Cd Trust Utd 10/22/92, Et Al., Respondents V. Quality Loan Service Corp., Et Al., Appellants
Download as PDF
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CD TRUST UTD 10/22/92,
CHRISTOPHER J. KOH and DAVID A.
KOH, co-Trustees; and WESTAR
FUNDING, INC., a Washington
QUALITY LOAN SERVICE CORP.,
Trustee, and DLJ MORTGAGE
CAPITAL, INC., through its servicing
agent, SELECT PORTFOLIO
FILED: October 29, 2012
Becker, J. — Two lenders issued sizeable loans to the same borrower
and attempted to foreclose against the same home in Edmonds, Washington.
The first lender’s legal interest in the property was extinguished by a foreclosure
sale. The sale was later voided by a bankruptcy court order, but the court order
voiding sale was not recorded, and the records of title did not show that the first
lender’s interest in the property had been restored. As the second lender did not
have notice of the order voiding sale, the second lender was a subsequent
mortgagee in good faith. The trial court did not err in granting summary
judgment giving priority to the second lender.
On appeal, we review a summary judgment order de novo and therefore
engage in the same inquiry as the trial court. Christiano v. Spokane County
Health Dist., 93 Wn. App. 90, 93, 969 P.2d 1078 (1998), review denied, 163
Wn.2d 1032 (1999). Summary judgment is appropriate if, after viewing the
pleadings and record and drawing all reasonable inferences in favor of the
nonmoving party, the court finds there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law. Higgins v. Stafford,
123 Wn.2d 160, 168-69, 866 P.2d 31 (1994).
In 1994, John Sanchez took out a $288,000 loan to purchase a home in
Edmonds. The original lender, the now defunct Washington Mutual Bank,
secured the loan with a deed of trust. In 1994, this deed was recorded in the
office of the Snohomish County Auditor.
In 2008, Sanchez took out a loan of $375,000 that was secured by
another deed of trust on the same property. This loan came from Westar
Funding, Inc. The deed of trust was recorded in the office of the Snohomish
County Auditor in October 2008.
The appellants are entities who claim that the 1994 deed of trust has
priority: DLJ Mortgage Capital Inc., holder of the deed of trust; Quality Loan
Service Corp., the current trustee; and
Select Portfolio Servicing Inc., the servicer of the 1994 home mortgage loan.
We will refer to them collectively as “Select.”
The respondents are entities who claim that the 2008 deed of trust has
priority: Westar Funding Inc., the lender; CD Trust UTD 10/22/92, assignee of
the deed of trust; and cotrustees Christopher and David Koh. We will refer to
them collectively as “Westar.”
The chronology suggests that Select’s 1994 deed of trust would take
priority over Westar’s 2008 deed of trust. But by October 2008, before Westar
recorded its deed of trust, two more transfers had been recorded. As a result,
the title records showed that Select’s deed of trust had been extinguished and
Sanchez once again owned the property free and clear of encumbrances.
The first transfer after the recording of Select’s deed of trust was a sale of
the property to John Gamlam. This occurred as the result of Sanchez’s default
on the 1994 loan. On December 29, 2005, Sanchez filed for chapter 13
bankruptcy. Select was a named creditor in the proceeding. The automatic stay
in bankruptcy barred Select from foreclosing. Select obtained conditional relief
from the automatic bankruptcy stay. The relief was only for the purpose of
providing the court an accounting of the amount still owing on the mortgage. In
August 2006, despite the bankruptcy stay, Select held a nonjudicial foreclosure
sale. Gamlam, a real estate investor and agent, was the winning bidder. Select
accepted $563,000 from Gamlam for the Sanchez property. The trustee under
Select’s deed of trust, T.D. Escrow
Services, Inc., issued Gamlam a trustee’s deed.
Gamlam’s trustee’s deed was recorded on September 5, 2006. The
deed’s recitals recounted the Washington Mutual loan to Sanchez, Sanchez’s
default on the loan, and the foreclosure sale to Gamlam. After this recordation,
the title records showed fee simple title in Gamlam.
When Gamlam contacted Sanchez to inform him that he owned the
house, Sanchez told Gamlam that he was in chapter 13 bankruptcy. Sanchez
filed a motion in the bankruptcy court for injunctive relief and to rescind the sale
of the property.
On September 21, 2006, the bankruptcy court determined that Select, by
foreclosing on the 1994 deed of trust, had exceeded the conditions of relief
granted from the bankruptcy stay. The court issued an “Order Voiding Sale,”
declaring the foreclosure sale to Gamlam to be void. The order instructed Select
and T.D. Escrow to “immediately refund the full and complete purchase funds
paid by the purported third party purchaser.”
Select did not return the sale proceeds to Gamlam as ordered. Select
essentially acted as if the foreclosure sale to Gamlam remained valid. Gamlam
sued Select in December 2006 for return of the $563,000 he paid for the
property, plus interest. Gamlam prevailed and received an award of damages
that included the purchase price, prejudgment interest from the date of the
foreclosure sale, additional damages based on Select’s “willful violation” of the
bankruptcy stay, and attorney fees.
Select appealed to this court.
On March 6, 2008, the bankruptcy court dismissed Sanchez’s bankruptcy
petition. Sanchez then began to regroup. He arranged with Gamlam to
purchase Gamlam’s remaining interest in the property.
This was the second transfer after the recording of Select’s deed of trust:
a conveyance from Gamlam back to Sanchez. Gamlam agreed to sell his
interests in the property back to Sanchez in exchange for $76,470.18. Gamlam
gave Sanchez a quitclaim deed.
On August 29, 2008, the quitclaim deed to Sanchez was recorded. At the
time, Sanchez was in the process of applying to Westar for a new loan on the
house. Sanchez represented to Westar that he intended to use the loan
proceeds for commercial purposes. The application asked whether Sanchez
was presently delinquent or in default on any loans, and whether he had ever
had a loan foreclosed upon. Sanchez answered “no” to both questions. The
application asked how much he currently owed in “mortgages & liens” on the
property. He answered “0.00.”
At Westar’s request, Sanchez requested a preliminary title commitment
from Fidelity National Title Company of Washington. Fidelity searched the chain
of title and found the recorded instruments by which Sanchez had previously
bought the property, used it as security for the Washington Mutual loan in 1994,
lost it to Gamlam in the nonjudicial foreclosure sale conducted by Select in
August 2006, and reacquired it from
Gamlam by means of the quitclaim deed in August 2008. The bankruptcy court
order of September 2006 that voided the sale to Gamlam did not show up in the
title search because it had not been recorded.
Fidelity checked court filings for any actions against Sanchez. Fidelity
found that Sanchez had filed for bankruptcy on December 29, 2005, and that the
bankruptcy had been dismissed on March 6, 2008. Seeing that the action had
been dismissed, Fidelity did not inquire further into the bankruptcy. It thus
appeared to Fidelity that Sanchez held title to the property in fee simple, subject
only to the presumptive community property interest of his spouse. Fidelity
obtained a quitclaim deed from Sanchez’s spouse and recorded it with the
county auditor’s office.
On August 29, 2008, Fidelity issued a preliminary title commitment and
provided a copy to Westar. Westar inspected the property and confirmed that it
was an “owner-occupied residence in excellent condition in a good
neighborhood.” Westar appraised the property at a value of $618,200.
On October 28, 2008, Westar loaned Sanchez $375,000, secured by a
deed of trust against the property. Westar’s deed of trust was recorded with the
county auditor’s office. Fidelity issued Westar a mortgagee title policy and
insured Westar as a first position lien holder.
On June 8, 2009, this court affirmed Gamlam’s judgment against Select in
an unpublished opinion. Gamlam v. Select Portfiolio Servicing, Inc., noted at
150 Wn. App. 1035 (2009).
On December 16, 2009, First American Title Insurance Company
recorded the 2006 bankruptcy order that voided the trustee’s sale to Gamlam.
At whose instance this was done is a question not answered in the appellate
In January 2010, Sanchez was in default on the Westar loan. He filed
again for chapter 13 bankruptcy protection.
In May 2010 Westar filed a complaint in the bankruptcy court to prevent
discharge of Sanchez’s debt. By this time, Westar was aware of the outstanding
mortgage debt Sanchez owed to Select on the 1994 deed of trust. Westar’s
complaint claimed that Sanchez had committed fraud in his loan application by
overstating his income, falsely representing that the property was “free and
clear” of encumbrances, and failing to disclose the prior foreclosure by Select,
the foreclosure sale to Gamlam, and the bankruptcy court’s order voiding the
sale. Soon after receiving Westar’s complaint, the bankruptcy court dismissed
Sanchez’s bankruptcy petition.
On June 4, 2010, Select recommenced foreclosure proceedings against
Sanchez on the 1994 deed of trust by filing a notice of trustee’s sale. The
outstanding principal owed by Sanchez to Select was $305,794.85. Westar
received notice of the scheduled sale.
On July 6, 2010, Westar filed this suit to determine the relative lien
priority as between Select’s 1994 deed of
trust and Westar’s 2008 deed of trust. Select counterclaimed for first lien priority
and joined Sanchez and Gamlam as third party defendants, alleging that the two
men were guilty of tortious interference, fraud, and civil conspiracy. Westar
responded with affirmative defenses, asserting that Select’s claims were barred
by the statute of limitations and by the doctrines of comparative fault, unclean
hands, estoppel, and failure to mitigate damages. The court later dismissed
Sanchez and Gamlam from the proceedings.
On January 12, 2011, after hearing the two lenders’ cross motions for
summary judgment on the issue of lien priority, the trial court entered summary
judgment in favor of Westar.
THE RECORDING STATUTE
The general rule as to lien interests in real property is “first in time, first in
right.” Bank of America, N.A. v. Prestance Corp., 160 Wn.2d 560, 565, 160 P.3d
17 (2007). Washington is a “race-notice” state, in which priority is determined
by recording. Zervas Group Architects, P.S. v. Bay View Tower LLC, 161 Wn.
App. 322, 325 n.7, 254 P.3d 895 (2011). An unrecorded interest in real property
is subordinate to a recorded interest. Zervas, 161 Wn. App. at 325. This is
because of the provisions of the recording statute:
A conveyance of real property, when acknowledged by the person
executing the same (the acknowledgment being certified as
required by law), may be recorded in the office of the recording
officer of the county where the property is situated. Every such
conveyance not so recorded is void 8
as against any subsequent purchaser or mortgagee in good faith
and for a valuable consideration from the same vendor, his or her
heirs or devisees, of the same real property or any portion thereof
whose conveyance is first duly recorded. An instrument is deemed
recorded the minute it is filed for record.
RCW 65.08.070 (1927) (emphasis added). Under this statute, recording a
conveyance protects its position against a subsequent bona fide purchaser or
The term “conveyance” is defined by statute to include any written
instrument affecting title to real property:
[E]very written instrument by which any estate or interest in real
property is created, transferred, mortgaged or assigned or by which
the title to any real property may be affected, including an
instrument in execution of a power, although the power be one of
revocation only, and an instrument releasing in whole or in part,
postponing or subordinating a mortgage or other lien; except a will,
a lease for a term of not exceeding two years, and an instrument
granting a power to convey real property as the agent or attorney
for the owner of the property.
RCW 65.08.060(3) (emphasis added). This definition expands upon a previous
version of the law, which defined “conveyance” to include only “‘deeds,
mortgages, and assignments of mortgages.’” See Ellingsen v. Franklin County,
117 Wn.2d 24, 30, 810 P.2d 910 (1991), quoting Laws of 1897, ch. 5, § 1.
Select’s deed of trust was a conveyance and it was duly recorded in 1994,
putting Select in first position at that time. But Select’s priority was removed by
the 2006 trustee’s deed to Gamlam. The trustee’s deed recited the foreclosure
of Select’s deed of trust. To any party who later acquired an interest, the
recordation of the trustee’s deed provided
notice that Select’s interest in the property had been satisfied—to the tune of a
$563,000 sale price paid by Gamlam.
Select contends that the priority of its 1994 deed of trust was restored by
the bankruptcy court order that voided the sale to Gamlam. Select overstates
the reach of that order. Select and Sanchez were both parties to the bankruptcy
proceeding and bound by the court’s orders. The court order voiding the sale to
Gamlam restored Select’s deed of trust as against the borrower Sanchez. But
the order was not recorded. Select cites no authority for the proposition that the
order restored Select’s deed of trust as a lien having priority in the chain of title.
Select cites the rule that a creditor violation of an automatic stay in
bankruptcy is “void, not voidable.” See In re Schwartz, 954 F.2d 569, 571 (9th
Cir. 1992). In the context of a bankruptcy proceeding, this rule means that the
debtor need not affirmatively challenge creditor violations of the stay. It was
adopted to afford debtors better protection so that they can focus their attention
on reorganization rather than policing and litigating creditor actions. Schwartz,
954 F.2d at 571. In the context of a lien priority dispute, the bankruptcy rule is
not operative. A creditor whose sale is voided is not automatically restored to its
presale position in the chain of title. The order voiding the sale to Gamlam could
not, and did not, bind strangers to the bankruptcy proceeding such as Westar.
Determinations of lien priority arising under the recording act ordinarily
rest on the chain of title as reflected in the county auditor’s records. It is well
settled that a bona fide purchaser of real
property may rely upon the record title. Ellingsen, 117 Wn.2d at 28;
Cunningham v. Norwegian Lutheran Church, 28 Wn.2d 953, 956, 184 P.2d 834
(1947). Because the bankruptcy court order voiding the sale to Gamlam was not
recorded, the record title continued to show Gamlam as the owner in fee simple
until he quitclaimed the property to Sanchez.
Westar argues that Select, to enjoy the protection of the recording statute,
RCW 65.08.070, should have recorded the order voiding sale. Select responds
that RCW 65.08.070 does not apply because the bankruptcy court order is not a
“conveyance.” For this proposition, Select cites Federal Intermediate Credit
Bank of Spokane v. O/S Sablefish, 111 Wn.2d 219, 758 P.2d 494 (1988).
Sablefish holds that a lien created by a money judgment does not have to be
recorded to be effective against a subsequent purchaser. The court’s reasoning
includes the statement that conveyances as defined by RCW 65.08.060(3) “must
be by deed, and deeds, in turn, must be in writing, signed by the party bound,
and acknowledged.” Sablefish, 111 Wn.2d at 226-27. Select argues this
statement in Sablefish shows the bankruptcy court order was not a
Whether or not the order technically meets the definition of a
“conveyance,” it would have been permissible for Select to record it. See
Sablefish, 111 Wn.2d at 227 (permissible for a judgment creditor to record a
judgment with the county auditor). Or there may have been other ways for
Select to displace the priority of Gamlam’s
title, perhaps by giving Gamlam his money back (as both the bankruptcy court
and superior court had ordered it to do) and in return receiving, and recording, a
quitclaim deed. The point is that Select did nothing. So far as Westar could see
in the records of title, Gamlam’s purchase extinguished Select’s 1994 deed of
trust. Gamlam then owned the property in fee simple, and when Gamlam
quitclaimed it to Sanchez in 2008, by all appearances Sanchez took it free and
clear of encumbrances.
It was not until December 2009 that the bankruptcy court order actually
was recorded with the county auditor. This recording occurred too late to affect
the priority of the deed of trust recorded by Westar in August 2008.
MORTGAGEE IN GOOD FAITH
Select contends that when Westar recorded its deed of trust in August
2008, it did not attain the status of a subsequent mortgagee in good faith
because it had constructive or inquiry notice of the voiding of Gamlam’s trustee’s
deed, and therefore had notice that Select’s prior deed of trust had been
“Although good faith is usually a question of fact, it may be resolved on
summary judgment where no reasonable minds could differ on the question.”
Morris v. Swedish Health Servs., 148 Wn. App. 771, 778, 200 P.3d 261 (2009),
review denied, 170 Wn.2d 1008 (2010); cf. Preston v. Duncan, 55 Wn.2d 678,
681-82, 349 P.2d 605 (1960). A good faith or bona fide purchaser or lender is
one who gives valuable consideration and 12
who is without actual or constructive notice of another’s interest in a property.
Albice v. Premier Mortg. Servs. of Wash., Inc., 174 Wn.2d 560, 573, 276 P.3d
1277 (2012). The burden of proving that constructive notice exists rests upon
the party who claims it exists. Biles-Coleman Lumber Co. v. Lesamiz, 49 Wn.2d
436, 439, 302 P.2d 198 (1956); Paganelli v. Swendsen, 50 Wn.2d 304, 308, 311
P.2d 676 (1957).
A purchaser is deemed to have constructive notice of any prior interest
recorded in the auditor’s office. Tomlinson v. Clarke, 118 Wn.2d 498, 500, 825
P.2d 706 (1992). A purchaser has constructive notice of liens on the property of
the judgment debtor created by judgments filed or rendered in accordance with
RCW 4.56.200. Sablefish, 111 Wn.2d at 223. Westar did not have constructive
notice through either of these means. Fidelity, Westar’s title company,
researched the county auditor’s records, which showed that Select’s mortgage
interest was extinguished in 2006 by the foreclosure sale to Gamlam. Fidelity
checked court filings for judgment liens against the property and found none.
Fidelity’s check of court filings revealed that Sanchez had filed for chapter
13 bankruptcy in 2005. Upon seeing that the bankruptcy was dismissed in 2006
and there were no money judgments entered against Sanchez in that
proceeding, Fidelity looked no deeper into the bankruptcy file. Select argues
that Fidelity’s knowledge about the Sanchez bankruptcy filing should be imputed
to Westar and that with such knowledge, Westar had constructive notice of the
public records in the bankruptcy
proceeding, including the order voiding the foreclosure sale.
Contrary to what Select’s argument implies, not all public records
automatically constitute constructive notice of interests in real property.
Ellingsen, 117 Wn.2d at 27. In Ellingsen, Franklin County argued that a road
easement document publicly recorded in the county engineer’s office sufficed to
impart constructive notice to the purchasers that the road easement encumbered
their property. Rejecting this argument, the court explained that allowing all
public records to impart constructive notice to buyers would “wreak havoc with
the land title system”:
Under the County’s theory all records of these multiple,
scattered public offices would impart constructive notice of
everything contained in those records because, like the engineer’s
office, those are public records in public offices. . . . To import
constructive notice from every piece of paper or computer file in
every government office, from the smallest hamlet to the largest
state agency, would wreak havoc with the land title system. As a
matter of fact, it would render impossible a meaningful title search.
Ellingsen, 117 Wn.2d at 29-30 (citation omitted). We followed Ellingsen in Dave
Robbins Construction, LLC v. First American Title Co., 158 Wn. App. 895, 249
P.3d 625 (2010), where we declined to recognize the state heritage register as
conferring constructive notice that a property was located within a historic
district. We came to this conclusion because RCW 27.34, the chapter
containing the heritage register statute, contained “no declaration it is intended
to provide constructive notice to potential purchasers of real property, and as
such, it does not provide such notice.” Dave Robbins, 158 Wn. App. at 905.
Select does not cite any statutory
provision declaring that orders issued by a bankruptcy court impart constructive
notice to potential purchasers of real property. We conclude that they do not.
See Murphy v. City of Seattle, 32 Wn. App. 386, 392-93, 647 P.2d 540 (1982) (
“Although the stipulation was of ‘public record’ insofar as it was filed with the
clerk of the court as part of a lawsuit, such a filing cannot trigger the protection
of the recording statute.”).
Select argues we should rely on In re Professional Investment Properties
of America, 955 F.2d 623 (9th Cir.), cert. denied, 506 U.S. 818 (1992), where the
United States Court of Appeals for the Ninth Circuit held that the contents of a
bankruptcy petition filed with the bankruptcy court can provide constructive
notice of property encumbrances listed in the petition. In re Prof’l, 955 F.2d at
628. But in that case, the court ruled narrowly that the trustee himself, who was
a party to the bankruptcy proceeding, had constructive notice of the facts set
forth in the petition. In re Prof’l, 955 F.2d at 628 (“There is no practical reason
why a trustee should not be put on inquiry notice by the very petition that created
his position.”) The case does not establish a rule that a nonparty to a
bankruptcy is deemed to have constructive notice of the contents of bankruptcy
filings. Westar was not a party to Sanchez’s bankruptcy, so In re Prof’l is not on
Citing the maxim that “ignorance of the law excuses no one,” Leschner v.
Department of Labor & Industries, 27 Wn.2d 911, 926, 185 P.2d 113 (1947),
Select contends any court order is “the
law” and Westar cannot claim good faith ignorance of the existence of the
bankruptcy court order voiding the trustee’s deed to Gamlam. This strained
argument removes the old maxim from its proper context, in which “the law”
refers to “a positive rule established by the legislature.” Leschner, 27 Wn.2d at
926. The maxim does not charge Westar with knowledge of the sixty-third
docket entry in a dismissed bankruptcy action to which Westar was not a party.
Constructive notice may also arise from a failure to make a reasonable
inquiry. If a purchaser “has knowledge or information that would cause an
ordinarily prudent person to inquire further, and if such inquiry, reasonably
diligently pursued, would lead to discovery of title defects or of equitable rights
of others regarding the property, then the purchaser has constructive knowledge
of everything the inquiry would have revealed.” Albice, 174 Wn.2d at 573. In
other words, knowledge of facts sufficient to excite inquiry is constructive notice
of all that the inquiry would have disclosed. Miebach v. Colasurdo, 102 Wn.2d
170, 176, 685 P.2d 1074 (1984).
Under Miebach, a purchaser cannot rely solely on the property records
while ignoring evidence that someone else is visibly in possession of the
property. Here, assuming Miebach also applies to encumbrancers, Westar
visited the property and confirmed that it was an “owner-occupied residence” in
good condition. This was consistent with the representations Sanchez made to
Select contends a number of
statements Sanchez made on his loan application show that Westar did not act
as a reasonably prudent lender when it loaned money to Sanchez. First,
Sanchez stated on the first page of the application that the purpose of the loan
was a “refinance,” even though he stated later in the application that he owed
nothing in outstanding mortgages for the property.1 Second, Sanchez described
the property differently in two sections of the application: once as an investment
property and later as his principal residence. Third, he denied having previously
had property foreclosed upon, but the chain of title reviewed by Fidelity,
Westar’s title insurer, revealed Gamlam’s trustee’s deed that recited the
foreclosure of WaMu’s 1994 deed of trust. Fourth, Sanchez’s quitclaim deed
from Gamlam showed Sanchez paying Gamlam a price that fell far below the
appraised value of the property. Select suggests Westar, upon reviewing the
application, should have obtained a credit check on Sanchez or asked additional
questions of Sanchez before approving the loan.
In retrospect, Westar made a bad loan that went into default. Perhaps in
that sense, Westar failed to act as a reasonably prudent lender. But an
imprudent lending decision is not enough to deprive a lender of the status of
Select appears to assume the term “refinance” exclusively refers to a prior
mortgage loan, rather than referring to any type of previous consumer, residential, or
business loan. Select cites no authority or evidence to support this limited definition of
the term. A dictionary definition of “refinance” refers to obtaining a new line of credit on
“an outstanding indebtedness” without limiting the term to the residential mortgage
context. See Webster’s Third New International Dictionary 1908 (2002).
good faith mortgagee. To establish inquiry notice sufficient to defeat Westar’s
lien priority, Select must show that the alleged red flags in the Sanchez
application pointed to the existence of another lender with an outstanding
encumbrance on the property.
“‘What makes inquiry a duty is such a visible state of things as is
inconsistent with a perfect right in him who proposes to sell.’” Paganelli, 50
Wn.2d at 308, quoting Bernard v. Benson, 58 Wash. 191, 196, 108 P. 439
(1910). So far as Westar knew or should have known, Sanchez had a perfect
right to use the property as security for the loan. The loan application was
consistent with the record title showing Sanchez to be an owner in fee simple.
Nothing in it should have necessarily alerted Westar to the intervening
bankruptcy proceedings that restored Select’s right to enforce its deed of trust.
This conclusion is supported by evidence submitted by Westar. Westar’s
president Eric Hogan declared that Westar “makes asset-based loans for
commercial purposes based on the value of collateral securing the loan.” He
said it is reasonable and customary for asset-based lenders to rely on the value
of the security and a first lien position as the basis of a lending decision.
“Whether Mr. Sanchez had paid less than market value for the Property (or
whether he had some off-record compensation arrangement with his vendor)
was of no consequence as long as he was in record title and no one challenged
that title.” He said Westar approved the loan based primarily “on the clear title
and 60.7 percent loan to assessed value
ratio.” Terry Sarver, chief title officer in the Fidelity office that did the title work
and closed escrow for the Westar loan, declared that Sanchez’s bankruptcy
filing was discovered in the course of a routine check of court filings, but since
the bankruptcy was dismissed and the record showed no judgments against
Sanchez, “we inquired no further about the substance . . . or pleadings filed in
the bankruptcy.” Sarver declared that this was standard practice among title
companies in Washington. Select has provided no affidavits or other evidence
to call into question Hogan’s or Sarver’s assertions that their actions in this case
were consistent with industry standards.
Select claims that the recorded trustee’s deed to Gamlam was at odds
with Sanchez’s denial of ever having had a loan foreclosed. Select contends
that discrepancy should have caused Westar to review the docket entries in the
dismissed bankruptcy case and to discover therein the bankruptcy court order
voiding the sale to Gamlam. Select has presented no expert testimony, no legal
authority, and no persuasive argument to support imposing such a duty of
inquiry as a matter of law, and we decline to do so. A party seeking to avoid
summary judgment cannot simply rest upon the allegations of his pleadings; he
must affirmatively present the factual evidence upon which he relies. CR 56(e);
Mackey v. Graham, 99 Wn.2d 572, 576, 663 P.2d 490, cert. denied, 464 U.S.
Because Select did not offer any evidence to rebut Westar’s proof that its
scope of inquiry was reasonable,
customary, and consistent with standard practices, the evidence before the trial
court presented no genuine dispute of fact as to whether Westar behaved
reasonably, an essential showing for inquiry notice. Westar was entitled to
summary judgment on the issue of its good faith.
As a mortgagee in good faith, Westar was entitled to rely upon record
title. Cunningham, 28 Wn.2d at 956. According to the record title, Sanchez
owned the property without encumbrance when Westar recorded its deed of
trust in 2008. Because Westar recorded its deed of trust without actual or
constructive notice of Select’s outstanding interest, Westar’s lien was entitled to
priority over Select’s.