### FILED MAY 5,2015 In the Officeofthe ClerkofCourt W A StateCourtofAppeals, Division III

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE MICHAEL URIBE andHELENURIBE ) husband andwife, ) No. 32315-3-111 ) Appellants, ) ) v. ) ) UNPUBLISHED OPINION LIBEY, ENSLEY & NELSON, PLLC, a ) Washingtonprofessional limited liability ) company; BANKOF WHITMAN, now ) known as COLUMBIABANK, successor ) in interesttothe FDIC as Receiver of ) Bank ofWhitman; and GARYLIBEY and ) JANEDOELIBEY, husband and wife and ) the marital community comprisedthereof, ) ) 

# I Respondents. ) KORSMO,J.

- This appeal arises from the nonjudicial foreclosures ofdeeds of 

# I
trust securingcross-collateralizedcommercial loans. Concludingthatthe trial court 

# I properly granted summaryjudgmentin favor ofthe defendants, we afftrm. 

# I FACTS**~** 

# I f Inthe early 2000s, Michael and HelenUribe owned a 1,000 acre tract ofland in Benton County, thenvalued in excess of$3.75 million. They also owned a substantially 

# I 1 i less valuable piece ofproperty in Franklin County. Inordertofinance a commercial I' 

### fNo. 32315-3-III Uribe, et ux v. Libey, Ensley & Nelson, PLLe, etal endeavor, the Uribes took out a loan in the amount of$I,665,185.50 from the Bank of Whitman (Bank). The loan was secured by a deed oftrust on the Franklin County property, a mortgage on the Benton Countyproperty, and a security interest in some vehicles and equipment used in the Uribes' business. A few years later, the Uribes took out a second commercial loan from the Bank inthe amount of$571,000. This loan was secured by a deed oftrust on the Benton County property, a mortgage on the Franklin County property, and a security interest in that samebusiness property. Additionally, the deed oftrust on the Benton Countyproperty included a clause whereby it further secured all prior indebtedness by the Uribes to the Bank. Following the collapse ofthe real estate market, the Uribes defaulted on both loans. In March 2009, the Bank sent the Uribes notices ofdefault. Before the Bank could take any further action, the Uribes filed for bankruptcy, resulting in an automatic stay on all foreclosure proceedings. The Bankthen filed a motion for relieffrom the stay. One year later, the bankruptcy court lifted the stay and abandoned the property from the estate. That courtdetermined that the total value ofthe security assets ($2,550,171) was less than the total debt owed on the two loans ($2,745,982.78). The Bankthen initiated nonjudicial foreclosure proceedings on the two deeds oftrust, as well as a replevin action
on the business property. The Bank sent new notices ofdefault andthen appointed GaryLibey as trustee. Mr. Libey sent notices oftrustee's sales to the interested parties. On September 8, 2010, 2No. 32315-3-III 

### Uribe, et ux 

### v. Libey, Ensley & 

### Nelson, PLLe, etal
the notices and Mr. Libey's appointment as trustee were filed with the Franklin and Benton County Auditors. The notices were recorded approximately two hours before the appointments were recorded. On December 17,2010,both properties were sold at auction to the Bank; there
were no otherbidders. First, the Franklin County property was sold for $390,000 and the purchaseprice was credited to the Franklin County loan. Then, the Benton County property was sold for $1.2 million, with the purchase price credited inpartto the Benton County loan and in part to the Franklin County loan. In the separate replevin action, the Bankrealized an additional $281,487.14 from the sale ofthe Uribes' businessproperty. On December 28 and 30, Mr. Libey recorded the trustee's deeds for the two properties, acknowledging full satisfaction ofboth loans. The Bank subsequently sold the Benton Countyproperty to Randall Rupp for approximately $1.28 million. Ten months later, the Uribes brought an action against theBank, Gary Libey, Libey Ensley & Nelson, PLLC, Randall Rupp, and 7HA Family, LLC, alleging violations ofthe Deeds ofTrust Act (DTA), chapter 61.24 RCW, andthe ConsumerProtection Act (CPA), chapter 19.86 RCW, as well as collusivebidding, conversion, civil conspiracy, and racketeering. The Bank settled with the Uribes. The superior court later granted summaryjudgment in favor ofthe remaining defendants. The Uribes appealed from that decision, reasserting only their claims under the DT A and CPA.

3No. 32315-3-III Uribe, et ux v. Libey, Ensley & Nelson, PLLC, etal
ANALYSIS The Uribes allege two violations ofthe DTA, relating respectively to the validity and procedure ofthe trustee's sale, which we will address in that order. Ourresolution of those issues precludes any need to discuss the CPA claim. The Validity a/the Sale The Uribes contend thatbecause the notices oftrustee's sales were recorded two hours prior to Mr. Libey's appointment as trustee, the trustee's sales were invalid and should be rescinded. In response, Mr. Libey contends that under the DTA, the Uribes waived their ability to challenge the validity ofthe trustee's sale by failing to bring an action to enjoin the sale. The DTA should be construed liberally to further its basic objectives: (1) that the nonjudicial foreclosure process be efficient and inexpensive, (2) that the process should allow adequate opportunity for parties to preventwrongful foreclosure, and (3) that the process should promote the stability oflandtitles. Cox v. Helenius, 103 Wn.2d 383, 387, 693 P.2d 683 (1985). In orderto preventwrongful foreclosure, a statutory cause of action is available to the debtor to enjoin an invalid foreclosure. See RCW 61.24.130. To promote stability ofland titles, failure to bring an action "mayresult in a waiver of any proper grounds for invalidating the Trustee's sale." RCW 61.24.040(1)(t)(IX). Waiver ofapost-sale challenge occurs where aparty (1) received notice ofthe right to enjoin the sale, (2) had actual or constructive knowledge ofa defense to foreclosure prior 4No. 32315-3-III Uribe, et ux v. Libey, Ensley & Nelson, PLLC, etal

to the sale, and (3) failed to bring an action to obtain a court order enjoining the sale. Plein v. Lackey, 149 Wn.2d 214,227,67 P.3d 1061 (2003). Waiver is not strictly applied. Itonly will occur where it is equitable under the circumstances and furthers the goals of the act. Albice v. PremierMortg. Servs. o/Wash.,Inc., 174 Wn.2d 560, 570,276 P.3d 1277 (2012). Itis uncontested thatthe Uribes received adequate notice oftheir statutory rights and that they did not bring an action to enjoin the trustee's sale. They argue that waiver is inappropriate because they had no actual knowledge ofthe filing defects related to the appointment ofLibey and his notices ofsale. However, the Uribes had constructive knowledge ofthe order in which the documents were recorded by the county clerk. I That is sufficient for waiver. Additionally, equitable considerations favor applying waiver to these circumstances. The Uribes are complaining ofan extremely minor, technical failure in the foreclosure proceeding, which has not apparently harmed them in any way. Finally, applying waiver here furthers the purposes ofthe DTA bypromoting the stability ofland titles in a situation where the complaining party had ample opportunity to correct the errorbefore the sale. Consequently, application ofwaiver is appropriate in this situation.

I Indeed, the Uribes' theory ofliability against Rupp was that Rupp purchased the property with constructive notice ofthe filing defect. 

### 5No. 32315-3-III Uribe, et ux v. Libey, Ensley & Nelson, PLLC, etal
The Uribes argue unpersuasively that waiver cannot apply to procedural irregularities. They rely on inappositeprecedent. See Schroeder v. ExcelsiorMgmt. Grp., LLC, 177 Wn.2d 94, 297 P.3d 677 (2013); Bavandv. OneWest Bank, FS.B., 176 Wn. App. 475, 309P.3d 636 (2013). Unlike the present situation, both ofthese cases dealt with situations where the lender lacked statutory authority under the DT A to initiate the foreclosure, and the borrower brought an action to enjoin the sale. The Uribes argue alternatively that waiver does not apply to an action for damages, and that ifthe sale is not to be invalidated, they should be able to obtain money damages. 2 Again, the cases cited to supportthis argument do not apply as they involve contractual or common law waiverratherthan the statutory waiver ofthe DT A. See Schroeder, 177 Wn.2d at 114; Klem v. Wash. Mut. Bank, 176 Wn.2d 771, 796, 295 P.3d 1179 (2013). Failureto bring an action underthe DTA to enjoin a foreclosure cannot
serve to waive claims for damages in certain situations. See RCW 61.24.127. However, thatprovision does not apply to the commercial loans at issue here. RCW 61.24.127(4). Ifthis court were to conclude that waiver never applies to claims for damages, this provision ofthe DTAwouldbe meaningless. Courts will not construe a statute so as to render it meaningless. State v. 

### KL.B., 180 Wn.2d 735, 742, 328 P.3d 886 (2014).

2 

### It seems doubtful that the Uribes would be able to sustain a claim for damages, as they have been unable to clearly state any harm actually resulting from this defect. 6No. 32315-3-111 Uribe, et ux v. Libey, Ensley & Nelson, PLLe, etal
The Procedure of the Sale The Uribes make a variety ofcontentions that aspects ofthe sale violated the DTA, all ofwhich are without any legal support. First, they contend that recovering onthe Franklin County loan against the Benton Countyproperty constituted a deficiencyjudgment in violation ofthe DTA.3 RCW 61.24.100. However, the DTA specifically allows for a party to pursue multiple foreclosures against separate collateral securing a commercia/loan. 4 RCW 61.24.100(3)(b). Next, the Uribes argue that Mr. Libey violated the DTAby failing to deposit the surplus from the sale ofthe Benton County property with the clerk ofthe county court. RCW 61.24.080. However, the Benton County deed oftrust secured notjustthe Benton County loan, but also all other debt owed by the Uribes to the Bank. Since the total debt owed far exceeded the proceeds from the sale, there was no surplus to deposit. Finally, the Uribes argue that because the Franklin Countyproperty was sold first, and the trustee's deed for the Franklin Countyproperty states that its sale satisfied in full

3In briefing this issue, the Uribes rely heavily on a letter from Mr. Libey to the bank describing the anticipated foreclosure process and requesting indemnification. They argue that this letter indicated that Mr. Libey knew the foreclosure was unlawful. In fact the letter states a considered beliefthat the sale would be in compliance with the DTA, but that he expected trouble because the Uribes are "quite litigious." 4 Thetrial court ruled onthis issue relying onDonovickv. Seattle-FirstNat'lBank, 111 Wn.2d 413, 757 P.2d 1378 (1988). 7No. 32315-3-111 

### Uribe, et ux v. 

### Libey, Ensley 

### &Nelson, PLLe, etal
the obligation secured by that deed oftrust, the Franklin County loan was satisfiedbefore the Benton County property was sold. Howeverthe Trustee'sDeed was issued five days afterboth sales, and consequently after the Franklin County loan was credited with a portion ofthe sale from the Benton County property. Becausethere is no meritto the Uribes' claims under the DTA, we need not address their claim underthe CPA ortheir request for attorneys' fees. Affirmed. A majority ofthe panel has determined this opinion will notbeprinted in the Washington Appellate Reports, but it will be filed for public recordpursuantto RCW 2.06.040.

WE CONCUR:

Brown, J.



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