Ryan Howard, V. Jp Morgan Chase Bank, N.a.

• Court: Court of Appeals of Washington
• Decided: August 2, 2021
• Docket: 81968-2
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

RYAN HOWARD, DIVISION ONE Appellant, No. 81968-2-I v. UNPUBLISHED OPINION JP MORGAN CHASE BANK, N.A., successor in interest to WASHINGTON MUTUAL BANK FA and QUALITY LOAN SERVICE CORP. OF WASH.,

Respondent.

DWYER, J. — Ryan Howard appeals from an order granting summary

judgment and dismissing his fraud and quiet title claims. Howard contends that

JP Morgan Chase Bank (Chase) engaged in fraud when it credited his account

$213,378.60. This is so, he asserts, because Chase did not disclose the source

of the credited payments. However, because Chase provided the credits itself,

notified Howard of the credits, and Howard suffered no damages from receiving

the credits, Howard fails to establish that crediting his account was fraudulent.

Howard also asserts that the trial court erred by dismissing his quiet title

claim. He contends that Chase accelerated the due date of his loan from Chase

when it initiated foreclosure in 2013.1 Thus, Howard avers, the statutory

limitation period applicable to enforcement of the promissory note commenced in

2013 and expired in 2019. However, because Chase took no unequivocal and

1 It subsequently ceased these efforts due to ongoing litigation. No. 81968-2-I/2

affirmative act to accelerate the loan, Howard lacks a basis to quiet title to his

property based upon this claim.

Accordingly, we affirm.

I

In November 2007, Howard obtained a $520,000 home equity line of

credit (the Bothell Note) from Washington Mutual, secured by a deed of trust on

his Bothell property.2 The Bothell Note matures in 2037. It is an installment

note, meaning that “[p]ayments for both Variable Rate Advances and any Fixed

Rate Loans are due monthly.” In 2009, Howard defaulted on the Bothell loan. In

response, Chase attempted to collect payments and contacted him about loss

mitigation.

In 2013, Chase attempted to foreclose on the Bothell property. To prevent

this, Howard filed a lawsuit against Chase in Snohomish County Superior Court

seeking to restrain the sale. This complaint alleged (1) that Chase violated the

Criminal Profiteering Act,3 (2) that Chase engaged in deceptive practices that

violated the Consumer Protection Act,4 (3) that Chase’s action “constitute[d] a

breach of the loan agreement and [Chase is] estopped to deny said

representations as the Plaintiff relied upon such promises,” (4) that Howard was

induced to enter into the loan agreement by fraudulent promises, and (5) that

Howard was entitled to proceed on a cause of action for an injunction.

2 Chase acquired this loan from the Federal Deposit Insurance Corporation, acting as

receiver, after Washington Mutual’s failure in September 2008. 3 Ch. 9A.82 RCW. 4 Ch. 19.86 RCW.

2 No. 81968-2-I/3

The trial court initially dismissed Howard’s claims of promissory estoppel

and fraud in the inducement of the loan. Later, the trial court granted Chase’s

motion for summary judgment dismissal of Howard’s claims of Criminal

Profiteering Act violations, Consumer Protection Act violations, and for an

injunction, thus dismissing the 2013 lawsuit with prejudice. Howard did not

appeal from that final judgment, and Chase did not immediately resume

foreclosure efforts on the Bothell property.

Between September 2014 and December 2015, Chase continued to

contact Howard about his default on the Bothell loan. Because of Howard’s

continued loan default, on February 1, April 1, June 1, and August 1 of 2016,

Chase informed Howard that it might initiate foreclosure proceedings.

In 2017, Chase credited Howard’s account for any unpaid amounts that

were more than six years past due. It also issued various tax forms associated

with those credits. It notified Howard of these actions by sending him various

letters detailing the credits. Chase did this in order to avoid litigating any

statutory limitation period issue concerning whether Howard remained liable for

all past due amounts stemming from his 2009 default and failure to make

payments thereafter. These credits were also listed in an April 2018 letter

responding to a question from Howard regarding the Bothell loan. Chase also

sent similar letters to Howard in June and August of 2018. Chase sent Howard

another letter in April 2019, with a payment history, which again informed Howard

about the credits Chase had applied to his account crediting unpaid amounts

incurred beyond the six-year limitation period.

3 No. 81968-2-I/4

Nevertheless, Howard continued in default, making no monthly payments.

In June 2019, Chase resumed nonjudicial foreclosure efforts. The Bothell

property was sold as a result of the foreclosure. The foreclosure trustee

recorded a June 2019 notice of trustee’s sale, which it rescinded in October 2019

after Howard filed this lawsuit.

Howard filed this second lawsuit against Chase in October 2019, seeking

to restrain the foreclosure sale based on claims of fraud, Consumer Protection

Act violations, and a claim to quiet title to the Bothell property. Chase filed a

motion for summary judgment appending numerous declarations in support of its

motion. The superior court granted summary judgment. Howard moved for

reconsideration. That motion was denied.

Howard appeals.

II

Three matters are referenced in Howard’s briefing that are not properly at

issue in this appeal. None of these rulings was the subject of an assignment of

error as required. Our rules require an appellant to set forth “[a] separate

concise statement of each error a party contends was made by the trial court,

together with the issues pertaining to the assignments of error.” RAP 10.3(a)(4).

We “will only review a claimed error which is included in an assignment of error

or clearly disclosed in the associated issue pertaining thereto.” RAP 10.3(g).

Moreover, these issues were not the subject of developed briefing in Howard’s

opening brief, as is also required. Cowiche Canyon Conservancy v. Bosley, 118

Wn.2d 801, 809, 828 P.2d 549 (1992); State v. Donaghe, 172 Wn.2d 253,

4 No. 81968-2-I/5

263 n.11, 256 P.3d 1171 (2011) (“‘We do not review issues inadequately briefed

or mentioned in passing’” (quoting State v. Donaghe, 152 Wn. App. 97, 111 n.23,

215 P.3d 232 (2009))).

The first of these matters is Howard’s claim that he has a cause of action

for an injunction. However, in addition to both the lack of an assignment of error

and the inadequate briefing, “an injunction is a remedy, not an independent

cause of action.” Markoff v. Puget Sound Energy, Inc., 9 Wn. App. 2d 833, 851,

447 P.3d 577 (2019), review denied, 195 Wn.2d 1013 (2020). Therefore, were

we to entertain the issue (which we do not) we would rule that the superior court

properly dismissed this cause of action.

The second matter is Howard’s Consumer Protection Act cause of action.

The trial court dismissed this cause of action, and Howard did not assign error to

the trial court’s ruling. Thus, the issue is not properly preserved for us for review.

The third matter is the question of the legality of the Bothell loan. In

addition to being waived by the absence of an assignment of error and the

absence of developed briefing, this issue is also barred by both issue and claim

preclusion. The superior court relied, in part, on these principles when it granted

Chase summary judgment. Thus, even were we to reach the merits of this issue

(which we decline to do), we would affirm the trial court’s ruling.

III

The trial court dismissed on summary judgment two claims that Howard

has properly preserved for appeal. We address each of these claims separately.

5 No. 81968-2-I/6

A

“We engage in a de novo review of a ruling granting summary judgment.

Thus, we engage in the same inquiry as the trial court.” Green v. Normandy

Park, 137 Wn. App. 665, 681, 151 P.3d 1038 (2007) (citation omitted).

“Summary judgment is properly granted when the pleadings, affidavits,

depositions, and admissions on file demonstrate that there is no genuine issue of

material fact and that the moving party is entitled to summary judgment as a

matter of law.” Green, 137 Wn. App. at 681. “The ‘facts’ required . . . to defeat a

summary judgment motion are evidentiary in nature. Ultimate facts or

conclusions of fact are insufficient. Likewise, conclusory statements of fact will

not suffice.” Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 359, 753

P.2d 517 (1988) (citation omitted), abrogated on other grounds by Mikkelsen v.

Pub. Util. Dist. No. 1 of Kittitas County, 189 Wn.2d 516, 404 P.3d 464 (2017);

accord Overton v. Consol. Ins. Co., 145 Wn.2d 417, 430, 38 P.3d 322 (2002).

We construe all reasonable inferences from the evidence in the light most

favorable to the nonmoving party. Green, 137 Wn. App. at 681.5

B

Howard next contends that the trial court erred by granting Chase’s motion

for summary judgment, thus dismissing his fraud claim. Howard focuses on the

fact that Chase credited his loan for possible time-barred past-due payments in

2017. However, because Howard fails to show either falsity, misrepresentation,

5 In his opening brief, Howard asserts that the trial court did not construe the evidence in

his favor, as required on a summary judgment motion. This argument is of no moment. De novo review applies to our inquiry. We properly apply the summary judgment standards in our analysis.

6 No. 81968-2-I/7

or damages, he necessarily fails to establish that Chase engaged in fraud by

crediting his account.

To establish fraud, a plaintiff must show: (1) a misrepresentation of an

existing fact; (2) materiality; (3) falsity; (4) the speaker’s knowledge of its falsity;

(5) intent of the speaker that it should be acted upon by the plaintiff; (6) plaintiff’s

ignorance of its falsity; (7) plaintiff’s reliance on the truth of the representation; (8)

plaintiff’s right to rely upon it; and (9) damages suffered by the plaintiff. Stiley v.

Block, 130 Wn.2d 486, 505, 925 P.2d 194 (1996). Each of these elements is

necessary, and the lack of any is dispositive. Repin v. State, 198 Wn. App. 243,

262, 392 P.3d 1174 (2017).

The trial court correctly granted summary judgment on two bases. First,

no falsity or misrepresentation was shown. Chase alerted Howard that it had

credited his account and sent him payment histories and documents detailing

those credits. Chase explained that it credited the amounts to avoid including

unpaid amounts beyond the six-year statutory limitation period when it

foreclosed. Therefore, Howard did not prove fraud because he did not prove a

misrepresentation of fact or falsity.

Second, Howard did not demonstrate that he suffered any damages. To

the contrary, the evidence tends to show that Howard benefited from the credits

because they reduced the balance he owed. Indeed, Howard did not argue that

he was damaged in the superior court. And he does not attempt to explain on

appeal what damages he suffered. Instead, Howard makes the claim that, by

decreasing the amount of its monetary claims against him, Chase thereby

7 No. 81968-2-I/8

deprived him of the ability to contest his liability for a greater amount. This is

nonsensical. By reducing its monetary claim against Howard, Chase conceded

any possible contested amount. It gave Howard the benefit of the argument prior

to initiating the foreclosure proceeding. Plainly, Howard was done no damage.

Howard’s fraud claim fails on these two counts, as he does not show

either damages or falsity. Accordingly, the trial court correctly granted Chase’s

motion for summary judgment, dismissing the claim of fraud.

C

Howard finally contends that the trial court erred by dismissing his cause

of action seeking to quiet title to the property. Quiet title actions are “designed to

resolve competing claims of ownership . . . [or] the right to possession of real

property.” Kobza v. Tripp, 105 Wn. App. 90, 95, 18 P.3d 621 (2001). A pertinent

statute provides:

The record owner of real estate may maintain an action to quiet title against the lien of a mortgage or deed of trust on the real estate where an action to foreclose such mortgage or deed of trust would be barred by the statute of limitations, and, upon proof sufficient to satisfy the court, may have judgment quieting title against such a lien.

RCW 7.28.300.6

An action on a contract or agreement in writing must be commenced within six years. RCW 4.16.040. “As an agreement in writing, [a] deed of trust foreclosure remedy is subject to a six-year statute of limitations.” Edmundson v. Bank of Am., NA, 194 Wn. App. 920, 927, 378 P.3d 272 (2016).

6 We presume that Howard sought to quiet title under RCW 7.28.300, although this remains unclear from the record.

8 No. 81968-2-I/9

Merceri v. Bank of New York Mellon, 4 Wn. App. 2d 755, 759, 434 P.3d 84

(2018).

Washington law distinguishes between demand promissory notes and installment promissory notes. Edmundson, 194 Wn. App. at 928-32. “‘A demand [promissory] note is payable immediately on the date of its execution.’” Edmundson, 194 Wn. App. at 929 (internal quotation marks omitted) (quoting GMAC v. Everett Chevrolet, Inc., 179 Wn. App. 126, 135, 317 P.3d 1074 (2014)). As such, the statutory limitation period begins to run on a demand note when it is executed. Walcker v. Benson & McLaughlin, PS, 79 Wn. App. 739, 741-42, 904 P.2d 1176 (1995). An installment promissory note, on the other hand, is payable in installments and matures on a future date. See Edmundson, 194 Wn. App. at 929; see also Herzog v. Herzog, 23 Wn.2d 382, 388, 161 P.2d 142 (1945). “‘[W]hen recovery is sought on an obligation payable by installments, the statute of limitations runs against each installment from the time it becomes due; that is, from the time when an action might be brought to recover it.’” Edmundson, 194 Wn. App. at 930 (quoting Herzog, 23 Wn.2d at 388).

Merceri, 4 Wn. App. 2d at 759-60.

The Bothell Note required Howard to make monthly installment payments.

Therefore, the statutory limitation period commences separately as to each

missed payment up to the 2037 maturation date. Thus, the statutory limitation

period will not expire until 2043. Herzog, 23 Wn.2d at 388; Cedar W. Owners

Ass’n v. Nationstar Mortg., LLC, 7 Wn. App. 2d 473, 484-85, 434 P.3d 554

(2019).

Acceleration of payments due on an installment note does not take place

by chance. Long ago, our Supreme Court made clear that for the entire

obligation on the note to become due, “[s]ome affirmative action is required,

some action by which the holder of the note makes known to the payors that he

intends to declare the whole debt due.” Weinberg v. Naher, 51 Wash. 591, 594,

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99 P. 736 (1909). We repeated this rule seven decades later, Glassmaker v.

Ricard, 23 Wn. App. 35, 37-38, 593 P.2d 179 (1979), and again four decades

after that. Merceri, 4 Wn. App. 2d at 759-60.

Thus, it is clear that, “acceleration must be made in a clear and

unequivocal manner which effectively apprises the maker that the holder has

exercised his right to accelerate the payment date.” Glassmaker, 23 Wn. App. at

38.

However, “a lender is not required to accelerate the loan in order to

pursue a nonjudicial foreclose. . . . [A]cceleration does not occur automatically

by invoking the power of sale.” 4518 S. 256th, LLC v. Karen L. Gibbon, PS, 195

Wn. App. 423, 445, 382 P.3d 1 (2016); accord Terhune v. N. Cascade Tr. Servs.,

Inc., 9 Wn. App. 2d 708, 719, 446 P.3d 683 (2019) (“And even the initiation of

nonjudicial foreclosure proceedings does not automatically accelerate a note.”).

Howard contends that the statutory limitation period applicable to the

enforcement of the Bothell Note expired because Chase accelerated the debt,

thus essentially turning the installment note into a demand note. In support of

this contention, Howard argues that language in the 2013 notice of trustee’s sale

and the unconsummated foreclosure sale in 2013 necessarily accelerated the

due date of the Bothell Note. Thus, he claims, the six-year statutory limitation

period began in 2013 and expired in 2019.

Howard’s assertion fails. His first claim, that the Bothell loan was

accelerated because the wording of the 2013 notice of trustee sale states that it

was collecting on the “Obligation,” does not support his argument. He contends

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that the capitalization of the word “Obligation” in the 2013 notice of trustee sale

implies that it was a demand for the payment of the entirety of the amount due on

the note. To the contrary, the capitalization of a statutorily required word does

not clearly and unequivocally indicate that Chase accelerated the loan. See

Merceri, 4 Wn. App. 2d at 761 (“[C]lear and unequivocal” action required to

accelerate). Acceleration cannot be established by implication.

Howard next argues that, because Chase initiated the 2013 sale, Chase

accelerated the Bothell loan. But the initiation of a foreclosure proceeding does

not have this effect. Terhune, 9 Wn. App. 2d at 719. There is no authority for the

proposition that Howard advances. All legal authority is to the contrary.

Because Chase did not act to unequivocally and affirmatively accelerate

the Bothell loan, the statutory limitation period applicable to the promissory note

and deed of trust securing it was not altered. The limitation period does not

expire until 2037. The trial court correctly granted summary judgment in favor of

Chase.

Affirmed.

WE CONCUR: