IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON 

DEUTSCHE BANK TRUST COMPANY 

AMERICAS AS INDENTURE 

TRUSTEE FOR THE REGISTERED 

HOLDERS OF SAXON ASSET 

SECURITIES TRUST 2005-1 

MORTGAGE LOAN ASSET BACKED 

NOTES, SERIES 2005-1, 

Respondents, 

V. 

ALBERTO E. AVALO; VICTORIA L. 

AVALO, 

Appellants, 

WELLS FARGO FINANCIAL 

WASHINGTON 1, INC.; ALSO ALL 

PERSONS OR PARTIES UNKNOWN 

CLAIMING ANY RIGHT, TITLE, LIEN, 

OR INTEREST IN THE PROPERTY 

DESCRIBED IN THE COMPLAINT 

HEREIN, 

Defendants. 

No. 75695-8-1 

DIVISION ONE 

UNPUBLISHED OPINION 

FILED: November 14, 2016 

LEACH, J. — Alberto and Victoria Avalo appeal the summary judgment 

entered in favor of Deutsche Bank Trust Company Americas. After the Avalos 

defaulted on a loan, Deutsche Bank commenced a judicial foreclosure. The Avalos 

claim that questions of fact exist about Deutsche Bank's authority to foreclose. 

However, as holder of the note, Deutsche Bank had the authority to enforce the 
No. 75695-8-1 /2 

note and commence judicial foreclosure of the deed of trust. Because no 

questions of fact exist as to any issue material to the judgment, we affirm. 

BACKGROUND 

In December 2004, the Avalos signed a promissory note in the amount of 

$388,218 for a loan from Saxon Mortgage Inc. A deed of trust encumbering the 

Avalos' property secured the loan. Saxon endorsed the note to Deutsche Bank. 

Assignment of the deed of trust to Deutsche Bank was recorded on June 25, 2010. 

The Avalos defaulted on their loan and, in May 2009, entered into a loan 

modification agreement with Deutsche Bank. In July 2011, the Avalos again 

stopped making payments on their loan. In response, the loan servicer sent a 

notice of default to the Avalos. This notice told the Avalos that to cure default they 

needed to pay $9,621.12 by August 9, 2011. The Avalos failed to cure the default. 

Deutsche Bank filed an action to enforce the note and foreclose the deed of trust. 

Deutsche Bank moved for summary judgment. Deutsche Bank supported 

its motion with an affidavit attesting to its possession of the note and beneficial 

interest in the deed of trust. At the summary judgment hearing, Deutsche Bank 

also produced the original promissory note. In opposition to the summary 

judgment motion, the Avalos submitted a document called "Chain of Title Analysis 

& Mortgage Fraud Investigation" (chain of title analysis) prepared for the Avalos by 

a company called Mortgage Compliance Investigators (MCI). The chain of title 

analysis summarized MCI's forensic audit of the Avalos' individual mortgage. 

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The trial court granted summary judgment to Deutsche Bank. The Avalos 

appeal. 

DISCUSSION 

Standard of Review 

We review an order granting summary judgment de novo, performing the 

same inquiry as the trial court) The initial burden is on the moving party to show 

no genuine issue of fact exists.2The burden then shifts to the nonmoving party to 

"set forth specific facts to rebut the moving party's contentions and show that a 

genuine issue as to a material fact exists."3A material fact is one on which the 

outcome of the litigation depends.4"The nonmoving party must set forth specific 

facts showing a genuine issue and cannot rest on mere allegations."5Summary 

judgment is appropriate when, taking all facts and reasonable inferences in the 

light most favorable to the nonmoving party, no genuine issue of material fact 

exists and the moving party is entitled to judgment as a matter of law.6 

1 Hayden v. Mut. of Enumclaw Ins. Co., 141 Wn.2d 55, 63-64, 1 P.3d 1167 

(2000). 

2Deutsche Bank Nat'l Tr. Co. v. Slotke, 192 Wn. App. 166, 171, 367 P.3d 

600, review denied, 185 Wn.2d 1037 (2016). 

3Allard v. Bd. of Regents of Univ. of Wash., 25 Wn. App. 243, 247, 606 

P.2d 280 (1980). 

4Greater Harbor 2000 v. City of Seattle, 132 Wn.2d 267, 279, 937 P.2d 

1082 (1997). 

5Baldwin v. Sisters of Providence in Wash., Inc., 112 Wn.2d 127, 132, 769 

P.2d 298 (1989). 

6Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). 

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No. 75695-8-1/ 4 

Summary Judgment 

First, we address the Avalos' claim that the trial court committed evidentiary 

error. The Avalos contend that the trial court should not have considered the 

affidavit of Nicole Boutin and the attached business records because she did not 

demonstrate personal knowledge as required by CR 56(e).7However, the trial 

court could not have considered this affidavit at summary judgment because it was 

not part of the record when the court granted the motion. The trial court granted 

summary judgment on February 13, 2015. Deutsche Bank submitted the Boutin 

affidavit on May 4, 2015, in support of its motion for entry of judgment and decree 

of foreclosure. Because this affidavit was submitted to the court after the court 

decided the summary judgment motion, it could not have influenced the court's 

decision on the motion. 

Next, we consider the Avalos' contention that a question of fact exists as to 

Deutsche Bank's authority to enforce the note and deed of trust. Washington law 

is clear: the holder of an instrument is entitled to enforce that instrument.8 

Deutsche Bank submitted undisputed evidence that it was the holder of the note. 

While the Avalos deny that Deutsche Bank was the holder of the note, they have 

submitted no evidence to contradict Deutsche Bank's evidence. The Avalos claim 

that the chain of title analysis creates an issue of disputed fact. But it does not 

7See Barkley v. GreenPoint Mortg. Funding, Inc., 190 Wn. App. 58, 67, 358 

P.3d 1204 (2015), review denied, 184 Wn.2d 1036 (2016). 

8 RCW 62A.3-301; Brown v. Dep't of Commerce, 184 Wn.2d 509, 524-25, 

359 P.3d 771 (2015); Bain v. Metro. Mortg. Grp., Inc., 175 Wn.2d 83, 104, 285 

P.3d 34 (2012). 

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No. 75695-8-1 / 5 

because the analysis does not dispute that Deutsche Bank was the holder of the 

note, the only relevant fact about Deutsche Bank's authority to foreclose. Thus, 

under well-established Washington law, Deutsche Bank was entitled to enforce the 

note. 

The Avalos challenge Washington law, asserting that how a note is acquired 

is also relevant. They contend that Deutsche Bank is not entitled to enforce the 

note unless it has established its chain of title. They contend that the holding of 

Bain v. Metropolitan Mortqaqe Group, Inc.9and other Washington case law—that 

the security follows the holder of the note—should not apply in cases of fraud and 

"egregious errors," including breaks in the chain of title. They rely on RCW 

65.08.070 for the proposition that holder status must be proved with evidence of a 

legitimate delivery. But the Avalos misunderstand the significance of this law. 

RCW 65.08.070, Washington's recording act, "make[s] the deed first recorded 

superior to any outstanding unrecorded conveyance of the same property unless 

the mortgagee or purchaser had actual knowledge of the transfer not filed of 

record.'"1° This statute does not require that a note be recorded before the holder 

of that note can enforce it. Washington law requires only that Deutsche Bank 

currently holds the note.11 Therefore, the Avalos' chain of title evidence has no 

relevance to Deutsche Bank's authority to initiate foreclosure. Undisputed 

9175 Wn.2d 83, 285 P.3d 34 (2012). 

10 Hu Hyun Kim v. Lee, 145 Wn.2d 79, 86, 31 P.3d 665 (2001) (quoting 

Tacoma Hotel, Inc. v. Morrison & Co., 193 Wash. 134, 140,74 P.2d 1003 (1938)). 

11 Bain, 175 Wn.2d at 102-04. 

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No. 75695-8-1 /6 

evidence shows that the trial court properly granted summary judgment in favor of 

Deutsche Bank. 

Discovery 

The Avalos contend that the trial court should have allowed them to conduct 

additional discovery before ruling on Deutsche Bank's summary judgment motion. 

Delaying a motion hearing to permit a party to conduct further discovery may be 

appropriate where "'the party cannot present by affidavit facts essential to justify 

the party's opposition.'"12But if the party opposing the motion cannot show that it 

is likely to discover evidence that would create an issue of fact, the court is not 

required to delay the summary judgment hearing.13We review a trial court's 

decision to grant or deny a request for a continuance to conduct discovery for 

abuse of discretion.14 

Here, the Avalos requested additional time to conduct discovery. The trial 

court delayed the summary judgment hearing for nearly a month to give the Avalos 

time to respond to Deutsche Bank's motion. This gave them time to obtain the 

chain of title analysis that they submitted with their amended opposition to 

summary judgment on February 9. The trial court refused to continue the hearing 

further because it concluded that the Avalos had not identified what additional 

evidence they hoped to discover.15The Avalos claim they needed additional 

12 MRC Receivables Corp. v. Zion, 152 Wn. App. 625, 628-29, 218 P.3d 

621 (2009) (quoting CR 56(f)). 

13 Turner v. Kohler, 54 Wn. App. 688, 693, 775 P.2d 474 (1989). 

14MRC Receivables Corp., 152 Wn. App. at 629. 

15 The Avalos contend that what evidence they hoped to discover was 

apparent from the chain of title analysis attached to their opposition to the summary 

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discovery in order to support the conclusions of the chain of title analysis and 

present evidence of breaks in the chain of title. They claim that their discovery 

requests could have asked Deutsche Bank to explain these alleged breaks in the 

chain of title and provide details about "the nature of the transaction." As discussed 

above, the trial court properly concluded that information contained in the chain of 

title analysis was not relevant. Thus, discovery to confirm the conclusions of this 

document would not create an issue of fact. The trial court did not abuse its 

discretion by denying the Avalos addition time for discovery. 

CR 54(e) Violation 

The Avalos contend that the trial court should have required Deutsche Bank 

to refile its motion because it presented the court with a proposed order too late to 

satisfy the rules. CR 54(e) requires the attorney for the prevailing party to "prepare 

and present a proposed form of order or judgment not later than 15 days after the 

entry of the verdict or decision, or at any other time as the court may direct." The 

trial court granted summary judgment on February 13, 2015. Deutsche Bank did 

not present the court with a proposed order until May 4, 2015, nearly three months 

later. 

Deutsche Bank does not dispute the delay but contends that the remedy for 

this error is not reversal. CR 54(e) provides a remedy when the prevailing party 

does not present a proposed order in a timely manner: "any other party may do 

judgment motion, but they do not reference specific evidence that would create an 

issue of fact. 

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No. 75695-8-1 / 8 

so." When Deutsche Bank did not submit a timely proposed order, the Avalos were 

free to submit their own proposed order. But they did not. 

Further, judgments entered in spite of procedural error are valid unless the 

complaining party shows resulting prejudice.16A party is not prejudiced if it is able 

to timely appeal and argue any issues it wishes to raise.17Under this standard, 

the Avalos do not show prejudice. 

Attorney Fees 

Deutsche Bank requests an award of costs and fees as the prevailing party 

based on RCW 4.84.330 and RAP 18.1. RAP 18.1 allows this court to award 

attorney fees when applicable law authorizes them. "RCW 4.84.330 permits a 

party to recover reasonable attorney fees and costs in any action on a contract 

where the contract provides for this award."18Here, the deed of trust provides, 

"Lender shall be entitled to recover its reasonable attorneys' fees and costs in any 

action or proceeding to construe or enforce any term of this Security Instrument." 

Because the deed of trust authorizes a fee award and Deutsche Bank is the 

prevailing party, we award reasonable attorney fees and costs on appeal, subject 

to its compliance with RAP 18.1. 

16 Burton v. Ascol, 105 Wn.2d 344, 352, 715 P.2d 110 (1986) ("A judgment 

entered without the notice required by CR 54(f)(2) is not invalid, however, where 

the complaining party shows no resulting prejudice."). 

17 Burton, 105 Wn.2d at 352-53. 

18 Slotke, 192 Wn. App. at 179. 

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CONCLUSION 

The Avalos have not demonstrated, the existence of any genuine issue of 

material fact relevant to Deutsch Bank's authority to foreclose. Accordingly, we 

affirm. 

WE CONCUR: 

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