H/T Karen Pooley

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

WINNIE LYONS, a single person,
Appellant,

v.

U.S. BANK NATIONAL
ASSOCIATION, as trustee for
Stanwich Mortgage Loan Trust Series
2012-3, by Carrington Mortgage
Services, LLC; WELLS FARGO
BANK, N.A., a chartered national
bank; Wells Fargo Bank, N.A., as
serv1cer,
Defendants,

and

NORTHWEST TRUSTEE
SERVICES, INC., as trustee,
Respondent.

Excerpt:
Lyons alleges three causes of action against NWTS-one under the DT A, one
under the CPA, and one for intentional infliction of emotional distress. All of these
claims are supported by the same underlying conduct that Lyons alleges involves a
violation of RCW 61.24.030(7) in relation to the beneficiary declaration and a
breach of the duty of good faith under RCW 61.24.010(4). The trial court focused
on the issue of whether Lyons could bring a claim for damages under the DTA in
the absence of a trustee’s sale, and there was almost no discussion of the CPA or the
intentional infliction of emotional distress claims during argument on the summary
judgment motion. Yet, the court granted NWTS’ motion on all ofthese claims. We
begin by addressing the causes of action under the DT A and the CPA, including
Lyons’ particular contentions regarding the beneficiary declaration and breach of the
duty of good faith. We then address the cause of action for intentional infliction of
emotional distress.

A. Without a nonjudicial foreclosure sale, a party may not bring a claim for
damages under the DT A, but they can bring a claim under the CPA
Recently we decided Frias v. Asset Foreclosure Services, Inc., _ Wn.2d
_, 334 P.3d 529 (2014). Frias involved two certified questions from the federal
district court regarding whether a plaintiff could bring a claim for damages under
the DT A or the CPA in the absence of a foreclosure sale and what principles would
govern each claim. This court carefully considered the language of the statute, the
intended beneficiaries of the statute, the explicit and implicit legislative intent, and
the purposes of the statute. The court concluded:

We hold that the DTA does not create an independent cause of
action for monetary damages based on alleged violations of its
provisions where no foreclosure sale has been completed. . . . We
further hold that under appropriate factual circumstances, DTA
violations may be actionable under the CPA, even where no foreclosure
sale has been completed …. [T]he same principles that govern CPA
claims generally apply to CPA claims based on alleged DT A violations.
334 P.3d at 531. Without the sale of the property, damages are not recoverable under
the DTA, but a CPA claim may be maintained regardless of the status of the property.
Frias clearly resolves the first issue in this case. Lyons cannot bring a claim for
damages under the DT A in the absence of a sale, but she may bring a claim for
similar actions under the CPA.

B. There were material issues of fact for trial regarding whether NWTS violated
provisions of the DT A, which could be used to support Lyons’ CPA claim, so
granting summary judgment to NWTS on Lyons’ CPA claim was improper
A CPA claim is a preexisting statutory cause of action with established
elements. Id. at 537. A claim under the CPA based on violations of the DTA must
meet the same requirements applicable to any other CPA claim. 3 The availability of
redress for wrongs during nonjudicial foreclosure under the CPA is well supported
in our case law. Id.; Bain v. Metro. Mortg. Grp., Inc., 175 Wn.2d 83, 119, 285 P.3d
34 (2012) (a plaintiff may bring a claim under the CPA arguing the facts specific to
the case); Walker v. Quality Loan Serv. Corp. of Wash., 176 Wn. App. 294, 320, 308
P.3d 716 (2013) (actions taken during the nonjudicial foreclosure process were
sufficient to support all five elements of a CPA claim and survive pretrial dismissal);
Vawter v. Quality Loan Serv. Corp. of Wash., 707 F. Supp. 2d 1115, 1129-30 (W.D.
Wash. 2010) (court discussed the five elements for a CPA claim and considered the
factual allegations supporting Vawter’s DTA claim to support the CPA claim as
well); Klem v. Wash. Mut. Bank, 176 Wn.2d 771, 295 P.3d 1179 (2013) (property
was sold in this case, but court discussed action amounting to CPA claims in depth,
focusing on acts of defendants, not the fact the property was sold). The absence of a
completed sale of the property does not affect the availability of this cause of action.
Whether a plaintiff will prevail on a CPA claim is a case by case determination of
whether the plaintiff can satisfy the requisite elements.

The main question raised by the parties surrounds whether the alleged actions
of NWTS amount to unfair or deceptive practices under the CPA.

[…]

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