IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON UNION BANK, N.A., a national banking association, Appellant,

v. EAST CREEKVILLAGE, LLC, a Washington limited liability company; SHORELINE BUSINESS AND PROFESSIONAL CENTER, LLC, a Washington limited liability company; KENNETH LYONS, MELANI A. LYONS, individually and the marital community thereof; TODD ARRAMBIDE, KIM M. ARRAMBIDE, individually and the marital communitythereof, Defendants, ELIZABETH Y. VANDERVEEN, A. MARKVANDERVEEN, individually and the marital communitythereof; HARLEY O'NEIL, JR., MICHELE O'NEIL, individually and the marital communitythereof; the TORI LYNN NORDSTROM TRUST, a Washington state trust; and HARLEY O'NEIL, JR., Trustee for the Tori Lynn Nordstrom Trust, Respondents. NO. 70327-7-1 DIVISION ONE
UNPUBLISHED OPINION
FILED: June 9, 2014

Leach, J. — Union Bank appeals the trial court's summary dismissal of its action 

### for a deficiency judgment against the guarantors of a loan following a trustee's saleNO. 70327-7-1 / 2 

### under a deed of trust securing that loan. Kenneth Lyons and Melani Lyons, A. Mark 

### Vanderveen andElizabeth Vanderveen, ToddArrambide and Kim M. Arrambide, Harley 

### O'Neil Jr. and Michele O'Neil, and Harley O'Neil Jr. as trustee for the Tori Lynn Nordstrom Trust (Guarantors), each signed a commercial guaranty of payment ofloan to East Creek Village LLC and Shoreline Business and Professional Center LLC. 

### Based on its reading of RCW 61.24.100(10), the trial court granted the Guarantors' motion for summary judgment, dismissing this action.1 Because the trial court erred 

### both in its interpretation of this statute and its application of the statute to relevant loan documents, we reverse and remand for furtherproceedings. FACTS In 2008 East Creek and Shoreline borrowed $5,100,000 from Frontier Bank and 

### delivered theirpromissory notein that amount to thebank. A deed of trustexecuted by EastCreek and Shoreline secured paymentof the note. The Guarantors each executed
a commercial guaranty ofpaymentofthe loan. 

### Union Bank acquired all of Frontier Bank's interest inthe note, deed of trust, and commercial guaranties. East Creek and Shoreline defaulted on the bank loan. As a 

### result,Union Bank elected tocommence a nonjudicialforeclosure proceeding. 

### In July 2011, the trustee under the deed of trust then held by Union Bank conducted a sale based on the borrowers' default. Union Bank was the successful



### 1Lyons andArrambide settled beforethetrial courtgranted summaryjudgment and are not parties to this appeal. -2-NO. 70327-7-1 / 3
bidder at the sale, with a bid of $1,767,000. This left a substantial deficiency allegedly owed. In 2012, Union Bank filed this lawsuit against the Guarantors to enforce their 

### guaranties and to obtain a deficiencyjudgment based on the amount the bank claimed remained owing afterthe trustee's sale. The Guarantors moved forsummaryjudgment, 

### contending that the foreclosed deed of trust secured their guaranty obligations and RCW61.24.100(10) barred the bank's requestfor a deficiencyjudgment. The trial court 

### agreed, dismissed the bank's lawsuit, and awarded the Guarantors attorneyfees. Union Bank appeals. ANALYSIS 

### Union Bank argues that RCW 61.24.100(10) does not bar its lawsuit for a deficiencyjudgmentagainstthe Guarantors. We agree. This court reviews de novo summaryjudgment orders and engages inthe same 

### inquiry as the trial court.2 Summaryjudgment is appropriate when there is no genuine 

### issue ofmaterialfact and the moving party isentitledto a judgment as a matter oflaw.3 In Washington Federal v. Gentry,4 we addressed the same issue as here: 

### whether RCW61.24.100(10) bars a lawsuit againstthe guarantors of a commercial loan 

### following the nonjudicial foreclosure of the deed of trust securing payment of the loan. There, we held this provision does not bar such a lawsuit.5 Here, the same principles Cornish Coll. ofthe Arts v. 1000 Va. Ltd. P'ship, 158Wn. App. 203, 215-16, 242 P.3d 1 (2010). 3CR 56(c). 4Wash. Fed, v. Gentry, Wn. App. , 319 P.3d 823 (2014), petition for review filed, No. 90085-0 (Wash. Apr. 1, 2014). 5Gentry, 319 P.3d at 832.NO. 70327-7-1 / 4 

### that we applied in Gentry apply. RCW 61.24.100(10) does not bar Union Bank's lawsuit. We also disagree with the trial court's determination that the foreclosed deed of 

### trust secured the Guarantors' guaranty obligations. We have compared the deed of 

### trust in Gentrywith the deed of trust here. They have similar provisions defining whose obligations are secured. In both cases, the secured obligations are limited to those of the "Grantors" under the deeds of trust. Neither deed of trust states that the secured 

### obligations include those of a guarantor of the loan. Following our analysis in Gentry again, we conclude that the foreclosed deed of trust did not secure the Guarantors' guaranty obligations. For this reason as well, RCW 61.24.100(10) does not bar Union Bank's claims againstthe Guarantors. 

### Because of our resolution of the application of RCW 61.24.100(10), we do not 

### reach Union Bank's challenge to the trial court's determination that enforcement of any waiver of the protections of RCW61.24.100violates the statute and publicpolicy. The trial court awarded the Guarantors attorney fees as the prevailing party. In 

### light of ourdisposition of the issues, we vacate this award. Because a prevailing party has not yetbeen determined, we decline to award fees to any party on appeal. Finally, we address Union Bank's motion to strike appendix C to respondents' brief, which a commissioner of our court referred to the panel for decision. "Motions to 

### strike sentences or sections out of briefs waste everyone's time."6 Union Bank's motion unnecessarily required the commissioner and the panel to read four pleadings. It cited 

### 6Redwood v. Dobson.476 F.3d 462, 471 (7thCir. 2007). -4-NO. 70327-7-1 / 5

a court rule, GR 14.1, and a statute, RCW 2.06.040, which apply only to unpublished 

### court of appeals decisions and not to trial court decisions. Itgenerated unnecessary 

### expense to all litigants. A simple statement in Union Bank's reply brief addressing appendix C's lack of precedential value would have better served the interests of the parties and furtheredjudicial economy. We deny the motion. CONCLUSION 

### RCW 61.24.100(10) does not bar a lawsuit against the guarantors of a commercial loan following the nonjudicial foreclosure of the deed of trust securing 

### payment of the loan. Therefore, we reverse the trial court and remand for further proceedings consistentwiththis opinion.

WE CONCUR: 

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