Filed
Washington State
Court of Appeals
Division Two
July 2, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
DANIEL L. ROGERS, an individual, No. 51375-7-II
Appellant, UNPUBLISHED OPINION
v.
QUALITY LOAN SERVICE
CORPORATION OF WASHINGTON, a
Washington corporation; MCCARTHY
HOLTHUS, LLP, a Professional Services
Organization; JPMORGAN CHASE BANK,
N.A., a national association; WELLS FARGO
BANK, N.A., a national association; WAMU
MORTGAGE PASS-THROUGH
CERTIFICATES SERIES 2005-PR1 TRUST,.
Respondents.
SUTTON, J. — After defaulting on a loan secured by a promissory note and a deed of trust
on his property, Daniel L. Rogers, acting pro se, filed a complaint to stop a non-judicial foreclosure
by JPMorgan Chase, N.A. (Chase), Wells Fargo Bank, N.A., and Wells Fargo Bank, N.A. as
Trustee for the WaMu Mortgage Pass-Through Certificates Series 2005 (the Trust).1 Chase and
the Trust filed a motion for summary judgment and dismissal of Rogers’s complaint and for
judgment on the Trust’s counterclaim for judicial foreclosure. The superior court granted the
motion in part, dismissed the complaint, granted foreclosure on the Trust’s judicial foreclosure
counterclaim, and denied without prejudice the motion for entry of judgment on the total amount
1
Quality Loan Service Corporation of Washington and McCarthy & Holthus were dismissed from
the case in 2015, and thus, are not part of this appeal.
No. 51375-7-II
due, Rogers’s redemption right, and the Trust’s recoverable costs. The Trust filed another
summary judgment motion on the amount due and the superior court granted the motion and
entered judgment against Rogers. Rogers appeals both orders.
Preliminarily, Rogers argues that he is entitled to the assistance of counsel and the superior
court should not have held him to the same standard as an attorney. He also argues that the superior
court erred by granting summary judgment in favor of Chase and the Trust because there are
genuine issues of material fact regarding his Consumer Protection Act (CPA) 2 claim and the
amount due on the defaulted loan. Chase and the Trust argue that the superior court did not err
because Rogers failed to show a genuine issue of material fact. We hold that Rogers is not entitled
to the assistance of counsel and the court did not err in holding him to the same standard as an
attorney. We also hold that the superior court did not err by granting summary judgment and
dismissing all claims in Rogers’s complaint including the CPA claim against Chase, granting the
Trust’s judicial foreclosure counterclaim, and entering judgment against Rogers. We affirm both
orders.
FACTS
I. BACKGROUND INFORMATION
A. INDIGENCY AND APPELLATE REVIEW
Rogers filed a motion for indigency. He explained that he had been unemployed for six
months, and had to sell personal items and rely on roommates to survive. He requested the
following relief: waiver of the filing fee, preparation of verbatim report of proceedings, costs of
2
Ch. 19.86 RCW.
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No. 51375-7-II
reproducing clerk’s papers, appointment of counsel, and an order to the clerk of the superior court
to transmit to the Supreme Court the papers designated in the findings of indigency. The superior
court found that Rogers was “unable by reason of poverty to pay for all or some of the expenses
of appellate review,” and that “[Rogers] is unable to contribute.” Clerk’s Papers (CP) at 482. On
November 4, 2015, a panel of the Supreme Court issued an order denying his motion for indigency,
stating only, “That the Appellant’s Motion for Expenditure of Public Funds is denied.” CP at 553.
B. LOAN, PROMISSORY NOTE AND DEED OF TRUST
In November 2004, Rogers borrowed $240,000 from Washington Mutual Bank (WaMu),
evidenced by a promissory note (Note). Rogers promised in that Note to make payments “every
month,” and to do so “until I have paid all of the principal and interest and any other charges
described below that I may owe under this Note.” CP at 1256. Rogers also signed a Deed of Trust
securing the Note against his property in Tahuya, Washington (Property). The Deed of Trust
provides that the beneficiary can sell the Property if Rogers defaulted on his loan. The Note and
the Deed of Trust name WaMu as both lender and beneficiary. The Note is indorsed-in-blank. In
2005, WaMu sold the Note to Wells Fargo Bank, N.A. the acting trustee for the WaMu Mortgage
Pass-through Certificates Series 2005-PR1 Trust, but remained the loan servicer and custodian.
Rogers defaulted on his loan in 2007 and declared bankruptcy. After Rogers defaulted, he
made payments to the bankruptcy trustee, Chase, along with other payments that Chase ultimately
credited to his loan.
In September 2008, WaMu failed and the Federal Deposit Insurance Corporation (FDIC)
took WaMu into receivership. Rundgren v. Wash. Mut. Bank, FA, 760 F.3d 1056, 1059 (9th Cir.
2014); Benson v. JPMorgan Chase Bank, N.A., 673 F.3d 1207, 1209-10 (9th Cir. 2012). The
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No. 51375-7-II
FDIC assumed “all rights, titles, powers, and privileges” of WaMu. Formerly 12 U.S.C.
§ 1821(d)(2)(A)(i) (2008).
On September 25, 2008, Chase became the successor-in-interest as to WaMu’s rights in
Rogers’s loan by its purchase of WaMu’s assets from the FDIC. Chase and the FDIC entered into
a purchase and assumption agreement to memorialize the purchase, which included WaMu’s rights
to service certain loans (including Rogers’s loan). In 2011, Chase executed a corporate assignment
of deed of trust, assigning its interest in Rogers’s Deed of Trust to Wells Fargo Bank, N.A., as
trustee for the Trust. While the Trust owned the Note, Chase serviced the loan and physically
possessed the Deed of Trust and Note. The Trust also gave Chase a limited power of attorney to
enforce Rogers’s loan.
II. PROCEDURAL INFORMATION
On January 21, 2014, Rogers filed a complaint seeking to stop a non-judicial foreclosure
on the Property, and alleged a number of causes of actions against Chase and the Trust which are
not relevant to this appeal. Rogers alleged that Chase improperly foreclosed non-judicially
because it did not acquire an interest in the Property, making the non-judicial foreclosure
documents invalid. Rogers further alleged that Chase and the Trust failed to follow the Deed of
Trust Act (DTA)3 requirements for non-judicial foreclosure and alleged that the property was being
used for agricultural purposes. Chase and the Trust then commenced judicial foreclosure
proceedings against the Property.
3
Ch. 61.12 RCW.
4
No. 51375-7-II
On July 17, 2015, Chase and the Trust answered Rogers’s complaint, and the Trust filed a
judicial foreclosure counterclaim. Rogers did not file an answer to the counterclaim. On June 28,
2016, Chase and the Trust filed a motion for summary judgment dismissal of all claims in Rogers’s
complaint and for foreclosure on the Trust’s judicial foreclosure counterclaim.
The superior court granted partial summary judgment to Chase and the Trust on all claims
in Rogers’s complaint, dismissing them with prejudice, and granted the Trust’s judicial foreclosure
counterclaim. However, the superior court found that there were genuine issues of material fact
as follows:
a. The total amount due and [owing] under the Deed of Trust, including proof of
the amount of each monthly installment owing;
b. The rights of redemption held by [Rogers], if any;
c. The costs Defendant/Counterclaimant believes are recoverable in this action.
CP at 855-56.
In 2017, the Trust filed another motion for summary judgment and an affidavit with
exhibits showing the payment history to prove what Rogers owed, what was due, and what Chase
had credited on the outstanding loan. Instead of timely opposing that second motion, Rogers, on
the final hearing date, filed a number of documents alleging a disability and referencing
accommodations under the Americans with Disabilities Act (ADA)4, as well as motions to dismiss
the counterclaims, for reconsideration of the superior court’s evidentiary ruling to take judicial
notice of certain documents, and to strike the declarations filed in support of the Trust’s judicial
foreclosure counterclaim. Because Rogers did not present any evidence to the contrary, the
4
42 U.S.C. § 12102(2) (2009).
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No. 51375-7-II
superior court accepted the payment history as accurate, granted summary judgment, and denied
Rogers’s motions. The superior court entered a judgment stating that the Trust was entitled to
recover $239,644.49 with interest at 3.8720 percent per annum from Rogers and was allowed to
foreclose on Rogers’s property.
Rogers appeals both superior court orders.
ANALYSIS
I. LEGAL PRINCIPLES
We review a superior court’s summary judgment order de novo. Reliable Credit Ass’n v.
Progressive Direct Ins., 171 Wn. App. 630, 637, 287 P.3d 698 (2012). Summary judgment is
appropriate if, when viewing the facts in the light most favorable to the nonmoving party, there
are no genuine issues 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 exists only where reasonable minds could reach
different conclusions.” Michael v. Mosquera-Lacy, 165 Wn.2d 595, 601, 200 P.3d 695 (2009). If
there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter
of law, we affirm the superior court’s summary judgment order. Lakey v. Puget Sound Energy,
Inc., 176 Wn.2d 909, 922, 296 P.3d 860 (2013).
“Mere allegations or conclusory statements of fact unsupported by evidence do not
sufficiently establish such a genuine issue.” Discover Bank v. Bridges, 154 Wn. App. 722, 727,
226 P.3d 191 (2010). “[T]he nonmoving party ‘may not rely on speculation, argumentative
assertions that unresolved factual issues remain, or in having its affidavits considered at face
value.’” Bridges, 154 Wn. App. at 727 (quoting Seven Gables Corp. v. MGM/UA Entm’t Co., 106
Wn.2d 1, 13, 721 P.2d 1 (1986)).
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No. 51375-7-II
II. APPOINTMENT OF COUNSEL
For the first time on appeal, Rogers argues that the superior court erred by not providing
him with the assistance of counsel based on indigence. He argues that he was entitled to the
appointment of counsel because otherwise justice could not be done by the court. We disagree.
RAP 2.5(a) states:
The appellate court may refuse to review any claim of error which was not raised
in the trial court. However, a party may raise the following claimed errors for the
first time in the appellate court: (1) lack of trial court jurisdiction, (2) failure to
establish facts upon which relief can be granted, and (3) manifest error affecting a
constitutional right. A party or the court may raise at any time the question of
appellate court jurisdiction. A party may present a ground for affirming a trial court
decision which was not presented to the trial court if the record has been sufficiently
developed to fairly consider the ground. A party may raise a claim of error which
was not raised by the party in the trial court if another party on the same side of the
case has raised the claim of error in the trial court.
Generally, there is a right to counsel in civil cases only when a civil litigant’s “physical
liberty is threatened” or a “fundamental liberty interest . . . is at risk.” In re Dependency of Grove,
127 Wn.2d 221, 237, 897 P.2d 1252 (1995).
Here, Rogers fails to identify any constitutional or statutory right to the appointment of
counsel for actions under the DTA. Although he claims that his property and financial interests
are at stake, the Trust filed a judicial foreclosure counterclaim allowed by the DTA to enforce the
loan as Rogers had agreed to in the Deed of Trust he executed to secure the loan. On appeal,
Rogers does not allege any procedural irregularities in the judicial foreclosure and he did not
appeal the judicial foreclosure by the Trust, only the amount due on the defaulted loan. Under
Grove, Rogers has no right to the assistance of counsel based on indigence. Further, the superior
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No. 51375-7-II
court did not enter an order denying Rogers’s request for the assistance of counsel. Thus, we hold
that the court did not err.
III. TREATMENT OF PRO SE LITIGANTS
Citing federal authority, Rogers argues that the superior court erred by holding him, a pro
se litigant, to the same standard as an attorney. We hold that the superior court did not err because
the law is well established that a pro se litigant is held to the same standard as an attorney.
In federal court, pro se pleadings receive liberal construction. Pouncil v. Tilton, 704 F.3d
568 (9th Cir. 2012); see Haines v. Kerner, 404 U.S. 519, 520-21, 92 S. Ct. 594, 30 L. Ed. 2d 652
(1972). But in Washington courts, a superior court “must hold pro se parties to the same standards
to which it holds attorneys.” Edwards v. Le Duc, 157 Wn. App. 455, 460, 238 P.3d 1187 (2010).
This is a procedural rule; federal procedural rules do not control in state courts. Adams v.
LeMaster, 223 F.3d 1177, 1182 n.4 (10th Cir. 2000). Thus, the Washington rule applies and the
superior court did not err when it held Rogers, as a pro se litigant, to the same standard as an
attorney.
IV. SUMMARY JUDGMENT
Rogers argues that the superior court erred by granting summary judgment dismissal of his
claims in the complaint including his CPA claim against Chase, and erred by granting the Trust’s
judicial foreclosure counterclaim as to the amount due and entering judgment against him. We
hold that because there are no genuine issues of material fact and because Chase and the Trust are
entitled to judgment as a matter of law, the superior court did not err.
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No. 51375-7-II
A. WAIVER OF REVIEW
Chase and the Trust initially argue that Rogers waived review of the partial summary
judgment order dismissing his complaint because his assignments of error do not assert that the
superior court erred in granting this motion. We agree.
“The scope of a given appeal is determined by the notice of appeal, the assignments of
error,” and the parties’ substantive arguments. Clark County v. W. Wash. Growth Mgmt. Hearings
Bd., 177 Wn.2d 136, 144, 298 P.3d 704 (2013). The party must designate in its notice of appeal
the decision that it wants this court to review. RAP 5.3(a).5
Here, in his notice of appeal, Rogers designated the partial summary judgment order dated
December 12, 2016. However, his brief fails to address this order. We hold that Rogers has
waived any argument regarding summary judgment dismissal of his complaint under Clark County
and RAP 5.3(a). Thus, we review below Rogers’s remaining CPA claim against Chase.
B. CPA CLAIM
Rogers argues that because there are genuine issues of material fact related to his claim
that Chase violated the CPA, the superior court erred by granting summary judgment dismissal of
the CPA claim. He argues that Chase sent out contradictory billing notices regarding the amount
due on his defaulted loan which constituted an unfair trade or deceptive business practice in
enforcing the loan. Chase argues that the superior court did not err because Rogers failed to show
a genuine issue of material fact that Chase acted deceptively, unfairly, or that he was injured. We
5
RAP 5.3(a) states in relevant part that “A notice of appeal must (1) be titled a notice of appeal,
(2) specify the party or parties seeking the review, (3) designate the decision or part of decision
which the party wants reviewed, and (4) name the appellate court to which the review is taken.”
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No. 51375-7-II
hold that because there are no genuine issues of material fact regarding any deceptive or unfair
actions by Chase in enforcing the loan, the superior court did not err by granting summary
judgment dismissal of the CPA claim.
The CPA prohibits “[u]nfair methods of competition and unfair or deceptive acts or
practices in the conduct of any trade or commerce.” RCW 19.86.020. Under RCW 19.86.090,
any person injured in his or her business or property by a violation of RCW 19.86.020 may bring
a civil action to recover actual damages. Panag v. Farmers Ins. Co. of Wash., 166 Wn.2d 27, 37,
204 P.3d 885 (2009). To prevail on a CPA claim, a plaintiff must prove “(1) an unfair or deceptive
act or practice, (2) occurring in trade or commerce, (3) affecting the public interest, (4) injury to a
person's business or property, and (5) causation.” Panag, 166 Wn.2d at 37. Whether a plaintiff
can prevail on a CPA claim is a case by case determination of whether the plaintiff can satisfy each
of the five elements. Lyons v. U.S. Bank Nat’l Ass’n, 181 Wn.2d 775, 785, 336 P.3d 1142 (2014).
Here, Rogers alleges that Chase:
The Defendant/Appellee sent out monthly notices stating the amount due.
The Deed of Trust required payments be paid when due. [Rogers] asserts that
sending borrowers contradictory statements regarding the amount due constitutes a
default of the promissory note and the deed of trust.
The fact that the Note [h]older or its agents had previously sent out
contradictory bills and had not provided any testimony explaining how the $30 plus
thousand payments in the bankruptcy were handled creates an issue of fact per se
and one regarding the . . . total amount owed. It also involves question with regard
to credibility of creditors. These issues of fact should not have been resolved
against [Rogers].
Appellant’s Amended Opening Br. at 38.
But Rogers fails to establish all the elements of a CPA claim. Panag, 166 Wn.2d at 37.
Rogers’s brief lacks any citation to the record and contains unsupported assertions related to the
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No. 51375-7-II
CPA claim. Because Rogers fails to establish all elements of a CPA claim, and there are no
genuine issues of material fact, we hold that the superior court did not err by dismissing the CPA
claim.
C. JUDICIAL FORECLOSURE COUNTERCLAIM
Rogers claims that Chase and the Trust misstated the amount due in the Trust’s judicial
foreclosure counterclaim. He also claims that Chase and the Trust did not credit him the money
he had paid during his bankruptcy and that Chase had sent him contradictory information, which
he claims constitutes a “factual dispute” defeating summary judgment. Chase and the Trust claim
that Rogers waived all defenses to the counterclaim for judicial foreclosure by failing to answer
the counterclaim. We disagree with Chase and the Trust because, although Rogers failed to answer
the counterclaim, this issue was litigated below and Rogers appealed the order entering judgment
on the amount due. However, because there are no genuine issues of material fact regarding the
amount due on the defaulted loan, we hold that Chase and the Trust were entitled to judgment as
a matter of law, and thus, the court did not err.
“Averments in a pleading to which a responsive pleading is required, other than those as
to the amount of damage, are admitted when not denied in the responsive pleading.” CR 8(d). We
can affirm the grant of summary judgment on any basis present in the record of proceedings in the
superior court. King County v. Seawest Inv.t Assocs., LLC, 141 Wn. App. 304, 310, 170 P.3d 53
(2007).
Rogers fails to provide any evidence that the payment history on the amounts due was
inaccurate. The superior court correctly determined that the payment history was accurate and
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No. 51375-7-II
correctly ruled that entry of judgment in favor of Chase and the Trust was proper. Thus, we hold
that the superior court did not err. Accordingly, we affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
SUTTON, J.
We concur:
MAXA, C.J.
MELNICK, J.
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