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Ewing v. Glogowski

Court of Appeals of Washington, Division 1

April 3, 2017

DEBORAH EWING and KEVIN EWING, Husband and wife, Respondents,
KATRINA E. GLOGOWSKI, an individual; THE GLOGOWSKI LAW FIRM, PLLC, a Washington professional limited liability Company; GREEN TREE SERVICING LLC, a Washington limited liability company; THE BANK OF NEW YORK, MELLON TRUST COMPANY, N.A., a national banking association; GREENPOINT MANUFACTURED HOUSING CONTRACT TRUST, PASS THROUGH CERTIFICATES SERIES 2000-5, a foreign business trust, Appellants.


          Spearman, J.

         Deborah Ewing filed a wrongful foreclosure lawsuit against Green Tree Servicing, LLC, (Green Tree) in which Ewing alleged, among other things, violations of the Consumer Protection Act (CPA), chapter 19.86 RCW and Deed of Trust Act (DTA), chapter 61.24 RCW. After protracted litigation, Green Tree made an offer of judgment to Ewing for $50, 000 and reasonable attorney fees and costs. Ewing accepted the offer of judgment. The trial court awarded Ewing $246, 307.50 in attorney fees after disallowing 125 hours for unsuccessful or wasteful activities and applying a 1.5 multiplier. Green Tree appeals the attorney fee award. We affirm the trial court in all respects and grant Ewing's request for attorney fees on appeal.


         Deborah Ewing owned a home with a mortgage that was serviced by Green Tree Servicing, LLC. In spite of being current on payments, Ewing received a notice of default on her mortgage in June 2011. In the notice of default, trustee Katrina Glogowski of Glogowski Law Firm, PLLC alleged that Ewing failed to make payments from March through June 2011. In an attempt to save her home, Ewing sued Green Tree and Glogowski Law Firm in February 2012, but Glogowski nonjudicially foreclosed and sold the home.

         With summary judgment motions pending, Ewing retained an attorney in March 2014. She amended the complaint to add defendants, causes of action under the Deed of Trust Act, Consumer Protection Act, and additional claims. In response, Green Tree threatened CR 11 sanctions unless Ewing's counsel dropped all causes of action except the CPA claim. Green Tree echoed this litigation position when it answered the amended complaint and requested $25, 000 in sanctions against Ewing.

         Ewing began propounding discovery against Green Tree and deposing witnesses. Likewise, Green Tree sought discovery and deposed Ewing and her witnesses. During this process, Green Tree first produced a copy of Ewing's promissory note with an attestation that the original note was lost. Included with the note was an allonge making the note payable to Bank of New York Mellon, signed by a Green Tree employee. It was later discovered that the person who signed the allonge was not an employee until after the foreclosure on Ewing's home. The allegedly fraudulent allonge supported Ewing's theory that the note did not grant Green Tree authority to foreclose on her home.

         Green Tree and codefendant Bank of New York Mellon Trust Company (BNYMTC) moved for summary judgment on February 9, 2015, seeking to dismiss all of Ewing's ten causes of action. Glogowski and Glogowski Law Firm joined this motion. On March 12, 2015, the trial court granted in part Green Tree and BNYMTC's summary judgment motion. The court dismissed Ewing's husband as a plaintiff and dismissed all claims as to BNYMTC. It dismissed all causes of action against Green Tree except for those under the DTA and CPA. The trial court also dismissed all causes of action against defendants Glogowski and Glogowski Law Firm except for the DTA cause of action. Ewing moved for reconsideration, which was denied. Green Tree moved to strike Ewing's jury demand. The request was denied but Green Tree was permitted to renew the motion upon narrowing of the issues.

         Glogowski also moved for summary judgment to dismiss all claims against her personally. The trial court granted summary judgment as to Glogowski, but allowed the DTA claim against her firm to proceed.

         In April 2015, Green Tree renewed its motion to strike the jury demand, to which the Glogowski Law Firm joined. The court denied the motion. Green Tree requested reconsideration, which was denied. In May, Green Tree requested a continuance of the trial, which Ewing opposed. The court granted the continuance. Ewing moved to compel discovery from Green Tree, which the court granted in part.

         On May 27, 2015, Ewing amended her complaint for a second time, adding claims for fraud, punitive damages, and injunctive relief. On July 16, 2015, Green Tree moved for summary judgment against these newly added claims, and again sought dismissal of the DTA and CPA claims. The Glogowski Law Firm joined in Green Tree's motion for summary judgment. On July 31, 2015, Ewing cross-moved for summary judgment against Green Tree on her CPA and DTA claims, and against the Glogowski Law Firm for violations of the DTA. In a single order, the trial court dismissed Ewing's newly added claims, but denied Green Tree summary judgment on the DTA and CPA claims. Ewing's summary judgment motion as to her CPA and DTA claims against Green Tree was denied. But the trial court granted Ewing's summary judgment motion as to the Glogowski Law Firm, finding that it violated the DTA. Thus, Ewing's motion for summary judgment was granted in part and denied in part.

         The parties mediated on September 11, 2015. Green Tree offered Ewing $40, 000, while Ewing's final demand at mediation was $1, 250, 000.

         On September 14, 2015, Green Tree successfully moved for judicial notice.[1] On September 18, 2015, Green Tree made a CR 68 offer of judgment for $50, 000 plus reasonable and necessary costs, disbursements, and attorney fees. On September 25, Green Tree filed motions in limine in which the Glogowski Law Firm joined. Ewing accepted the offer of judgment on September 28, 2015.

         On February 12, 2016, the trial court entered a final judgment with a total attorney fee award of $246, 307.50. Using the lodestar methodology, the trial court found that counsel's hourly rate of $250 for associates and $300 for partners was reasonable. The trial court struck 125 hours of associate attorney billed time for unsuccessful claims or theories, or for entries that were vague or blank. This resulted in a lodestar calculation of $147, 035. The trial court applied a ...

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