IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
CENTRALBANC MORTGAGE
CORPORATION, a California No. 69746-3-I
Corporation,
^ f/.:
Appellant, DIVISION ONE
v. C") rr-'.;:'
r-j •--:"- -
SOLUTIONS FINANCIAL GROUP, —-, c •: - ••
INC.; a Washington corporation;
NORTH AMERICAN SPECIALTY
INSURANCE COMPANY MORTGAGE
BROKER BOND NO. SUR 202179; UNPUBLISHED OPINION
CHOICE ESCROW, INC., a Washington
corporation; and JULIE A. DEKMAN
AND SLAVA DEKMAN, husband and
wife, and the marital community composed
thereof, ALLA PYATETSKAY and DAVID
SOBOL, husband and wife and the marital
community composed thereof,
Respondents. FILED: December 22. 2014
Spearman, C.J. — CentralBanc Mortgage Corporation (CMC), a mortgage
lender, claims it suffered damages as a result of acts or omissions by Choice
Escrow, Inc. (Choice) and Julie A. Dekman (Dekman), escrow agents, in
conjunction with a fraudulent mortgage application. CMC appeals the trial court's
order granting summary judgment dismissal to Choice and Dekman.1 It contends
that a genuine issue of material fact exists as to each element of its claims, that it
1CMC also appealed the order granting summary judgment to North American Specialty
Insurance Company but the parties settled before oral argument. We granted their request to dismiss
the appeal.
No. 69746-3-1/2
is entitled to relief under the doctrine of equitable subrogation, and that the trial
court committed reversible error when it failed to allow CMC time to amend its
complaint to add the true plaintiff in interest. We affirm.
FACTS
Background
This action arises from a residential real estate purchase and sale
transaction that closed on February 16, 2006. A buyer, Andrey Stukov, worked
with Solutions Financial Group, Inc. (Solutions Financial), a licensed mortgage
broker, to obtain financing for a home located at 2106 Fairmount Avenue
Southwest, Seattle, Washington (the Fairmount property). Solutions Financial
brought the Stukov loan package to CMC, a mortgage lender, for underwriting
and approval of a $900,000 home loan. CMC approved two purchase money
mortgages, which totaled $845,000 ($720,000 on the first loan and $125,000 on
the second). The transaction was closed by Julie Dekman, an employee of
Choice.
Immediately after closing the two Stukov loans, CMC sold them on the
secondary market to American Home Mortgage Corporation (AHMC) pursuant to
a written purchase agreement. The agreement contained a provision under which
a first payment default by the borrower, Stukov, constituted fraud per se and
legal grounds for AHMC to "deem" the Stukov loans "deficient" and to demand
immediate repurchase of the Stukov loans by CMC (the buy-back clause).
Clerk's Papers (CP) at 69, 963 fl 3.
No. 69746-3-1/3
In funding the two Stukov loans, CMC claims it relied on Stukov and
Solutions Financial's representations in the loan application, as well as the
disclosures and Settlement Statement provided by Choice at closing.2 However,
shortly after closing CMC learned that, contrary to these representations,
Stukov's pre-existing home loan had been delinquent for three months prior to
closing, his business had suffered substantial reversals, the income he reported
in the loan application was false, and he had never actually occupied the
Fairmount property. CMC also discovered that Choice's disclosures and
settlement statement had been incomplete or incorrect and did not reflect the
actual details of the transaction.
CMC also learned that its own employee, Alia Pyatetskay, had
participated actively in Stukov's scheme to submit fraudulent loan documents.
Pyatetskay had ratified and retransmitted the false documents submitted by
Choice, causing CMC to fund loans that it would not have approved had it been
2 Aside from the "Program Disclosure" referenced in CMC's closing instructions (CP at
1001), it is unclear from the record exactly which "disclosures" CMC allegedly relied upon. In its
Second Amended Complaint, CMC bases its breach of contract action on Choice and Dekman's
failure "to fully inform CentralBanc regarding the escrow and its closing, by failing to properly
complete the HUD-1 Settlement Statement and by disbursing loan proceeds to individuals and/or
entities not identified on the HUD-1 Settlement Statement." CP at 12. CentralBanc bases its
breach of fiduciary duty claim on Choice and Dekman's failure "to disclose and detail the
particulars of the escrow closing they conducted and made disbursements of loan proceeds from
escrow to third parties without reflecting those disbursements on the HUD-1 Settlement
Statement." CP at 13. The copy of Choice's Settlement Statement included in our record is nearly
illegible, though it is marked "BEST AVAILABLE IMAGE POSSIBLE." CP at 1004. There is no
Program Disclosure or other "disclosures" from Choice in the record.
No. 69746-3-1/4
fully informed of the material facts surrounding the sale, escrow, closing, and
structuring of the loans to Stukov.
Stukov failed to make the first payment due on the loans, which
constituted fraud per se under the purchase agreement between CMC and
AHMC. In response, on or about April 2006, John Delaney, the principal of CMC,
submitted a demand letter to Solutions Financial, alleging fraudulent conduct that
created liability on the part of Solutions Financial and demanding that it
repurchase the Stukov loans as a remedy.
By September 2006, AHMC had instituted non-judicial foreclosure
proceedings. Later, in a letter dated January 17, 2007, AHMC demanded that
CMC repurchase "Loan # 1191795" for $806,438.99, plus per diem, pursuant to
the buy-back clause. CP at 801-02. The demand letter did not mention two loans
and the amount requested did not correspond with the amount of either Stukov
loan at the time of funding.3 CMC took no immediate action on this demand. On
January 26, 2007, a nonjudicial foreclosure sale of the Fairmount property
occurred. AHMC submitted a winning bid of $779,877.23 and obtained title to the
property.
On June 8, 2007, over four months after AHMC acquired title to the
Fairmount property in the foreclosure sale, Delaney bought the Fairmount
property from AHMC in his personal capacity for $813,478. At the time of
summary judgment, Delaney still owned the Fairmount property. CMC claims that
3 One Stukov loan was for $720,000 and the other for $125,000.
No. 69746-3-1/5
it has made and continues to make monthly payments to Delaney as
reimbursement for the amount he paid to purchase the property. CMC also
claims that in response to AHMC's demand, it repurchased the second loan by
direct payment to AHMC in the amount of $145,249.97.
Procedural History
On November 17, 2006, two months before AHMC made its demand for
repurchase, CMC initiated this lawsuit, asserting tort and contract claims against
Solutions Financial and its bonding company, North American Specialty
Insurance Company (NASIC). On August 6, 2007, CMC filed its first amended
complaint which added claims against Stukov, Choice and its employee, Dekman
and her husband, Slava Dekman. CMC dismissed its claims against Stukov on
October 22, 2007. On August 1, 2008, CMC filed a second amended complaint
which added Alia Pyatetskay and her husband, David Sobol, as defendants.
With respect to Choice and Dekman, CMC alleged breach of contract,
breach of fiduciary duty, fraudulent misrepresentation, negligent
misrepresentation, and violation of the Consumer Protection Act (chapter 19.86
RCW), all arising from Choice's allegedly false disclosures of the details related
to closing. CMC claimed that it has suffered over $500,000 in damages,
comprised of reimbursement of mortgage payments made by Delaney on his
note for the Fairmount property, property taxes and insurance, the direct
payment CMC claims it made to AHMC to repurchase the second Stukov loan,
and attorney fees.
No. 69746-3-1/6
On October 4, 2012, Choice and Dekman moved for summary judgment,
arguing that CMC had sustained no damages as a result of their actions and any
claims which Delaney might have asserted in his personal capacity were barred
by the statute of limitations. The trial court entered summary judgment in favor of
Choice and Dekman on November 2, 2012. Because entry of judgment did not
resolve the claims against Solutions Financial, Pyatetskay and Sobol, on
November 15, 2012, Choice and Dekman moved the trial court for entry of final
judgment as to them pursuant to CR 54(b).4 The motion was set to be heard on
the same date the trial was scheduled to commence, November 19, 2012. When
CMC failed to appear on that date the court granted the CR 54(b) motion. On
November 27, 2012, the trial court issued an order directing entry of a final
judgment as to Choice and Dekman, on which it noted "[t]the trial date of Nov.
19, 2012 came and no one appeared for trial & the Ct. has received no objection
to this motion." CP at 202. Final judgment in Choice and Dekman's favor was
entered on November 27, 2012. CMC appeals.
DISCUSSION
Summary Judgment
We review summary judgment decisions de novo. Ranger Ins. Co. v.
Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008). Summary judgment is
proper if there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. CR 56(c). A genuine issue of material fact
4 The claims against Solutions Financial were dismissed on March 22, 2013, nunc pro
tunc to November 19, 2012, the trial date at which CMC failed to appear.
No. 69746-3-1/7
exists if "reasonable minds could differ on the facts controlling the outcome of the
litigation." Ranger Ins. Co.. 164 Wn.2d at 552 (citing Wilson v. Steinbach. 98
Wn.2d 434, 437, 656 P.2d 1030 (1982)). When determining whether an issue of
material fact exists, the court must construe all facts and inferences in favor of
the nonmoving party. Id.
Summary judgment is subject to a burden-shifting scheme. ]d. The initial
burden to show the nonexistence of a genuine issue of material fact is on the
moving party. ]dj. see also, Vallandigham v. Clover Park School Dist. No. 400.
154 Wn.2d 16, 26, 109 P.3d 805 (2005). For example, a defendant may move for
summary judgment by showing that there is an absence of evidence to support
an essential element of the plaintiffs claim. Sligarv. Odell. 156 Wn. App. 720,
725, 233 P.3d 914 (2010) (citing Young v. Key Pharm., Inc.. 112 Wn.2d 216, 225
n.1, 770 P.2d 182 (1989) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106
S.Ct. 2548, 91 LEd.2d 265 (1986)). Once this initial showing is made, the inquiry
shifts to the plaintiff to make a showing of facts sufficient to establish the
existence of all essential elements of its case. Odell at 725 (citing Celotex, 477
U.S. at 322).
"The 'facts' required by CR 56(e) 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.'" Overton v. Consol. Ins.
Co.. 145 Wn.2d 417, 430-31, 38 P.3d 322 (2002) (quoting Grimwood v. Univ. of
Puget Sound. 110 Wn.2d 355, 359, 753 P.2d 517 (1988) (citation omitted).
No. 69746-3-1/8
In their motions for summary judgment Choice and Dekman contended
that, as to the first loan for $720,000, CMC failed to present sufficient evidence to
create a disputed issue of material fact as to whether CMC suffered any
damages caused by an act or omission of either Choice or Dekman.5 As to the
second loan for $125,000, Choice and Dekman argued that CMC failed to
produce any admissible evidence that it had been damaged at all. The trial court
agreed and dismissed CMC's claims. On appeal, CMC argues the trial court
erred. We disagree.
Causation consists of two elements: cause in fact and legal causation.
City of Seattle v. Blumes. 134 Wn.2d 243, 251-52, 947 P.2d 223 (1997). Cause
in fact refers to the "but for" consequences of an act that is the immediate
connection between and act and an injury, id. Legal causation rests on policy
considerations determining how far the consequences of a defendant's act
should extend. It involves the question of whether liability should attach as a
matter of law, even if the proof establishes cause in fact. Id. at 252. The legal
cause of an injury is a cause that, in a direct sequence, unbroken by any new,
independent cause, produces the injury complained of and without which the
injury would not have occurred. Stoneman v. Wick Constr.. Co.. 55 Wn.2d 639,
349 P.2d 215 (1960); Fabrigue v. Choice Hotels Int'l. Inc.. 144 Wn. App. 675, 183
P.3d 1118 (2008).
5 CMC does not dispute that causation is a material element to each of its claims against
Choice and Dekman.
No. 69746-3-1/9
Regarding the first loan, CMC argues that but for the failure of Choice and
Dekman to disclose certain details regarding the Stukov loan application, itwould
not have incurred the expense of reimbursing its principal, Delaney, for the cost
of purchasing the Stukov property from AHMC. Viewing the evidence in the light
most favorable to CMC, as we must, we assume its allegations of malfeasance
by Choice and Dekman are true. We also assume that, but for the conduct of
Choice and Dekman, CMC would not have incurred the obligation to repurchase
the Stukov loan because it would not have made the loan or sold it to AHMC.
There is also evidence that at least as to one of the loans, AHMC did, in fact,
demand that CMC fulfill this obligation. But here, the direct sequence of events
proceeding from the conduct of Choice and Dekman to CMC's alleged injuries
ends. Because there is no evidence that CMC ever complied with AHMC's
demand, CMC cannot show that it was injured by Choice and Dekman's conduct.
CMC contends that the direct sequence of events remains unbroken
because Delaney's purchase of the Stukov property from AHMC was in
satisfaction of CMC's obligation to repurchase the Stukov loan and that CMC, in
turn, was obliged to reimburse Delaney for this expenditure. The contention is
without merit.
First, under its contract with AHMC, CMC was obligated to repurchase the
Stukov loan, not the Stukov property. CMC has not identified any provision in the
contract that obligated it purchase the property from AHMC.
Second, because the foreclosure sale extinguished AHMC's right to
recover a deficiency on the loan and satisfied all obligations on the loan, it also
No. 69746-3-1/10
extinguished CMC's legal obligation to repurchase the loan.6 CMC cites no
provision in the contract with AHMC or any other legal basis under which the
obligation to repurchase the loan survived the foreclosure sale. Thus, Delaney's
purchase of the Stukov property was more the act of a volunteer and not in
satisfaction of a legal obligation CMC owed to AHMC.7
Third, CMC's claim that Delaney's purchase of the Stukov property legally
obligated it to repay him is unpersuasive. Even if Delaney was personally
obligated to purchase the property, it does not follow that CMC was legally
obligated to reimburse him. CMC argues that such a legal obligation exists
because it passed a corporate resolution agreeing to repay Delaney. But even
assuming the resolution was sufficient to legally oblige CMC, the issue is whether
the obligation was imposed upon CMC as a direct result of the conduct of Choice
and Dekman. By its own argument, CMC's obligation to reimburse Delaney
arises out of its corporate resolution. Had the obligation arisen directly from the
conduct of Choice and Dekman, no resolution would have been necessary to
establish it. Because CMC failed to establish a sequence of events by which the
conduct of Choice and Dekman triggered a legal obligation for CMC to reimburse
Delaney, the trial court properly dismissed this claim.
6 See RCW 61.24.100; 27: majorie dick rombauer, Washington practice: creditors'
remedies—debtors' relief § 3.37 at 175 (1998). ("For years the rule has been that no deficiency
may be recovered after a nonjudicial foreclosure" not involving a commercial loan).
7CMC pointed out at oral argument that the motivation for Delaney's payment was to
maintain good relations with AHMC, its primary customer. "There's a relationship between [CMC
and AHMC]. In order to continue making loans and continue the business relationship, itwas
absolutely required that [CMC] make [AHMC] whole in every single way." Wash. Court ofAppeals
oral argument, CentralBanc Mortgage v. Solutions Financial, No. 69746-3-I, (September 18,
2014) at 40 min., (on file with the court).
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No. 69746-3-1/11
CMC claims that it repurchased the second loan from AHMC pursuant to
the buy-back clause and a demand from AHMC. It claims damages in the
amount of the repurchase price-$145,249.97. But the only evidence offered in
support of these damages consists of conclusory statements of ultimate facts,
which are insufficient to raise a fact issue on summary judgment.
Baldwin v. Silver. 165 Wn. App. 463, 269 P.3d 284 (2011), is instructive.
The case involved a dispute between homeowners, the Silvers, and the carrier of
their homeowner's insurance policy for amounts allegedly due on a claim for fire
damage. The insurer moved for summary judgment, arguing that the
homeowners had produced no evidence of damages because the insurer had
overpaid the total claims made, as evidenced by the various estimates and
receipts submitted to the insurer by the homeowners during the course of repairs.
In response, the homeowners submitted the affidavit of Ms. Silver, in which she
claimed that the insurer owed the homeowners an additional $10,000 because,
as a result of a fire, their deck had been destroyed, it had not been repaired yet,
and the damage necessitated removal and replacement of the deck. The
homeowners submitted no estimates, receipts, or other evidence in support of
the claimed damage to the deck. In reply, the insurance company argued that
Ms. Silver's affidavit was insufficient to avoid summary dismissal because it
amounted to nothing more than conclusory, unsupported statements with no
proof of actual damages. Id. at 469-70.
The trial court refused to consider the affidavit as proof of damages. On
review, we affirmed, reasoning:
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No. 69746-3-1/12
The trial judge's refusal to consider Ms. Silver's affidavit
as proof of damages was also reasonable and proper. What the
judge did here was refuse to consider the conclusory,
unsupported statements set out in the affidavits. Though the trial
court may be lenient to a nonmoving party's affidavits presented
in response to a motion for summary judgment, it may not
consider conclusory statements contained in the nonmoving
party's affidavits. Pub. Util. Dist. No. 1 of Lewis County v. Wash-
Pub. Power Supply Svs.. 104 Wn.2d 353, 361, 705 P.2d 1195,
713 P.2d 1109 (1985). A nonmoving party cannot defeat a
motion for summary judgment with conclusory statements of
fact. Overton v. Consol. Ins. Co.. 145 Wn.2d 417, 430-31, 38
P.3d 322 (2002).
In her affidavit, Ms. Silver claimed that the damage to her
deck was worth $10,000. But no receipt, quote, or any other
piece of evidence supports her statement. The statement, then,
is nothing more than an unfounded, conclusory statement of
damages.
Baldwin at 471.
In this case, as in Baldwin, one of the ultimate facts to be proven was
damages, specifically that CMC incurred damages of $145,249.97 when it
repurchased the second loan from AHMC. In response to the defense motion for
summary judgment, which asserted that there was no fact issue with respect to
damages, CMC offered three declarations from its principal, Delaney. Neither the
first nor the third declaration even mentions CMC's claimed repurchase of the
second loan.
In his second declaration (dated October 2, 2012 and filed October 4,
2012). Delaney mentioned the second loan specifically. He stated:
I revised and update my damage statement made in my
principal declaration. After reviewing and including the loan
payoff of the Stukov second mortgage and tabulating all
expenditures related to the repurchase of the Stukov first and
second loan, I provide the following summary. . . .
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No. 69746-3-1/13
CP at 937. The summary provided revised the previously submitted "Schedule
of Damages," adding a line item for "Second Loan Payoff' as a $145,249.97
liability on CMC's books. This conclusory assertion that CMC incurred a loss is
analogous to those in Baldwin, which we deemed insufficient to raise a fact
issue on damages.
An exhibit attached to Delaney's second declaration, Exhibit A, purports to
substantiate Delaney's conclusory statements. The exhibit includes two
purported CMC accounting records: a spreadsheet entitled "Register
QuickReport" (CP at 941), which has one line item entitled "Total 2nd loan
expense," which it lists as $145,249.97; and a list of CMC's alleged
reimbursements to Delaney for payments he made on the note for the Fairmount
property. At first glance, Exhibit A appears to support Delaney's assertions but on
close inspection, the exhibit consists of nothing more than additional conclusory
statements. It is unclear from the record what the source and purpose of these
records are, but, based on Delaney's statements, it appears that they exist only
for purposes of this litigation. "I provide the following summary of expenses and
assets derived from 1206 Fairmount, Seattle[,] WA. Please refer to Exhibit A, to
my Supplemental Declaration." CP at 937. Other than these unsupported and
self-serving assertions, CMC provided no documentation of a transaction with
AHMC, in which it purportedly transferred over $145,000. We conclude the trial
court properly granted summary judgment as to this claim because the records
submitted by CMC in support of it claimed damages are insufficient to create a
material factual dispute on that issue.
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No. 69746-3-1/14
Failure to Add Delaney as a Plaintiff
CMC argues at length in its briefs that Delaney is the true party in interest
in this case and assigns error to the trial court's alleged failure to allow sufficient
time to amend its complaint adding Delaney as a plaintiff. Because CMC never
moved the trial court to amend, we find no basis for this claimed error.
The decision to grant leave to amend the pleadings is within the discretion
of the trial court. Wilson v. Horslev. 137 Wn.2d 500, 505, 974 P.2d 316 (1999).
Therefore, when reviewing the court's decision to grant or deny leave to amend,
we apply a manifest abuse of discretion test. id. The trial court's decision "'will not
be disturbed on review except on a clear showing of abuse of discretion, that is,
discretion manifestly unreasonable, or exercised on untenable grounds, or for
untenable reasons.'" jd. (quoting State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26,
482 P.2d 775 (1971)).
A party's failure to timely name a necessary party cannot be remedied if
the failure resulted from inexcusable neglect. Teller v. APM Terminals Pac. Ltd.,
134 Wn. App. 696, 142 P.3d 179 (2006). "Generally, inexcusable neglect exists
when no reason for the initial failure to name the party appears in the record." Id.
at 706. The failure to name a party who is apparent or ascertainable upon
reasonable investigation, is inexcusable. Id.
The inexcusable neglect standard of CR 15(c) has been applied where a
change in plaintiffs is made. Beal for Martinez v. City of Seattle. 134 Wn.2d 769,
954 P.2d 237 (1998). When the change in plaintiff is only in the representative
capacity in which the suit is brought, i.e., a personal representative substituted
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No. 69746-3-1/15
for a guardian, or a bankruptcy trustee for the debtor, then the courts have
relaxed the inexcusable neglect standard. Id.; Miller v. Campbell, 164 Wn.2d 529,
192 P.3d 352 (2008).
In this case, Choice and Dekman filed their answer to the Second
Amended Complaint and raised as affirmative defenses that "Plaintiff did not buy
back the loans in question, is not the real party in interest and suffered no
damages" on October 4, 2012. CP at 402 (emphasis added). That same day,
Choice's and Dekman's motion for summary judgment was also filed. The
hearing on the motion did not occur until November 2, 2012. Thus, CMC had
nearly a month to file a motion to amend to add Delaney as a plaintiff. Moreover,
when argument on the summary judgment motion was heard on November 2, the
case had been pending for six years and CMC had twice amended its complaint
to add additional parties.
Given the long pendency of this lawsuit, CMC's notice that Choice and
Dekman intended to challenge its status as the real party in interest, and
Delaney's active participation in the lawsuit, there is no justifiable reason for
CMC's failure to move the court to add Delaney as a plaintiff. Moreover, adding
Delaney as a plaintiff would not have been the type of change in representative
capacity warranting relaxation ofthe inexcusable neglect standard. CMC's failure
to file a motion to amend to add Delaney as a plaintiff was inexcusable neglect,
not subject to remedy on appeal.
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No. 69746-3-1/16
Eguitable Subrogation
CMC also argues for the first time on appeal that this court should grant it
relief under the doctrine of equitable subrogation. "On review of an order granting
or denying a motion for summary judgment the appellate court will consider only
evidence and issues called to the attention of the trial court." RAP 9.12. A party
may not propose new theories of the case that could have been raised before
entry of an adverse decision. Wilcox v. Lexington Eve Institute, 130 Wn. App.
234, 122 P.3d 729 (2005). Because CMC failed to raise this argument below, we
decline to consider it.
Affirm.
WE CONCUR:
^fjLJt^C^ CL
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