Amresco Independence Funding, Inc. v. SPS Properties, L.L.C.

129 Wash. App. 532
CourtCourt of Appeals of Washington
DecidedSeptember 13, 2005
DocketNo. 31683-8-II
StatusPublished
Cited by12 cases

This text of 129 Wash. App. 532 (Amresco Independence Funding, Inc. v. SPS Properties, L.L.C.) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Amresco Independence Funding, Inc. v. SPS Properties, L.L.C., 129 Wash. App. 532 (Wash. Ct. App. 2005).

Opinion

fl Amresco Independence Funding, Inc., appeals a summary judgment dismissing its lawsuit against SPS Properties, L.L.C. (SPS). Amresco held a second position lien on real property. The first position lienholder sent a notice of nonjudicial foreclosure to Amresco’s attorney but not to Amresco’s address listed on the recorded deed of trust. At the foreclosure sale, SPS purchased the property. Amresco sued SPS to confirm its lien’s validity. SPS counterclaimed, seeking damages for slander of title. The trial court granted SPS’s motion for summary judgment, finding that Amresco had received adequate notice of the sale, and its lien was extinguished because it failed to act. We affirm.

Armstrong, J.

FACTS

¶2 Donald and Sharlene Angeline gave Amresco Independence Funding, Inc., a promissory note for $640,200. A deed of trust to the Angeline’s real property in Tacoma [535]*535secured this note. Jacqueline Angeline guaranteed the promissory note. As security for her guarantee, Jacqueline Angeline gave Amresco a second position deed of trust to her real property in Puyallup. Washington Mutual already held a first position lien. Amresco recorded its deed of trust in the Pierce County records. This deed of trust listed Amresco’s street address in Dallas, Texas.

¶3 About a year later, Donald and Sharlene defaulted. Attorney Robert West commenced a foreclosure action against both properties on Amresco’s behalf in Pierce County Superior Court. During the foreclosure, Amresco recorded a lis pendens against the Puyallup property. This lis pendens shows West as Amresco’s attorney with an address for West Law Offices, P.S., in Auburn. The court entered a judgment against the Angelines, and it entered a decree of foreclosure directing both properties to be sold.

f4 A few months later, Northwest Trustee Services (Trustee) on behalf of Washington Mutual began a nonjudicial foreclosure on the Puyallup property. The Trustee’s title report showed Amresco’s recent judgment and West as Amresco’s attorney in the action. The Trustee recorded its notice of trustee’s sale and mailed the notice to Amresco, in care of West’s office in Auburn.

¶5 West acknowledged in deposition testimony that he received the notice; he believed his office calendared the sale date. But West did not monitor or follow up on the sale information, in part because he expected the Angelines to file for bankruptcy. Once the bankruptcy court dismissed the case, West continued Amresco’s judicial foreclosure action without checking on the trustee sale. Amresco then obtained a court order directing a sheriff’s sale, at which Amresco was the only bidder. On the same day as the sheriff’s sale, SPS won the bidding at the trustee’s sale.

¶6 Amresco sued, asking the court to confirm that its lien and deed of trust were still valid after the trustee’s sale because it had not received notice directly from the Trustee. SPS counter-claimed for slander of title. The court granted SPS summary judgment, ruling that Amresco had sufficient [536]*536actual notice through its attorney. In SPS’s counterclaim, the parties stipulated to a judgment of $7,248.20 with costs of $335.05, provided SPS prevailed on appeal.

ANALYSIS

I. Standard of Review

f 7 We review a summary judgment de novo. Enter. Leasing, Inc. v. City of Tacoma Fin. Dep’t, 139 Wn.2d 546, 551, 988 P.2d 961 (1999) (citing Fell v. Spokane Transit Auth., 128 Wn.2d 618, 625, 911 P.2d 1319 (1996)). We treat all facts and reasonable inferences from the facts in a light most favorable to the nonmoving party. Enter. Leasing, 139 Wn.2d at 551 (citing Reid v. Pierce County, 136 Wn.2d 195, 201, 961 P.2d 333 (1998)). Where, as here, the parties do not dispute the material facts, we will affirm summary judgment if the moving party is entitled to judgment as a matter of law. Enter. Leasing, 139 Wn.2d at 551-52 (citing Barnes v. McLendon, 128 Wn.2d 563, 569, 910 P.2d 469 (1996)).

¶8 This case focuses primarily on interpreting RCW 61.24.040. Our goal in interpreting a statute is “ ‘to ascertain and give effect to the intent of the legislature’ which is done by ‘first looking] to the plain meaning of words used in a statute.’ ” Enter. Leasing, 139 Wn.2d at 552 (alteration in original) (quoting State v. Sweet, 138 Wn.2d 466, 477-78, 980 P.2d 1223 (1999)). When the statute’s words are plain and unambiguous, we apply the statute as written. Enter. Leasing, 139 Wn.2d at 552. If possible, we construe a statute so that no part is superfluous. City of Kent v. Beigh, 145 Wn.2d 33, 39, 32 P.3d 258 (2001) (quoting Groves v. Meyers, 35 Wn.2d 403, 407, 213 P.2d 483 (1950)).

II. Deed of Trust Act

¶9 The deed of trust statutes (Act) codified in chapter 61.24 RCW allow a trustee to sell a property without a judicial process. Koegel v. Prudential Mut. Sav. Bank, 51 Wn. App. 108, 111, 752 P.2d 385 (1988). Because these [537]*537statutes remove many protections borrowers have under a mortgage, lenders must strictly comply with the statutes, and courts must strictly construe the statutes in the borrower’s favor. Koegel, 51 Wn. App. at 111 (citing Queen City Sav. & Loan Ass’n v. Mannhalt, 49 Wn. App. 290, 294-95, 742 P.2d 754 (1987)).

¶10 Despite the strict compliance requirement, a plaintiff must show prejudice before a court will set aside a trustee sale. Koegel, 51 Wn. App. at 112. In Koegel, the trustee’s notice of default to the debtor inaccurately described the property. Koegel, 51 Wn. App. at 109. The trustee then sent a notice containing an accurate description less than 30 days before issuing a notice of sale, contrary to former RCW 61.24.030(6) (1988). Koegel, 51 Wn. App. at 110-11. The court found that the original notice listing the loan that was in arrears gave the debtor sufficient notice that the trustee would soon foreclose on the property securing that loan. Koegel, 51 Wn. App. at 112. In addition, the trustee had granted the debtor a series of continuances, which lessened any harm from the late notice and inaccurate legal description of the property. Koegel, 51 Wn. App. at 112. The court did not void the sale because the trustee’s error was just a technical, formal, nonprejudicial error. Koegel, 51 Wn. App. at 113.

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Bluebook (online)
129 Wash. App. 532, Counsel Stack Legal Research, https://law.counselstack.com/opinion/amresco-independence-funding-inc-v-sps-properties-llc-washctapp-2005.