U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, ON BEHALF OF THE HOLDERS OF ADJUSTABLE RATE MORTGAGE TRUST 2007-2 ADJUSTABLE RATE MORTGAGE-BACKED PASS-THROUGH CERTIFICATES, SERIES 2007-2, Respondent,
ANGELA UKPOMA, Appellant, STATE OF WASHINGTON, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, FINANCIAL SERVICES ADMINISTRATION; BOEING EMPLOYEES CREDIT UNION; KUBESH'S SITE MIXED CONCRETE, INC.; CARRIE SURIANO; COLVILLE VALLEY CONCRETE CORPORATION; RAMPART MMW; NORSTAR HEATING & COOLING; ISLAND PROPERTY INVESTMENTS; UNKNOWN OCCUPANTS OF THE SUBJECT REAL PROPERTY; ALL OTHER UNKNOWN PERSONS OR PARTIES CLAIMING ANY RIGHT, TITLE, ESTATE, LIEN, OR INTEREST IN THE REAL ESTATE DESCRIBED IN THE COMPLAINT HEREIN, Defendants.
Ukpoma defaulted on her home installment loan. U.S. Bank
National Association's (U.S. Bank's) agent sent Ms.
Ukpoma a notice that her loan balance was accelerated and the
entire amount was immediately due and payable. The notice
contradictorily stated she could reinstate the loan if she
paid the delinquent payments plus various charges 11 or more
days before an unscheduled trustee's sale. No such sale
ever occurred. For various reasons, U.S. Bank did not bring
this judicial foreclosure action until more than eight years
after its agent sent its notice.
asked to decide whether the agent's notice was
sufficiently clear and unequivocal so as to constitute an
acceleration of the installment loan. A majority of this
panel concludes that the agent's notice was unclear and
did not accelerate the loan.
discuss whether initiating a nonjudicial foreclosure tolls
the statute of limitations for commencing a judicial
foreclosure action. This author believes there is no tolling
but a majority of this panel believes otherwise. We publish
this opinion to encourage further debate of this important
unanimously conclude that U.S. Bank can judicially foreclose
its deed of trust, and we affirm the trial court.
December 2006, Angela Ukpoma executed a promissory note for
the purchase of her home. The note, secured by a deed of
trust, required her to pay monthly installments for 30 years.
U.S. Bank is the note holder and assignee of the deed of
Ukpoma failed to make a scheduled payment on October 1, 2007,
and has failed to make any further payments. On or about
February 1, 2008, Quality Loan Service Corporation (QLS) sent
Ms. Ukpoma a notice of default. The notice provides in
You are hereby notified that [U.S. Bank] has elected to
accelerate the loan described herein, and has declared the
entire balance of $252, 000.00, plus accrued costs,
immediately due and payable. NOTWITHSTANDING SAID
ACCELERATION, YOU HAVE THE RIGHT TO REINSTATE THE LOAN BY
PAYING THE DELINQUENT PAYMENTS, LATE CHARGES, COSTS AND FEES
ON OR BEFORE THE ELEVENTH (11TH) DAY BEFORE THE DATE OF THE
TRUSTEE'S SALE . . . .
Clerk's Papers (CP) at 307. In the notice, QLS identified
itself as "Agent for U.S. Bank . . ., the
Beneficiary." CP at 307.
not initiate a trustee's sale until its notice of
trustee's sale dated November 7, 2008. The notice set
forth the delinquent balance. The cure amount showed that the
loan had not been accelerated. QLS discontinued the first
subsequently initiated and discontinued multiple other
trustee's sales. The initiation dates are June 18, 2009,
February 23, 2010, May 14, 2010, June 11, 2010, August 22,
2011, and March 13, 2014. Similar to the initial notice of
trustee's sale, these notices set forth the delinquent
balance and cure amounts. All of the notices showed that the
loan had not been accelerated.
Ukpoma also filed for bankruptcy protection in 2008 and again
in late 2010. The bankruptcy stays shielded Ms. Ukpoma's
property for approximately one year.
13, 2016, U.S. Bank filed the present action to judicially
foreclosure its deed of trust. U.S. Bank moved for summary
judgment. Ms. Ukpoma responded that the February 1, 2008
default notice accelerated the installment loan so that the
action was barred by RCW 4.16.040, the six-year statute of
trial court concluded that QLS's notice was ineffective
to accelerate the installment loan. It alternatively
concluded that the statute of limitations had not run because
the bankruptcies combined with the nonjudicial foreclosures
sufficiently tolled the statute. Given these conclusions, the
trial court granted U.S. Bank's motion for summary
novo review of ...