Series 2007-GEL1, Account No. 0122944200 (SASCO 2007-GEL1) owned the obligation.

In December 2011, WMC transferred physical possession of the note, which was indorsed in blank, to Aurora.

In January 2012, MERS assigned its interest in the deed of trust to Aurora, which was recorded in March 2012.

In March 2012, a law firm sent the Bevericks a notice of default on behalf of the beneficiary of the loan obligation. The notice stated that the beneficiary of the obligation had declared a default based on the Bevericks' failure to pay monthly payments from October 2011 to March 2012. The notice named SASCO 2007-GEL1 as the owner of the note, and Aurora as the servicer of the obligation. A notice of trustee's sale was not issued.

In May 2012, Aurora sent a letter to the Bevericks notifying them that Aurora was the servicer of the loan and providing its address. The letter also stated that U.S. Bank was the owner of the loan, and provided U.S. Bank's address. Aurora attached a certified copy of the original note to the letter.

In June 2012, Aurora notified the Bevericks that Nationstar Mortgage was the new servicer of their loan. In July 2012, Aurora transferred the note to Nationstar Mortgage.

In August 2012, the Bevericks filed a complaint against WMC, U.S. Bank, Aurora, Nationstar Mortgage, MERS, and Bishop & Lynch, among others, seeking to quiet title, requesting cancellation of the debt, and alleging a violation of the CPA. All the defendantsmoved for summary judgment, and which the court denied on September 30, 2013.

On the day of the summary judgment hearing, Michael Beverick and the Bevericks' attorney met with Adam Hughes, the attorney for the defendants, to inspect a document Huges claimed was the original note. Beverick later declared that he noticed there were several differences in appearance between the document produced and the original, and believed that the offered document was a copy printed from a color copier.

In October 2013, the defendants moved for partial reconsideration of the trial court's September 30 order. In their response, the Bevericks acknowledged that they did not have a cause of action against U.S. Bank, MERS, or Bishop & Lynch.

The trial court granted the motion in November 2013. The trial court dismissed all claims asserted against Bishop & Lynch, U.S. Bank, and MERS. The trial court held that issues of material facts remained over the authenticity of the indorsement of the note, the identity of the proper holder of the note, whether the deed of trust was authentic, and who had the authority to enforce the note.

On December 3, 2013, Nationstar Mortgage sent the Bevericks requests for admission (RFAs) asking that they admit that their original signatures were on the note produced at the September 30, 2013 summary judgment hearing and on the note shown to them by Hughes, and to admit that the blank indorsement executed by WMC on the note was authentic. The Bevericks' response was due 30 days after being served with the RFAs. The Bevericks did not respond to the RFAs until January 5, 2015, when they filed a motion to extend time to answer requests for admissions. The trial court did not grant the extension.

In May 2014, Aurora assigned its interest in the deed of trust to U.S. Bank. The assignment was recorded on May 27, 2014.

In August 2014, Nationstar Mortgage filed an amended answer, affirmative defenses, counter claim, and third party complaint for judicial foreclosure. Nationstar Mortgage claimed that it was the current holder of the note.

In March 2015, Nationstar Mortgage moved for summary judgment and a decree of foreclosure. Nationstar Mortgage offered the affidavit of A.J. Loll, Vice President of Nationstar Mortgage, and the declarations of Adam Hughes, attorney for Nationstar, and Laura McCann, Vice President of Aurora Commercial Corp., the successor entity to Aurora, in support of its motion for summary judgment and decree of foreclosure.

In May 2015, the trial court granted Nationstar Mortgage's motion for summary judgment and issued a decree of foreclosure. The trial court determined that the deed of trust was a valid, subsisting, first, prior, and paramount lien on the Bevericks' real property in favor of Nationstar Mortgage. The trial court foreclosed the real property, ordered a sheriff's sale, and awarded judgment in the principal sum of $401,323.83, prejudgment interest of $123,072.73, fees totaling $6,626.07, litigation costs of $1,997.88, and attorney fees of $2,500.

Following the trial court's grant of summary judgment to Nationstar Mortgage, the Bevericks' only remaining claim was against WMC for violation of the CPA. WMC moved for summary judgment in June 2015. The trial court granted the motion in August 2015. The trial court entered final judgment and dismissed the Bevericks' claim against WMC on October 16, 2015.

The Bevericks appeal.

ANALYSIS

Timeliness of Appeal

Nationstar argues that this court may not review the trial court's order granting of Nationstar Mortgage's motion for summary judgment and decree of foreclosure because the Bevericks' notice of appeal was untimely. Because the order granting summary judgment and decree of foreclosure was not a final judgment, we find that the appeal was timely.

Unless otherwise prohibited by statute or court rule, "a party may appeal from only . . . [a] final judgment entered in any action or proceeding . . . [and] [a]ny written decision affecting a substantial right in a civil case that in effect determines the action and prevents a final judgment or discontinues the action." RAP 2.2(a)(1), (3).

Ordinarily, a notice of appeal must be filed in the trial court within 30 days of the entry of a final judgment that the party wants reviewed. RAP 5.2(a).

When an action presents more than one claim for relief or involves multiple parties, the court may enter final judgment as to fewer than all claims or fewer than all parties only "upon an express determination in the judgment, supported by written findings, that there is no just reason for delay and upon an express direction for the entry of judgment." CR 54(b). Thus, a final judgment under CR 54(b) requires:

(1) more than one claim for relief or more than one party against whom relief is sought; (2) an express determination that there is no just reason for delay; (3) written findings supporting the determination that there is no just reason for delay; and (4) an express direction for entry of the judgment.

Nelbro Packing Co. v. Baypack Fisheries, LLC, 101 Wn. App. 517, 523, 6 P.3d 22 (2000). The factors relevant to determining whether there is no just reason for delay include:

"(1) [T]he relationship between the adjudicated and the unadjudicated claims, (2) whether questions which would be reviewed on appeal are still before the trial court for determination in the unadjudicated portion of the case, (3) whether it is likely that the need for review may be mooted by future developments in the trial court, (4) whether an immediate appeal will delay the trial of the unadjudicated matters without gaining any offsetting advantage in terms of the simplification and facilitation of that trial, and (5) the practical effects of allowing an immediate appeal."

Nelbro Packing Co., 101 Wn. App. at 525 (alteration...