IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

THE ESTATE OF STEPHEN SULVAN ) No. 79705-1-I

SPRING, DECEASED; STEPHEN J. )

SPRING, Personal Representative, ) DIVISION ONE

)

Appellant, ) UNPUBLISHED OPINION

v.

OUR COMMUNITY CREDIT UNION, )

and NORTHWEST TRUSTEE )

SERVICES, as Trustee, )

Respondent.

____________________________________ ) FILED: June 10, 2019

HAZELRIGG-HERNANDEZ, J. — In order to proceed with a nonjudicial

foreclosure, the Deeds of Trust Act requires specific notice to unidentified

successors in interest. In 2017, the estate of Stephen Sulvan Spring filed this

complaint for wrongful sale, claiming it had not received notice. Our Community

Credit Union (OCCU) foreclosed on the deed of trust in 2015, before the estate

existed as a legal entity. OCCU followed the notice requirements prior to the

foreclosure. The trial court dismissed Spring’s claim on summary judgment.

Affirmed.

FACTS

In 2008, Stephen S. Spring and Shirley A. Spring granted OCCU a deed of

trust against their property at 11 SE Channel Point Rd, Shelton. Stephen S. Spring
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died in November, 2011.1 Shirley Spring began to miss payments on the

promissory note in July 2013. OCCU communicated with Shirley Spring many

times.

In May, 2015, the trustee mailed a notice of default to Shirley Spring, “The

Estate of Stephen S Spring” and “The Heirs and Devisees of The Estate of Stephen

S Spring” at multiple addresses, including the 11 Southeast Channel Point Road

address. In June, the trustee mailed a notice of trustee’s sale and notice of

foreclosure to the same addressees. The notice of trustee’s sale was recorded

with the Mason County Auditor.

In October 2015, Stephen S. Spring’s son, Stephen J. Spring, filed a

complaint to restrain the trustee’s sale. That complaint was dismissed for failure

to state a claim upon which relief could be granted. OCCU purchased the property

at the trustee’s sale later that month.

Almost a year after the sale in August 2016, Stephen J. Spring petitioned

for letters of administration for the estate of Stephen S. Spring. The estate filed a

complaint for wrongful sale in February 2017. OCCU moved for summary

judgment on the basis that it fulfilled the statutory notice requirements. The court

dismissed the estate’s complaint.

1 The death certificate identifies the deceased as “Stephan Sulvan Spring” while the

parties and deed of trust consistently identify him as “Stephen Sulvan Spring.” The parties appear

to accept that the documents refer to the same individual.

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DISCUSSION

Summary judgment was appropriate because Spring’s complaint failed as

a matter of law.

Summary judgment orders are reviewed de novo, considering the evidence

and reasonable inferences in the light most favorable to the nonmoving party. Keck

v. Collins, 184 Wn.2d 358, 370, 357 P.3d 1080 (2015). After the defendant has

moved for summary judgment on the basis that there is an absence of evidence to

support the plaintiff’s case, the plaintiff must demonstrate facts, which if believed

by the factfinder, would entitle them to relief. Young v. Key Pharmaceuticals, Inc.,

112 Wn.2d 216, 225, 770 P.2d 182 (1989) (citing Celotex Corp. v. Catrett, 477

U.S. 317, 322, 106 5. Ct. 2548, 91 L. Ed. 2d 265 (1986)). If the plaintiff fails to

establish an essential element of the case, summary judgment is appropriate. ki.

Spring alleged that the trustee’s sale failed to comply with the Deeds of

Trust Act.2 Spring argues that because the estate did not exist at the time of the

sale, the trustee could not notify the estate as required in the act.3 This court

disagrees.

The notice requirements for a trustee’s sale when the trustee knows the

borrower is deceased are contained in RCW 61.24.030(10) and RCW

61.24.040(b)(i)(B). The trustee must send notice to any successor in interest.

RCW 61.24.040(1)(b)(i)(B). If no successor in interest has been established, the

2 Chapter 61.24 RCW

~ Spring cites RCW 61.24.031, but that section only applies to deeds of trust recorded

against owner-occupied residential real property. ROW 61.24.031 (7)(a). It is undisputed that the

borrowers, Stephen S. Spring, the deceased, and Shirley A. Spring, his spouse, did not reside at

the 11 SE Channel Point Road property. Therefore, ROW 61.24.031 does not apply.

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trustee must send notice to any spouse, child, or parent of the borrower known to

the trustee, or whose name and address can be located in the public records of

any obituary, will, death certificate, or probate case in the county where the

property is located. ~; RCW 61.24.030(10).

There is no requirement to notify the deceased borrower’s estate of a

trustee’s sale when the estate has not been established. The statute specifically

provides for alternative notice in situations where the successor in interest has not

been established. In such a situation, the trustee must notify any spouse, child, or

parent the trustee can ascertain with reasonable diligence. Here, the trustee

mailed notice to Shirley Spring, decedent’s spouse, as well as notice addressed to

“The Estate of Stephen S Spring” and “The Heirs and Devisees of The Estate of

Stephen S Spring”. Each notice was sent to three different addresses, including

the 11 SE Channel Point Road address. Because the statute explicitly provides

alternative notification methods when a successor in interest has not been

established, OCCU was not required to notify the estate, and Spring’s complaint

fails as a matter of law.

II. Even if Spring’s interpretation of the Deeds of Trust Act was correct, he has

failed to designate a record sufficient for us to reverse a trial court’s

decision.

After OCCU filed a motion for summary judgment, affidavits, and documents

demonstrating compliance with the act, the burden on summary judgment shifted

to Spring to demonstrate evidence that would support a verdict in Spring’s favor.

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Spring did not designate any evidence introduced in response to OCCU’s

summary judgment motion in the record before this court. The appellant bears the

burden of perfecting the record on appeal so the reviewing court has the evidence

relevant to deciding the issues. Rhinevault v. Rhinevault, 91 Wn. App. 688, 692,

959 P.2d 687 (1998). The record before us contains only bare assertions

supporting Spring’s complaint, and does not designate any materials that contain

evidence supporting a claim that OCCU failed to comply with the Deeds of Trust

Act. Affirmed.

WE CONCUR:

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