Roberta S. Podbielancik, App. v. Lpp Mortgage, Ltd, Res.

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

f-O

ROBERTA PODBIELANCIK,

No. 72915-2-

CD

Appellant,

DIVISION ONE

LPP MORTGAGE LTD.; S?

DOVENMUEHLE MORTGAGE, INC.; PUBLISHED OPINION

NORTHWEST TRUSTEE SERVICES,

INC.; MORTGAGE ELECTRONIC

REGISTRATION SYSTEMS, INC.;

DOES 1-10,

Respondents. FILED: December 14. 2015

Spearman, C.J. — Roberta Podbielancik defaulted on a residential loan and her

home was sold at a trustee's sale. On the day of the sale, the trustee continued the sale

until the afternoon without announcing the continuance. There were no third party

bidders and the holder of the note purchased the property. Podbielancik filed suit

asserting, among other claims, that the trustee violated the deeds of trust act (DTA) and

the sale was therefore invalid. The trial court dismissed her claims on summary

judgment. We affirm. Although the trustee did not comply with the DTA, Podbielancik

failed to show that she was prejudiced by the error.

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FACTS

Podbielancik took out a loan secured by a deed of trust on her home. She

defaulted on the loan and did not cure the default. At the time of the default and

foreclosure proceedings, LPP Mortgage, Ltd. (LPP) was the holder of the note, MGC

Mortgage, Inc. (MGC) was the servicer, and Dovenmuehle Mortgage, Inc. (DMI) had a

contract to sub-service the loan.

LPP appointed Northwest Trustee Services, Inc. (NWTS) as trustee. NWTS

recorded a notice of trustee's sale (Notice). The Notice announced that the property

would be sold at 10:00 a.m. on January 4, 2013. The Notice stated the principal balance

of the loan as $404,832.95 and the amount of default as $74,077.16.

LPP authorized DMI, as the loan servicer, to enter a step-bid to purchase the

property at the trustee's sale. The step-bid stated that LPP would open its bidding at

$280,000 and would bid up to the total amount of the debt plus fees and costs, an

amount that, according to the respondents, totaled $500,428.67. The minimum bid for

the property was published as $500,429.00.

Podbielancik attended the sale on January 4, 2013. The property was not offered

for sale at 10:00 a.m. and no announcement was made concerning the sale of the

property. According to Jeff Stenman, a vice president of NWTS, NWTS instructed the

auctioneer to postpone the sale until after 2:00 p.m. Stenman stated that NWTS often

"holds" sales until the afternoon when it needs to review information concerning the

foreclosure process. Clerk's Papers (CP) at 287. There were no third-party bidders and,

according to Stenman, LPP purchased the property for its opening bid of $280,000

shortly after 2:00 p.m.

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Podbielancik filed suit against LPP, DMI, NWTS, Mortgage Electronic

Registration Systems, Inc. (MERS), and Does 1-10 (collectively "defendant" or

"respondents"). She asserted claims for (1) declaratory relief; (2) intentional

misrepresentation; (3) negligent misrepresentation; (4) negligence; (5) unjust

enrichment; (6) violations of the fair debt collection practices act (FDCPA); (7) violations

of the Consumer Protection Act (CPA); (8) wrongful foreclosure; (9) breach of duty to

act in good faith; (10) quiet title; and (11) accounting.1

The defendants moved for summary judgment. They submitted documentary

evidence concerning the loan as well as declarations from representatives of MGC,

DMI, and NWTS. Podbielancik opposed the motion as to all claims and all defendants.

She argued, among other things, that the Stenman declaration was inadmissible.

The trial court concluded as a matter of law that Podbielancik defaulted, LPP was

the holder of the note, notice of default was properly given, and the properly appointed

trustee acted lawfully. The trial court further found that Podbielancik could show no

unlawful act by a defendant that caused her actual injury. Itthus granted summary

judgment to all defendants on all claims. Podbielancik appeals.

DISCUSSION

Podbielancik first asserts that the trial court erred in considering inadmissible

evidence. This court reviews a summary judgment order de novo, engaging in the same

inquiry as the trial court. Camicia v. Howard S. Wright Constr. Co., 179 Wn.2d 684, 693,

317 P.3d 987 (2014). The de novo standard applies to evidentiary rulings on

1LPP had previously filed an unlawful detainer action. Podbielancik's claim was briefly

consolidated with LPP's unlawful detainer action and removed to federal court. The actions were then

bifurcated and remanded to state court.

No. 72915-2-1/4

admissibility. Folsom v. Burger King. 135 Wn.2d 658, 663, 958 P.2d 301 (1998). Ifa

party fails to object to an affidavit or bring a motion to strike improper portions of an

affidavit, any error is waived. Lamon v. McDonnell Douglas Corp., 91 Wn.2d 345, 352,

588P.2d 1346(1979).

Podbielancik objects to the declaration of Jeff Stenman and the declaration of

Mary Przbyla, vice president of DMI. She argues that both declarations contain hearsay

not within any exception and the trial court therefore erred in considering them.

However, because Podbielancik did not object to the Przybyla declaration below, she is

precluded from challenging its admissibility here.

Podbielancik did object to the Stenman declaration in the trial court, and she

repeats here her argument that the declaration is inadmissible because it testifies to the

contents of business records not in evidence. The respondents argue that the

declaration is admissible as testimony concerning business records. We agree with

Podbielancik.

Business records are an exception to the hearsay rule and are admissible as

evidence. See, RCW 5.45.020. A custodian or other qualified witness may testify as to

the contents and admissibility of a business record that is offered into evidence. Id. The

business records exception does not permit affidavits testifying to the contents of

documents that are not in the record. Melville v. State. 115 Wn.2d 34, 36, 793 P.2d 952

(1990) (disallowing affidavit asserting facts learned from documents outside of the

record). Testimony concerning the content of documents not in the record may be

admissible under another hearsay exception or if it is not offered for its truth. Domingo

v. Boeing Employees' Credit Union. 124 Wn. App. 71, 79-80, 98 P.3d 1222 (2004).

No. 72915-2-1/5

In this case, Stenman's declaration testifies to the contents of several business

records. Most, but not all, of those records were submitted as exhibits. Podbielancik

objects to four paragraphs of the Stenman declaration. Two of these, paragraphs 17

and 19, are relevant to Podbielancik's argument on appeal.2 In paragraph 17, Stenman

states that NWTS received a step-bid from LPP and testifies to the contents of that bid.

The step-bid is not in the record.3 In paragraph 19, Stenman states that NWTS's

business records contain a sworn declaration from Vincent Wheaton, the NWTS agent

who conducted the sale. Stenman declares that, according to Wheaton's statement, the

"Rules of Auction" were properly read prior to the sale, the opening bid was announced,

there were no third-party bids, and the property was sold to LPP at 2:02 p.m. for

$280,000. CP at 287. The Wheaton statement is not in the record.

Because these statements testify to the contents of documents not in the record,

they are not within the business record exception. The respondents provide no alternate

grounds of admissibility. We accordingly hold that the trial court erred in considering the

challenged portions ofthe Stenman declaration. We review the summary judgment

dismissal of Podbielancik's claims without reference to the inadmissible evidence.

On summary judgment, the moving party bears the initial burden ofshowing that

there is no genuine issue of material fact. Young v. Key Pharm.. Inc., 112 Wn.2d 216,

225, 770 P.2d 182 (1989). The nonmoving party then has the burden to rebut the

moving party's contentions. Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1,

2Podbielancik also objects to paragraphs 4 and 5 of the Stenman declaration. These concern

LPP's referral to NWTS to commence foreclosure proceedings and are not relevant to her argument on

appeal.

3 Podbielancik assumes that the step-bid instructions were transmitted to NWTS in a document

that is not in evidence and that Stenman did not have personal knowledge of the step-bid. The

respondents do not refute the argument.

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13, 721 P.2d 1 (1986). If the nonmoving party fails to "'establish the existence of an

element essential to that party's case, and on which that party will bear the burden of

proof at trial,'" the court should grant summary judgment. Young. 112 Wn.2d at 225

(quoting Celotex Corp. v. Catrett. 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265

(1986)). In reviewing a grant of summary judgment, any matters argued below but not

raised on appeal are deemed abandoned. GMAC v. Everett Chevrolet, Inc., 179 Wn.

App. 126, 134, 317P.3d 1074 review denied. 181 Wn.2d 1008, 335 P.3d 941 (2014)

(citing Coggle v. Snow. 56 Wn. App. 499, 512, 784 P.2d 554 (1990)).

Podbielancik does not assign error on any specific cause of action, but she

challenges generally the trial court's grant of summary judgment to the respondents. In

particular, she appeals the trial court's conclusion that she was unable to show any

unlawful act by respondents that caused her actual injury. Podbielancik does not

address on appeal her claims for declaratory relief, unjust enrichment, violations of the

fair debt collection practices act, quiet title, or accounting. We deem those claims

abandoned.

Podbielancik argues that because the respondents violated the deeds of trust

act, chapter 61.24 RCW (DTA) the court must set aside the trustee's sale. The DTA

allows a trustee to sell a foreclosed property without judicial process. Albice v. Premier

Mortg. Servs. of Washington. Inc.. 174 Wn.2d 560, 567, 276 P.3d 1277 (2012). The Act

promotes three purposes: to maintain an efficient and inexpensive nonjudicial

foreclosure process, to provide an adequate opportunity to prevent wrongful

foreclosure, and to promote the stability of land titles. \± (citing Cox v. Helenius. 103

Wn.2d 383, 387, 693 P.2d 683 (1985)). The statutory requirements must be strictly

No. 72915-2-1/7

complied with. Id. (citing Udall v. T.D. Escrow Servs.. Inc.. 159 Wn.2d 903, 915-16, 154

P.3d 882 (2007)).

Podbielancik asserts that NWTS violated RCW 61.24.040(6)(a) by continuing the

sale from 10:00 a.m. to 2:00 p.m. without announcing the continuance. The respondents

argue that the sale was merely delayed, not continued within the meaning of the statute.

We agree with Podbielancik.

RCW 61.24.040(6)(a) states:

(6) The trustee ...may, for any cause the trustee deems

advantageous, continue the sale for a period or periods not exceeding

a total of one hundred twenty days by (a) a public proclamation at the

time and place fixed for sale in the notice of sale and if the

continuance is beyond the date of sale, by giving notice of the new

time and place of the sale by both first class and either certified or

registered mail....

The statute sets a general rule that when a sale is continued, a proclamation

must be made at the time and place set in the notice of sale. It then sets

additional requirements for continuances that extend beyond the date of sale. By

its plain language, RCW 61.24.040(6)(a) requires a proclamation for

continuances both within and beyond the date fixed for the sale.

The respondents argue that requiring a proclamation when sales are

merely delayed until later the same day leads to absurd results. At oral argument,

the respondents asserted that delays are inevitable given that all trustee's sales

are scheduled for 10:00 a.m. but the auctioneer calls them one at a time. This

argument is inapposite because it does not address the facts of the present case.

NWTS instructed the auctioneer to postpone the sale of Podbielancik's property

until after 2:00 p.m. A decision to postpone a sale until a later time is a

No. 72915-2-1/8

continuance within the meaning of RCW 61.24.040(6)(a) and the respondents'

efforts to characterize it as merely a "brief delay" are unavailing. We accordingly

hold that NWTS violated the DTA by failing to make a public proclamation that it

was continuing the sale from 10:00 a.m. to 2:00 p.m.

A violation of the DTA may, but does not always, invalidate a trustee's sale.

Podbielancik argues that the failure to comply with RCW 61.24.040(6)(a) divested the

trustee of its authority and rendered the sale invalid. Respondents argue that, if the lack

of an announcement was error, it was a technical error that did not prejudice

Podbielancik and thus cannot form the basis of a post-sale challenge.

Courts have set aside trustee's sales in cases of material noncompliance

with the DTA. In Albice the court set aside a trustee's sale where the trustee

continued the sale beyond the date it was statutorily authorized to sell the

property. Albice. 174 Wn.2d at 568. In Bavand v. OneWest Bank, F.S.B.. 176

Wn. App. 475, 309 P.3d 636 (2013), this court set aside a trustee's sale where

the asserted beneficiary was not the holder of the note and the trustee was not

properly appointed. In both Albice and Bavand. the statutory violations were such

that the foreclosing party acted without authority to conduct the sale. In cases of

minor or technical noncompliance, on the other hand, courts have required the

plaintiff to show prejudice to set aside the sale. Koegel v. Prudential Mut. Sav.

Bank. 51 Wn. App. 108, 113, 752 P.2d 385 (1988) (upholding sale where notice

was defective but plaintiff had actual notice and could not show prejudice);

Steward v. Good. 51 Wn. App. 509, 515, 754 P.2d 150 (1988) (upholding sale

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No. 72915-2-1/9

where trustee did not timely record the notice of sale but plaintiff did not show

prejudice).

The present case is distinguishable from Albice and Bavand because,

although the trustee failed to comply with the proclamation requirement, it did not

act beyond its statutory authority in postponing the sale. RCW 61.24.040(6)

specifically permits NWTS to continue the sale "for any cause the trustee deems

advantageous " RCW 61.24.040(6)(a), (b) set out the notice requirements for

such a continuance. The failure to proclaim the continuance is thus a violation of

a notice requirement, and is therefore similar to the violations of the DTA in

Koegel and Steward. As in those cases, the question here is whether

Podbielancik established prejudice from the error.

Podbielancik argues that she was injured because she lost her home to

foreclosure, but she does not and cannot argue that this injury was caused by the

lack of proclamation. Podbielancik was not prepared to bid on the property and

did not know of anyone else who intended to bid. Had the trustee properly

proclaimed the continuance, Podbielancik would still have lost her home to

foreclosure. Without a showing of prejudice, the failure to comply with RCW

61.24.040(6)(a) does not render the sale invalid.

Podbielancik next argues that the respondents violated the CPA by

publishing a "false minimum bid." Brief of Appellant at 19. To prevail on a CPA

action, the plaintiff must show an unfair or deceptive act that caused injury to the

plaintiff's business or property. Hangman Ridge Training Stables. Inc. v. Safeco

Title Ins. Co.. 105 Wn.2d 778, 780, 719 P.2d 531 (1986). Podbielancik asserts

No. 72915-2-1/10

that LPP's step-bid was unfair and deceptive because the published minimum bid

was $500,429 but LPP opened bidding at $280,000.

At a trustee's sale, the beneficiary may bid all or any part of the amount of

its secured obligation without paying the trustee additional sums. RCW

61.24.070(2); Bert Kutv Revocable Living Trust ex rel. Nakano v. Mullen. 175

Wn. App. 292, 304-05, 306 P.3d 994 (2013). The respondents submitted

evidence that LPP's step-bid authorized bidding up to the total debt owed on the

loan plus fees and costs, an amount totaling $500,428.67. The "minimum bid"

was represented as $500,429 because any third party bidder would have had to

bid at least that much to prevail at auction. CP at 267-68. Podbielancik disputes

the legitimacy of the step-bid and the amount of the debt plus fees and costs.

However, she submitted no evidence to refute the evidence provided by the

respondents.4 She thus failed to "'make a showing sufficient to establish the

existence of an element essential to [her] case,'" and summary judgment for the

respondents was appropriate. Young. 112 Wn.2d at 225.

Podbielancik's claim that NWTS breached the trustee's duty of good faith

as well as her claims for intentional misrepresentation, negligent

misrepresentation, and negligence are all based on the allegedly false minimum

bid. Because Podbielancik did not refute the evidence that the bid was legitimate,

these claims also fail. We accordingly affirm the trial court's grant of summary

judgment for the respondents on all claims.

4 Podbielancik conducted no discovery.

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No. 72915-2-1/11

Both parties request attorney fees on appeal. The general rule in Washington is

that attorney fees will only be awarded when "authorized by contract, statute, or

recognized ground of equity." Durland v. San Juan County. 182 Wn.2d 55, 76, 340 P.3d

191 (2014) (citing Clausen v. Icicle Seafoods. Inc.. 174 Wn.2d 70, 79, 272 P.3d 827,

(2012)). Podbielancik requests attorney fees on appeal based on the CPA. Because her

CPA claim is without merit, we decline her request.

The respondents request attorney fees based on the deed of trust, which

authorizes the lender to recover attorney fees in any action to "construe or enforce" the

instrument. Briefof Respondent at 29. The request for attorney fees based on the deed

is applicable only to LPP, who took the deed of trust by assignment and acquired all

rights and obligations thereunder. The present appeal is an action to enforce the deed,

as it stems from Podbielancik's complaint alleging that LPP had no right to demand

payments from Podbielancik or institute foreclosure proceedings against her. We

therefore award attorney fees to LPP, upon compliance with RAP 18.1.

Affirmed.

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WE CONCUR:

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