FILED
March 5, 2015
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
SUNTRUST MORTGAGE INC., ) ) Respondent, ) ) CHRISTIANA TRUST, A DIVISION OF ) No. 32011-1-III WILMINGTON SAVINGS FUND ) SOCIETY, FSB, AS TRUSTEE FOR ) STANWICH MORTGAGE LOAN ) TRUST, SERIES 2012-13, its successors ) in interest and/or assigns, ) ) Plaintiff, ) ) v. ) ) STEVEN M. MILLER and LETICIA ) MILLER, individually and the marital ) community comprised thereof, ) ) Appellants, ) ) CITIBANK SOUTH DAKOTA, N.A.; ) UNPUBLISHED OPINION OCCUPANTS OF THE PREMISES; and ) any persons or parties claiming to have ) any right, title, estate, lien or interest in the ) real property described in the complaint, ) ) Defendants, )
SIDOOWAY, C.J. - Steven and Leticia Miller appeal the trial court's summary No. 32011-1-111 Christiana Trust v. Miller
judgment dismissal of counterclaims they asserted in response to this mortgage
foreclosure action initiated against them by SunTrust Mortgage, Inc. l The Millers'
counterclaims alleged violations ofthe federal Fair Debt Collection Practices Act,
(FDCPA) 15 U.S.C. § 1692, and Washington's Consumer Protection Act, chapter 19.86
R.C.W. (CPA), as well as defamation of character and intentional infliction of emotional
distress. The Millers contend that SunTrust failed to honor an alleged obligation to
permanently modify their mortgage loan and reduce their monthly payments to an
estimate it provided in August 2009. They argue that the existence of a genuinely
disputed contract right to that loan modification creates issues of fact for their four
counterclaims.
The federal program under which the Millers sought a modification requires that a
borrower be qualified for the modification that he or she seeks. That requirement was
made clear in SunTrust's communications to the Millers. Because the Millers presented
literally no evidence that they qualified for loan terms different from those that SunTrust
offered and that the Millers refused, the trial court properly granted the motion. We
affirm.
While the litigation was pending, SunTrust sold its interest in the loan; the new I owner, Christiana Trust, as trustee for Stanwich Mortgage Loan Trust, Series 2012-13, was substituted as plaintiff; and SunTrust was realigned as a third party defendant.
No. 32011-1-111 Christiana Trust v. Miller
FACTS AND PROCEDURAL BACKGROUND
In October 2008, Steven and Leticia Miller found themselves faced with sizable
cost overruns and defective work by a contractor they had hired to build a home on their
property located at 13210 South Campbell Road in Rockford. In order to satisfy earlier-
incurred costs and complete construction, they borrowed $417,000 from the Bank of
Whitman, secured by a deed of trust on the property. SunTrust Mortgage Inc. began
servicing the loan in November 2008.
The Millers' initial monthly payments under the note were $2,400.49; with the
addition of taxes and insurance required to be paid and held in escrow, their total monthly
payment was nearly $3,000. Mr. Miller claims to have had monthly take home pay of
only $3,800, so this presented what he would later characterize as "an immediate
impossible situation." Clerk's Papers (CP) at 252.
In February 2009, the Secretary of the United States Treasury announced a
national loan modification program-the Home Affordable Modification Program, or
"HAMP"-funded and authorized by the Troubled Asset Relief Program (TARP) created
by the Emergency Economic Stabilization Act of2008. 2 Under the HAMP, home
mortgage loan servicers would be compensated by the Treasury for providing
homeowners that were at risk of default with sustainable monthly payments. See U.S.
2 Emergency Economic Stabilization Act of2008, Pub. L. No. 110-343, 122 Stat. 3765 (codified as 12 U.S.C. §§ 5201-5261).
No. 32011-1-III Christiana Trust v. Miller
Dep'ts of Treasury & Hous. & Urban Dev., HAMP Suppl. Directive (SD) 09-01, at 1
(Apr. 6, 2009).3 Mr. Miller heard about the HAMP, contacted SunTrust, and began
working with SunTrust representatives on an application for modification in the spring of
2009.
Under the HAMP's uniform loan modification process, once a mortgage servicer
obtains preliminary hardship and income information from a borrower, it may offer a
Trial Period Plan (TPP). A TPP identifies a reduced total monthly payment that is the
servicer's estimate of the payment to be required under the projected permanent
modification agreement. If the borrower accepts the TPP, it must make the estimated
monthly payment for three successive months. During that trial period, the servicer is
required to further review supporting documentation and confirm the borrower's
eligibility. If eligibility is confirmed and the borrower has made the three required TPP
payments, the servicer will provide the borrower with a loan modification agreement that
sets forth terms of a permanent modification.
Events occurring during the review process can result in no permanent
modification being offered or being offered on different payment terms. Among the
information the servicer is required to obtain and review to confirm a borrower's
3 Available at https:llwww.hmpadmin.com/portal/programs/docs/hamp_ servicerlsd090 l.pdf (last visited Feb. 27, 2015).
representations and eligibility are tax returns, the most recent paystubs of an employed
borrower, and a credit report, in order to validate installment debt and other liens. SD 09
01 at 7, 10. If the initial information or documents provided by a borrower prove to be
incorrect following the offer of the TPP, then the borrower might turn out to be ineligible
or the total monthly payment required under the permanent modification might change
from the initial estimate provided by the TPP.
In addition, the net present value (NPV) of the permanent modification must be
calculated using a standardized test dictated by the Treasury Department. A lender is not
required to offer any permanent modification whose NPV is not equal to or greater than
the NPV of the existing loan. See SD 09-01 at 4-5.
In late July 2009, SunTrust sent the Millers a written offer of a TPP that would
lower their monthly payments to an estimated $2,113.31. The Millers accepted by
executing the TPP and made the first payment of the new estimated monthly liability on
August 1. While $2,113.31 was some $800 a month less than their existing payments,
the Millers believed it was still too high a payment to be sustainable, so Mr. Miller
contacted SunTrust and requested a plan under which their payment would be even
lower.
In response to the Millers' request for a lower monthly payment, SunTrust sent the
Millers a written offer of a second TPP in August 2009 that would lower their monthly
payments to an estimated $1,311.87. The Millers accepted by executing this second TPP
No. 3201 I-I-III Christiana Trust v. Miller
on August 24, and they thereafter made the first and second payments of the new
estimated monthly liability on or about September 1 and October 1.
On or about October 20, SunTrust sent the Millers a home affordable modification
agreement, reflecting the terms on which it was willing to make a permanent
modification of their loan. This permanent modification agreement provided for an
initial interest rate of 3.625 percent and a new 30-year term ending in 2039. It provided
for an initial total monthly payment of$2,084.85, consisting of$I,927.18 in principal and
interest and $157.67 as payment to be escrowed to cover tax and insurance. The letter
accompanying the agreement stated that in order to accept the offered modification, the
Millers must sign and return the agreement by October 27.
On October 22 Mr. Miller called SunTrust to ask why the permanent modification
payment was higher than the estimated payment under the second TPP. According to Mr.
Miller, a Sun Trust representative informed him that the second TPP had been offered to
the Millers by "mistake." CP at 255. Mr. Miller would later be told by representatives of
SunTrust that the estimated payment of $1,311.87 was "based on a verbal." CP at 258.
The Millers did not execute and return the permanent modification agreement. Instead,
they continued making monthly payments in the amount of $1,311.87 and Mr. Miller
continued to correspond and speak with SunTrust representatives and later,
representatives of the Federal Home Loan Mortgage Corporation (Freddie Mac), in an
effort to obtain a more affordable modification.
No. 32011-I-III Christiana Trust v. Miller
Eight months later, in a letter dated June 30, 2010, SunTrust notified the Millers
that
After thoroughly reviewing your financial information and request for payment assistance, we are writing to advise you that SunTrust Mortgage, Inc. is unable to assist you with a loss mitigation workout option at this time. Should your financIal cIrcumstances change in the future, or if you decIde to sell your property, please immediately contact our Loss Mitigation Department to discuss new opportunities.
CP at 215. The letter provided contact information for SunTrust's Loss Mitigation
Department; the HOPE NOW Alliance, which offers HUD4-approved counseling; and a
HUD-approved credit counselor location service. It concluded by stating that "all
collection activity, including foreclosure proceedings, will continue." Id.
Mr. Miller then wrote to the office of the president of SunTrust Mortgage, among
others, to complain. SunTrust responded with a letter that explained that the Millers had
been approved for a loan modification in October 2009, but since the permanent
modification was declined, their loan was removed from loss mitigation and the denial
letter was sent.
In the meantime, Mr. Miller had received a call at work from Maxine McCluen of
Sun Trust, who told him she was his "last hope before foreclosure" and encouraged him to
re-apply for a modification. CP at 257. Between then and November 22, Ms. McCluen
followed up several times, encouraging Mr. Miller to provide the information needed for
4 Department of Housing and Urban Development.
her to process an application. On November 22,2010, after two aborted offers,5 Ms.
McCluen sent the Millers another proposed permanent modification agreement that
required immediate execution and return, along with a check for $2,341.78. She called
and spoke with Mr. Miller about it on November 23.
Rather than sign the November agreement, the Millers retained an attorney who
wrote to SunTrust and asserted that the servicer was bound by a valid agreement
requiring payments of only $1,311.87. SunTrust thereafter served a notice of default and
proceeded with this judicial foreclosure action, which it filed in September 2012.
The Millers filed an answer and counterclaims and amended them shortly
thereafter. As amended, the Millers' counterclaims alleged violations of the FDCPA,
violations of the CPA, defamation, and intentional infliction of emotional distress.
In July 2013, SunTrust moved for summary judgment on all of the Millers'
counterclaims. The trial court concluded that the success of the counterclaims depended
on the Millers' allegation that the second TPP offered in August gave rise to a contract
that was breached-and that no contract was breached. It granted the motion. The
Millers moved for reconsideration, which was denied. The Millers appeal.
ANALYSIS
SunTrust argues that we need not reach the issue of whether the second TPP
5 Three offers were sent to the Millers in November, the first two of which described a property in Delaware. SunTrust confirmed that they were in error.
signed by the Millers created a contract because the Millers' claims for relief fail on
additional and independent grounds that it raised below. While we conclude that
SunTrust's arguments are well-taken, the Millers' briefing strenuously insists that they
demonstrated a genuine issue of material fact as to a contract right. We choose to address
the contract issue first. We then briefly address SunTrust's additional bases for
dismissal.
1. Contract rights arising under the HAMP procedures
The Millers argue that the TPP they signed in August 2009 resulted in a contract-
implicitly, they argue that this second TPP resulted in a contract requiring that SunTrust
offer them a permanent loan modification requiring total monthly payments of $1 ,311.87
a month. A number of cases support the Millers' position that the second TPP resulted in
a contract. But they have not identified any authority that supports their position that the
August TPP resulted in a contract requiring SunTrust to offer a permanent modification
requiring payments of only $1,311.87 a month. Neither the language of the TPP nor the
operation of the RAMP supports the Millers' position.
In a leading case addressing the obligations arising under TPPs offered under the
RAMP, the Seventh Circuit Court of Appeals surveyed dozens of federal cases in which
mortgagors had brought HAMP-re1ated claims. Wigod v. Wells Fargo Bank, NA., 673
F.3d 547, 559 & nA (7th Cir. 2012). While the court noted that a number of courts had
dismissed even contract-based claims, it concluded that a contract theory was a viable
basis for a cause of action based on a TPP.
The Treasury Department "strongly encourage[ s]" loan servicers to use plans,
agreements, and correspondence prepared by the Treasury and requires approval of most
variations, so provisions of the TPP used by Wells Fargo in Wigod are virtually identical
to provisions of the TPP that SunTrust sent to the Millers. 6 SD 09-01 at 15. The Wigod
court found that provisions of the TPP promised to offer a borrower a permanent loan if
two conditions were satisfied: that "(1) [the borrower] complied with the terms of the
TPP by making timely payments and disclosures; and (2) [the borrower's] representations
remained true and accurate." Wigod, 673 FJd at 560. Equivalent provisions appear in
the first full paragraph of the August TPP offered by SunTrust and in its paragraph 3, and
state:
If! am in compliance with this Trial Period Plan (the "Plan") and my representations in Section 1 continue to be true in all material respects, then the Lender will provide me with a Home Affordable Modification Agreement ("Modification Agreement"), as set forth in Section 3, that would amend and supplement (1) the Mortgage on the Property, and (2) the Note secured by the Mortgage.
If I comply with the requirements in Section 2 and my representations in Section 1 continue to be true in all material respects, the Lender will send me a Modification Agreement for my signature which will modify my Loan
The Treasury-prepared forms are available at www.financialstability.gov. With 6 limited exceptions, servicers choosing to revise the HAMP documents or draft their own documents are required to obtain prior written approval from the Treasury or from the Federal National Mortgage Association (Fannie Mae). SD 09-01 at 15.
Documents as necessary to reflect this new payment amount and waive any unpaid late charges accrued to date.
CP at 187, 189.
The Seventh Circuit recognized, however, that the TPP "allowed the lender to
determine the precise contours of the permanent modification at a later date." Wigod,
673 F.3d at 564. The August TPP offered by SunTrust likewise provided that "[t]he Trial
Period Payment is an estimate of the payment that will be required under the modified
loan terms, which will be finalized in accordance with Section 3." CP at 188. This
uncertainty was not fatal to the existence of a contract, Wigod reasoned, because the
HAMP guidelines provided an existing standard by which the ultimate terms of
permanent modification would be set. It pointed out that "[i]n its program directives, the
Department of the Treasury set forth the exact mechanisms for determining borrower
eligibility and for calculating modification terms-namely, the waterfall method and the
NPV [net present value] test." Wigod, 673 F.3d at 565. "Although the trial terms were
just an 'estimate' of the permanent modification terms, the TPP fairly implied that any
deviation from them in the permanent offer would also be based on Wells Fargo's
application of the established HAMP criteria and formulas." Id.
Corvello v. Wells Fargo Bank, NA., 728 F.3d 878, 883 (9th Cir. 2013), on which
the Millers rely, accepted the reasoning of Wigod as "sound." It held that "[u]nder
Paragraph 20 of the TPP, there could be no actual mortgage modification until all the
requirements were met, but the servicer could not unilaterally and without justification
refuse to send the offer." Id. 7 In Young v. Wells Fargo Bank, NA., 717 F.3d 224,232-33
(Ist Cir. 2013), the First Circuit Court of Appeals explicitly held that a loan servicer did
not breach a contract created by the TPP by offering a permanent loan modification that
required higher monthly payments than those required during the trial period.
In moving for summary judgment, SunTrust presented evidence that it had sent the
Millers a proposed permanent modification agreement on October 20,2009, specifying a
monthly payment of$2,084.85, which required acceptance by October 27. The
permanent modification agreement would have provided the Millers with a $900
reduction, approximately, from their existing monthly payment. SunTrust presented
evidence that later, in November 2010, it offered the Millers yet another modification
agreement. It presented evidence that neither offer of a loan modification was ever
accepted by the Millers.
Summary judgment is appropriate when the moving party shows there is "no
7 Paragraph 2G of SunTrust's August TPP stated in part:
I understand that the Plan is not a modification of the Loan Documents and that the Loan Documents will not be modified unless and until (I) I meet all of the conditions required for modification, (II) I receive a fully executed copy of a Modification Agreement, and (III) the Modification Effective Date has passed.
CP at 189.
12 No. 32011-1-111 Christiana Trust v. Miller
genuine issue as to any material fact and that the moving party is entitled to a judgment
as a matter oflaw." CR 56(c). A defendant may move for summary judgment on the
ground that the plaintiff lacks competent evidence to support its claim. Young v. Key
Pharm., Inc., 112 Wn.2d 216,225,770 P.2d 182 (1989) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). After a party moving
for summary judgment submits adequate affidavits, the nonmoving party must set forth
specific facts rebutting the moving party's contentions and disclosing that a genuine issue
of material fact exists. Seven Gables Corp. v. MGMlUA Entm 't Co., 106 Wn.2d 1, 12-13,
721 P.2d 1 (1986).
In the case of a motion for summary judgment asking the court to dismiss a breach
of contract claim, it is the burden of the nonmoving party to present specific evidence of
a breach in order to be entitled to go to trial on the claim. Hartford Ins. Co. v. Ohio Cas.
Ins. Co., 145 Wn. App. 765, 780, 189 P.3d 195 (2008). The evidence presented must be
"specific, detailed, and disputed facts; speculation, argumentative assertions, opinions,
and conclusory statements will not suffice." Sanders v. Woods, 121 Wn. App. 593,600,
89 P.3d 312 (2004).
The reviewing court "engages in the same inquiry as the trial court when
reviewing an order for summary judgment." Folsom v. Burger King, 135 Wn.2d 658,
663,958 P.2d 301 (1998). All facts and inferences will be construed in the light most
favorable to the nonmoving party. Jones v. Allstate Ins. Co., 146 Wn.2d 291,300,45
P.3d 1068 (2002).
Once SunTrust showed that it had offered permanent modification agreements
reducing the Millers' monthly payments, it was incumbent upon the Millers to set forth
and support specific facts rebutting SunTrust's position that the permanent modification
terms it proposed were determined as required by the TPP and the HAMP. Instead, the
Millers merely speculated that the terms reflected in the October 2009 and November
2010 offers of permanent modification were noncompliant.
The Millers could have obtained SunTrust's analysis oftheir loan through
discovery, since HAMP servicers are subject to document retention requirements:
Servicers must retain all documents and information received during the process of determining borrower eligibility, including borrower income verification, total monthly mortgage payment and total monthly gross debt payment calculations ... (assumptions, inputs and outputs), evidence of each step of the standard waterfall, escrow analysis, escrow advances, and escrow set-up ....
Servicers must retain detailed records of borrower solicitations or borrower-initiated inquiries regarding the HAMP, the outcome ofthe evaluation for modification under the HAMP and specific justification with supporting details if the request for modification ... was denied.
SD 09-01 at 13-14. Yet the Millers presented no evidence obtained from SunTrust
revealing that SunTrust's analysis was flawed or supported a lower permanent monthly
payment.
Alternatively, the Millers could have engaged a qualified expert, familiar with the
HAMP modification process, to review true and complete information about the Millers'
finances and circumstances in order to express an opinion whether SunTrust had arrived
at erroneous permanent modification terms. An affidavit from such an expert
demonstrating that the payment terms offered by SunTrust were not the terms that should
have been arrived at after applying the Treasury-dictated methods would have presented a
genuine issue of material fact as to the existence of a contract breach.
The Millers did neither.
The Millers also argued that the October 2009 offer of a permanent modification
agreement breached the August TPP because the modification agreement was sent before
the date of the last (November 2009) payment required by the August TPP. Yet the
Treasury's directives "encourage[d]" loan servicers to "wait to send the Agreement to the
borrower for execution until after receipt of the second to the last payment under the trial
period." SD 09-01 at 15 (emphasis added).
Given the language in the TPP that the trial period payment was an estimate, that a
permanent modification would be offered only to eligible borrowers, and the implicit fact
that final terms ofa modification would depend on SunTrust's verification of information
and its calculations under the HAMP program, the Millers' evidence that the August TPP
reflected an estimated payment different from the payment required under the permanent
modifications offered is no evidence of breach of contract. Given the Millers' failure to
present evidence that the permanent terms offered were not the terms for which the
Millers were eligible, the trial court properly granted summary judgment.
15 No. 32011-1-III Christiana Trust v. Miller
II. Other grounds supporting dismissal
Additional grounds for dismissing the Millers' claims were argued by SunTrust
below and are independently sufficient to support the dismissal. In reviewing a trial
court's order, an appellate court may consider any argument raised and argued at the trial
court, even if the trial court did not consider the argument in reaching its conclusion. See
Alton V. Phillips Co. v. State, 65 Wn.2d 199,202,396 P.2d 537 (1964).
FDCPA claim. SunTrust argues that it cannot be held liable under the FDCPA
because it is not a debt collector. The FDCPA defines a "debt collector" as any person
"who regularly collects or attempts to collect, directly or indirectly, debts owed or due or
asserted to be owed or due another." 15 U.S.C. § 1692a(6). The term does not include
any person who collects a debt owed or due another to the extent such activity "concerns
a debt which was originated by such person," or "concerns a debt which was not in
default at the time it was obtained by such person." 15 U.S.C. § 1692a(6)(F)(ii), (iii).
A number of courts have held that the FDCPA's definition of debt collector "does
not include the consumer's creditors, a mortgage servicing company, or an assignee of a
debt, as long as the debt was not in default at the time it was assigned." Perry v. Stewart
Title Co., 756 F.2d 1197, 1208 (5th Cir. 1985); see also Roth v. CitiMortgage Inc., 756
F3d 178, 183 (2d Cir. 2014). The Ninth Circuit has agreed in an unpublished opinion.
Diessner v. Mortg. Elec. Registration Sys., 618 F. Supp. 2d 1184, 1188 (D. Ariz. 2009),
ajJ'd, 384 F. App'x 609 (9th Cir. 2010) (unpublished). Washington cases are in accord.
Walker v. Quality Loan Servo Corp., 176 Wn. App. 294, 315, 308 PJd 716 (2013)
(mortgage servicer companies and others who service outstanding debts for others are not
debt collectors so long as the debts were not in default when acquired for servicing).
SunTrust began servicing the Millers' home loan on or about November 24, 2008,
and the Millers made full payments through July 2009. Accordingly, no claim under the
FDCPA could be asserted against SunTrust.
Defamation. The Millers' amended answer and counterclaims alleged that
SunTrust "has defamed [the Millers'] name and credit through its credit recovery
actions." CP at 103. In order to succeed on a claim of defamation, a party must prove (1)
falsity, (2) an unprivileged communication, (3) fault, and (4) damages. Markv. Seattle
Times, 96 Wn.2d 473,486,635 P.2d 1081 (1981). Available defenses include truth and
privilege. Id. at 482.
The Millers' defamation counterclaim does not specifically identify the date,
speaker, or the content of any communication alleged to be false. The only evidence of
defamation they offered in opposition to SunTrust's motion to dismiss the defamation
claim was included in an unsworn narrative by Mr. Miller, which states in relevant part,
"On September 4,2012, SunTrust filed a lawsuit against us in which it attacked my
character by publicly stating that lowed thousands of dollars to CitiBank and Garco
Construction from previous judgments against me."g CP at 268.
"Allegedly libelous statements, spoken or written by a party or counsel in the
course of a judicial proceeding, are absolutely privileged if they are pertinent or material
to the redress or relief sought, whether or not the statements are legally sufficient to
obtain that relief. The defense of absolute privilege or immunity avoids all liability ."
McNeal v. Allen, 95 Wn.2d 265, 267,621 P.2d 1285 (1980) (citation omitted) (citing
Gold Seal Chinchillas, Inc. v. State, 69 Wn.2d 828, 420 P.2d 698 (1966)). The Millers
failed to present specific evidence of any potentially actionable defamatory statements.
Outrage. In order to succeed on a claim for the tort of outrage (intentional
infliction of emotional distress), a party is required to prove (1) extreme and outrageous
conduct, (2) the intentional infliction of emotional distress, and (3) the resulting
emotional distress is severe. Kloepfel v. Bokor, 149 Wn.2d 192, 194-95 & n.l, 66 P.3d
630 (2003). The conduct must be '" so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds ofdecency, and to be regarded as atrocious,
and utterly intolerable in a civilized community.'" Dicomes v. State, 113 Wn.2d 612,
630, 782 P.2d 1002 (1989) (quoting Grimsby v. Samson, 85 Wn.2d 52,59,530 P.2d 291
(1975)). As a matter oflaw, the Millers did not allege extreme and outrageous conduct.
CPA claim. RCW 19.86.020 makes unlawful "[u]nfair methods of competition
g SunTrust objected to the admission ofthe unsworn narrative in both its reply to the Millers' response to its motion for summary judgment, as well as at the hearing.
and unfair or deceptive acts or practices in the conduct of any trade or commerce." In
order to succeed on a CPA claim, a plaintiff must establish (I) an unfair or deceptive act,
(2) in trade or commerce, (3) which affects the public interest, (4) injury to plaintiffin his
or her business or property, and (5) a causal link between the unfair or deceptive act
complained of and the injury suffered. Hangman Ridge Training Stables, Inc. v. Safeco
Title Ins. Co., 105 Wn.2d 778, 784-85, 719 P.2d 531 (1986). A CPA claim should be
dismissed if anyone of these elements is not established. Sorrel v. Eagle Healthcare,
110 Wn. App. 290, 298, 38 P.3d 1024 (2002). As additional grounds for dismissing the
CPA claim, SunTrust argues that the Millers can present no evidence that would support
the third, fourth, and fifth elements ofthe claim. We address only the public interest
element.
In Hangman Ridge, the court announced factors to be considered when
determining whether the public has an interest in a certain transaction. If the transaction
is essentially a consumer transaction the court should consider: "(1) Were the alleged acts
committed in the course of defendant's business? (2) Are the acts part of a pattern or
generalized course of conduct? (3) Were repeated acts committed prior to the act
involving plaintiff? (4) Is there a real and substantial potential for repetition of
defendant's conduct after the act involving plaintiff? (5) If the act complained of
involved a single transaction, were many consumers affected or likely to be affected by
it?" Hangman Ridge, 105 Wn.2d at 790.
19 No. 3201 I-I-III Christiana Trust v. Miller
In opposing summary judgment, the Millers argued that "the public interest arises
out of SunTrust providing false 1099s to the IRS, lying to the Millers about the
modification process, misrepresenting the owner of the loan and not being honest with
the investigation into how they handled the loan. . .. [T]he public has a specific interest
in having mortgage companies and their servicers be truthful with its clients." CP at
248. But the Millers did not direct the court to the existence of any evidence in support
of these alleged acts, let alone to any pattern, repetition or potential for repetition. Again,
to avoid summary judgment, a nonmoving party must "set forth specific, detailed, and
disputed facts." Sanders, 121 Wn. App. at 600. The Millers' opposition was insufficient.
III. Promissory estoppel; covenant ofgoodfaith andfair dealing; attorney fees
The Millers did not plead, as counterclaims, breach of contract, breach of the
covenant of good faith and fair dealing, or promissory estoppel. Acknowledging that
these claims were not pleaded, they seek leave from this court to amend their complaint
to add claims of promissory estoppel and breach of the covenant of good faith. No such
relief is available under the rules on appeal. And cf CR 13(a) (certain counterclaims are
compulsory).
The Millers' brief also requests "all reasonable attorney fees and costs as provided
by under the law," Brief of Appellant at 15, but without complying with RAP 18.1 or
identifYing any basis for a fee award. The request is denied.
Affirmed.
20 No. 32011-1-111 Christiana Trust v. Miller
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
o WE CONCUR:
~~ Feanng, \ ~-