Fl LE 

IN CLERKS OFFICE 

IIJPReM~ COURT, STATE OF WASHINGTON 

D;~·;::; OCT 3 0 2014 

/?(~~c.\2 CHiEFJIJsriCEJ 

Ronald R. t 

Supreme Coort ~ 

IN THE SUPREME COURT OF THE STATE OF WASHINGTON 

WINNIE LYONS, a single person, ) No. 89132-0 

) 

Appellant, ) 

) 

v. ) 

) EnBanc 

U.S. BANK NATIONAL ) 

ASSOCIATION, as trustee for ) 

Stanwich Mortgage Loan Trust Series ) 

2012-3, by Carrington Mortgage ) 

Services, LLC; WELLS FARGO ) Filed OCT 3 0 2014 

BANK, N.A., a chartered national ) 

bank; Wells Fargo Bank, N.A., as ) 

serv1cer, ) 

) 

Defendants, ) 

) 

and ) 

) 

NORTHWEST TRUSTEE ) 

SERVICES, INC., as trustee, ) 

) 

Respondent. ) _________________________ ) 

FAIRHURST, J.-Winnie Lyons brought suit against Northwest Trustee 

Services Inc. (NWTS) based on its conduct as the trustee during foreclosure. Lyons 

-···~· 
Lyons v. US. Bank Nat'l Ass 'n, No. 89132-0 

alleged violations of the deed of trust act (DTA), chapter 61.24 RCW; violations of 

the Consumer Protection Act (CPA), chapter 19.86 RCW; and the intentional 

infliction of emotional distress. First, this case asks whether a plaintiff can even 

bring a cause of action for damages under the DT A or the CPA in the absence of an 

actual sale of the property. It then asks whether the trial court erred by granting 

summary judgment in favor ofNWTS on all three claims. We affirm the trial court's 

grant of summary judgment on the DT A and the intentional infliction of emotional 

distress claims, but we reverse and remand the CPA claim to the trial court. 

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY 

In August 2007, Winnie Lyons signed a promissory note secured by a deed of 

trust encumbering real property in Burien, Washington. The Burien property is 

Lyons' primary residence and also the location from which she operates an adult 

family home (AFH), 1 her sole source of income. Wells Fargo Bank NA was 

identified on the deed of trust as the lender and beneficiary. Northwest Trustee 

Services LLC was identified as the trustee. The deed of trust was recorded on August 

31, 2007 in King County. In early 2009, Northwest Trustee Services LLC became 

1

In her briefing, Lyons says she lives at the Burien address, but her declaration to the trial 

court said she lived in Kent. In her reply brief she clarifies that she inadvertently signed the 

declaration with this error. Reply Br. of Lyons at 2. At all times since she obtained the mortgage 

she has resided and operated the AFH at the property in Burien. Id. 

2 
Lyons v. US. BankNat'l Ass'n, No. 89132-0 

NWTS and Wells Fargo recorded an appointment of successor trustee naming 

NWTS as the successor trustee. 

In October 2009, an employee of Wells Fargo executed a beneficiary 

declaration identifying Wells Fargo as trustee for Soundview Home Loan Trust 

2006. This beneficiary declaration asserted, "Wells Fargo Bank, NA, as Trustee for 

Soundview Home Loan Trust 2006-WFI is the actual holder of the promissory note 

or other obligation evidencing the above-referenced loan or has requisite authority 

under RCW 62A.3-301 to enforce said obligation." Clerk's Papers (CP) at 120. In 

June 2010, another beneficiary declaration was executed by an employee of Wells 

Fargo. It read, "Wells Fargo Banl(, NA, is the actual holder of the promissory note 

or other obligation evidencing the above-referenced loan or has requisite authority 

under RCW 62A.3-301 to enforce said obligation." CP at 118. 

In October 2011, Lyons filed bankruptcy, and in January 2012 she applied for 

a loan modification with Wells Fargo. On March 30, 2012, while Lyons was waiting 

for a response regarding her application for a modification, she received a notice of 

trustee's sale from NWTS informing her that her property was scheduled to be sold 

on July 6, 2012. On April 5, 2012, Wells Fargo told Lyons' attorney that the inhouse modification had been approved. On April19, 2012, Lyons received the letter 

confirming the modification. The terms required her to pay $10,000 by May 1, 2012. 

3 
Lyons v. US. Bank Nat'l Ass 'n, No. 89132-0 

Wells Fargo informed Lyons they would discontinue the sale upon receipt of this 

payment. She paid this amount to Wells Fargo as required. 

However, on March 29, 2012, Wells Fargo had sold Lyons' loan to U.S. Ban1c 

National Association as trustee for Stanwich Mortgage Loan Trust Series 2012-3 

with Carrington Mortgage Services LLC as the new servicer of the loan. This was 

to become effective on May 1, 2012. NWTS received notice of the sale and service 

release on Apri112, 2012. Lyons received notice of this sale on April 26, 2012. 

On April 26, 2012, Lyons' attorney spoke with a representative ofNWTS to 

inform it that Wells Fargo no longer had any beneficial interest in the loan after the 

sale, that Carrington was the new servicer of the loan, and that Lyons had received 

a loan modification so she was no longer in default. On June 11, 2012, Lyons' 

attorney again called NWTS to inform them of the loan modification and the sale of 

the loan. A NWTS employee informed her that Carrington had directed NWTS to 

continue with the foreclosure sale as scheduled. On June 14, 2012, Lyons' attorney 

called Carrington and an employee indicated that Carrington did not show the 

property in foreclosure status. Another employee further indicated that Carrington 

had not told NWTS to go forward with the sale. Lyons' attorney then sent a cease 

and desist letter to NWTS and Carrington. 

On June 18, 2012, Lyons' attorney followed up with NWTS. NWTS 

acknowledged receipt and informed her the sale was still on but that the matter had 

4 
Lyons v. US. Bank Nat'! Ass'n, No. 89132-0 

been referred to an attorney for NWTS. On June 19, 2012, the attorney for NWTS 

informed Lyons' attorney that he needed to do his due diligence. Lyons' attorney 

again spoke with NWTS' attorney on June 21, 2012. NWTS' attorney refused to 

discontinue the sale, and Lyons' attorney filed the complaint. At the end of the day 

on June 21, 2012, NWTS executed and recorded a notice of discontinuance of the 

trustee's sale.2 

Lyons alleges that this situation has had serious emotional and economic 

impacts on her. In March 2012, Lyons arrived home to be handed the notice of 

trustee's sale by a family member of one of her full pay AFH clients. In addition to 

the sense of humiliation Lyons felt, this client moved out approximately two weeks 

later because of concern that Lyons was going to lose her business and her home. 

Before leaving, this client shared her belief that the home was going to be foreclosed 

on with other AFH clients, some of whom also moved shortly thereafter. The AFH 

business is her primary source of income, and the loss of clients directly impacted 

her financially. In her declaration, Lyons asserts that thereafter she struggled with 

day-to-day tasks and felt hopeless. She began counseling with the pastor of her 

church. Her pastor said that previously Lyons was a very positive woman with a 

drive to succeed, but since the pending foreclosure she was fearful and depressed. 

2

NWTS maintains that it did not discontinue the trustee's sale because the complaint was 

filed, but that the dates are coincidental since NWTS was not served with the complaint until June 

26,2012. 

5 
Lyons v. US. Bank Nat'! Ass 'n, No. 89132-0 

Lyons asserts that she experienced constant nausea from the stress and continuously 

worried about losing her business and the subsequent homelessness of herself, her 

son, and the elderly clients she cared for. 

NWTS moved for summary judgment. After argument, the court granted the 

motion for summary judgment as to all claims against NWTS. Subsequently, Lyons 

and the remaining defendants (Stanwich, Carrington, and Wells Fargo) entered a 

stipulated order of dismissal. Lyons' motion for reconsideration of the order of 

summary judgment was denied. We granted Lyons' petition for direct review. 

II. ISSUES PRESENTED 

1. If a nonjudicial foreclosure sale does not happen, can a plaintiff bring a 

claim for damages under the DT A or the CPA? 

2. Was the grant of summary judgment against Lyons on her CPA claim 

improper? 

3. Was the grant-of summary judgment against Lyons on her intentional 

infliction of emotional distress claim improper? 

III. ANALYSIS 

Lyons alleges a range of errors by the trial court that resulted from it granting 

summary judgment in favor of NWTS. We review questions of law and summary 

judgment rulings de novo. Dreilingv. Jain, 151 Wn.2d 900, 908,93 P.3d 861 (2004); 

Reid v. Pierce County, 136 Wn.2d 195, 201, 961 P.2d 333 (1998). "In reviewing an 

order of summary judgment, we engage in the same inquiry as a trial court." Reid, 

136 Wn.2d at 201. We interpret all the facts and inferences therefrom in favor of 

6 
Lyons v. US. Bank Nat'l Ass 'n, No. 89132-0 

Lyons, the nonmoving party. !d. Summary judgment is appropriate only if the record 

demonstrates there is no genuine issue of material fact and the moving party is 

entitled to judgment as a matter of law. !d. 

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 

7 
Lyons v. US. Bank Nat'l Ass 'n, No. 89132-0 

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 

3

The law regarding CPA causes of action is fairly clear and settled. A cause of action is 

available if the claim satisfies five elements: "'(1) [an] unfair or deceptive act or practice; (2) 

occurring in trade or commerce; (3) public interest impact; (4) injury to plaintiff in his or her 

8 
Lyons v. US. Bank Nat'l Ass 'n, No. 89132-0 

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 CP A.4 The allegedly 

business or property; (5) causation."' Klem v. Wash. Mut. Bank, 176 Wn.2d 771,782,295 P.3d 

1179 (20 13) (alteration in original) (quoting Hangman Ridge Training Stables, Inc. v. Safe co Title 

Ins. Co., 105 Wn.2d 778,780,719 P.2d 531 (1986)). The CPA "shall be liberally constmed" to 

further its purposes. RCW 19.86.920. 

4

Much of the briefing also questions whether Lyons can show an injury by NWTS. 

Although emotional distress, embarrassment, and inconvenience are excluded, business and 

9 
Lyons v. U.S. Bank Nat 'lAss 'n, No. 89132-0 

improper acts of NWTS are intertwined but can be generally categorized as 

violations of two DT A statutes-violation of the duty of good faith under RCW 

61.24.01 0( 4) and noncompliance with RCW 61.24.030(7)( a), which instructs that a 

trustee must have proof the beneficiary is the owner prior to initiating a trustee's 

sale. 5 Whether undisputed conduct is unfair or deceptive is a question of law, not a 

question of fact. See, e.g., Panag, 166 Wn.2d at 47 ("Whether a particular act or 

practice is 'unfair or deceptive' is a question of law." (quoting Leingang v. Pierce 

County Med. Bureau, Inc., 131 Wn.2d 133, 150, 930 P.2d 288 (1997))). 

CPA jurisprudence is well settled, and determining what an unfair act is can 

be done by looking to precedent. The DT A sets up a three party system for mortgages 

where an independent trustee acts as the impartial party between a lender and a 

borrower instead ofthe court. Klem, 176 Wn.2d at 790. IfLyons' alleged violations 

are true, NWTS' actions would likely be considered unfair acts, but questions of fact 

remain as to whether NWTS' actions amounted to such violations. These material 

property injuries compensable under the CPA are relatively expansive. Frias, 334 P.3d at 538. The 

injury element does not require that the homeowner lose their property in order to bring a claim 

under the CPA. !d. "[T]he injury requirement is met upon proof the plaintiffs 'property interest 

or money is diminished because of the unlawful conduct even if the expenses caused by the 

statutory violation are minimal."' Panag v. Farmers Ins. Co. of Wash., 166 Wn.2d 27, 57, 204 

P.3d 885 (2009) (quoting Mason v. Mortg. Am., Inc., 114 Wn.2d 842, 854,792 P.2d 142 (1990)). 

Lyons has alleged that her AFH business was directly impacted by the actions ofNWTS. These 

allegations are sufficient to satisfy the injury element of a CPA claim for the purposes of summary 

judgment. 

5

In RCW 61.24.135, the legislature listed some per se violations of the DTA that 

automatically satisfy this element of a CPA claim. The acts complained of by Lyons do not violate 

this section of the DT A and thus, even though they might violate a different statute, are not per se 

violations. Lyons must show NWTS' actions were unfair or deceptive. 

10 
Lyons v. US. Bank Nat'l Ass 'n, No. 89132-0 

questions of fact must be resolved by a fact finder, so the claim should have survived 

summary judgment. 

1. There were material issues of fact regarding whether NWTS did not act 

in good faith 

RCW 61.24.010(4) imposes a duty of good faith on the trustee toward the 

borrower, beneficiary, and grantor. "[U]nder our statutory system, a trustee is not 

merely an agent for the lender or the lender's successors. Trustees have obligations 

to all of the parties to the deed, including the homeowner." Bain, 175 Wn.2d at 93. 

This duty requires the trustee to remain impartial and protect the interests of all the 

parties. "[T]he trustee in a nonjudicial foreclosure action has been vested with 

incredible power. Concomitant with that power is an obligation to both sides to do 

more than merely follow an unread statute and the beneficiary's directions." Klem, 

176 Wn.2d at 791. A foreclosure trustee must "adequately inform" itself regarding 

the purported beneficiary's right to foreclose, including, at a minimum, a "cursory 

investigation" to adhere to its duty of good faith. Walker, 176 Wn. App. at 309-10. 

A trustee does not need to summarily accept a borrower's side of the story or 

instantly submit to a borrower's demands. But a trustee must treat both sides equally 

and investigate possible issues using its independent judgment to adhere to its duty 

of good faith. See, e.g., Coxv. Helenius, 103 Wn.2d 383,388,693 P.3d 683 (1985). 

A trustee's failure to act impartially between note holders and mortgagees, in 

11 
Lyons v. US. Bank Nat'! Ass 'n, No. 89132-0 

violation of the DTA, can support a claim for damages under the CPA. Klem, 176 

Wn.2d at 792. 

Lyons says that NWTS violated its duty to act in good faith by failing to act 

impartially toward her. Lyons points to various indicators that she believes 

demonstrates NWTS' lack of good faith: 

( 1) NWTS knew that Ms. Lyons had filed bankruptcy in 2011 (2) 

NWTS knew that Ms. Lyons had engaged in a review for a loan 

modification (3) In the bankruptcy [matter], NWTS, sister company, 

RCO represented Wells Fargo's interest (4) Lyons' counsel on 

numerous occasions contacted NWTS to discuss either the loan 

modification or the fact Wells Fargo no longer had any beneficial 

interest (5) NWTS knew that Wells Fargo requested a service release 

and that NWTS needed to provide Wells Fargo with an invoice or 

NWTS would not be paid (6) NWTS provided Wells Fargo with that 

invoice on or about April 2012 (7) NWTS changed the scheduled 

foreclosure sale loan number when it knew about the service release to 

Carrington (8) NWTS, Nanci Lambert, indicated that Carrington 

instructed NWTS to continue with the scheduled foreclosure sale (9) 

Before a lawsuit was filed, several telephonic phone conversations took 

place (10) On or about June 14, 2012, NWTS received a cease and 

desist letter, coupled with proof of the loan modification. 

Opening Br. ofLyons at 34-35 (footnotes omitted). Put simply, Lyons claims NWTS 

deferred to the course of action that Wells Fargo had previously initiated without 

giving any credence to what she, the borrower, was telling it about a change in the 

situation between the parties. 

We find that Lyons has presented material issues of fact. The conflict over the 

actual beneficiary was brought to the attention ofNWTS on April 26, 2012, but there 

is no evidence in the record that anyone at NWTS investigated this conflict until 

12 
Lyons v. US. Bank Nat'! Ass 'n, No. 89132-0 

their attorney informed Lyons' attorney it would do so on June 19, 2012.6 It is a 

material issue of fact whether NWTS investigated the status of the loan and the 

proper beneficiary earlier than when it referred the matter to their attorney. If Lyons' 

allegations are true and NWTS knew about the conflicting information regarding 

their right to initiate foreclosure but did not look into this matter, there are issues 

regarding whether this indicates deferral to Wells Fargo and therefore lack of 

impartiality. These issues of fact regarding NWTS' actions must be resolved before 

a court can determine if they have violated the duty of good faith. Considering the 

evidence in the light most favorable to Lyons, this claim should have survived 

summary judgment. 

2. There were material issues of fact regarding whether the beneficiary 

declaration was proper and whether NWTS could rely on it 

Lyons alleges multiple issues with the beneficiary declaration. Because of 

these issues, Lyons claims NWTS did not have proper proof that Wells Fargo was 

the owner of the note and could direct NWTS to foreclose. Thus, Lyons alleges that 

NWTS violated RCW 61.24.030(7)(a), which requires that "before the notice of 

trustee's sale is recorded, transmitted, or served, the trustee shall have proof that the 

beneficiary is the owner of any promissory note or other obligation secured by the 

6

The only possible evidence NWTS investigated is that NWTS told Lyons it had spoken 

with Carrington and Carrington had directed it to continue the sale. But, it is unclear whether 

NWTS actually did speak to Carrington since Carrington's records indicated that the property was 

not in foreclosure and Carrington denies ever instructing NWTS to continue with the sale. 

13 
Lyons v. U.S. Bank Nat'! Ass 'n, No. 89132-0 

deed of trust." The trial court determined there were no issues of material fact and 

granted summary judgment. We disagree and find that when considering the 

allegations in favor of Lyons, some material factual issues remain that necessitate 

the denial of summary judgment. 

Lyons claims that the second beneficiary declaration was defective because 

the language did not prove Wells Fargo, the beneficiary, was the owner, as required 

by RCW 61.24.030(7)(a). Bain emphasized that the act requires a trustee to have 

proof that the beneficiary is the actual owner of the note to be foreclosed on. 175 

Wn.2d at 102 (citing RCW 61.24.030(7)(a)), 111 ("If the original lender had sold 

the loan, [it] would need to establish ownership of that loan, either by demonstrating 

that it actually held the promissory note or by documenting the chain of 

transactions."). Seeking to foreclose without being a holder of the applicable note in 

violation of the DTA is actionable in a claim for damages under the CPA. I d. at 115-

20. 

Although ownership can be proved in different ways, the statute itself 

suggests one way: "A declaration by the beneficiary made under the penalty of 

perjury stating that the beneficiary is the actual holder of the promissory note ... 

shall be sufficient proof as required under this subsection." RCW 61.24.030(7)(a). 

Typically, unless the trustee has violated a duty of good faith, it is entitled to rely on 

the beneficiary's declaration when initiating a trustee's sale. See RCW 

14 
Lyons v. US. Bank Nat'l Ass 'n, No. 89132-0 

61.24.030(7)(b ). But if there is an indication that the beneficiary declaration might 

be ineffective, a trustee should verify its veracity before initiating a trustee's sale to 

comply with its statutory duty. 

The United States District Court for the Western District of Washington 

recently decided Beaton v. JPMorgan Chase Bank N.A., No. C11-0872 RAJ, 2013 

WL 1282225 (Mar. 26, 2013) (court order), where it interpreted a beneficiary 

declaration similar to the declaration in this case. It read, '" JPMorgan Chase Bank, 

N.A. successor in interest to Washington Mutual Bank flm Washington Mutual 

Bank, FA is the actual holder of the promissory note or other obligation evidencing 

the above-referenced loan or has requisite authority under RCW 62A.3-301 to 

enforce said obligation."' ld. at *5. The court held that this provision indicated that 

"Chase could be a nonholder in possession or a person not in possession who is 

entitled to enforce the instrument neither of which is proof that 'the beneficiary is 

the owner of any promissory note or other obligation secured by the deed of trust."' 

ld. (citation omitted) (quoting RCW 61.24.030(7)(a)). Because DTA provisions 

must be strictly complied with, the ambiguity regarding whether the beneficiary 

declaration satisfied the statutory requirement created enough of a question of 

whether there was a violation of the DTA to survive summary judgment in that case. 

I d. Lyons encourages the court to adopt the reasoning in Beaton. 

15 
Lyons v. US. Bank Nat'! Ass 'n, No. 89132-0 

NWTS argues that Beaton is wrongly decided and that the language of the 

beneficiary declaration, in conjunction with the statutory requirements of the DTA 

and case law, is valid. Notably, NWTS points out that a beneficiary declaration is 

not the exclusive manner in which a trustee can satisfy RCW 61.24.030(7). This 

declaration uses the phrase "or has requisite authority," and only a holder has the 

requisite authority to act as a beneficiary under Bain. CP at 118. Since requisite 

authority under the DT A and Washington case law is strictly limited to a holder 

status, NWTS argues both clauses in the beneficiary declaration provide proof that 

Wells Fargo was a holder for the purposes of RCW 61.24.030(7)( a). 

Because DT A provisions should be strictly construed, we find, consistent with 

Beaton, that the declaration at issue here does not comply with RCW 

61.24.030(7)(a). On its face, it is ambiguous whether the declaration proves Wells 

Fargo is the holder or whether Wells Fargo is a nonholder in possession or person 

not in possession who is entitled to enforce the provision under RCW 62A.3-301. 

But NWTS, as trustee, can still prove that Wells Fargo was the owner of the note in 

a way other than through the beneficiary declaration referenced in RCW 

61.24.030(7)(a). Thus, there remains a material issue of fact as to whether Wells 

Fargo was the owner prior to initiating the trustee's sale. NWTS will need to furnish 

that proof but may not just rely on this ambiguous declaration. 

16 
Lyons v. US. Bank Nat'! Ass 'n, No. 89132-0 

Additionally, Lyons claims the second beneficiary declaration was never 

proper because of the existence of the first beneficiary declaration. The first 

declaration identified Wells Fargo as trustee for Soundview, yet less than a year later 

Wells Fargo asserts that it is the holder. It is not entirely clear how Wells Fargo could 

give its interest to Soundview and then give it back to itself eight months later. 

Material questions of fact remain as to whether the second beneficiary declaration 

was valid and whether NWTS should have questioned its efficacy in light of the 

prior beneficiary declaration. Taking the facts in a light most favorable to Lyons, 

summary judgment was inappropriate and a cause of action under the CPA could be 

supported. 

C. No issues of fact remain for the claim of intentional infliction of emotional 

distress, so summary judgment was proper 

Lyons also alleges a claim for the tort of outrage, otherwise known as 

intentional infliction of emotional distress. "The tort of outrage requires the proof of 

three elements: (1) extreme and outrageous conduct, (2) intentional or reckless 

infliction of emotional distress, and (3) actual result to plaintiff of severe emotional 

distress." Kloepfel v. Bokor, 149 Wn.2d 192, 195,66 P.3d 630 (2003). "The question 

of whether certain conduct is sufficiently outrageous is ordinarily for the jury, but it 

is initially for the court to determine if reasonable minds could differ on whether the 

conduct was sufficiently extreme to result in liability." Dicomes v. State, 113 Wn.2d 

612, 630, 782 P.2d 1002 (1989); see Robel v. Roundup Corp., 148 Wn.2d 35, 51, 59 

17 
Lyons v. US. Bank Nat'! Ass 'n, No. 89132-0 

P.3d 611 (2002). "The first element requires proof that the conduct was 'so 

outrageous in character, and so extreme in degree, as to go beyond all possible 

bounds of decency, and to be regarded as atrocious, and utterly intolerable in a 

civilized community."' Robel, 148 Wn.2d at 51 (emphasis omitted) (internal 

quotation marks omitted) (quoting Dicomes, 113 Wn.2d at 630). 

Conduct during foreclosure could support a claim for intentional infliction of 

emotional distress, but it must satisfy the high burden applicable to these claims. 

RESTATEMENT (SECOND) OF TORTS § 46, cmt. d (1965); compare Montgomery v. 

SOMA Fin. Corp., No. C13-360 RAJ, 2014 WL 2048183, at *7 (W.D. Wash. May 

19, 2014) (court order) (plaintiffs alleged that the bank induced them to default, then 

foreclosed on the property using a perjured declaration; the court found that 

reasonable minds could differ as to whether this egregious conduct was sufficiently 

outrageous and so the claim survived summary judgment), with Vawter, 707 F. Supp. 

2d at 1128 ("Chase's and MERS 's actions in connection with the nonjudicial 

foreclosure process, as alleged by the Vawters, may be problematic, troubling, or 

even deplorable" but is insufficiently outrageous for an intentional infliction of 

emotional distress claim), and McGinley v. Am. Home Mortg. Serv., Inc., No. 2:10-

CV-01157 RJB, 2010 WL 4065826, at *11 (W.D. Wash. Oct. 15, 2010) (court order) 

(claim resting on alleged nondisclosures associated with loan refinance, terms of the 

loan, and subsequent nonjudicial foreclosure proceedings was insufficiently 

18 
Lyons v. US. Bank Nat'! Ass 'n, No. 89132-0 

outrageous to survive summary judgment), and Cervantes v. Countrywide Home 

Loans, Inc., 656 F.3d 1034, 1046 (2011) ("plaintiffs essentially allege that the 

lenders offered them loans that the lenders knew they could not repay; this is not 

inherently 'extreme and outrageous"'), and Wells v. Chase Home Fin., LLC, No. 

C10-5001RJB, 2010 WL 4858252, at *8 (W.D. Wash. Nov. 19, 2010) (court order). 

To support her claim for intentional infliction of emotional distress, Lyons 

relies on the same factual allegations above. She claims that the conduct of NWTS 

in not confirming the proper beneficiary and in not suspending the trustee's sale 

when she contacted them was so outrageous as to go beyond all bounds of decency. 

But these allegations are not so outrageous that they shock the conscience or go 

beyond all sense of decency. While perhaps the actions might have violated the DT A 

and could support a claim under the CPA, the acts are not sufficiently outrageous to 

support a claim for outrage. We affirm the trial court's grant of summary judgment 

on the intentional infliction of emotional distress claim. 

IV. CONCLUSION 

If a trustee's sale has not occurred, an allegedly wronged homeowner cannot 

bring a damages claim under the DT A. However even if a trustee's sale has not 

occurred, an allegedly wronged homeowner can bring a claim for damages under the 

CPA. Material issues of fact remain as to whether NWTS violated the CPA by not 

acting in good faith or by improperly relying on a questionable beneficiary 

19 
Lyons v. US. Bank Nat'! Ass 'n, No. 89132-0 

declaration. We affirm the court's grant of summary judgment in favor of NWTS 

for the DT A and intentional infliction of emotional distress claims. We reverse the 

grant of summary judgment on the CPA claim and remand to the trial court. 

20 
Lyons v. US. Bank Nat'l Ass 'n, No. 89132-0 

WE CONCUR: 

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