Rogers v. Quality Loan Serv. Corp.

DANIEL L. ROGERS, an individual, Appellant, v. QUALITY LOAN SERVICE CORPORATION OF WASHINGTON,a Washington corporation; MCCARTHY HOLTHUS, LLP, a Professional Services Organization;JPMORGAN CHASE BANK, N.A., a national association;WELLS FARGO BANK, N.A., a national association;WAMU MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2005-PR1 TRUST,. Respondents.

No. 51375-7-II

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II

July 2, 2019

UNPUBLISHED OPINION

SUTTON, J. — After defaulting on a loan secured by a promissory note and a deed of trust on his property, Daniel L. Rogers, acting pro se, filed a complaint to stop a non-judicial foreclosure by JPMorgan Chase, N.A. (Chase), Wells Fargo Bank, N.A., and Wells Fargo Bank, N.A. as Trustee for the WaMu Mortgage Pass-Through Certificates Series 2005 (the Trust).¹ Chase and the Trust filed a motion for summary judgment and dismissal of Rogers's complaint and for judgment on the Trust's counterclaim for judicial foreclosure. The superior court granted the motion in part, dismissed the complaint, granted foreclosure on the Trust's judicial foreclosure counterclaim, and denied without prejudice the motion for entry of judgment on the total amountdue, Rogers's redemption right, and the Trust's recoverable costs. The Trust filed another summary judgment motion on the amount due and the superior court granted the motion and entered judgment against Rogers. Rogers appeals both orders.

Preliminarily, Rogers argues that he is entitled to the assistance of counsel and the superior court should not have held him to the same standard as an attorney. He also argues that the superior court erred by granting summary judgment in favor of Chase and the Trust because there are genuine issues of material fact regarding his Consumer Protection Act (CPA)² claim and the amount due on the defaulted loan. Chase and the Trust argue that the superior court did not err because Rogers failed to show a genuine issue of material fact. We hold that Rogers is not entitled to the assistance of counsel and the court did not err in holding him to the same standard as an attorney. We also hold that the superior court did not err by granting summary judgment and dismissing all claims in Rogers's complaint including the CPA claim against Chase, granting the Trust's judicial foreclosure counterclaim, and entering judgment against Rogers. We affirm both orders.

FACTS

I. BACKGROUND INFORMATION

A. INDIGENCY AND APPELLATE REVIEW

Rogers filed a motion for indigency. He explained that he had been unemployed for six months, and had to sell personal items and rely on roommates to survive. He requested the following relief: waiver of the filing fee, preparation of verbatim report of proceedings, costs ofreproducing clerk's papers, appointment of counsel, and an order to the clerk of the superior court to transmit to the Supreme Court the papers designated in the findings of indigency. The superior court found that Rogers was "unable by reason of poverty to pay for all or some of the expenses of appellate review," and that "[Rogers] is unable to contribute." Clerk's Papers (CP) at 482. On November 4, 2015, a panel of the Supreme Court issued an order denying his motion for indigency, stating only, "That the Appellant's Motion for Expenditure of Public Funds is denied." CP at 553.

B. LOAN, PROMISSORY NOTE AND DEED OF TRUST

In November 2004, Rogers borrowed $240,000 from Washington Mutual Bank (WaMu), evidenced by a promissory note (Note). Rogers promised in that Note to make payments "every month," and to do so "until I have paid all of the principal and interest and any other charges described below that I may owe under this Note." CP at 1256. Rogers also signed a Deed of Trust securing the Note against his property in Tahuya, Washington (Property). The Deed of Trust provides that the beneficiary can sell the Property if Rogers defaulted on his loan. The Note and the Deed of Trust name WaMu as both lender and beneficiary. The Note is indorsed-in-blank. In 2005, WaMu sold the Note to Wells Fargo Bank, N.A. the acting trustee for the WaMu Mortgage Pass-through Certificates Series 2005-PR1 Trust, but remained the loan servicer and custodian.

Rogers defaulted on his loan in 2007 and declared bankruptcy. After Rogers defaulted, he made payments to the bankruptcy trustee, Chase, along with other payments that Chase ultimately credited to his loan.

In September 2008, WaMu failed and the Federal Deposit Insurance Corporation (FDIC) took WaMu into receivership. Rundgren v. Wash. Mut. Bank, FA, 760 F.3d 1056, 1059 (9th Cir. 2014); Benson v. JPMorgan Chase Bank, N.A., 673 F.3d 1207, 1209-10 (9th Cir. 2012). TheFDIC assumed "all rights, titles, powers, and privileges" of WaMu. Formerly 12 U.S.C. § 1821(d)(2)(A)(i) (2008).

On September 25, 2008, Chase became the successor-in-interest as to WaMu's rights in Rogers's loan by its purchase of WaMu's assets from the FDIC. Chase and the FDIC entered into a purchase and assumption agreement to memorialize the purchase, which included WaMu's rights to service certain loans (including Rogers's loan). In 2011, Chase executed a corporate assignment of deed of trust, assigning its interest in Rogers's Deed of Trust to Wells Fargo Bank, N.A., as trustee for the Trust. While the Trust owned the Note, Chase serviced the loan and physically possessed the Deed of Trust and Note. The Trust also gave Chase a limited power of attorney to enforce Rogers's loan.

II. PROCEDURAL INFORMATION

On January 21, 2014, Rogers filed a complaint seeking to stop a non-judicial foreclosure on the Property, and alleged a number of causes of actions against Chase and the Trust which are not relevant to this appeal. Rogers alleged that Chase improperly foreclosed non-judicially because it did not acquire an interest in the Property, making the non-judicial foreclosure documents invalid. Rogers further alleged that Chase and the Trust failed to follow the Deed of Trust Act (DTA)³ requirements for non-judicial foreclosure and alleged that the property was being used for agricultural purposes. Chase and the Trust then commenced judicial foreclosure proceedings against the Property.

On July 17, 2015, Chase and the Trust answered Rogers's complaint, and the Trust filed a judicial foreclosure counterclaim. Rogers did not file an answer to the counterclaim. On June 28, 2016, Chase and the Trust filed a motion for summary judgment dismissal of all claims in Rogers's complaint and for foreclosure on the Trust's judicial foreclosure counterclaim.

The superior court granted partial summary judgment to Chase and the Trust on all claims in Rogers's complaint, dismissing them with prejudice, and granted the Trust's judicial foreclosure counterclaim. However, the superior court found that there were genuine issues of material fact as follows:

a. The total amount due and [owing] under the Deed of Trust, including proof of the amount of each monthly installment owing;

b. The rights of redemption held by [Rogers], if any;

c. The costs Defendant/Counterclaimant believes are recoverable in this action.

CP at 855-56.

In 2017, the Trust filed another motion for summary judgment and an affidavit with exhibits showing the payment history to prove what Rogers owed, what was due, and what Chase had credited on the outstanding loan. Instead of timely opposing that second motion, Rogers, on the final hearing date, filed a number of documents alleging a disability and referencing accommodations under the Americans with Disabilities Act (ADA)⁴, as well as motions to dismiss the counterclaims, for reconsideration of the superior court's evidentiary ruling to take judicial notice of certain documents, and to strike the declarations filed in support of the Trust's judicial foreclosure counterclaim. Because Rogers did not present any evidence to the contrary, thesuperior court accepted the payment history as accurate, granted summary judgment, and denied Rogers's motions. The superior court entered a judgment stating that the Trust was entitled to recover $239,644.49 with interest at 3.8720 percent per annum from Rogers and was allowed to foreclose on Rogers's property.

Rogers appeals both superior court orders.

ANALYSIS

I. LEGAL PRINCIPLES

We review a superior court's summary judgment order de novo. Reliable Credit Ass'n v. Progressive Direct Ins., 171 Wn. App. 630, 637, 287 P.3d 698 (2012). Summary judgment is appropriate if, when viewing the facts in the light most favorable to the nonmoving party, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). "A genuine issue of material fact exists only where reasonable minds could reach different conclusions." Michael v. Mosquera-Lacy, 165 Wn.2d 595, 601, 200 P.3d 695 (2009). If there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law, we affirm the superior court's summary judgment order. Lakey v. Puget Sound Energy, Inc., 176 Wn.2d 909, 922, 296 P.3d 860 (2013).

"Mere allegations or conclusory statements of fact unsupported by evidence do not sufficiently establish such a genuine issue." Discover Bank v. Bridges, 154 Wn. App. 722, 727, 226 P.3d 191 (2010). "[T]he nonmoving party 'may not rely on speculation, argumentative assertions that unresolved factual issues remain, or in having its affidavits considered at face value.'" Bridges, 154 Wn. App. at 727 (quoting Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986)).

II. APPOINTMENT OF COUNSEL

For the first time on appeal, Rogers argues that the superior court erred by not providing him with the assistance of counsel based on indigence. He argues that he was entitled to the appointment of counsel because otherwise justice could not be done by the court. We disagree.

RAP 2.5(a) states:

The appellate court may refuse to review any claim of error which was not raised in the trial court. However, a party may raise the

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