Big Blue Capital Partners Of Wa, Llc v. Northwest Trustee Services, Inc.
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Opinion
BY IN THE COURT OF APPEALS OF THE STATE OF WASHING
DIVISION II
BIG BLUE CAPITAL PARTNERS OF No. 44810 -6 -II WASHINGTON, LLC,
Appellant,
v.
UNPUBLISHED OPINION NORTHWEST TRUSTEE SERVICES, INC.,
Respondent.
MAxA, J. — Big Blue Capital Partners of WA, LLC (Big Blue) appeals the trial
court' s dismissal of its claims for damages and declaratory relief under Washington' s
Deed of Trust Act ( DTA), ch. 61. 24 RCW, against Northwest Trustee Services, Inc.
NWTS) under CR 12( b)( 6). We affirm the trial court' s dismissal of Big Blue' s damages
claims based on our Supreme Court' s recent decision in Frias v. Asset Foreclosure
Services, Inc., No. 89343 - 8, 2014 WL 4648173 ( Sept. 18, 2014). We do not address Big
Blue' s contention that the trial court erred in dismissing its declaratory relief claims
because Big Blue presented no argument on this issue on appeal.
Big Blue also asserts that the trial court erred in denying its oral motion to join
additional parties. However, we also do not address this contention because Big Blue
presented no argument on this issue.
We affirm the trial court' s dismissal of Big Blue' s complaint. 44810 -6 -II
FACTS
Deed of Trust Transactions
In 2006 Dawne Delay obtained a loan from Homecomings Financial Network, Inc.
Homecomings). This loan was evidenced by a promissory note and secured by a deed of trust
encumbering Delay' s real property located in Lacey. In the deed of trust, Homecomings was
identified as " Lender," First American Title as " Trustee," and Mortgage Electronic Registration
Systems, Inc. ( MERS) as " a nominee for Lender and Lender' s successors and assigns" where
MERS is the beneficiary under this Security Instrument." Clerk' s Papers ( CP) at 9.
Delay defaulted on the promissory note in March 2012. Three months later she filed for
Chapter 7 bankruptcy relief in the United States Bankruptcy Court for the District of Oregon.
At some point, ownership of Delay' s promissory note was transferred from
Homecomings to another entity and from that entity to Deutsche Bank Trust Company Americas
Deutsche Bank) as Trustee for RALI 2006 -Q514, both via a special indorsement on the face of
the note. In addition, in September 2012, MERS ( as nominee for Homecomings) assigned all
beneficial interest in the deed of trust on Delay' s property to Deutsche Bank.
Big Blue purchased Delay' s Lacey property from the bankruptcy trustee through a
trustee' s deed dated November 7, 2012 and recorded the deed on December 12, 2012. The deed
states that Big Blue assumed Delay' s interest in the property subject to all existing
encumbrances, liens, and interests.
On November 28, 2012, as the " present beneficiary" under the deed of trust, Deutsche
Bank appointed NWTS as the successor trustee of the deed of trust. CP at 14. NWTS posted a
2 44810 -6 -II
notice of default, apparently on the promissory note that is the subject of this action, on the
Lacey property on December 6, 2012.
Procedural.History
Big Blue filed its complaint on January 7, 2013, naming NWTS as the only defendant. In
the complaint, Big Blue asserted claims for violation of the DTA. Big Blue alleged that NWTS
had issued the notice of default without being a lawfully appointed successor trustee to the deed
of trust .in violation of RCW 61. 24. 010( 2) and ( 8), and had acted in bad faith as trustee in
violation of RCW 61. 24. 010( 4). In addition, Big Blue sought a declaratory judgment that ( 1)
MERS' s assignment of the deed of trust was void, ( 2) Deutsche Bank' s appointment of NWTS
as successor trustee was void, ( 3) the notice of default was void because it contained false
statements and was executed without authority, and ( 4) NWTS was prohibited from proceeding
with a nonjudicial trustee sale.
NWTS filed a motion to dismiss Big Blue' s complaint under CR 12( b)( 6). The trial court
granted the motion and dismissed Big Blue' s complaint, ruling that Big Blue had no cause of
action against NWTS. The court also noted that " all of the parties necessary to rule on some of
these issues are simply not before the Court today" and that there may be some declaratory
judgment issues relating to Deutsche Bank. Report of Proceedings ( RP) at 18. Big Blue
requested leave to amend its complaint to add additional parties as defendants. The trial court
denied this oral motion, stating that Big Blue needed to bring an entirely different lawsuit against
the proper parties.
Big Blue appeals.
3 44810 -6 -II
ANALYSIS
After we heard oral argument in this case, our Supreme Court decided Frias, WL
4648173. In Frias, the court held that the DTA does not create an independent cause of
action for monetary damages for alleged DTA violations in the absence of a completed
foreclosure sale. WL 4648173, * 4. Here, Big Blue filed suit before a foreclosure sale
had occurred, and there is no indication that a sale had occurred before the trial court
dismissed the case. Therefore, under Frias we hold that Big Blue had no cause of action
for damages for alleged DTA violations.
The trial court dismissed Big Blue' s complaint on other grounds. However, we
can affirm the trial court on any basis. Rainier View Court Homeowners Ass' n, Inc. v.
Zenker, 157 Wn. App. 710, 723, 238 P. 3d 1217 ( 2010) ( appellate court " may sustain a
trial court on any correct ground, even one the trial court did not consider. "). Therefore,
we hold that the trial court did not err in dismissing Big Blue' s damages claims)
Big Blue also asserted claims for declaratory relief under the DTA, seeking to
void assignment of the deed of trust to Deutsche Bank, appointment of NWTS as trustee,
and the notice of default. In addition, Big Blue sought to enjoin NWTS from proceeding
with the foreclosure sale. On appeal, Big Blue assigns error to the trial court' s dismissal
of its case when there was a cause of action in the complaint for declaratory judgment.
1 Because Frias controls, we do not address the merits of Big Blue' s arguments regarding NWTS' s alleged violations of the DTA. In addition, we do not address NWTS' s arguments that 1) Big Blue cannot challenge the validity of the deed of trust because it purchased the property subject to the deed of trust, and (2) Big Blue is estopped from asserting any claims because Delay did not identify any such claims in her bankruptcy proceeding. 4 44810 -6 -II
However, we do not address this issue because in this appeal Big Blue did not present
any argument on its declaratory relief claims. A party waives an assignment of error not
supported by sufficient argument or citation to the record. Skagit County Pub. Hosp.
Dist. No. 1 v. Dep' t ofRevenue, 158 Wn. App. 426, 440, 242 P. 3d 909 ( 2010).
Therefore, we affirm the trial court' s dismissal of these claims.
Finally, Big Blue assigns error to the trial court' s denial of its oral motion to join
additional parties. However, because Big Blue also did not provide any argument on this issue
on appeal, Big Blue has waived this issue and we do not address it. Skagit County Pub.
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