Appeal from Thurston Superior Court. Docket No: 13-2-00576-7. Judge signing: Honorable Gary Ray Tabor. Judgment or order under review. Date filed: 07/19/2013.
Nathan D. Dysart, for appellants.
John A. McIntosh (of RCO Legal PS ), for respondent.
Authored by George B. Fearing. Concurring: Kevin M. Korsmo, Robert E. Lawrence-Berrey.
George B. Fearing, J
[188 Wn.App. 378] [¶1] -- Ibrahima Ndiaye signed a deed of trust for a loan on his Washington home. The ubiquitous Mortgage Electronic Registration Systems Inc. (MERS) served as the original beneficiary under the deed of trust. After an assignment of the beneficiary interest in the deed of trust to Federal National Mortgage Association (FNMA), FNMA foreclosed on the home and initiated this unlawful detainer action to evict Ndiaye. Because of MERS' role as beneficiary, Ndiaye defended the unlawful detainer action on the ground that FNMA could not establish a chain of title. The trial court summarily granted a writ of restitution to FNMA. On appeal, Ndiaye argues that the trial court should have denied the application for the writ because a question of fact as to FNMA's title required a trial before issuance of the writ. Because Ndiaye failed to raise his defense before the foreclosure sale, we disagree and affirm the granting of the writ of restitution.
[¶2] On April 24, 2007, Ibrahima Ndiaye granted a deed of trust on 819 Oakcrest Drive Southeast in Lacey, Washington, to MERS solely as a nominee for Ward Lending Group, LLC (Ward Lending). The deed of trust secured a loan extended to Ndiaye for $205,000 to purchase the home at the address. No party filed with the trial court a copy of the promissory note. Presumably Ward Lending was the holder of the promissory note signed by Ndiaye. The deed of trust declared that Ibrahima Ndiaye, on April 24, 2007, signed a note stating he borrowed $205,000 from the lender. The [188 Wn.App. 379] deed of trust designated MERS as beneficiary, Ward Lending as lender, and Thurston County Title Company as trustee. The deed of trust was filed with the Thurston County Auditor.
[¶3] On December 1, 2008, Ibrahima Ndiaye defaulted on the loan from Ward Lending. On May 19, 2009, MERS, acting as beneficiary, assigned the deed of trust and note to CitiMortgage, Inc. On May 22, 2009, CitiMortgage appointed Northwest Trustee Services, Inc., as successor trustee. On May 27, 2009, the assignment and designation of successor trustee were recorded with the Thurston County Auditor.
[¶4] On May 3, 2011, Nationstar Mortgage, LLC (Nationstar) signed a declaration claiming to be the holder of the promissory note signed by Ibrahima Ndiaye. On June 27, 2011, CitiMortgage assigned the deed of trust and " all beneficial interest under that certain deed of trust" to Nationstar. CP at 43. On June 28, 2011, Northwest Trustee Services, acting as Nationstar's agent, mailed and posted at Ibrahima Ndiaye's home a notice of default. Nationstar recorded its assignment on July 14, 2011.
[¶5] On January 17, 2012, Northwest Trustee Services posted, mailed, and published notice of the Trustee's sale of Ibrahima Ndiaye's home. The notice informed Ndiaye that the sale was set for April 20, 2012, at 10:00 a.m. Before the sale, Northwest Trustee Services received the beneficiary declaration from Nationstar, dated May 3, 2011, declaring Nationstar to be the " actual holder of the promissory note or other obligation evidencing the above-referenced loan or has requisite authority under RCW 62A.3-301 to enforce said obligation." CP at 45.
[¶6] Ibrahima Ndiaye requested a loan modification under the Federal Home Affordable Modification Program. In response, on March 8, 2012, Julie Nunn, a " [FNMA] Foreclosure Prevention Specialist" at Nationstar, e-mailed documents to Ibrahima Ndiaye and requested his recent paystubs, bank statements, and 2010 tax return. CP at 162. [188 Wn.App. 380] On March 30, 2012, Nationstar denied Ndiaye's request for a loan modification. On April 10, 2012, Ndiaye called Nationstar. Nationstar then verbally notified Ndiaye of the denial and informed him that he could be eligible for " a non-delegated modification." CP at 59. During the call, Nationstar reminded Ndiaye that the foreclosure sale had already been scheduled. On ...