IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

DANIEL J. WATSON and KETWARIN ONNUM, husband and wife, Respondents,

v. NORTHWEST TRUSTEE SERVICES, INC., Petitioner, CITIMORTGAGE, INC.; NATIONAL LEGAL HELP CENTER, INC.; and JOHN DOES 1-10, Defendants. No. 69352-2-I DIVISION ONE ORDER GRANTING MOTION TO PUBLISH OPINION

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### The respondents, Daniel J. Watson and Ketwarin Onnum, having filed a motion to publish opinion, and the hearing panel having reconsidered its priordetermination 

### and finding that the opinionwill be ofprecedentialvalue; now,therefore it is hereby: ORDERED that the unpublished opinion filed January 21, 2014, shall be 

### published and printed in the Washington Appellate Reports. 

# DATEDthis Ifl^davof MflrcVl .2014.

For the Court:

### Judge ljc niv t Cr>':U\ HI- Am.? u> uiv i

STATE Or ViASHJHGfO!-; 

### 2QIUAH21 PH Is 26
IN THE COURT OFAPPEALS FOR THE STATE OF WASHINGTON

DANIEL J. WATSON and KETWARIN ONNUM, husband and wife, Respondents,

v. NORTHWEST TRUSTEE SERVICES, INC., Petitioner, CITIMORTGAGE, INC.; NATIONAL LEGAL HELP CENTER, INC.; and JOHN DOES 1-10, Defendants. No. 69352-2- DIVISION ONE PUBLISHED OPINION

FILED: January 21, 2014

Leach, C.J.

— Northwest Trustee Services Inc. (NWTS) seeks discretionary review of the superior court's denial of NWTS's motion for summary dismissal of the claim by Daniel Watson and Ketwarin Onnum (the Watsons) for damages allegedly caused by NWTS's breach of the foreclosure fairness act, chapter 61.24 RCW (FFA). The Watsons cross petition, seeking review of the superior court's dismissal of their claims under the Consumer Protection Act, chapter 19.86 RCW (CPA). Because the trial court committed probable error and substantially altered the status quo when it dismissed the Watsons' CPA claims, we granttheWatsons' petition and reverse the trialcourt's decision. Because the trial court did not commit error when it denied NWTS'sNo. 69352-2-1 / 2
motion for summary dismissal of the Watsons' FFA claims, we deny NWTS's petition. Background InApril2003, Daniel Watson and his wife, Ketwarin Onnum, financed the purchase of a home by executing a promissory note payable to ABN AMRO Mortgage Inc. and a companion deed of trust. Through various mergers and business transactions, CitiMortgage acquired the note and a beneficial interest underthe deed oftrust. Itlaterappointed NWTS as successortrustee. 

### On February 5, 2011, NWTS sent the Watsons a notice of default. On March 22, 2011, NWTS recorded a notice of trustee's sale, with the sale scheduled for June 24, 2011. On June 20, 2011, the Watsons filed for 

### bankruptcy, which causedthe trustee saleto be postponed and then canceled. On July 22, 2011, the FFA amended the deeds oftrust act, chapter61.24 

### RCW (DTA).1 Among other changes, the FFA changed the requirements for 

### preforeclosure notice2 and allowed recovery of damages for violations of the CPA.3 

### On September 22, 2011, the bankruptcy court discharged the Watsons' 

### debts, including the note. On November 8, 2011, NWTS recorded an amended notice of trustee's sale, with a new sale date of December 23, 2011. NWTS 

### mailed a copy ofthe notice by certified and first class mail to the Watsons and 

### 1RCW61.24.005-.177 (Laws of2011,ch. 364, § 3). 2RCW61.24.030, .031, .040. 3RCW 61.24.135.No. 69352-2-1 / 3 

### posted a copy ofthe notice at the premises. NWTS did not send a new notice of 

### default orotherwise contacttheWatsons before recording this notice.4 Athird party purchased the Watsons' house at a trustee's sale on December 23, 2011. The trustee's deed recorded by NWTS on January 10, 2012, referred to the March 22, 2011, notice of trustee's sale, which described the notice of the sale 

### that was ultimately canceled, but did not mention the notice recorded November 8,2011. 

### The Watsons filed a lawsuit against NWTS and CitiMortgage, alleging 

### wrongful foreclosure and to quiet title. They later amended the complaint to include additional claims for violation of the CPA. The amended complaint also 

### added National Legal Help Centeras a defendant. NWTS and CitiMortgage filed


### an amendedjoint motion for summaryjudgment. The court dismissed all claims 

### against CitiMortage and requested additional briefing on the claims against NWTS, whichthe parties provided. The trial court dismissed the Watsons' CPA claim, but not their claim for wrongful foreclosure for failure to comply with the
FFA. Both NWTS and theWatsons seekdiscretionary review. Analysis 

### Discretionary review is available inthefollowing circumstances: 

### 4The Watsons attempted to seek legal help by contacting a California 

### entity called the "National Legal Help Center," but this entity is apparently not an 

### attorney or counsel approved byHUD (U.S. Department ofHousing and Urban Development), and contrary to itsrepresentations to the Watsons, itdid not stop the foreclosure.No. 69352-2-1/4 

### (1)The superiorcourt has committed an obvious errorwhich would renderfurther proceedings useless; 

### (2) The superior court has committed probable error and the decision of the superior court substantially alters the status quo or substantially limits thefreedom of a partyto act; 

### (3)The superiorcourt has sofar departed fromthe accepted and usual course of judicial proceedings, or so far sanctioned such 

### a departure by an inferior court or administrative agency, as to call for review by the appellate court; or 

### (4) The superior court has certified, or all the parties to the 

### litigation have stipulated, that the order involves a controlling question of law as to which there is substantial ground for a difference of opinion and that immediate review of the order may 

## materiallyadvancetheultimateterminationofthelitigation.151 NWTS contends that by denying its motion for summaryjudgment as to 

### the wrongful foreclosure claim, the trial court "committed an obvious error which would render further proceedings useless." The Watsons argue that the court 

### committed errorwarranting review bydismissing their CPA claims. Wrongful Foreclosure underthe FFA The trial court denied NWTS's motion to dismiss the Watsons' wrongful 

### foreclosure claims on two alternative grounds. First, the court ruledthatthe FFA is a remedial statute and, as such, should be applied retroactively. Alternatively, 

### the trial court ruledthatit did not need to apply the FFAretroactively because the 

### "precipitating event" triggering the statute's application was not the February 2011 notice of default but the amended notice of trustee's sale, recorded in November2011, afterthe effective date ofthe FFA.

RAP 2.3(b).No. 69352-2-1 / 5
Courts presume that statutory amendments operate prospectively and 

### generally disfavor retroactive application because "'individuals should have an 

## opportunityto knowwhatthe law is and to conform theirconductaccordingly.'"6 A statute applies retroactively if it changes the legal effect of "'prior facts or 

### transactions"'7 or "'attaches newlegal consequences to events completed before itsenactment.'"8 But a statute does not applyretroactively "merely because it is applied in a case arising from conduct antedating the statute's enactment or 

### upsets expectationsbasedinpriorlaw."9 "Astatuteoperates prospectivelywhen the precipitating event for operation ofthe statute occurs after enactment, even when the precipitating event originated in a situation existing prior to enactment."10 

### NWTS argues that under the FFA, the preforeclosure requirements are 

### linked to the original notice ofdefault sentinFebruary 2011, before the FFA took effect. NWTS contends thatthe process thatculminated inthe trustee's sale was
one continuous transaction. Therefore the trial court erred by applying the July 2011 FFA amendments to the sale process.



### 6Loeffelholz v. Univ. ofWash., 175 Wn.2d 264, 272, 285 P.3d 854 (2012) 

### (quoting Landqrafv. USI Film Prods., 511 U.S. 244, 265, 114S. Ct. 1483, 128 L Ed. 2d 229 (1994)); In re Pers. Restraint ofFlint, 174 Wn.2d 539, 546, 277 P.3d 657(2012). 

### 7Flint, 174 Wn.2d at 547 (internal quotation marks omitted)(quoting State v. Varna, 151 Wn.2d 179, 195, 86 P.3d 139 (2004)). 

### ""Flint. 174Wn.2d at548 (internalquotation marks omitted) (quoting State v. Pillatos. 159Wn.2d459.471, 150 P.3d 1130 (2007)). 

### ^Tandgraf, 511 U.S. at269 (citationomitted). 10 Inre Estate ofBurns, 131 Wn.2d 104, 110-11, 928 P.2d 1094 (1997).No. 69352-2-1 / 6
Because the DTA eliminates many protections enjoyed by borrowers 

### under judicial foreclosures, "lenders must strictly comply with the statutes and 

### courts must strictly construe the statutes in the borrower's favor."11 Under the FFA it "shall be requisite to a trustee's sale" that a written notice of default containing specific information set forth in the statute first be transmitted by the 

### beneficiary or thetrustee to theborrower.12 Atrustee, beneficiary, orauthorized agent may not issuethis notice ofdefault until 30 days after satisfying certain due 

### diligence requirements.13 Thebeneficiary or agentfirst must send a letterthat includes information such as the borrower's right to meet with a HUD-approved housing counselor or attorney who can help with mediation, assist in arranging a meeting with the lender, or work toward a resolution such as a loan 

### modification.14 This "Pre-Foreclosure Options Letter" or a "Notice of PreForeclosure Options" must provide toll-free numbers to help borrowers find HUD

### approved housing counselors orcivil legal aidresources.15 Where the filing of a bankruptcy court petition has stayed a trustee's sale, the trustee may set and give notice of a new sale date not less than 45 days after 

### the date of thebankruptcy court orderpermitting the sale.16 RCW 61.24.130(5) through (6) allow a trustee's sale "on any date to which such sale has been


### 11 Albice v. PremierMortq. Servs. ofWash., Inc., 174 Wn.2d 560, 567, 276 P.3d 1277 (2012). 

### 12RCW61.24.030(8). 

### 13 RCW61.24.031(1)(a), (5). 14RCW61.24.031(1)(c)(iii), (iv), (f), (2)-(4). 15RCW61.24.031(1)(c)(ii). 16RCW61.24.130(4).No. 69352-2-1 / 7 

### properlycontinued inaccordance with RCW61.24.040(6)." This statute allows a trustee to continue the sale for a period or periods not exceeding a total of 120 

### days.17NWTS claims its original March 22, 2011, notice oftrustee's sale fulfilled 

### its obligations under the DTA. But this notice described a sale scheduled for June 24, 2011. NWTS first continued and ultimately canceled this sale. RCW 

### 61.24.040(6) allowed continuance ofthe June 24, 2011, sale date for no more 

### than 120 days, oruntil October22, 2011.18 Afterthatdate, theDTA required a new notice. Therefore, although NWTS labeled its second notice an "amended" notice oftrustee's sale, this notice necessarily scheduled a new sale. Because NWTS recorded the "amended" notice in November 2011, the notice requirements ofthe FFA applied. 

### Because NWTS failed to comply with the FFA's notice requirements 

### before recording its November 2011 notice oftrustee's sale, the Watsons have demonstrated issues of material fact regarding the lawfulness of NWTS's 

### nonjudicial sale of the Watsons' property. NWTS has failed to establish grounds fordiscretionary review. We dismiss its petition for review. Violation ofthe CPA We next address the Watsons' petition for review. Because the trial court 

### committed probable error and substantially altered the status quo when it 

### 17 RCW61.24.040(6). 18 See Rouse v. Wells Fargo Bank, N.A.. No. C13-5706, 2013 WL 5488817, at *2 (W.D. Wash. Oct. 2, 2013).No. 69352-2-1 / 8
dismissed the Watsons' CPA claims, we grantthe Watsons' petition and reverse the trial court's dismissal ofthis claim. The FFA states in a section added in 2011, It is an unfair or deceptive act in trade or commerce and an unfair method of competition in violation of the consumer protection act, chapter 19.86 RCW, for any person or entityto: (a) Violate the duty of good faith under RCW 61.24.163; (b) fail to comply with the requirements of RCW 61.24.174; or (c) fail to initiate contact with a borrower and exercise due diligence as required under RCW 61.24.031.l19] Relying on its retroactivity analysis, the trial court ruled that "creation of a
new cause of action (a per se violation ofthe Consumer Protection Act) affects a substantive right and therefore the FFA is not retroactive with respect to the Consumer Protection Act claim." Because we conclude that the FFA applied to NWTS's November 2011 notice, we also conclude that the FFA provisions addressing the CPA apply. The trial court erred and substantially altered the status quo when it dismissed the Watsons' CPA claims. We reverse the trial court's dismissal of the Watsons' CPA claims and remand for further proceedings. Conclusion Because the trial court did not commit error when it denied NWTS's 

### motion for summary dismissal of the Watsons' FFA claims, we deny NWTS's 

### petition. Because the trial court committed probable error and substantially altered the status quo when itdismissed the Watsons' CPA claims, we grantthe

19 RCW 61.24.135(2) (Laws of2011, ch. 58, §14).No. 69352-2-1 / 9
Watsons' petition, reverse the trial court's dismissal of their CPA claims, and remand forfurther proceedings consistentwith this opinion. 

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. WE CONCUR: 

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