# FlLE IN CLERKS OFFICE**IIJPReM~** COURT, STATE OFWASHINGTON**D;~·;::;** 

### OCT 30 2014

## /?(~~c.\2 CHiEFJIJsriCEJ Ronald R. 

### t Supreme Coort**~** 

### IN THE SUPREME COURT OF THE STATE OFWASHINGTON

WINNIE LYONS, a single person, ) No. 89132-0 ) Appellant, ) ) v. ) ) EnBanc U.S. BANKNATIONAL ) ASSOCIATION, as trustee for ) Stanwich Mortgage Loan Trust Series ) 2012-3, by Carrington Mortgage ) Services, LLC; WELLS FARGO ) Filed 

### OCT 30 

## 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. BankNat'lAss 'n, No. 89132-0 alleged violations ofthe deed oftrust 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 ofaction for damages under the DTA orthe CPA in the absence ofan actual sale ofthe property. It then asks whether the trial court erred by granting summaryjudgmentinfavor ofNWTS on all three claims. We affirmthe trial court's grant ofsummaryjudgment on the DTA and the intentional infliction ofemotional distress claims, but we reverse and remand the CPA claim to the trial court. I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY InAugust 2007, Winnie Lyons signed apromissory note securedby 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 ServicesLLC was identified as thetrustee. The deed oftrustwasrecorded onAugust 31, 2007 in King County. In early 2009, Northwest Trustee Services LLC became

1In 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. ofLyons 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'lAss'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 ofthe 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 ofWells Fargo. Itread, "Wells Fargo Banl(, NA, is the actual holder ofthe 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 modificationwith Wells Fargo. OnMarch 30, 2012, whileLyons was waiting for a response regarding her application for a modification, she received a notice of trustee's sale from NWTS informing herthat her property was scheduled to be sold

on July 6, 2012. On April 5, 2012, Wells Fargo told Lyons' attorney that the inhouse modificationhad been approved. OnApril19, 2012, Lyons receivedthe letter confirmingthe modification. The terms requiredherto pay $10,000 byMay 1, 2012.

3

### Lyons v. US. BankNat'lAss 'n, No. 89132-0 Wells Fargo informed Lyons they would discontinue the sale upon receipt ofthis payment. She paid this amount to Wells Fargo as required. However, on March 29, 2012, Wells Fargo had soldLyons' loanto U.S. Ban1c National Association as trustee for Stanwich Mortgage Loan Trust Series 2012-3 with Carrington Mortgage Services LLC as the new servicer ofthe loan. This was to become effective on May 1, 2012. NWTS received notice ofthe sale and service release on Apri112, 2012. Lyons received notice ofthis 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 ofthe loan, and that Lyons had received

a loan modification so she was no longer in default. On June 11, 2012, Lyons' attorney again calledNWTS to inform them ofthe 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 butthat the matter had

4

### Lyons v. US. BankNat'!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 ofthe day

on June 21, 2012, NWTS executed and recorded a notice ofdiscontinuance ofthe 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 ofone ofher full pay AFH clients. In addition to the sense ofhumiliation Lyons felt, this client moved out approximately two weeks later because ofconcern that Lyons was going to lose her business and her home. Before leaving, this client sharedherbeliefthatthe home was goingto be foreclosed

on with other AFH clients, some ofwhom also moved shortly thereafter. The AFH business is her primary source ofincome, and the loss ofclients 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.

2NWTS maintains that it did not discontinue the trustee's sale because the complaint was filed, but thatthe dates are coincidental since NWTS was not served with the complaint until June 26,2012. 5Lyons v. US. BankNat'!Ass 'n, No. 89132-0 Lyons asserts that she experienced constantnausea from the stress and continuously worried about losing her business and the subsequent homelessness ofherself, her son, and the elderly clients she cared for. NWTS moved for summaryjudgment. After argument, the court granted the motion for summaryjudgment 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 summaryjudgmentwas denied. We granted Lyons' petition for direct review. II. ISSUES PRESENTED 1. Ifanonjudicial foreclosure sale does nothappen, can aplaintiffbring a claim for damages under the DT A or the CPA? 2. Was the grant ofsummaryjudgment against Lyons on her CPA claim improper? 3. Was the grant-of summaryjudgment against Lyons on her intentional infliction ofemotional distress claim improper? III. ANALYSIS Lyons alleges a range oferrors by the trial courtthat resulted from it granting summaryjudgment in favor ofNWTS. We review questions oflaw and summary judgmentrulings de novo. Dreilingv. Jain, 151 Wn.2d900, 908,93 P.3d 861 (2004); Reidv. Pierce County, 136 Wn.2d 195, 201, 961 P.2d 333 (1998). "Inreviewing an order ofsummaryjudgment, 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 6Lyons v. US. BankNat'lAss 'n, No. 89132-0 Lyons, the nonmovingparty. 

### !d. Summaryjudgmentis appropriate only ifthe record demonstrates there is no genuine issue of material fact and the moving party is entitled tojudgment as a matter oflaw. 

### !d. Lyons alleges three causes ofaction againstNWTS-oneunderthe DT A, one under the CPA, and one for intentional infliction ofemotional distress. All ofthese 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 ofthe duty ofgood faith under RCW 61.24.010(4). The trial court focused

on the issue ofwhether Lyons could bring a claim for damages under the DTA in the absence ofatrustee's sale, and there was almost no discussion ofthe CPA or the intentional infliction ofemotional 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' particularcontentions regardingthebeneficiarydeclaration andbreachofthe duty ofgood faith. We then address the cause ofaction for intentional infliction of emotional distress. A. Without a nonjudicial foreclosure sale, a party may not bring a claim for damages under the DTA, butthey 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 plaintiffcould bring a claim for damages under 7Lyons v. US. BankNat'lAss 'n, No. 89132-0 the DTA or the CPA in the absence ofa foreclosure sale and what principles would govern each claim. This court carefully considered the language ofthe statute, the intended beneficiaries ofthe statute, the explicit and implicit legislative intent, and the purposes ofthe 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 maybe actionableunderthe CPA, evenwhere no foreclosure sale has been completed

.... [T]he same principles that govern CPA claims generally applyto CPAclaimsbased on allegedDTAviolations. 334 P.3d at 531. Withoutthe sale ofthe property, damages are notrecoverableunder theDTA, butaCPAclaimmaybe maintainedregardless ofthe status oftheproperty. 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 offact for trial regarding whether NWTS violated provisions ofthe DTA, which couldbe used to supportLyons' CPA claim, so granting summaryjudgmentto 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 ofthe DTA must meet the same requirements applicable to any other CPA claim.3 The availability of

3The law regarding CPA causes of action is fairly clear and settled. A cause ofaction is available ifthe 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 8Lyons v. US. BankNat'lAss '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 plaintiffmaybring a claimunder the CPA arguing the facts specific to the case); Walker v. QualityLoan Serv. Corp. of Wash., 176 Wn. App. 294, 320, 308 P.3d 716 (2013) (actions taken during the nonjudicial foreclosure process were sufficientto support all five elements ofaCPAclaim and survivepretrial dismissal); Vawter v. QualityLoan Serv. Corp. ofWash., 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 ofdefendants, not the fact thepropertywas sold). The absence ofa completed sale ofthepropertydoes not affect the availability ofthis cause ofaction. Whether a plaintiffwill prevail on a CPA claim is a case by case determination of whether the plaintiffcan satisfythe requisite elements. Themain questionraisedbythe parties surrounds whetherthe alleged actions ofNWTS amount to unfair or deceptive practices under the CPA.4 The allegedly

business or property; (5) causation."' Klem v. Wash. Mut. Bank, 176 Wn.2d 771,782,295 P.3d 1179 (2013) (alterationinoriginal) (quotingHangmanRidge Training Stables, Inc. v. Safeco 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. 4Much of the briefing also questions whether Lyons can show an injury by NWTS. Although emotional distress, embarrassment, and inconvenience are excluded, business and 9Lyons v. U.S. BankNat 'lAss 'n, No. 89132-0 improper acts of NWTS are intertwined but can be generally categorized as violations oftwo DT A statutes-violation ofthe duty of good faith under RCW 61.24.010(4) and noncompliance with RCW 61.24.030(7)(a), which instructs that a trustee must have proofthe beneficiary is the owner prior to initiating a trustee's sale. 5 Whether undisputed conduct is unfair or deceptive is a question oflaw, 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 oflaw." (quoting Leingang v. Pierce CountyMed. Bureau, Inc., 131 Wn.2d 133, 150, 930 P.2d 288 (1997))). CPAjurisprudence is well settled, and determining what an unfair act is can be donebylookingto precedent. TheDTA setsup athreeparty 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 wouldlikely be consideredunfair acts, butquestions offact remain as to whether NWTS' actions amounted to such violations. These material

property injuries compensableunderthe 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 proofthe 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. ofWash., 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 sufficientto satisfythe injury element ofa CPA claim for the purposes ofsummary judgment. 5In RCW 61.24.135, the legislature listed some per se violations of the DTA that automatically satisfythis element ofa CPA claim. The acts complained ofby Lyons do not violate this section ofthe DTA and thus, even though they might violate a different statute, are not per se violations. Lyons must showNWTS' actions were unfair or deceptive. 10

### Lyons v. US. BankNat'lAss 'n, No. 89132-0 questions offact mustbe resolvedby afact finder, so the claim shouldhave survived summaryjudgment. 1. There were material issues offact regarding whetherNWTS didnot 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 ofthe 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 ofall 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" itselfregarding the purported beneficiary's right to foreclose, including, at a minimum, a "cursory investigation" to adhere to its duty ofgood 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 submitto aborrower's demands. But atrustee musttreatboth sides equally and investigate possible issues using its independentjudgmentto adhere to its duty ofgood 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

11Lyons v. US. BankNat'!Ass 'n, 

### No. 89132-0 violation ofthe 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 ofgood 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 lawsuitwas filed, severaltelephonic phone conversations took place (10) On or about June 14, 2012, NWTS received a cease and desist letter, coupled with proofofthe loan modification. OpeningBr. ofLyons at 34-35 (footnotes omitted). Put simply, Lyons claimsNWTS 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 thatLyons has presentedmaterial issues offact. The conflict overthe actual beneficiarywas broughtto the attention ofNWTS onApril 26, 2012, butthere is no evidence in the record that anyone at NWTS investigated this conflict until 12Lyons 

### v. US. BankNat'!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 properbeneficiary earlierthan when itreferredthe matterto their attorney. IfLyons' 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 offact regarding NWTS' actions must be resolved before

a court can determine ifthey have violated the duty ofgood faith. Considering the evidence in the light most favorable to Lyons, this claim should have survived summaryjudgment. 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 proofthat Wells Fargo was the owner ofthe note and could directNWTS 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 proofthat the beneficiary is the owner ofany promissory note or other obligation secured by the

6The 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 speakto Carrington since Carrington's records indicatedthat the property was not in foreclosure and Carrington denies ever instructing NWTS to continue with the sale. 13Lyons v. U.S. BankNat'!Ass 'n, 

### No. 89132-0 deed oftrust." The trial court determined there were no issues ofmaterial fact and granted summary judgment. We disagree and find that when considering the allegations in favor ofLyons, some material factual issues remain that necessitate the denial ofsummaryjudgment. 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 proofthat the beneficiary is the actual owner ofthe 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 needto establish ownership ofthat loan, eitherby demonstrating that it 

### actually held the promissory note or by documenting the chain of transactions."). Seekingto foreclose withoutbeing aholder ofthe applicable note in violation ofthe DTA is actionable in a claim for damages underthe 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 ofthe promissory note ... shall be sufficient proofas required under this subsection." RCW 61.24.030(7)(a). Typically, unless the trustee has violated a duty ofgood faith, it

### is entitled to rely on the beneficiary's declaration when initiating a trustee's sale. See 

### RCW

14Lyons v. US. BankNat'lAss 'n, 

### No. 89132-0 61.24.030(7)(b). But ifthere 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 BankN.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 ofthe 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 ofwhich is proofthat 'the beneficiary is the owner ofany promissory note or other obligation secured by the deed oftrust."' 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 whetherthere was aviolation ofthe DTAto survive summaryjudgmentinthat case. Id. 

### Lyons encourages the courtto adopt the reasoning inBeaton.

15

### Lyons v. US. BankNat'!Ass 'n, No. 89132-0 NWTS argues that Beaton is wrongly decided and that the language ofthe beneficiary declaration, in conjunction with the statutory requirements ofthe 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 proofthat Wells Fargo was a holder for the purposes ofRCW 61.24.030(7)(a). BecauseDTAprovisions shouldbe strictly construed, we find, consistentwith 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. ButNWTS, as trustee, can still prove that Wells Fargo was the owner ofthe 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 ownerpriorto initiating the trustee's sale. NWTS will need to furnish that proofbut may notjustrely on this ambiguous declaration.

16Lyons v. US. BankNat'!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 identifiedWells Fargo as trustee for Soundview, yet lessthan ayear later Wells Fargo asserts thatit is theholder. Itis not entirely clearhowWells Fargo could give its interest to Soundview and then give it back to itself eight months later. Material questions offact remain as to whether the second beneficiary declaration

was valid and whether NWTS should have questioned its efficacy in light ofthe prior beneficiary declaration. Taking the facts in a light most favorable to Lyons, summaryjudgmentwas inappropriate and a cause ofaction underthe CPA could be supported. C. No issues offact remain for the claim ofintentional infliction ofemotional distress, so summaryjudgment was proper Lyons also alleges a claim for the tort of outrage, otherwise known as intentional infliction ofemotional distress. "The tort ofoutrage requires the proofof three elements: (1) extreme and outrageous conduct, (2) intentional or reckless infliction ofemotional distress, and (3) actual result to plaintiffofsevere emotional distress." Kloepfelv. Bokor, 149 Wn.2d 192, 195,66P.3d 630 (2003). "The question ofwhether certain conduct is sufficiently outrageous is ordinarily for thejury, but it is initially for the courtto determine ifreasonable minds could differ on whetherthe conduct was sufficiently extreme to result in liability." Dicomes v. State, 113 Wn.2d 612, 630, 782 P.2d 1002 (1989); seeRobelv. Roundup Corp., 148 Wn.2d 35, 51, 59 17Lyons v. US. BankNat'!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) (quotingDicomes, 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 allegedthatthe bankinducedthemto 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 survivedsummaryjudgment),with Vawter, 707F. 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), andMcGinley v. Am. Home Mortg. Serv., Inc., No. 2:10- CV-01157 RJB, 2010 WL 4065826, at *11 (W.D. Wash. Oct. 15, 2010) (courtorder) (claim resting on alleged nondisclosures associated with loanrefinance, terms ofthe loan, and subsequent nonjudicial foreclosure proceedings was insufficiently

18

### Lyons v. US. BankNat'!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 ofNWTS 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 ofdecency. But these allegations are not so outrageous that they shock the conscience or go beyond all sense ofdecency. Whileperhaps the actions mighthave violatedtheDTA 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 ofsummaryjudgment

on the intentional infliction ofemotional distress claim. IV. CONCLUSION Ifa trustee's sale has not occurred, an allegedly wronged homeowner cannot bring a damages claim under the DTA. However even if a trustee's sale has not occurred, an allegedly wrongedhomeowner canbring aclaim for damagesunderthe CPA. Material issues offact 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. BankNat'!Ass 'n, No. 89132-0 declaration. We affirm the court's grant of summaryjudgment in favor ofNWTS for the DT A and intentional infliction ofemotional distress claims. We reverse the grant ofsummaryjudgment on the CPA claim and remand to the trial court.

20

### Lyons v. US. BankNat'lAss 'n, No. 89132-0

WE CONCUR:

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