IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE BANK OF NEW YORK MELLON F/K/A THE BANK OF NEW YORK AS No. 80455-3-I TRUSTEE FOR BELLA VISTA MORTGAGE TRUST 2004-2, DIVISION ONE
Respondent, v. UNPUBLISHED OPINION
KEVIN L. ROBERTS,
Appellant,
BRENDA S. ROBERTS; THE BANK OF WASHINGTON;NATIONAL CITY BANK; UNKNOWN OCCUPANTS OF THE SUBJECT REAL PROPERTY; ALL OTHER UNKNOWN PERSONS OR PARTIES CLAIMING ANY RIGHT, TITLE, ESTATE, LIEN, OR INTEREST IN THE REAL ESTATE DESCRIBED IN THE COMPLAINT HEREN,
Defendants.
CHUN, J. — Kevin Roberts took out a loan secured by a deed of trust on
property in North Bend. The deed of trust was assigned to Bank of New York
Mellon (BONY). Roberts failed to make payments. BONY filed a judicial
foreclosure complaint and moved for summary judgment and entry of general
judgment and decree of foreclosure. The trial court granted both motions.
Roberts then moved to vacate the judgment under CR 60(b)(11), arguing that his
Citations and pin cites are based on the Westlaw online version of the cited material. No. 80455-3-I/2
original counsel suffered from mental health issues that prevented her from
effectively representing him. The trial court denied Roberts’s motion. Roberts
appeals. We affirm.
I. BACKGROUND
Kevin and Brenda Roberts executed a promissory note in the principal
amount of $712,000. The loan was secured by a deed of trust on property in
North Bend. The deed of trust was assigned to BONY.
Starting in 2008, the Robertses failed to make payments on the note. In
2016, BONY filed a judicial foreclosure complaint against Kevin Roberts1 and
moved for summary judgment, alleging that he had defaulted on the loan.
Roberts did not respond to the merits of BONY’s motion for summary judgment.
Instead, he moved to strike it and, in the alternative, to continue the summary
judgment hearing under CR 56(f). The trial court denied Roberts’s motions and
granted BONY’s motion for summary judgment. BONY’s counsel appeared in
person at the summary judgment hearing and Roberts’s counsel, Jill Smith,
appeared by phone. BONY then moved for entry of general judgment and
decree of foreclosure, which motions the trial court granted.
1 Brenda Roberts is not a party to this appeal. Kevin Roberts claims in his briefing that he was the sole obligor on the loan by the time BONY filed for foreclosure. BONY does not claim otherwise. This opinion refers to Kevin Roberts as “Roberts” from this point on.
2 No. 80455-3-I/3
Roberts, represented by new counsel, moved to vacate the judgment
under CR 60(b)(11).2 Roberts attached a copy of a stipulation to a three-year
suspension entered by his original counsel, Smith, and the Office of the
Disciplinary Counsel of the Washington State Bar Association (WSBA). The
stipulation’s mitigating factors section states: “[Smith] suffered health problems,
which are identified in the Confidential Attachment to Stipulation to Suspension.”
The stipulation does not relate to Smith’s representation of Roberts.
Roberts argued that the stipulation shows that his trial counsel suffered
from emotional and health issues and was thus unable to adequately represent
him. The trial court denied Roberts’s motion to vacate because it could not find
that Smith had a mental health issue. Roberts appeals.
II. ANALYSIS
Roberts argues that the trial court erred by denying his motion to vacate
judgment under CR 60(b)(11) since Smith suffered mental health issues. He
further argues that her infirmity prevented her from arguing that the limitations
period on BONY’s claim had expired. BONY counters that Roberts’s arguments
concerning Smith’s mental health rest on speculation, so the trial court did not
err. We agree with BONY.
We review for abuse of discretion a trial court’s ruling on a CR 60(b)
motion. Stanley v. Cole, 157 Wn. App. 873, 879, 239 P.3d 611 (2010). “A trial
2 Before this, Roberts’s original counsel, Smith, had moved to vacate judgment and order under CR 60(b)(1) and (11) on the ground that she was not included on emails between the trial court bailiff and plaintiff’s counsel about scheduling the summary judgment hearing. The trial court denied this motion.
3 No. 80455-3-I/4
court abuses its discretion when its decision is manifestly unreasonable or based
upon untenable grounds.” Id. (quoting Boguch v. Landover Corp., 153 Wn. App.
595, 619, 224 P.3d 795 (2009)). “‘Discretion is abused only where no
reasonable person would have taken the view adopted by the trial court.’”
Stanley, 157 Wn. App. at 879 (internal brackets omitted) (quoting Carle v.
McChord Credit Union, 65 Wn. App. 93, 111, 827 P.2d 1070 (1992)).
“CR 60(b)(11) is a catch-all provision, intended to serve the ends of justice
in extreme, unexpected situations.” State v. Ward, 125 Wn. App. 374, 379, 104
P.3d 751 (2005). “To vacate a judgment under CR 60(b)(11), the case must
involve ‘extraordinary circumstances,’ which constitute irregularities extraneous
to the proceeding.” Id. at 379 (quoting Knies v. Knies, 96 Wn. App. 243, 248,
979 P.2d 482 (1999), as amended (July 23, 1999)).
In Barr v. MacGugan, Barr’s attorney failed to respond to the defendant's
discovery requests and also failed to comply with an order compelling discovery
responses. 119 Wn. App. 43, 45, 78 P.3d 660 (2003). Due to the attorney’s
noncompliance, the trial court granted the defendant’s motion to dismiss Barr's
lawsuit with prejudice. Id. Barr later learned from a third party that her case had
been dismissed and that her attorney had been suffering from severe clinical
depression, which caused him to neglect his practice. Id. Although Barr had
received a copy of the discovery requests from her attorney, she heard nothing
more from him after she returned her draft responses to him. Id. She left
multiple phone messages at his office to check on the status of her case, but she
never received any response. Id. Barr had no knowledge of the defendant's
4 No. 80455-3-I/5
motions to compel or dismiss. Id. Upon learning of the dismissal, Barr hired new
counsel, who successfully moved to vacate the order of dismissal under
CR 60(b)(11). Id. We held the trial court did not abuse its discretion by vacating
the judgment because (1) the parties did not dispute that the attorney’s mental
illness caused him to neglect his practice, including Barr’s case, (2) the trial court
did not address the merits of the case, and (3) Barr acted diligently to learn about
the status of her case. Id. at 47–48.
By contrast, in Stanley, Stanley’s attorney was taking care of her ill
parents for several months, which prevented her from filing a prehearing
statement, appearing at an arbitration hearing (after which the trial court awarded
Stanley $7,000), and timely requesting a trial de novo. 157 Wn. App. at 876.
Stanley moved to vacate the arbitration award under CR 60(b)(9), which allows
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE BANK OF NEW YORK MELLON F/K/A THE BANK OF NEW YORK AS No. 80455-3-I TRUSTEE FOR BELLA VISTA MORTGAGE TRUST 2004-2, DIVISION ONE
Respondent, v. UNPUBLISHED OPINION
KEVIN L. ROBERTS,
Appellant,
BRENDA S. ROBERTS; THE BANK OF WASHINGTON;NATIONAL CITY BANK; UNKNOWN OCCUPANTS OF THE SUBJECT REAL PROPERTY; ALL OTHER UNKNOWN PERSONS OR PARTIES CLAIMING ANY RIGHT, TITLE, ESTATE, LIEN, OR INTEREST IN THE REAL ESTATE DESCRIBED IN THE COMPLAINT HEREN,
Defendants.
CHUN, J. — Kevin Roberts took out a loan secured by a deed of trust on
property in North Bend. The deed of trust was assigned to Bank of New York
Mellon (BONY). Roberts failed to make payments. BONY filed a judicial
foreclosure complaint and moved for summary judgment and entry of general
judgment and decree of foreclosure. The trial court granted both motions.
Roberts then moved to vacate the judgment under CR 60(b)(11), arguing that his
Citations and pin cites are based on the Westlaw online version of the cited material. No. 80455-3-I/2
original counsel suffered from mental health issues that prevented her from
effectively representing him. The trial court denied Roberts’s motion. Roberts
appeals. We affirm.
I. BACKGROUND
Kevin and Brenda Roberts executed a promissory note in the principal
amount of $712,000. The loan was secured by a deed of trust on property in
North Bend. The deed of trust was assigned to BONY.
Starting in 2008, the Robertses failed to make payments on the note. In
2016, BONY filed a judicial foreclosure complaint against Kevin Roberts1 and
moved for summary judgment, alleging that he had defaulted on the loan.
Roberts did not respond to the merits of BONY’s motion for summary judgment.
Instead, he moved to strike it and, in the alternative, to continue the summary
judgment hearing under CR 56(f). The trial court denied Roberts’s motions and
granted BONY’s motion for summary judgment. BONY’s counsel appeared in
person at the summary judgment hearing and Roberts’s counsel, Jill Smith,
appeared by phone. BONY then moved for entry of general judgment and
decree of foreclosure, which motions the trial court granted.
1 Brenda Roberts is not a party to this appeal. Kevin Roberts claims in his briefing that he was the sole obligor on the loan by the time BONY filed for foreclosure. BONY does not claim otherwise. This opinion refers to Kevin Roberts as “Roberts” from this point on.
2 No. 80455-3-I/3
Roberts, represented by new counsel, moved to vacate the judgment
under CR 60(b)(11).2 Roberts attached a copy of a stipulation to a three-year
suspension entered by his original counsel, Smith, and the Office of the
Disciplinary Counsel of the Washington State Bar Association (WSBA). The
stipulation’s mitigating factors section states: “[Smith] suffered health problems,
which are identified in the Confidential Attachment to Stipulation to Suspension.”
The stipulation does not relate to Smith’s representation of Roberts.
Roberts argued that the stipulation shows that his trial counsel suffered
from emotional and health issues and was thus unable to adequately represent
him. The trial court denied Roberts’s motion to vacate because it could not find
that Smith had a mental health issue. Roberts appeals.
II. ANALYSIS
Roberts argues that the trial court erred by denying his motion to vacate
judgment under CR 60(b)(11) since Smith suffered mental health issues. He
further argues that her infirmity prevented her from arguing that the limitations
period on BONY’s claim had expired. BONY counters that Roberts’s arguments
concerning Smith’s mental health rest on speculation, so the trial court did not
err. We agree with BONY.
We review for abuse of discretion a trial court’s ruling on a CR 60(b)
motion. Stanley v. Cole, 157 Wn. App. 873, 879, 239 P.3d 611 (2010). “A trial
2 Before this, Roberts’s original counsel, Smith, had moved to vacate judgment and order under CR 60(b)(1) and (11) on the ground that she was not included on emails between the trial court bailiff and plaintiff’s counsel about scheduling the summary judgment hearing. The trial court denied this motion.
3 No. 80455-3-I/4
court abuses its discretion when its decision is manifestly unreasonable or based
upon untenable grounds.” Id. (quoting Boguch v. Landover Corp., 153 Wn. App.
595, 619, 224 P.3d 795 (2009)). “‘Discretion is abused only where no
reasonable person would have taken the view adopted by the trial court.’”
Stanley, 157 Wn. App. at 879 (internal brackets omitted) (quoting Carle v.
McChord Credit Union, 65 Wn. App. 93, 111, 827 P.2d 1070 (1992)).
“CR 60(b)(11) is a catch-all provision, intended to serve the ends of justice
in extreme, unexpected situations.” State v. Ward, 125 Wn. App. 374, 379, 104
P.3d 751 (2005). “To vacate a judgment under CR 60(b)(11), the case must
involve ‘extraordinary circumstances,’ which constitute irregularities extraneous
to the proceeding.” Id. at 379 (quoting Knies v. Knies, 96 Wn. App. 243, 248,
979 P.2d 482 (1999), as amended (July 23, 1999)).
In Barr v. MacGugan, Barr’s attorney failed to respond to the defendant's
discovery requests and also failed to comply with an order compelling discovery
responses. 119 Wn. App. 43, 45, 78 P.3d 660 (2003). Due to the attorney’s
noncompliance, the trial court granted the defendant’s motion to dismiss Barr's
lawsuit with prejudice. Id. Barr later learned from a third party that her case had
been dismissed and that her attorney had been suffering from severe clinical
depression, which caused him to neglect his practice. Id. Although Barr had
received a copy of the discovery requests from her attorney, she heard nothing
more from him after she returned her draft responses to him. Id. She left
multiple phone messages at his office to check on the status of her case, but she
never received any response. Id. Barr had no knowledge of the defendant's
4 No. 80455-3-I/5
motions to compel or dismiss. Id. Upon learning of the dismissal, Barr hired new
counsel, who successfully moved to vacate the order of dismissal under
CR 60(b)(11). Id. We held the trial court did not abuse its discretion by vacating
the judgment because (1) the parties did not dispute that the attorney’s mental
illness caused him to neglect his practice, including Barr’s case, (2) the trial court
did not address the merits of the case, and (3) Barr acted diligently to learn about
the status of her case. Id. at 47–48.
By contrast, in Stanley, Stanley’s attorney was taking care of her ill
parents for several months, which prevented her from filing a prehearing
statement, appearing at an arbitration hearing (after which the trial court awarded
Stanley $7,000), and timely requesting a trial de novo. 157 Wn. App. at 876.
Stanley moved to vacate the arbitration award under CR 60(b)(9), which allows
vacation of judgments in instances of unavoidable casualty or misfortune
preventing a party from prosecuting or defending an action. Id. at 877–89. The
trial court denied her motion. Id. at 879. Although Stanley’s motion rested on
CR 60(b)(9), she cited Barr in a statement of additional authority on appeal. Id.
at 886. But we held that Barr did not control because, in addition to Stanley’s
failure to make a CR 60(b)(11) argument, Stanley “offered no evidence to show
her attorney suffered from a mental condition and she acted diligently to learn
about the status of her case, and . . . [her] case was resolved on its merits, not by
default judgment.” Id. at 887. We concluded the trial court did not abuse its
discretion by denying Stanley’s motion. Id. at 888.
5 No. 80455-3-I/6
Roberts relies on Barr to argue that the trial court improperly denied his
CR 60(b)(11) motion because his trial counsel’s mental health issues rendered
her unable to effectively represent him. He argues that the WSBA stipulation, the
stipulation’s conditions of reinstatement, her appearance by telephone at the
summary judgment hearing, her failure to file a response to BONY’s summary
judgment motion, and her failure to argue that the limitations period on BONY’s
claim had expired all point to her mental infirmity. But the record does not show
that Smith suffered from mental health issues or that any such issues negatively
affected her representation of Roberts.
First, the WSBA stipulation and its conditions of reinstatement do not state
what health problems Smith suffered and whether such problems were the
reason for her misconduct. Nor does the stipulation relate to Smith’s
representation of Roberts.
Second, the record indicates that Smith’s decision to appear by phone at
the summary judgment hearing was purposeful and not the result of any mental
health deficiency. Smith explained to the trial court that “she expected the Court
to summarily grant her CR 56(f) motion without the need for an appearance,
which is why she decided not to appear at the Summary Judgment hearing.”
And to the extent that Smith might have negligently failed to appear in person, file
a response, or argue that the limitations period on BONY’s claim had expired, an
6 No. 80455-3-I/7
attorney’s negligence cannot serve as grounds for vacation of judgment. Barr,
119 Wn. App. at 46.3
While Roberts’s trial counsel never argued on the merits against the
judicial foreclosure, the record does not suggest that Smith suffered from mental
health issues or that any such issues affected her representation of him. Given
the foregoing, we cannot say that the trial court abused its discretion in denying
Roberts’s CR 60(b)(11) motion.
We affirm.
WE CONCUR:
3 Roberts also relies on Cmty. Dental Servs. v. Tani, 282 F.3d 1164 (9th Cir. 2002) and Barr to argue that an attorney’s gross negligence can serve as a ground for vacation of judgment under CR 60(b)(11). But Barr explicitly did not reach this question. 119 Wn. App. at 48 (“In deciding this case, it is not necessary to consider whether gross negligence could constitute valid grounds to vacate a judgment under CR 60(b)(11).”). And Roberts does not explain how Smith’s conduct rose to the level of gross negligence.