IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

UNION BANK, N.A., successor-ininterest to the Federal Deposit

Insurance Corporation, as receiver of

Frontier Bank,

Respondent,

v.

JOHN T. BLANCHARD and JANE DOE

BLANCHARD, husband and wife;

RANDY S. PREVIS and KATIE L.

PREVIS, husband and wife,

Appellants.

DIVISION ONE

No. 72805-9-1

PUBLISHED OPINION

FILED: June 6, 2016

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Dwyer, J. —When Wellington Hills Park, LLC defaulted on a debt owed to

Union Bank, Union commenced this action on commercial guaranties executed

by John Blanchard, Randy Previs, and Katie Previs (the guarantors) securing

that debt. The guarantors asserted numerous affirmative defenses and

counterclaims in response, but the trial court concluded that Union was entitled to

judgment as a matter of law on its claims and dismissed the guarantors'

counterclaims. Because the trial court was correct to enforce the absolute and

unconditional guaranties and the guarantors do not establish a genuine issue of

material fact with regard to their claims and defenses, we affirm.
No. 72805-9-1/2

A. Blanchardand the Previses give guaranties of borrower's

indebtedness to Frontier Bank

Wellington Hills Park (borrower) is a limited liability company that owned

the Wellington Hills Business Campus in Woodinville (the property). Its members

are Randy and Katie Previs (85 percentowners), who are long-time real estate

investors and developers, and John Blanchard (15 percent owner), "an

experienced business and real estate attorney," who also served as borrower's

general counsel.

In 2005, borrower obtained a construction loan to develop the property

from Frontier. Borrower executed a promissory note evidencing the debt owed to

Frontier.1 The note was secured by a construction deed oftrustthat encumbered

the property and an assignment of rents. It was also secured by individual

guaranties executed by Blanchard and each of the Previses (the guaranties).

As part of the loan transaction, Blanchard and the Previses each signed

three documents. Specifically, they each signed the note as a member of

borrower, signed an individual commercial guaranty, and signed thefinal loan

agreement twice—first as a member of borrower, then as a guarantor.2

Borrower defaulted on the note when it came due on January 5, 2010.

6. Frontier fails and Union buysFrontier's assets from the Federal

Deposit Insurance Corporation (FDIC), including the note and guaranties

On April 30, 2010, theWashington State Department ofFinancial

1The original debt principal was $19,500,000 but this amount was increased to

$36,700,000 pursuant to a "change in terms" agreement. 2Blanchard and the Previses signed similar final loan agreements (called "Notice[s] of

Final Agreement") each time the terms of the note changed, as well as when they signed the

construction loan commitment letter.

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No. 72805-9-1/3

Institutions closed Frontier. The FDIC was appointed as the receiver to liquidate

Frontier and wind up its affairs. The same day, Union purchased certain of

Frontier's assets from the FDIC, including the note and the guaranties. With

respect to the assets it purchased, Union succeeded to the FDIC's rights as

Frontier's receiver. The FDIC also authorized Union to avail itself of statutory

protections available to the FDIC and its assignees.

The final day to file claims against Frontier with the FDIC was August 4,

2010; neither Blanchard nor the Previses filed claims by that deadline.

C. The Snohomish County Superior Court appoints a receiver for

borrower and the property; Appellants actively oppose the actsofthe receiver

On November 19, 2010, Union filed an application for the appointment of a

custodial receiverfor borrower and the property in Snohomish County Superior

Court (the receivership court).3 On December 21, 2010, the receivership court

entered its order appointing Turnaround Inc. as custodial receiver.

On July 27, 2011, Union moved to convert the custodial receivership to a

general receivership. Blanchard and Randy Previs opposed the motion. The

receivership court entered an order converting the case to a general receivership

and appointing Turnaround as general receiver, which became effective on

November 17, 2011.

On December 19, 2011, the receiver gave notice of the deadline to file

proofs of claim in the receivership. Blanchard, the Previses, and Randy Previs,

as assignee of Veritas Development, Inc. (Veritas),4 filed claims.

On April 27, 2012, the receiver moved for an order approving a settlement

3 Cause No. 10-2-09992-0.

4Veritas isa company formally owned by the Previses' daughter, Ashley Previs.
No. 72805-9-1/4

agreement and release of claims in connection with a soft cost insurance claim

previously asserted by borrower. Blanchard and Randy Previs opposed the

settlement. On June 1, 2012, the receivership court entered an order approving

the settlement agreement and release of claims. In support of its order, the court

found "that the [agreement isfair and equitable, and in the best interests ofthe

estate and its creditors, and that the responses or objections should be over

ruled."

On July 26, 2012, the receiver moved the receivership court for an order

to approve bid procedures for the sale of the property. On August 31, 2012, the

court granted the motion and entered its bid procedures order.

On January 23, 2013, the receiver gave notice ofthe successful bidder

underthe bid procedures orderand set a hearing to approve the sale.

Blanchard, Randy Previs, and Veritas opposed the proposed sale. On January

31, 2013, the receivership court approved the sale of the property by a purchase

and sale agreement between the receiver and OIBP Wellington Hills, LLC (OIBP)

for a purchase price of $10,850,000.

On February 8, 2013, Randy Previs and Veritas sought revision of the sale

order, but their revision motion was denied. On March 25, 2013, they filed a

notice ofappeal ofthe sale orderwith this court.5

Blanchard and the Previses did not post the $7,102,611 bond required to

supersede the judgment and stop the sale. Instead, they had borrower declare

bankruptcy.

5 No. 70106-1-1.

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No. 72805-9-1/5

D. Borrowerdeclares bankruptcy; the bankruptcycourt rejects Appellants'

opposition and directs the sale of the property

On August 20, 2013, borrower filed a Chapter 7 bankruptcy case in the

United States Bankruptcy Court for the Western District of Washington (the

bankruptcy court).6 The Chapter 7 voluntary petition was signed by Randy

Previs, as borrower's managing member.

On September 13, 2013, the Chapter 7 trustee (the trustee) filed a motion

requesting that the bankruptcy court approve the sale ofthe property to OIBP

and stating that "assurance and speed of closing" were critical and that "the

Trustee cannot ignore the history ofthe dispute and the decisions made by the

Receiver, the tenant, the Bank, the County, the SuperiorCourt and the Court of

Appeals."

The trustee also filed his own declaration in support of the sale, stating:

I have concluded, based on the facts and circumstances of this

case, that Ishould seek Bankruptcy Court approval to sell the

Property to OIPB Wellington Hills, LLC, pursuant to essentially the

same terms as those agreed to in the state court receivership

case. ... I have determined it is not in the best interest of the

estate and its creditors to accept the offer of Veritas and put it

before the Court for approval, or to open up this matter to an

auction or to a new marketing process.

Veritas and Blanchard filed objections to the trustee's motion. Randy

Previs, under the letterhead of Seavestco, Inc., filed an objection both to the

trustee's motion and to the receiver's continued control of the property pending

its sale. On October 16, 2013, the bankruptcy court granted the trustee's motion,

made findings, and entered its order approving the sale of the property.

On October 30, 2013, Veritas filed a notice of appeal from the bankruptcy

6 Case No. 13-17546-KAO.

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No. 72805-9-1/6

sale order.

On November 26, 2013, the sale of the property closed and, from the sale

proceeds, the closing agent disbursed $9,696,411.88 to Union pursuant to its

construction deed of trust.

E. The bankruptcy court enforces the guaranties and subordinates

Appellants'proofs of claim to Union's claim

Blanchard, the Previses, and Veritas, by Randy Previs as its assignee,

filed proofs of claims in the bankruptcy case.

On March 31, 2014, Union moved for summary judgment against

Blanchard and the Previses on the ground that the subordination provision in the

guaranties subordinated their proofs of claim to Union's claims. In their

opposition tothe motion, Blanchard and the Previses argued that "Union Bank's

conduct in conducting the receivership ofWellington Hills Business Park was

substantively unconscionable, rendering the personal guaranties—including the

subordination clause—unenforceable."

On May 27, 2014, the bankruptcy court entered summary judgment in

favor of Union, upholding the guaranties, enforcing the subordination provisions

in the guaranties, and holding that "all distributions on [Appellants'] claims must

be paid to Union Bank."

F. The receivership and bankruptcy case appeals are voluntarily

dismissed with prejudice; the cases are closed

On December 23, 2013, Veritas, borrower, and the trustee agreed to

dismiss with prejudice the appeal from the bankruptcy sale order. The appeal

was dismissed with prejudice on December 31, 2013. On January 30, 2015, the
No. 72805-9-1/7

bankruptcy court entered its order discharging the trustee and closing the case.

On January 7, 2014, Randy Previs and Veritas moved this court to

withdraw its appeal of the sale order of the receivership court. The appeal was

dismissed on January 23, 2014. On December 18, 2014, the receivership court

entered an order approving the receiver's final report and discharging the

receiver.

G. This action is commenced; Appellants assert affirmative defenses and

counterclaims

On March 29, 2013, while the receivership case was pending and before

the bankruptcy case was commenced, Union filed this action for judgment on the

guaranties in the King County Superior Court. In response, the guarantors

asserted numerous affirmative defenses and counterclaims. On October 10,

2014, the superior court granted summary judgment in favor of Union and

against the guarantors, determining that Union was entitled tojudgment as a

matter oflaw and dismissing the guarantors' claims with prejudice. On

December 9, 2014, aftertheir motion for reconsideration was denied, the

guarantorsfiled the underlying notice ofappeal.

II

The guarantors argue that the trial court erred by granting summary

judgment to enforce the guaranties. This is so, they assert, because a material

dispute of fact exists as towhether the guaranties are void or voidable. They are

incorrect.

We review the grant ofsummary judgment de novo, undertaking the same

inquiry asthe trial court. Jones v. Allstate Ins. Co., 146 Wn.2d 291, 300, 45 P.3d
No. 72805-9-1/8

1068 (2002). Summary judgment is appropriate only if the supporting materials,

viewed in the light most favorable to the nonmoving party, demonstrate "that

there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matteroflaw." CR56(c); Hartley v. State, 103Wn.2d

768, 774, 698 P.2d 77 (1985). A "'complete failure of proof concerning an

essential element of the nonmoving party's case necessarily renders all other

facts immaterial.'" Young v. Key Pharm.. Inc., 112 Wn.2d 216, 225, 770 P.2d

182 (1989) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct.

2548,91 L. Ed. 2d 265 (1986)).

Union contends that each of the guarantors' claims and defenses is

foreclosed by enforcement ofthe guaranties, together with application of the

state statute of frauds and the federal D'Oench7 doctrine, as codified at 12

U.S.C. § 1823(e). Thus, before addressing the specific assertions made by the

guarantors herein, we begin by examining these proposed bases for rejecting the

guarantors' claims and defenses.

A

Union asserts that the guaranties are absolute and unconditional promises

to pay borrower's debt and that the guarantors waived nearly all claims and

defenses to making such payment. We agree.

We recently summarized general principles relevant to the enforceability

of absolute and unconditional guaranties.

"A 'guaranty' 'is a promise to answer for the debt, default, or

miscarriage ofanother person.' 'A contract ofguaranty, being a

7D'Oench. Duhme &Co. v. Fed. Deposit Ins. Corp., 315 U.S. 447, 62 S. Ct. 676, 86 L

Ed. 956(1942).

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No. 72805-9-1/9

collateral engagement for the performance of an undertaking of

another, imports the existence of two different obligations, one

being that of the principal debtor and the other that of the

guarantor.'" fSauterv. Houston Cas. Co., 168 Wn. App. 348, 356,

276 P.3d 358 (2012) (citation omitted) (internal quotation marks

omitted) (quoting Wilson Court Ltd. P'ship v. Tony Maroni's. Inc.,

134Wn.2d 692, 707, 952 P.2d 590 (1998)).] A guaranty'"is

independent'" of the debt, "'and the responsibilities which are

imposed bythe .. . guaranty differ from those . .. created bythe

contract to which the guaranty is collateral.'" rWilson Court Ltd.

P'ship, 134 Wn.2d at 707 (quoting Robev v. Walton Lumber Co., 17

Wn.2d 242, 255, 135 P.2d 95 (1943)); accord Freestone Capital

Partners, LP v. MKA Real Estate Opportunity Fund I. LLC, 155 Wn.

App. 643, 661, 230 P.3d 625 (2010).] "A written guarantee of

payment ofthe principal's indebtedness . . . [is] governed by its own

terms." rMcAllister v. Pier 67. Inc., 1 Wn. App. 978, 983, 465 P.2d

678(1970).]

"[W]here a guarantorfreely and voluntarily guarantees the

payment of another, and a creditor relies to its detriment on this

guaranty, the law generally requires the guaranty to be enforced."

fin re Spokane Concrete Prods.. Inc., 126 Wn.2d 269, 278, 892

P.2d 98 (1995).] "'An absolute guaranty is an unconditional

undertaking on the part ofthe guarantor that the person primarily

obligated will make payment orwill perform, and such a guarantor

isliable immediately upon default ofthe principal without notice.'"

rCenturv 21 Prods.. Inc. v. Glacier Sales, 129 Wn.2d 406, 414, 918

P.2d 168 (1996) (quoting Joe Heaston Tractor &Implement Co. v.

Sec. Acceptance Corp., 243 F.2d 196 (10th Cir. 1957)); see also

Gravson v. Platis. 95 Wn. App. 824, 826, 978 P.2d 1105 (1999).]

"An absolute and unconditional guaranty should be and is

enforceable according to its terms. The courts are to enforce it as

the parties meant it to be enforced, with full effect given to its

contents, and without reading into it terms and conditions on which

it is completely silent." fNat'l Bank ofWash, v. Equity Inv'rs, 81

Wn.2d 886, 919, 506 P.2d 20 (1973).]

Frontier Bank v. Binao Invs.. LLC. 191 Wn. App. 43, 53-54, 361 P.3d 230 (2015)

(some alterations in original).

Just as guaranties may be absolute and unconditional, so may they waive

claims and defenses. Waiver provisions in guaranties are uniformly upheld and

enforced by Washington courts, including on summary judgment. Old Nat'l Bank

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No. 72805-9-1/10

of Wash, v. Seattle Smashers Corp.. 36 Wn. App. 688, 691, 676 P.2d 1034

(1984) (upholding waiver ofconsent ofguarantor to grant borrower extension of

time because "the language of the guaranty is determinative"); Fruehau Trailer

Co. of Canada Ltd. v. Chandler, 67 Wn.2d 704, 709, 409 P.2d 651 (1966)

(upholding waiver ofdefense of release or discharge of principal obligation

because "the [relevant] provision ofthe agreement constituted a full and

complete waiver by the guarantors"); Gravson v. Platis, 95Wn. App. 824, 834,

978 P.2d 1105 (1999) (upholding waivers ofright of recourse against lender and

of defense based on lender's acceptance of deed in lieu); Columbia Bank. N.A. v.

New Cascadia Corp., 37 Wn. App. 737, 739-40, 682 P.2d 966 (1984) (upholding

waivers ofconsentofguarantor to grant borrower extension oftime and to

release co-guarantor).

There is no dispute as to the language ofthe guaranties herein at issue.

They clearly state that they are absolute and unconditional.

AMOUNT OF GUARANTY. The amount of this Guaranty is

Unlimited.

CONTINUING UNLIMITED GUARANTY. Forgood and valuable

consideration, [Guarantor] absolutely andunconditionally

guarantees and promises to pay to [Lender] or its order, in legal

tender of the United States of America, the Indebtedness ... of

[Borrower] to Lender on the terms and conditions setforth in this

Guaranty. Under the Guaranty, the liability ofGuarantor is

unlimited and the obligations of Guarantor are continuing.

(Emphasis added.)

The guaranties also contain clear waiver provisions, which state that the

guarantor "waives any and all rights or defenses . . . given to guarantors at law or

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No. 72805-9-1/11

in equity other than actual payment and performance of indebtedness."8 They

also state that the guarantor "waives and agrees not to assert or claim .. . any

deductions to the amount guaranteed under this Guaranty for any claim ofsetoff,

counterclaim, counter demand, recoupment or similarright." The guaranties

further state that the guarantor "warrants and agrees that each ofthe waivers set

forth above is made with Guarantor's full knowledge of its significance and

consequences and that... the waivers are reasonable and not contrary to public

policy or law."

There can be no serious disputethat the express terms ofthe guaranties

make them unconditional guaranties of payment and waive nearly all

counterclaims and defenses, except payment. Accord Frontier Bank, 191 Wn.

App. at 54 (so construing a substantially similar guaranty); In re Cronev, 2011

WL 1656371 (Bankr. W.D. Wash. May 2, 2011) (same). Accordingly, if the

guaranties herein are enforceable, the only defense remaining to the guarantors

would be actual payment (which they do not assert). Furthermore, because the

promissory notes that these guaranties support are delinquent, the obligations of

the guarantors would also be delinquent.

B

Union also asserts that the state statute of frauds operates to foreclose

some of the guarantors' claims and defenses. We agree.

Washington's statute of frauds bars the enforcement of credit agreements

that are not in writing:

8This specifically includes: "any right to claim discharge of the Indebtedness on the basis

ofunjustified impairment ofany collateral for the Indebtedness."

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No. 72805-9-1/12

A credit agreement is not enforceable against the creditor unless

the agreement is in writing and signed by the creditor. The rights

and obligations of the parties to a credit agreement shall be

determined solely from the written agreement, and any prior or

contemporaneous oral agreements between the parties are

superseded by, merged into, and may not vary the credit

agreement. Partial performance of a credit agreement does not

remove the agreement from the operation of this section.

RCW 19.36.110 (emphasis added).

A "credit agreement" is defined as:

an agreement, promise, or commitment to lend money, to otherwise

extend credit, to forbear with respect to the repayment of any debt

or the exercise of any remedy, to modify or amend the terms under

which the creditor has lent money or otherwise extended credit, to

release any guarantor. . . , or to make any other financial

accommodation pertaining to a debt or other extension of credit.

RCW 19.36.100.

Herein, the guarantors assert that Frontier made them various promises to

extend them further credit, including by giving them a "mini-perm" loan9 in 2009,

when it appeared as if borrower would be unable to continue making payments

due on the loan. In support ofthis assertion, the guarantors point to multiple "risk

assessment report[s]" by Frontier, some ofwhich acknowledge the possibility that

borrower will need additional credit in order to stay current on loan payments,

and a "loan memorandum," which appears to be an application for the mini-perm

loan in question. As an initial matter, none ofthese documents actually includes

a promise to extend credit. More to the point, none issigned by a Frontier

9Amini-perm loan is a temporary loan issued by banksas bridge funding for a

development loan from construction to tenancy.

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No. 72805-9-1/13

representative.10 Therefore, the guarantors' reliance on these documents is

barred as proof of the purported promises by the statute of frauds.

There is no documentary evidence of the existence of any credit

agreement between Frontier or Union and the guarantors, aside from the

undisputed loan agreements, promissory note, and guaranties at the heart ofthe

controversy, whose existence and terms are undisputed.

C

Union also asserts that application of the federal D'Oench doctrine further

limits the claims and defenses available to the guarantors. We agree.

"The federal D'Oench doctrine prohibits a party from asserting a

cause of action against the FDIC orits assignees based upon

unwritten agreements orother schemes alleged to be entered into

by a failed bank. Lanalev v. Fed. Deposit Ins. Corp.], 484 U.S. 86,

92-93 108 S. Ct. 396, 98 L. Ed. 2d 340 (1987). In D'Oench M

Duhme & Co. v. FDIC, 315 U.S. 447, 62 S. Ct. 676, 86 L. Ed. 956

(1942), the United States Supreme Court enunciated this doctrine,

which is intended to protectthe FDIC andits assignees from

fraudulent schemes by borrowers offailed institutions. The doctrine

also protects the FDIC by allowing bank representatives to rely solely on the records of the bank in evaluating the bank's financial

condition, rather than leaving it exposed to suitsfounded on

undisclosed conditions or deceptive documents. [Fed. Deposit Ins.

Corp.1 v. Zook Bros. Constr. Co., 973 F.2d 1448, 1450-51 (9th Cir.

1992)."

Frontier Bank, 191 Wn. App. at 63-64 (emphasis added) (alterations in original)

(quoting Kananv v. Union Bank. N.A., No. C11-6062 RJB, 2012 WL 5258847, at

*5 (W.D. Wash. Oct. 24, 2012)): accord Nw. Land &Inv.. Inc. v. New W. Fed.

Sav. &LoanAss'n. 64 Wn. App. 938, 943, 827 P.2d 334 (1992) (The D'Oench

doctrine "bars a borrower from asserting ... any claim or defense based on any

10 The guarantors assert that one of these reports was signed by three representatives of

Frontier. In fact, the worksheet to which they refer is separate from any report that mentions the

"mini-perm" in any way.

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No. 72805-9-1/14

unrecorded agreement which alters the terms of a seemingly unqualified

obligation to pay").

The D'Oench doctrine was codified at 12 U.S.C. § 1823(e), as part of the

Federal Deposit Insurance Act. That provision provides, in pertinent part:

No agreement which tends to diminish or defeat the interest

of the [FDIC] in any asset acquired by it under this section or

section 1821 of this title, either as security for a loan or by purchase

or as receiver of any insured depository institution, shall be valid

against the [FDIC] unless such agreement—

(A) is in writing,

(B) was executed by the depository institution and any

person claiming an adverse interest thereunder, including the

obligor, contemporaneously with the acquisition ofthe asset by the

depository institution,

(C) was approved bythe board ofdirectors ofthe depository

institution or its loan committee, which approval shall be reflected in

the minutes of said board or committee, and

(D) has been, continuously, from the time ofits execution, an

official record of the depository institution.

12 U.S.C. § 1823(e)(1) (emphasis added).

Contracts that do not meet these requirements "cannot be enforced even

when a bank fraudulently induces a customer with oral misrepresentations, or

when a customer is completely innocent." Nw. Land, 64Wn. App. at 943; accord

Lanqlev, 484 U.S. at 93 ("We conclude . . . that neither fraud in the inducement

nor knowledge by the FDIC is relevant tothe section's application. No

conceivable reading ofthe word 'agreement' in § 1823(e) could cause it to cover

a representation orwarranty that is bona fide but to exclude onethat is

fraudulent."); Frontier Bank. 191 Wn. App. at 66-67 (applying Lanqley).

Responding to the perceived unfairness of this result, the Supreme Court stated:

The short of the matter is that Congress opted for the

certainty ofthe requirements set forth in § 1823(e). An agreement

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No. 72805-9-1/15

that meets them prevails even ifthe FDIC did not know of it; and an

agreement that does not meet them fails even if the FDIC knew. It

would be rewriting the statute to hold otherwise.

Lanqlev, 484 U.S. at 95.

The FDIC authorized Union to avail itself of the protections provided

pursuant to this statute,11 and Union does so herein.

The application ofthis statute to the guarantors' affirmative defenses is

similar to our application ofthe state credit agreements statute of frauds. That is,

the federal statute, for largely the same reasons, bars consideration of the

documents upon which the guarantors primarily rely.12 However, the federal

statute is independently relevant. For one, the circumstances herein are the

precise target of the law, which was meant to protect purchasers of FDIC assets

acquired from failing financial institutions. Moreover, prior applications of this law

to analogous circumstances make clear that not even fraud on the part of the

failed financial institution—coupled with knowledge on the partofthe acquiring

institution—removes an alleged credit agreement from the statute'stechnical

requirements.

Thus, the guarantors' argument regarding separate financial

arrangements made with Frontier are foreclosed by state and federal laws that

11 While the guarantors attempt to castdoubt upon this fact (Blanchard stated, for

example, "Randy Previs and Iwere left completely out of th[e] process [of obtaining the FDIC's

permission] and to this day Ihave no idea how the Union Bank consent request was worded or

what information it contained. ... Iam in the dark aboutthat."), the only relevant record evidence

indicates that Union obtained the required permission from the FDIC.

12 As for the signed worksheet upon which the guarantors seekto rely, because it was

signed by only Frontier, even if—contrary to our conclusion—it were to pass muster under the

state statute, it would nevertheless fall short under the federal statute. Indeed, Blanchard

acknowledged as much in a declaration submitted to the trial court, which stated, in pertinent part, "our arrangements with Frontier Bank may not meet all of the strict (unrealistic and unfair)

standards of D'Oench."

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No. 72805-9-1/16

require such agreements to comply with certain technical requirements.

We turn now to the propriety of the trial court's order on summary

judgment.

D

The guarantors raise a number of claims and defenses to Union's action

on the guaranties. These can be generalized into three categories: fraudulent

inducement to enter into the guaranties, fraudulent inducement to contribute

additional funds to the property development project, and misconduct by Union

after acquiring the guaranties, particularly in the course ofthe receivership and

bankruptcy proceedings.

i

Fraud in the inducement byFrontier- the guaranties: The guarantors first

contend that they were fraudulently induced to sign the guaranties by

representations made by Frontier that, if necessary, it would extend borrower

further credit to fund the project through tenancy. This contention fails for several

reasons.

Initially, the guarantors' claim relies on alleged unwritten credit

agreements. Accordingly, it is barred by the state statute offrauds and the

federal D'Oench doctrine.

Furthermore, even were we to consider the guarantors' allegations, their

claim would nevertheless fail because they did not properly plead it or offer

sufficient evidence in support thereof to withstand summary judgment.

Fraud must be pleaded with particularity. CR 9(b). Particularity

requires that the pleading apprise the defendant ofthe facts that

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No. 72805-9-1/17

give rise to the allegation of fraud. See Pedersen v. Bibioff. 64 Wn.

App. 710, 721, 828 P.2d 1113(1992); Harstad v. Frol, 41 Wn. App.

294, 301-02, 704 P.2d 638 (1985). . . .

The elements of fraud include

(1) representation of an existing fact; (2) materiality;

(3) falsity; (4) the speaker's knowledge of its falsity;

(5) intent of the speaker that it should be acted upon

by the plaintiff; (6) plaintiff's ignorance of itsfalsity; (7)

plaintiff's reliance on the truth of the representation;

(8) plaintiffs right to rely upon it; and (9) damages

suffered by the plaintiff.

Stilev v. Block, 130 Wn.2d 486, 505, 925 P.2d 194 (1996).

Adams v. King County, 164 Wn.2d 640, 662, 192 P.3d 891 (2008).

The guarantors' claim falls critically short because they did not plead or

offer evidence that, even if a representation was made regarding future credit

agreements, it was false when made and made with knowledge of its falsity.13

Fraud in the inducement by Frontier-additional contributions: The

guarantors assert that they were induced to make additional financial

contributions to the property development project by Frontier's fraudulent

promises to extend them further credit in exchange for their payments. At the

outset, this contention fails for the same reason as did the fraudulent inducement

C|aim_that is, because it relies on unsigned credit agreements, it is barred by

the state statute of frauds and the federal D'Oench doctrine.

In addition, the guarantorsfailed to properly plead or offer sufficient

13 The guarantors also obliquely contend that they were fraudulently induced to enter into

the guaranties because Frontier was likely already in financial trouble atthe time they agreed to

them. Specifically, in their opening brief, the guarantors state, "Appellants believe it is likely that

Frontier Bank was 'in trouble' financially and not in compliance with applicable bank regulations at

the time the original Wellington Construction Loan (and Appellants signed the Guaranty) was

made." Br. of Appellant at 21. This iteration of the fraudulent inducement claim also suffers from

poor pleading and insufficient proof. The guarantors do not establish, among other things, a

relevant "representation."

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evidence in support of their claim. Specifically, assuming that Frontier did

promise to extend further credit, they did not plead (and offered no evidence that)

the maker of this promise knew it to be false at the time made. Instead, the

guarantors repeatedly assert that Frontier reneged on the promise. This is

insufficient.

Finally, this particular fraudulent inducement claim also fails because it is

unrelated to the guarantors' decisions to enter into the guaranties. Even were we

to assume the veracity of the guarantor's contentions, they would not cast light

on the validity ofthe guaranty. Because it does not undermine the validity ofthe

guaranties, this claim falls into the set of claims and defenses that were waived in

the guaranties.

iii

Misconduct byUnion after procuring the guaranties: The guarantors also

assert claims of misconduct by Union. Their first contention is that Union,

through actions taken in the receivership and bankruptcy cases, impaired the

value ofthe loan collateral (i.e., the property). They also contend that Union did

not work in good faith with them to sell the property for the highest price.14

Initially, all ofthe guarantors' claims with respect to Union are barred by

the terms ofthe guaranties. Having determined that the guaranties are

enforceable despite the fraud alleged by the guarantors, it follows thatthe waiver

provisions apply. Pursuant tothese provisions, the guarantors waived claims

and defenses to nonpayment, including those asserted herein.

14 See Reply Brief ofAppellant at 20 ("[T]he ultimate and most egregious bad faith in this

matter is Union Bank's repeated refusal toeven look at multiple opportunities to realize millions of

dollars more for [the property].").

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The argument regarding Union's alleged misconduct in the receivership

and bankruptcy cases suffers from two additional critical flaws. First, the

guarantors incorrectly attribute decisions that were made by the receiver or the

trustee to Union. To the extent that the guarantors mean, literally, that the

actions in question were taken by Union, they simply misstate the record.

However, their argumentseems to be that, although Union did not literally make

the decisions in question, those decisions are nevertheless attributable to Union.

The attribution is based, we assume, on an unspecified principal-agent

relationship. This argument is nothing more than speculation and, therefore,

fails.

The argument also overlooks the role of the court in the allegedly improper

actions. Areceiver is "a person appointed by the court as the court's agent, and

subject to the court's direction, to take possession of, manage, or dispose of

property of a person." RCW 7.60.005(10). The power to appoint a receiver is

within the trial court's discretion. King County Dep't of Cmtv. &Human Servs. v.

Nw. Defenders Ass'n, 118Wn. App. 117, 122, 75 P.3d 583 (2003). Likewise, a

trustee in bankruptcy is an officer of the court. In re Castillo, 297 F.3d 940, 946

(9th Cir. 2002): accord Leonard v. Vrooman, 383 F.2d 556, 560 (9th Cir. 1967)

(noting that a trustee in bankruptcy is an officer of the court and is not subject to

suit without leave ofthe appointing court for acts done in his official capacity and

within his authority); Vass v. Conron Bros. Co., 59 F.2d 969, 970 (2d Cir. 1932)

(holding that a bankruptcy trustee, like a receiver, is an officer of the court, and

trustee's possession is protected because it is the court's). At the time of the

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alleged misconduct bythe receiver and the trustee, they were subject to the

continuing authority of the court, which ratified each of the challenged decisions.

The guarantors were clearly dissatisfied by the result ofthose proceedings, but

they may not make them the subjectofthis action by incorrectly attributing them

to the only other party appearing in the caption.15

The guarantors also assert that Union violated a duty ofgood faith to them

by refusing to consider alternate arrangements for extracting value from the

property.

"'[A]n implied duty ofgood faith and fair dealing [is] imposed

on the parties to a contract.'" Miller v. U.S. BankofWash.. N.A..

72 Wn. App. 416, 425, 865 P.2d 536 (1994) (quoting BetchardClavton. Inc. v. King, 41 Wn. App. 887, 890, 707 P.2d 1361

(1985)).] With guaranties, "the creditor's [implied] covenant ofgood

faith is to diligently pursue collection ofthe debt, and the guarantor

may be relieved ofliability on the debt where the creditor does not

exercise due diligence in collection ofthat debt." [|dj

But this court has "specifically limited claims by guarantors

against lenders, including breach ofgood faith claims, to

performance of specific contract terms." fGravson, 95 Wn. App. at

833]. Absolute guarantors lack "'any recourse against the lender

unless it is alleged and proved that the lender acted in bad faith.'"

[Id at 831 (emphasis added) (quoting Nat'l Bank ofWash., 81

Wn.2d at 920).] As previously stated, this court has held that"'a

guarantor cannot rely upon the relationship between a lender and a

15 The guarantors' claims regarding actions taken in the receivership and bankruptcy

cases also fail because they actively participated in those proceedings by, among other things,

filing proofs of claim and opposing any sale ofthe property. RCW 7.60.190, entitled, "Participation ofcreditors and parties in interest in receivership proceeding-Effect of court orders on nonparties," provides that creditors and parties who receive

notice, have actual knowledge of, and actively participate in receivership proceedings are bound

by the acts of the receiver and the order of the receivership court, regardless of whether they are

formally joined as parties. The same principles apply to acts of the bankruptcy trustee and orders

of the bankruptcy court. Lanoenkamo v. Culp. 498 U.S. 42, 45, 111 S. Ct. 330, 112 L Ed. 2d 343

(1990) (by filing a proof of claim, one submits himself to the jurisdiction of the bankruptcy court);

In re Farmland Indus.. Inc.. 376 B.R. 718, 727 (Bankr. W.D. Mo. 2007) (bankruptcy court sales

order is binding on entity that participated in bankruptcy case sale motion and that entity cannot,

in another lawsuit, challenge the sale as improper). Because the guarantors filed proofs ofclaim in both the receivership and the bankruptcy

cases and because they contested both attempts to obtain authorization to sell the property, they

are bound by the actions taken in each case and cannot challenge them here.

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borrower to create a fiduciary duty running from the lender to the

guarantor.'" [Id, at 833 (quoting Miller. 72 Wn. App. at 426).]

Frontier Bank. 191 Wn. App. at 70 (first alteration in original).

In sum, the common law duty of good faith does not require Union to

refrain from its rights under the guaranties, as it properly does here. See GMAC

v. Everett Chevrolet. Inc.. 179 Wn. App. 126, 150, 317 P.3d 1074. review denied.

181 Wn.2d 1008(2014).

Because the guarantors' claims and defenses fail as a matter oflaw, the

trial court's ordergranting summary judgment in Union's favor as to its claims

pursuant to the guaranties was proper.

Ill

Union requests attorney fees on appeal based on the terms ofthe

guaranties.

In Washington, attorney fees may be awarded for costs of litigation only

when authorized by contract, statute, orrecognized ground of equity. Durland v.

San Juan County, 182 Wn.2d 55, 76, 340 P.3d 191 (2014).

Herein, the guaranties state, "Guarantor agrees to pay upon demand all of

Lender's costs and expenses, including Lender's attorneys' fees and Lender's

legal expenses, incurred in connection with the enforcement of this Guaranty

Costs and expenses include Lender's attorneys' fees and legal expenses ... for

appeals." Because Union has established a right to the enforcement of the

guaranties, it is entitled to an award of reasonable attorney fees on appeal.

Accordingly, upon compliance with RAP 18.1, a commissioner of this court

will enter an appropriate order.

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No. 72805-9-1/22

Affirmed.

We concur:

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