good morning your honor on your please the court ritual in jones appearing on behalf of the appellant mr misess meyer before i get started on my comments does the court have any questions of me based upon  and reinstatement of judge over streets memorandum decision two thousand and fourteen first judge mightiness exceeded the standard review by failing to give due regard to judge over streets superior opportunity to judge the credibility of the witnesses in his critique of her memorandum decision judge martinez did not specifically identify any finding or conclusion that was clearly erroneous but rather substituted his subjective opinions to replace judge over streets finding conclusions what factual finding do you think the district court failed to give proper deference to the well and then which element has had the fact the injury the well first of all your honor the this area of law has seen quite a bit of change in state of washington as it has in other states but in the state of washington the court in  as indicated that a pre sale violation of the deed of trust act does not give rise to injury and damages perceval rather pre sale  violations of the deed of trust act give rise to a consumer protection claim and as within that context that excuse me that the the issues have to be framed as to the deed of trust act judge  overstreet found that there was a failure to include the address and telephone number of the u s bank the purported owner and holder in violation of bars w sixty one twenty four zero three zero northwest trustee failed to inquire and investigate well fargo with the authority to execute the beneficiary declaration which by the way your honor is on all fours with elian's case that case and of the failure of northwest trustees services to enquire about the  status of the owner and holders right to foreclose is on all fours with elian's case and also what i refer to in my breathing is tricky oh too right and i don't think that the defendant really  i think the argument that they raise go more towards the other documents that they have in their possession that they're relying on right and it isn't clear and i'll have them clarify link which they had in their possession and how that  demonstrates the level of proof that's necessary under lions into hero but but going back to my original question of the factual findings so you're saying that the factual findings that made by the bankruptcy court that the down to the address providing the address of the service or instead of the beneficiary that is correct and as to the telephone number by giving a telephone number that is erroneous in the first place is itself misleading  violation if you're going to give a telephone number yet ought to be working one to the intended recipient which in this case would be the owner and the holder under sixty one twenty four zero three zero eight i mentioned to the court the finding that wells fargo's authority to execute the beneficiary declaration and its reliance by northwest trustees services was or was a factor considered by the judge overstreet primarily because the beneficiary declaration was found in the lion's case in the trujillo two case to be facially and big us and could not be relied upon its identical in this case and in the lion's case identical and the fact of the matter is in the why and the court said we don't have to go any farther where there is a relevance upon a facially ambiguous beneficiary declaration deed of trust the deed of trust doctors been violated and consumer protection damages in moore so we're on all fours with the lions injury to case all go on northwest and i would tend to agree with that that it does seem to be suffering from the same facial deficiencies as the declarations reject it into he owen lyons or at least those cases stand for that proposition but there were other documents in this particular case that they were relied on can you address how those other documents would also be insufficient it is the argument that they have insufficient in descent from liability yes specifically your honor the information that was the northwest wristy services did not come from the service or or the lender it came from a third party came from a company called vendor scape the information came across the internet in a portal that was taken down by northwest trustees services and then relied upon without any inquiry whatsoever the crucial fact and i think the one that most troubled judge overstreet at trial was the fact that the testimony was that at the time this referral was northwest trustees services had no procedures in place to verify the accuracy of any of the documents that they received no procedures in place so every document that they received was facially taken in without consideration to its veracity why is that an issue well the fact of the matter is two of the documents the last benefit loss mitigation form and the beneficiary declaration which is at issue were prepared by a gentleman by the name kennedy who whose testimony was that he had no personal knowledge of any of the things he signed under penalty of perjury had no idea where they came from and merely signed them willy nilly that was undisputed and frankly was never considered by a judge martine it's they failed to investigate specifically and verified and judge mr convergys personal knowledge of the facts represented the loss of a geisha form and that's a violation of our city sixty one twenty four all three one moreover northwest trustee services wrongly identified itself as an agent for us bank at a point in time when they were acting as even handed to both parties you're no longer an agent of anybody you are have an obligation to both the the the buyer and the beneficiary the borrower in the beneficiary  north was trustee services failed to investigate and verify whether the loan was even in default there was no testimony whatsoever that there was any knowledge of a default in the obligation at the time the notice of default was issued in the notice of trustees sale was issued now the comment that is made in the pleadings is that that really doesn't matter because at trial at trial it was determined that there was a default but it's prospect if the question is under under washington law what was known to the successor trustee before the notice of trustee sale is issue so we we have to look at these this this galaxy of facts that overwhelmingly determined and judge over street's mind that northwest trustees services that failed  to comply with its duty of good faith now in response to overwhelming evidence that there was a failure to northwest rusty's services to comply with its duty of good faith relying upon documents that it never verified and procedurally had no basis or way to verify there was number of arguments that that arose specifically  judge martinez said well look these are mere technicalities and these are technical knowledge is that a trial we clear it up but he doesn't address the issue of what was known at the time that the notice of trustees sale the notice of default were issued but unfortunately under washington law the deed of trust act must be strictly construed in the borrower's favor and that's the case substantial compliance with anyway and the document that got sent out the q w r addressed a lot of other violations that is true because as you get into this the labyrinth of of  lending at this level documents are created by a number of entities that have no personal knowledge of what was going on there rely upon by agencies like northwest trustees services as in the lion's case to their detriment it is the the the reason i bring up the albus case is that strict to strictly construe not strict construction but strictly construe the statute in favor of the borrower is the focus  as to the damages there first of all was no testimony at trial to indicate at the time the notice of default notice of trustees sale was issued there was any evidence of a default no evidence of a default to that evidence came up during the trial but at the trial there was no evidence that at the time the notice of trustees sale and the notice of default were issued that was that there was in fact a default in the obligation from the owner or the holder of the obligation the damages here are that and i'll go to the issue that was raised by the of the case and also by judge martinez is what i call the no harm no foul rule establishing proof of ownership at the time of trial four years after issuance of the notice of trustees sale is is insufficient absolutely insufficient as the lance court noted if there's an indication of the beneficiary declaration might be in effect should verify its veracity before initiating the trustees sale but i think that the the graviton of the argument is that well look even if they were wrong but ultimately it was determined that there was a default not to worry because i think that the argument was that nothing the trustee did and i believe this was the the  amicus brief that i got this nothing the trustee did kept mr or mrs meyer from performing or curing the default at the time that they were supposed to cure there was no default alleged by the beneficiary the problem is that under the deed of trust act in our washington law even if there was a default that does not excuse violation of the deed of trust act i'm citing  their free as and penang case in the that case just because there may be a default doesn't mean that the trustee successor trustee gets a free ride if they violated the statute damages and familiar with that you're down to a little over a minute do you want to save that for battle i'll take the courts in and you're addressing traditional style i have one thing to point out beyond the brief on that and then i was going to dress the unfair and deceptive element public interest so your uttered in terms of judicial stop i think the briefing pretty straightforward on that but  the myers are arguing is what we didn't learn about these claims until we hired counsel much later on and that actually underscores the fact that they were not confused when they received the foreclosure notices i mean either they were confused when they received the notices in which case they failed to schedule or amend their claims in the bankruptcy before their plan was confirmed or they weren't confused and there was nothing unfair deceptive about those notices and no c p a liability they're essentially trying to argue both ways and it's got to be one or the other so why does it have to be one or the other well they were either confused or they weren't well these are strict procedural protections so that the homeowner understands who they're dealing with and so if you don't tell them the appropriate address if you put on their names of companies that they've never dealt with that creates confusion right there that's different than being aware of what claims you can bring successfully through litigation right so if you get a notice that says bank eight basically is going to initially for kosher sale in your home is going to be sold in three months and you're thinking i've never dealt with these people before that a fraudulent claim is somebody trying to scam me as judge overstreet points out that's the importance of having the procedural protection that's different when you're talking about whether we should apply an equitable doctrine of judicial stop well the standard under hamilton your honor is that if you have knowledge of the facts giving rise to this potential claim and they're saying we had knowledge of the facts we got this notice of default and it had these entities and we had no idea who they were you have a duty under the bankruptcy code to schedule those claims and a continuing duty to amend and they didn't do that in this case and in fact they confirmed their plan after stipulating that the trust the jell to loan trust should receive relief from state to foreclose on their property this was these claims  fully litigated by both sides right a trial and they need objections raised to say wait a minute there's no formal amendment and so therefore we don't have to come and defend these clearly did we did raise that we judge overstreet your honor i know the miers tried to argue that somehow we never raise that it's in the record we raised it in argument multiple occasions but let's talk about the procedural issues then so the first primary argument that the miers raise here is well northwest trustee didn't verify anything and after this case went to trial that's when the lion's case came out from the state supreme court and this court should look to the state's highest court in terms of interpret in washington law on for closure issues the lion's case there's a couple of distinguishable factors here first of all in lyons you had a borrower who contacted the trustee company and said there is a problem there's no inquiry given to the trustee company that they might not have the right beneficiary second of all in lyons the court didn't say that there was some kind of per se liability because you had an ambiguous declaration in fact subsequent to lions the washington court of appeals in the buchi case which i believe we submitted as a supplemental authority bucci is very helpful because it's the only washington decision that addresses what other documents apart from the declaration a trustee can use to satisfy it and  there's a facial ambiguity here and so really the question is the other documents yes but i think the other documents are potentially problematic as well first of all let me clarify do you do you agree  that in looking at the other documents that could've relied on that these are documents that basically have to be in their possession before the recording transmitting was service of th trustees sale notice in order to comply with the statute which is sixty one twenty four zero three zero subsection seven the docket the trustee has to have swiss called sufficient proof that the beneficiary was in fact the beneficiary so the other documents that would have filled in the gap in terms of sufficient proof are documents from this database not necessarily around or there i can give the court the list so first of all documents from the database and then you have  trustee that's another one you have a title report confirming the beneficiary we have northwest trustee being aware that state relief was granted to the beneficiary and the bottom line in this court said in a case called myers versus mers the bottom line is who held the note and i point the court to its decision in mickelson versus chase which is five seventy nine federal pen dick's five ninety eight two thousand and fourteen case from this court it cannot be unfair deceptive to take actions that are true when it was true that gel two was in fact the beneficiary it was true no one mt of investigation would have changed the fact that it was true northwest trustee could have flown somebody to the vault to go see the note and tell to would have still been the beneficiary they could have called one hundred people at wells fargo and tell to you would have still been the beneficiary it cannot be unfair deceptive when it's true it was always true you can give somebody the runaround all day long weeks on end but so long as the underlying information that you have internally is true there could never be satisfaction of the unfair deceptive element well again this  said that it can't be unfair deceptive it is true but we don't believe there was any run around the notice is complied with state law the notice of default i think is your honor pointed out no phone number was required under oath three zero subsection eight you don't have to give a phone number for the owner of the loan ownership in fact is totally irrelevant under recent case law in washington ownership simply doesn't matter to enforceability but in terms of the address that was presented the district court had that  spot on the district court said that it's reasonable to include the address information care of the service or i mean first of all the trust had no employees that was firmly established a trial so writing to the trust or calling the trust would have done anything it's a legal trust this court in the case of beyond five eighty seven federal appendix three ninety two which mr jones and i argued before this court this court found on this exact same challenge to the address and phone number issue was not immaterial prejudicial error and this is already been addressed by this court in the book on decision it was the exact same issue that counsel raised and was rejected by this court so we look at you know did the trustee have enough your argument with the washington supreme court case of bain will be in says that you have to be the holder of the note to be the beneficiary jell to was the holder of the note in fact in this case that was actually both the holder and the owner so these arguments about well they weren't the owner of the whole scene and it did reject the the idea that information about the so loan service was all that the home owner needed to know the the  is the state supreme court said that generally that is sufficient information for someone to know because it's generally recognized that in fact the servicers who you contact that's exactly what the state supreme court has said so being talks about the fact that you have to hold the note to be the beneficiary absolutely gel to help the know they were the beneficiary but the standard under lyons for a trustee company is a cursory investigation it doesn't mean you have to go out and do some extended verification and there is no case either in washington or from this court that says there's some ancillary inquiry duty unless you have like a miss lyons who put you on inquiry notice and the myers never did that and then your honor we also have the public interest prong i just want to mention before i see time to mr lincoln the myers tried to contact the service or the they sent this purported q w our letter which the bankruptcy court blamed the trustee as  part of the damages in this case that had nothing to do with the trustee for that what they refer to some wells fargo and then they tried to figure out where u s bank came into the picture and right because was all that happened before they went out retain counsel a f c west fargo same company they were servicing the loan there who the myers needed to contact for any issues regarding the buyers today that they reached out to sea and then they were referred to wells fargo well they're the same company well but that's not there's no case or statutory duty for the trustee to try to assist a borrower and understanding who the investor on the loan is or who the loan trust is the trustees required to issue the statutory notices and it did that and these aren't credibility of witnesses shoes these are legal issues that the district court was able to make findings on and also in a public interest there was literally no evidence of that and that is a co equal pronged under the consumer protection act they had they put on nothing in three  and so why i disagree and i think a stop of applies i think reaching the merits the court could also affirm judgment as ruling that your honors good morning may it please the court my name is steve lincoln l i n k o and i represent northwest trustee services i wanted to address the causation and damages portion of the case i did want to respond to the court's  statement about the runaround there was no run around because the meyers never raised any issue with the trustee about any confusion that they had so unlike the lions case where miss lyons contacted the trustee and raised an issue that never happened here so the trustee was never never include in it there was an issue and there wasn't an issue because the information was accurate well the washington courts tell us that these procedural requirements are to be strictly construed so soon we get past the element of unfair deceptive act in terms of damages if a homeowner things that they've received a defective notice default that tells them that the home is going to be sold within months how else do they slow down the process other than doing what the meiers did in this case an tourney filing sending a letter for additional information going into bankruptcy so that you can slow down the process before your home is sold none of which involves the trustee they didn't send any letter to the trustee to trustee doesn't know that they see issued to the cute of the qualified written request and so from the trustees standpoint unless you tell the trustee there is a problem there's nothing for the trustee to do to slow down the process as you say they course they have their remedies with the court they can deal with the service or they have remedies it the question here is is the trustee liable under these facts and there  because under the c p a the injuries that the meiers occur incur had to be proximately caused by activities of the trustee and that's what we're missing here the bankruptcy court found fo qualified written request is a right that borrowers have under federal law under arrest to get information about their loan the meiers did they send it to the service or the trustee has no idea what happened with that why should the trust pay for that the second element was the court awarded thirty five hundred dollars in attorney's fees and two hundred seventy four dollars in costs for the miers bankruptcy filing how is the trustee responsible for the miers bankruptcy filing that was that their decision to file bankruptcy and this mortgage loan was not even included in their final plan they had over sixty eight creditors they owed over one hundred five thousand dollars they confirmed the plan that allowed them to pay fifteen percent of their debt and took the mortgage loan out of the plan so they paid nothing on their mortgage loan so they got a great benefit from the bankruptcy filing why does the foreclosure trustee have to pay for that there is no nexus between anything the trustee did in this case and the buyers filing bankruptcy and the cost of that bankruptcy the third element of the damages is rent a bankruptcy court assessed ten thousand dollars in rent that the meiers occurred in twenty thirteen when they moved out of their house let's go through the timeline a second the foreclosure was started in tw the meiers filed bankruptcy in twenty ten in twenty eleven they confirmed their plan before they amended it they took out the mortgage loan they confirmed their plan in tw there's absolutely no nexus between anything that northwest did and the rent that they incurred in two thousand and thirteen they gave up their house they were going to have to move presumably they would have to pay rent so there's that isn't a but for causation of the damage and indecision to the rent the bankruptcy court assessed north west twenty three hundred dollars in security deposit that the miners had to pay in two thousand and thirteen that's not a damage if they perform their rent they're going to get those deposits back so that shouldn't have been assessed against the trustee and finally the bankruptcy each court charged northwest thirty two hundred dollars for the myers time off from work to attend multiple mediations and hearings northwest wasn't involved in any mediation you don't mediate with your with the foreclosure trustee they mediate with the loan servicer the buyers chose to do mediation what why should northwest have to pay for that but more importantly is c p a damages are limited to property or business lost wages are not compensable under the c p a this isn't even an eligible damage under the c p a but there's there isn't any nexus between anything that northwest did in this case and the myers mediating with their lender or with the myers attending their bankruptcy hearings this court should affirm the district court decision  below and roll that there was no c p a violation in this case thank you thank you for offering the opportunity to rebut as to the judicial stoppel argument that mr scherer raised neither judge overstreet nor did judge martinez find it particularly compelling and i would ask the court to so find as well the fact of the matter is is that it's very difficult for homeowners in an environment when the law itself is changing so radically as it has in the state of washington since two thousand and twelve to articulate claims based upon that law they may have facts and as your honor pointed out they did act on on these by seeking counsel by seeking the bankruptcy and trying to sort things out and find out who they are dealing with as to the deception i would point out to the court that the volens interest cases speak volumes to the sort of deception that homeowners were faced by the acts of northwest trustees services and i would point out that in the notice of default northwest trustees services didn't say they were just a successor trustee in the document itself they referred to with themselves as the agent the agent for the company that's going to be a problem it is a problem because they were no longer acting as an independent trustee they were acting as the the carrier for the service or lender  trustee or whatever i wanted to deal with the the other issue with that was raised by mr lincoln and judge overstreet identified that northwest trustee services violated the deed of trust act by failing to provide the certainly the name of the owner of the obligation we've addressed that already judge overstreet also identified the lack of any evidence of a default as an actor practice that meets the first prong of our c p a act and finally judge overstreet identified northwest trustees for failure to verify any of the information that they received through this third party portal vendor scape  and in fact they went so far as to instruct their employees not to call not to call the the service or or the owner of the obligation to verify any of the information we're familiar with her ruling