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Frizzell v. Murray

Supreme Court of Washington, En Banc

December 5, 2013

Tamara Frizzell, Respondent,
Barbara Murray et al., Petitioners

Argued May 21, 2013.

Appeal from Pierce County Superior Court. 10-2-06472-4. Honorable Elizabeth P. Martin.

Darren R. Krattli (of Eisenhower Carlson PLLC ), for petitioners.

Dan R. Young, for respondent.

AUTHOR: Chief Justice Barbara A. Madsen. WE CONCUR: Justice Susan Owens, Justice James M. Johnson, Justice Debra L. Stephens, Justice Charles K. Wiggins. AUTHOR: Justice Steven C. Gonzá lez. WE CONCUR: Justice Charles W. Johnson, Justice Mary E. Fairhurst, Justice Sheryl Gordon McCloud.


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Madsen, C.J.

[179 Wn.2d 303] ¶ 1 Respondent Tamara Frizzell received a $ 100,000 loan from petitioner Barbara Murray, secured by a deed of trust on Frizzell's home. Frizzell defaulted and a nonjudicial foreclosure sale was set. Before the sale, Frizzell filed an action against Barbara and her husband, Gregory Murray, alleging several claims as well as a motion for an order to enjoin the sale. A judge stayed the sale, conditioned upon Frizzell's payment of $ 25,000 into the court registry by the following morning. Frizzell failed to do so and the sale took place. The trial court then dismissed Frizzell's claims on summary judgment, stating her failure to enjoin the sale resulted in a waiver of her claims. The Court of Appeals reversed and remanded, determining it would be inequitable to conclude Frizzell waived her claims. We hold [179 Wn.2d 304] that Frizzell waived her claims as to the foreclosure sale and remand her other claims to the trial court for consideration under RCW 61.24.127.


¶ 2 In 2008, Tamara Frizzell obtained a $ 100,000 loan from Barbara Murray that Gregory Murray brokered. [1] At the time of the loan, Gregory Murray maintained a license to operate as a mortgage broker, operating as Sound Brokers.

¶ 3 Prior to obtaining the loan, Frizzell gave her live-in friend, Douglas Baer, power

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of attorney. He acted on her behalf and contacted the Murrays to obtain the loan after seeing an ad in the Tacoma News Tribune offering loans for real estate. According to Baer, Frizzell originally wanted a loan of $ 20,000 in order to pay past-due bills, but then increased the amount of the loan due to a better interest rate on a larger loan. Baer claims he told the Murrays that Frizzell was poor when it came to financial matters and was " like a child in that regard." Clerk's Papers at 146. This is disputed by the Murrays, who note that Frizzell executed the power of attorney that gave Baer the authority to act in real estate and business transactions, among other things. Despite the power of attorney, however, the Murrays insisted that Frizzell sign the loan documents on her own behalf.

¶ 4 The Murrays explained to Baer that the loan could be offered only for business purposes. Baer stated that Frizzell had no business to operate and he suggested, presumably to Frizzell, that he start a wheelchair business because of the 40 to 50 wheelchairs and scooters he had at her house. There were no business plans, projected income, or expense statements, and Baer claims that the Murrays asked few questions about the business. Frizzell signed a declaration [179 Wn.2d 305] concerning the purpose and use of the loan, which states that the loan would not be used for personal or household use, but for a " wheelchair & scooter business." Id. at 286.

¶ 5 Under the terms of the loan, Frizzell would receive about $ 88,000, which represents $ 100,000 minus $ 12,000 in fees. Monthly payments were set at $ 1,000, with full repayment due in three years. The loan application shows Frizzell's monthly salary as $ 1,600. This loan was secured by a deed of trust on her property.

¶ 6 After only three payments, Frizzell defaulted. Barbara Murray initiated the process of foreclosing on Frizzell's home through a nonjudicial sale. Prior to the sale, Frizzell filed a complaint against the Murrays, alleging claims of common law and statutory fraud in the course of a residential mortgage loan, civil conspiracy, unconscionability, Consumer Protection Act (CPA) (ch. 19.86 RCW) claims, that the loan was actually a de facto sale, that the loan was for noncommercial use, that Gregory Murray lacked a real estate license, and that the underlying deed of trust was invalid because of her lack of capacity to contract. She supported her capacity claim with a doctor's note stating that she has severe memory defects " suggestive of an incipient dementia." Id. at 197. In her complaint, she sought damages and an injunction barring enforcement of the deed of trust through the foreclosure sale.

¶ 7 Frizzell also filed a separate motion to enjoin the trustee sale. One day before the sale, a judge granted Frizzell's motion conditioned upon Frizzell's payment into the court registry of $ 15,000 representing arrearages on the deed of trust and $ 10,000 representing a bond, both due the next morning. Frizzell did not make the payments and the sale took place. Barbara Murray purchased the home.

¶ 8 The trial court then considered the claims in Frizzell's complaint and granted the Murrays' request for summary judgment as to all claims. The trial court stated that summary judgment was granted " based on the Plaintiff's failure to obtain pre-sale injunctive relief. Accordingly, all of [179 Wn.2d 306] Plaintiff's claims are denied." Id. at 305. The Court of Appeals reversed, determining Frizzell's failure to obtain presale relief did not waive her claims because it would be inequitable to assume she waived her right in light of the facts of her case. Frizzell v. Murray, 170 Wn.App. 420, 430, 283 P.3d 1139 (2012). The Murrays sought review by this court. Frizzell v. Murray, 176 Wn.2d 1011, 297 P.3d 707 (2013).


¶ 9 We must decide whether obtaining an order to enjoin a nonjudicial foreclosure sale conditioned upon remittance of payment to the court and failing to make such payment, results in a waiver of claims under the RCW 61.24.040(1)(f)(IX) waiver provision. If so, we must then determine which claims are affected by the waiver rule and whether any claims are exempted by other statutory provisions. The trial court below granted the Murrays' motion for summary

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judgment based on Frizzell's failure to obtain presale injunctive relief. We review summary judgment rulings de novo. Schroeder v. Excelsior Mgmt. Grp., LLC, 177 Wn.2d 94, 104, 297 P.3d 677 (2013) (citing Dreiling v. Jain, 151 Wn.2d 900, 908, 93 P.3d 861 (2004)). Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to ...

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