                                                                  FILED 

                                                              NOVEMBER 13,2014 

                                                            In the Office of the Clerk of Court 

                                                          W A State Court of Appeals, Division III 


            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


ONEWEST BANK, FSB, its successors in            )
interest and/or assigns,                        )   No. 31944-0-III
                                                )
                     Respondent,                )
                                                )
       v.                                       )
                                                )   PUBLISHED OPINION
MAUREEN M. ERICKSON,                            )
                                                )
                     Appellant,                 )
                                                )
PALISADES COLLECTION LLC,                       )
ASSIGNEE OF AT&T; GONZAGA                       )
PREPARATORY SCHOOL, INC.;                       )
SOCIETY OF JESUS OREGON                         )
PROVINCE; JOHN TRAYNOR AND                      )
JANE DOE TRAYNOR, individually and              )
marital community ifany; ALBERT                 )
FAULKNER AND JANE DOE                           )
FAULKNER, individually and marital              )
community if any; PHIL MCLEAN AND               )
JANE DOE MCLEAN, husband and wife;              )
LARRY SMITH AND JANE DOE                        )
SMITH, individually and marital                 )
community if any; KEVIN R. MALONE               )
AND CHRISTINE MALONE,                           )
individually and marital community if           )
any; OCCUPANTS OF THE PREMISES;                 )
QUALCHAN HILLS HOMEOWNERS'                      )
ASSOCIATION; and any persons or                 )
parties claiming to have any right, title,      )
estate, lien or interest in the real property   )
described in the complaint,                     )
                                                )
                     Defendants.                )
No. 31944-0-III
One West Bank v. Erickson


       FEARING, 1. -   We address the unique circumstance of an Idaho court authorizing

an Idaho conservator to encumber a Washington residence. Following established

principles from the hoary past concerning state jurisdiction over real property, we hold

that the Idaho court lacked jurisdiction and that the order authorizing the encumbrance is

invalid.

       Plaintiff One West Bank FSB seeks to judicially foreclose upon a deed of trust

purportedly encumbering a Spokane home. A conservator appointed by an Idaho court

signed the deed of trust on behalf of the home's owner or former owner, Bill McKee.

McKee's daughter, defendant Maureen Erickson, challenges the deed of trust as invalid

and she appeals a summary judgment order enforcing and foreclosing on the instrument.

We reverse the summary judgment order and grant Erickson a dismissal of the complaint.

                                         FACTS

       Bill McKee had three children, Jerome McKee, Craig McKee, and Maureen

Erickson. Bill and his wife, Erickson's mother, acquired property in Canada, Idaho, and

Washington. Erickson's mother died in 1994, leaving her daughter by will "all of her

one-half of the community property owned by her and [Bill McKee]." Clerk's Papers

(CP) at 124. Bill McKee hid the will from Maureen Erickson. McKee later explained to

Erickson that he did not desire to take property from her that her mother intended she

have, but he wanted to maintain control over all of the marital couple's combined estate

and properties.

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No. 31944-0-III
One West Bank v. Erickson


        In 1997, a driver rear-ended Maureen Erickson at a high speed, rupturing several

discs in her back. Erickson and her three sons moved from California to Spokane later

that year to be near Bill McKee. Bill McKee lived in Idaho at that time.

        Maureen Erickson underwent back surgery in 2000. With Erickson distracted by

her surgery, Jerome McKee traveled from Louisiana to visit his father, Bill McKee, in

Idaho. Jerome convinced his father to sell property in Canada and entrust him with the

proceeds as a means of avoiding United States taxes. Under her mother's will, Maureen

Erickson would have owned an interest in the property and would have been entitled to

some of the sales proceeds. McKee obliged Jerome. Bill McKee later repeatedly asked

Jerome to return the money, but Jerome refused.

        In 2001, with Maureen Erickson's financial assistance, Bill McKee purchased a

home in Spokane, at 4702 South Pender Lane. This foreclosure action concerns the

residence. McKee initially lived in the home half of the time. Erickson and her three

sons lived there full time. McKee and Erickson planned for Erickson to eventually own

the home, and Erickson made the mortgage payments. Erickson and her sons cared for

. the home.

        In 2004, Maureen Erickson underwent another back surgery, after another car

collision. In 2005, Erickson discovered her mother's will in Bill McKee's safety deposit

box. By January 2007, Maureen Erickson's health improved. Bill McKee, who had

recently turned 90 years old, began residing year round in the Spokane residence with

                                            3

No. 31944-0-111
One West Bank v. Erickson


Erickson and his three grandchildren. McKee lived with Erickson in the South Pender

Lane home the rest of his life. He did not reside even temporarily in Idaho after January

2007.

        Bill McKee anticipated undergoing heart surgery, and he sought to qualifY for

Medicaid payments. McKee and Maureen Erickson sought legal advice from attorney

Richard Sayre. Sayre astutely advised Erickson to sue her father for failing to deliver her

share of her mother's assets, upon the mother's death. According to Sayre, McKee could

settle the suit by transferring assets to Erickson and then qualifY for Medicaid. Bill

McKee was receptive to the recommendation because he knew he had wronged his

daughter. Maureen Erickson sued her father in Spokane County Superior Court, and, in

tum, Bill McKee transferred assets, including the Spokane residence, to Erickson to

satisfY the claim. McKee transferred the Spokane home in January 2007 and completed

other transfers in February 2007. After a lengthy review of the transfers, Medicaid

declared them valid and qualified Bill McKee for Medicaid payments.

        In response to the transfers from Bill McKee to Maureen Erickson, McKee's son,

Jerome, filed suit in the Shoshone County, Idaho, District Court. Jerome McKee asked

that the Idaho court appoint him as his father's guardian or, in the alternative, appoint

someone else as Bill's conservator. Bill McKee appeared in the suit through counsel and

informed the Idaho court that he resided in Washington. Maureen Erickson may have

attended one or more hearings, but the extent of her involvement is not clear. She was

                                              4

No. 31944-0-III
One West Bank v. Erickson


not a party to the conservatorship action. According to Erickson, the court viewed her

negatively because of the property transfers from Bill McKee to her. Trial for the Idaho

proceeding spanned three nonconsecutive days, with the first day of trial being May 31,

2007.

        Physicians scheduled Bill McKee's heart surgery for July 3, 2007. As McKee

prepared for surgery, Maureen Erickson and he looked for but could not find the deed he

executed in January to transfer the Spokane home. On June 28, 2007, McKee again

conveyed the property to Erickson by quitclaim deed. Erickson did not immediately

record this deed.

        On July 2,2007, the Shoshone County, Idaho, District Court, at the request of

Jerome McKee, signed an order enjoining Bill McKee's heart surgery. Doctors believed

Bill McKee would not survive without surgery, and McKee underwent open heart

surgery at Spokane's Deaconess Hospital anyway on July 3. After surgery, McKee

recovered at the South Pender Lane, Spokane, residence with the care of Maureen

Erickson.

        The Idaho District Court conservatorship trial resumed on July 10 and July 12,

2007. Bill McKee could not participate in the Idaho proceedings as he recovered from

heart surgery. Maureen Erickson later declared:

               At that time, my father was 90 years old, had recently undergone
        open heart surgery, was extremely hard of hearing, and occasionally had
        difficulties with his eyesight, but he was certainly not incompetent. His

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No. 31944-0-III
One West Bank v. Erickson


       doctors wrote affidavits to the court saying he was competent. There were
       telephone proceedings that I vaguely recall, with my recollection being that
       nothing I said seemed to matter or help and that my father could not
       participate because he could not hear what anyone said.

CP at 130.

       On August 22, 2007, the Spokane County Superior Court dismissed, without

entering ajudgment, Maureen Erickson's action for fraud against Bill McKee, for his

hiding Erickson's mother's will. On August 27,2007, the Idaho District Court signed

"Letters of Conservatorship" appointing Shelley Bruna, dba Idaho Fiduciary Services, as

conservator for Bill McKee. CP at 18. The letters do not declare Bill McKee to be an

Idaho resident.

       On September 10,2007, Bill McKee faxed a handwritten letter to his attorney "to

make sure that the judge [in Idaho] was told that [he] lived in Washington and that he had

given the Property to [Maureen Erickson] for taking care of him for years and because he

had hid [Erickson's] mother's will." CP at 130. Jerome McKee filed the "Letters of

Conservatorship" from the Idaho proceeding with Spokane County on September 18,

2007. CP at 17. On September 24,2007, the Idaho court entered an order granting

Jerome's petition to appoint Shelley Bruna as Bill McKee's conservator. We do not

know why the letters of conservatorship were issued 28 days before the signing of the

appointment order. The order does not declare Bill McKee to be an Idaho resident.

      By late September 2007, Bill McKee's and Maureen Erickson's Spokane home


                                            6

No. 31944-0-III
One West Bank v. Erickson


faced foreclosure. To save the home, the father and daughter sought refinancing. Shelley

Bruna meanwhile sought to procure a reverse mortgage for the home. Maureen Erickson

declared:

              By September 2007, it became apparent that Ms. Bruna was
      attempting to assert control over the Property. At that time, I had been
      working with three different mortgage lenders to attempt to work on a
      mortgage for the Property. In mid-September, I was advised by one of the
      mortgage brokers that Ms. Bruna had instructed him not to talk to me
      anymore and he stopped communicating with me. I also had contact with
      the mortgage broker Ms. Bruna ultimately dealt with, John Tenold, mid­
      September. I informed him that my father had transferred the Property to
      me and that I held a deed. At about the same time I was informed by the
      other mortgage broker that I had been dealing with that Ms. Bruna
      instructed him not to talk to me, Mr. Tenold advised me that Ms. Bruna, as
      the conservator, was the only one he would deal with or allow to sign any
      loan. It was apparent to me she had convinced the potential mortgage
      lenders that my father's transfer of the Property to me was not valid.
      However, I am not aware of any request made to, or order issued by, any
      court that provided that.
              I certainly did not want Ms. Bruna to be involved in getting any
      mortgage loan on the Property .... Ms. Bruna's actions, and the lenders'
      responses, eventually eliminated any other loan possibility. At the very end
      of the process, after I had been shut out of negotiations, Ms. Bruna drove
      home the point that she was in control by threatening to stop all effort to get
      any mortgage and let the Property be in my name. By that time, it was too
      late. The Property was in foreclosure and would have been lost. In large
      part because of that threat, I stayed out of the dealings as Ms. Bruna and the
      lender obviously did not want my involvement.

CP at 129-30.

      On October 22, 2007, the Idaho District Court directed conservator Shelley Bruna

to "facilitate a reverse mortgage" on the property and to enter a reverse mortgage with

Quick Mortgage on the Spokane home. CP at 108. The order indicates that Maureen

                                            7

No. 31944-0-III
One West Bank v. Erickson


Erickson "read and approved" it, and seems to bear her signature. CP at 111. Erickson

later declared, "I do not recall seeing or signing any court order from those proceedings."

CP at 131. Bill McKee's attorneys, Jack Rose and Lloyd Herman, signed the order. The

order directing Shelley Bruna to sign the reverse mortgage does not identify Bill McKee

as a resident of Idaho.

       On October 24, 2007, Maureen Erickson gave Bill McKee $1,750 "to be applied

toward the purchase of the property." CP at 165. The transfer of funds was

memorialized in a "gift letter." CP at 165. That same day, Shelley Bruna wrote Jack

Tenold of Quick Mortgage that "[a]s Conservator for Bill E. McKee, I will be delivering

the sum of$I,700.00 to Gustafson and Hogan Trust Account from Mr. McKee's bank

account for the closing of a reverse mortgage." CP at 166.

       On October 25,2007, Shelley Bruna, as conservator of Bill McKee, signed a

$398,587.65 Mortgage Adjustable Rate Note in favor of Financial Freedom Senior

Funding Corporation, a subsidiary of IndyMac Bank FSB. The initial interest rate was

8.375 percent, but the amount would be monthly adjusted as long as the rate never

exceeded 20.375 percent. Shelley Bruna, as conservator of Bill McKee, also signed a

deed of trust on the Spokane residence, which deed secured the note. The deed of trust

was in the nature of a reverse mortgage, and we will refer to the instrument hereafter as a

"reverse mortgage." Paragraph five of the reverse mortgage included a covenant that Bill

McKee would "at all times occupy, establish, and use the" home as his "principal

                                             8

No. 31944-0-III
One West Bank v. Erickson


residence." CP at 39. Like other reverse mortgages, no amount was payable to the

lender until the death of Bill McKee, unless he earlier conveyed or vacated the home.

Upon closing, $255,460.44 was paid to the prior mortgage holder. Financial Freedom's

vice president indorsed in blank the Mortgage Adjustable Rate Note.

      Maureen Erickson testified by affidavit:

             I did not know, and still do not know, how much equity [Shelley
      Bruna] withdrew in cash from the Property to divert to other things, such
      as her expenses. The reverse mortgage option was the absolutely worst
      possible alternative and not what my father or I wanted. It was far more
      expensive and carried a much higher interest rate than any other loan.

CP at 129.

      On appeal, Maureen Erickson argues that Financial Freedom had actual or

constructive knowledge that she owned the property at the time Shelley Bruna signed the

reverse mortgage. Erickson declared in response to One West Bank's summary judgment

motion:

             Except for the disclosure I made to the mortgage brokers, in early to
      mid-September 2007, including Mr. Tenold, no one from the lender Ms.
      Bruna eventually dealt with talked to my father or me regarding ownership
      of the Property. No one discussed anything further with either of us
      regarding the fact that he resided in Washington, not Idaho, at the time my
      brother initiated guardianship proceedings against him. My father and I
      both lived at the Property. Either of us were able to confirm that the
      Property belonged to me. If asked, I would have confirmed this truth.
      Based on what I knew of my father and his September 2007 note for Judge
      McFadden, I am confident that if anyone had asked my father about
      ownership of the Property he would have confirmed it had been transferred
      tome.


                                            9

No. 31944-0-III
One West Bank v. Erickson


CP at 131.

       On January 28, 2008, the Spokane County Superior Court entered judgment in

Maureen Erickson's suit against Bill McKee for hiding her mother's will. The

Washington court noted that its August 22, 2007 "dismissal was signed without a formal

judgment being entered beforehand. This stipulated motion is to correct the record nunc

pro tunc." CP at 19. The judgment retroactively awarded Erickson multiple properties,

including the South Pender Lane home.

      Maureen Erickson later declared:

              25.   In February 2008, after my father had resided full time in
      Washington for over a year, Ms. Bruna refused to give my father any of his
      money for dentures. Attorney Lloyd Herman [Bill McKee's attorney
      throughout] had [Bill's] doctors write letters to Ms. Bruna demanding
      money for dentures, explaining that he was losing weight without them.
      She would only give him $400.00 to $550.00 a month to live on. My
      adopted brother, Craig McKee, then assisted by conservator Bruna, along
      with my brother Jerry, filed for an emergency guardianship with Judge
      McFadden in Idaho saying he was wasting away because I wasn't caring
      for him. Judge McFadden then issued a warrant to take my father
      forcefully from his home in Spokane.
              26.   Mr. Herman went to court in Spokane that day and got a
      restraining order against my brother, Jerome McKee, and his wife Mina
      McKee; my adopted brother, Craig McKee and his wife Sylvia McKee; and
      the Honorable Judge McFadden [the Idaho District Court judge]. The
      Washington court granted a guardianship in Washington, which was still
      not necessary because he was never ruled incompetent. I was named as my
      father's guardian so I could prevent my brothers from further terrifying or
      kidnapping him. In about 2009, my son Garth was named in Washington
      as guardian of my father's finances to again fight my brothers (who were
      fighting my guardianship in Washington and saying my father needed a
      guardian of his finances). Judge Sypolt left permanently in place the


                                           10 

No. 31944-0-III
One West Bank v. Erickson


         restraining order against all the same parties, and denied my brothers'
         motion to have them lifted.
                 27.   Proceedings to attempt to remove Ms. Shelly [sic] Bruna as
         my father's conservator were also renewed in early 2008 when it was
         determined that she had never posted a bond as required by Judge
         McFadden in connection with her having been appointed as conservator of
         his property. In February 2008, my father wrote a letter directly to Judge
         McFadden reinforcing his opinions about Ms. Bruna, his unhappiness that
         she had been appointed as a conservator for his property, and his opinions
         of what a poor job she was doing.

CP at 131-32.

         On February 26, 2008, at age 92, Bill McKee wrote to the Idaho District Court

judge:

                 I lived in Idaho for forty years. I don't ever intend to go back except
         to visit Maureen and her boys at Priest Lake. By the fact this trial went
         forward was a huge embarrassment to me.
                 The government has no damned business in my life. I am
         competent. I chose my Powers of Attorney for when I am not.
                 Who would believe that in this country a complete stranger could
         take my entire Social Security and retirement and refuse to give me enough
         money for food and teeth.
                 Jerry and Craig are trying to use your court to undermine my right to
         have transferred that property to Maureen. I was competent and my
         attorney Peacock help[ed] me with the transfer in January last year.
                 Ask Jerry [Le., Jerome] and Craig if they would like to be my
         guardian ifthey have to promise to leave Maureen and her property alone.
                 Craig has not called me once or come to see me since my heart
         surgery last July.
                 I am going to live with my daughter. She has such a good
         disposition and takes really good care of me and my dog. I have already
         chosen a retirement home in Seattle for when necessary.
                 I don't have long to live and would like to have some peace in my
         life. I would rather be dead than have either Jerry or Craig toss me around
         or take me away from [my] daughter and her boys.


                                               11 

No. 31944-0-III
One West Bank v. Erickson


               I want you to get rid of that women [sic] who is stealing from me
       and trying to steal from Maureen. I don't trust her and she has caused me
       to suffer. Besides I live in Washington. She bounces more checks than I
       do. She has made my life hell.

                Sincerely,

                Bill E. McKee

CP at 142-44.

       On June 20, 2008, the Idaho court terminated the conservatorship of Bill McKee

"pursuant to the suggestion of the Washington court" and ordered Shelley Bruna "to tum

over all funds belonging to Bill McKee to his attorney, Lloyd A. Herman." CP at 145.

       On September 25,2009, Freedom Financial assigned the deed of trust and

mortgage note to Mortgage Electronic Registration Systems, Inc. (MERS). Freedom

Financial recorded the assignment with Spokane County on October 2, 2009.

       Bill McKee died on March 12,2011, at age 94. The death certificate lists the

causes of death as "failure to thrive" spanning one month and "dementia" spanning

"years." CP at 51. The note, secured by the reverse mortgage, then fell due in full.

       On April 13, 2011, Maureen Erickson sent Freedom Financial a proposed loan

repayment schedule. In that proposal, Erickson wrote, "I am in the process of contacting

a realtor to list property," and she indicated that the loan would be repaid "[ f]rom

proceeds ofthe sale of the property." CP at 153. On September 9,2011, Maureen

Erickson asked Freedom Financial for additional time to pay the loan. The due date was


                                             12 

No. 31944-0-III
One West Bank v. Erickson


extended to December 12, 2011.

       On December 8, 2011, Maureen Erickson recorded the June 28, 2007 quitclaim

deed signed by her father and transferring the Spokane residence to her with the Spokane

County. On December 9,2011, Erickson wrote Freedom Financial to request a second

extension in payment. One West denied the request.

       On January 27, 2012, MERS assigned to One West the deed oftrust, but not the

note. OneWest recorded this assignment with Spokane County on February 3,2012.

                                  PROCEDURE BELOW

       On March 8, 2012, OneWest brought suit in Spokane County Superior Court to

foreclose upon the Spokane residence. Maureen Erickson had a recorded interest in the

property because of her filing of the judgment against her father and the recorded deed.

Therefore, One West included Maureen Erickson as a defendant in its suit.

       In its complaint, One West Bank asserts an interest in the South Pender Lane home

only by reason of the reverse mortgage. In its complaint, One West Bank asks for a

money judgment against "the [d]efendants." CP at 201. Elsewhere in the complaint,

One West Bank asks "that no deficiency judgment be entered against the defendants." CP

at 202. In its complaint, One West Bank asserts no claim against Maureen Erickson other

than to have its interest in the property be declared first in priority over Erickson's

interest in the property.




                                              13 

No. 31944-0-111
One West Bank v. Erickson


       On May 22,2013, OneWest moved for summary judgment. Rudy Lara, an agent

of One West, attached five exhibits to a declaration supporting the motion: the note, the

deed of trust, the assignment from Freedom Financial to MERS, the assignment from

MERS to OneWest, and Bill McKee's death certificate.

       Maureen Erickson opposed OneWest's motion for summary judgment and asked

the trial court to grant her judgment removing the lien of the deed of trust from the title to

the South Pender Lane residence. Erickson argued: the deed of trust's acknowledgement

was deficient, OneWest is not the note holder, the Idaho conservatorship did not extend

to real property in Washington, and OneWest was not a bona fide purchaser of the

mortgage. On June 20, 2013, OneWest filed a declaration oflegal counsel Babak

Shamsi. Shamsi attached a copy of the Idaho court orders. He stated that he attempted to

obtain an authenticated copy of the order from the Idaho court, but the court clerk refused

on the ground the file was sealed. He obtained the copies of the orders from Jerome

McKee's Idaho lawyer.

       On July 2,2013, the trial court granted OneWest's motion for summary judgment

in part. The trial court concluded as a matter of law that One West holds the note and the

deed of trust was properly acknowledged. Although Maureen Erickson did not formally

move for summary judgment, the trial court formally denied Erickson's motion for

summary judgment on the two issues.




                                             14 

No. 3 I 944-0-III
One West Bank v. Erickson


       On August 2,2013, OneWest filed a second affidavit from Rudy Lara. In this

affidavit, Lara declared:

               In the regular performance of my job functions, I am familiar with
       business records maintained by One West for the purpose of servicing
       mortgage loans. These records (which include data compilations,
       electronically imaged documents, and others) are made at or near the time
       by, or from information provided by, persons with knowledge of the
       activity and transactions reflected in such records, and are kept in the
       course of business activity conducted regularly by One West It is the
       regular practice of One West's mortgage servicing business to make these
       records. In connection with making this Affidavit, I have personally
       examined the business records relating to the subject "reverse mortgage"
       loan.

              Prior to its recording on December 8, 2011, Plaintiff has no record or
       knowledge of the presence of the unrecorded quit claim [sic] deed
       transferring the interest in the property.

CP at 151. Lara's second affidavit provided the foundation for: the April 13, 2011

repayment schedule; Maureen Erickson's first request for an extension; Erickson's

second request for an extension; Erickson's October 24,2007 gift memorandum of

$1,750 to Bill McKee; a letter from Shelley Bruna to Realtor Jack Tenold; and the U.S.

Department of Housing and Urban Development settlement statement for the closing of

the Freedom Financial loan.

       On August 7, 2013, Maureen Erickson moved to strike OneWest's exhibits as not

authenticated and lacking foundation. ·On August 16,2013, the trial court denied

Maureen Erickson's motion to strike and granted One West summary judgment, writing:

              As to Defendant's Motions to Strike the Idaho Court Order (Exhibit

                                            15 

No. 31944-0-111
One West Bank v. Erickson


       A to Mr. Shamsi's third Declaration), said motion is denied. There are
       justifiable reasons for not being able to authenticate the Order, as the Idaho
       court file is sealed. There are sufficient indicia of authenticity, and th~
       Order is admissible as a business record. The records are capable of being
       authenticated. In the alternative, even if the Idaho Order should be stricken
       due to lack of authenticity per RCW 5.44.010, said Order is not critical to
       this Court's determination of this matter, and this Court would have
       reached the same conclusion without consideration of the Idaho Order.
               As to Defendant's Motion to Strike all exhibits attached to Plaintiffs
       (Rudy Lara) Affidavit number 2, is denied. Said exhibits are business
       records, and there is sufficient indicia of reliability. Further, the documents
       are capable of being authenticated, albeit at significant effort and expense.
       In the alternative, if those exhibits should be stricken, this Court would
       have reached the same conclusion. They are not critical to the result.

              The Court having reviewed the pleadings and other records and files
       herein, and having considered the arguments of counsel, the Court finds
       that no material issues of fact exist which would preclude the granting of
       Plaintiffs Motion for Summary Judgment, and the Plaintiff is entitled to
       judgment as a matter of law.
              OneWest is a bonafide purchaser for value.
              Defendant took title to the property subject to Plaintiffs Deed of
       Trust.

CP at 188-89.

                                 LA W AND ANALYSIS

       Maureen Erickson asserts numerous trial court errors on appeal and she asks that

the summary judgment order in favor of One West be reversed. She argues (l) the trial

court relied on inadmissible evidence, (2) Freedom Financial's deed oftrust was not

properly notarized and thus failed to attach to the property, (3) One West failed to prove it

holds the note and cannot foreclose on the deed of trust alone, and (4) Shelley Bruna

lacked the authority to encumber property that Bill McKee no longer owned, because (a)

                                             16 

No. 3 I 944-0-III
One West Bank v. Erickson


Idaho law does not authorize a conservator for a nonresident to encumber real property

outside the state of Idaho, (b) Financial Freedom had actual or constructive knowledge

that Maureen Erickson owned the property, and (c) OneWesfs interest in the property is

not superior to Financial Freedom's since OneWest was not a bona fide purchaser. We

agree that the Idaho court lacked authority to authorize a conservator to encumber the

Spokane residence and reverse on this ground. Therefore, we do not address Erickson's

other arguments.

       Maureen Erickson argues that Shelley Bruna, as an Idaho appointed conservator

for a nonresident, lacked the authority to encumber real property in Washington. Under

Idaho's version of the Uniform Probate Code, an Idaho court may appoint a conservator

"in relation to the estate and affairs of a person ... that ... is unable to manage his

property and affairs effectively for reasons such as ... mental disability, physical illness

or disability ... and ... the person has property [that] will be wasted or dissipated unless

proper management is provided." I.C. § 15-5-401(b). In support of her argument,

Erickson cites I.C. § 15-1-301, titled "Territorial application," a provision applicable to

the entire Probate Code:

               Except as otherwise provided in this code, this code applies to (1)
       the affairs and estates of decedents, missing persons, and persons to be
       protected, domiciled in this state, (2) the property ofnonresidents located
       in this state or property coming into the control ofa fiduciary who is
       subject to the laws ofthis state, (3) incapacitated persons and minors in this
       state, (4) survivorship and related accounts in this state, and (5) trusts
       subject to administration in this state.

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No. 31944-0-111
One West Bank v. Erickson



(Emphasis added.) By its plain language, I.C. § 15-1-30 I limits an Idaho conservatorship

for a nonresident to property located in that state.

       The undisputed facts show that Bill McKee established his domicile or residency

in Washington State by January 2007. Conversely, OneWest Bank presents no testimony

showing McKee to be a domiciliary of Idaho on August 27, 2007, when the Idaho court

appointed Shelley Bruna as McKee's conservator, or on October 24,2007, when the

Idaho court authorized the encumbrance on the Spokane residence. To the contrary, the

reverse mortgage, upon which the bank relies, declared that B ill McKee's principal

residence was the South Pender Lane, Spokane, property. The note would fall due if

McKee no longer occupied the home. Under the Idaho statute, the Gem state court could

appoint a conservator over Bill McKee, but the conservator's authority to manage and

encumber property was limited to real property situated in Idaho. Conversely,

conservator Shelley Bruna's powers did not extend to the South Pender Lane home.

       OneWest Bank emphasizes that portion of Idaho Code § 15-1-301 that applies

Idaho's Uniform Probate Code to "property coming into the control of a fiduciary who is

subject to the laws of this state." The bank contends that Shelley Bruna, as a conservator,

was a fiduciary and the South Pender Lane residence came under her control. This is a

circular argument, because we must first decide whether the Spokane residence came

under her control.


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No. 31944-0-III
One West Bank v. Erickson


       One West Bank insists that Shelley Bruna's Idaho conservatorship powers

extended to foreign land because of the language of other Idaho statutes. One West cites

I.C. § IS-S-420 and § 1~-S-424. I.C. § IS-S-420 provides in part, "The appointment of a

conservator vests in him title as trustee to all property of the protected person, presently

held or thereafter acquired." (Emphasis added.) And I.C. § IS-S-424 provides:

              (3) A conservator, acting reasonably in efforts to accomplish the
       purpose for which he was appointed, may act without court authorization or
       confirmation to:

               (g) Acquire or dispose of an estate asset including land in another
       state for cash or on credit, at public or private sale; and to manage, develop,
       improve, exchange, partition, change the character of or abandon an estate
       asset.

(Emphasis added.) We recognize that I.C. § IS-S-424(3 leg) read literally bestows power

to transfer land in Washington State. This argument, however, ignores the jurisdictional

nature ofI.C. § IS-I-301. IfI.C. § IS-1-301 is not satisfied, then the Idaho court lacked

statutory authority over the action to entrust Shelley Bruna with the powers I.e. § IS-S­

420 and § IS-S-424 enumerate. I.C. § IS-I-301 is the jurisdictional statute that

encompasses all Idaho probate provisions. No Idaho decision addresses I.C. § IS-S­

424(3)(g) and no decision holds that an Idaho court has authority to impact or approve a

mortgage on Washington land.

       Even if Idaho law authorized the Idaho courts to approve a mortgage on property

in Washington State, we would rule to the contrary, because we are not bound by a


                                             19 

No. 31944-0-III
One West Bank v. Erickson


foreign state's order concerning property here. See Olympia Mining & Milling Co. v.

Kerns, 64 Wash. 545, 551, 117 P. 260 (1911) (collecting hoary rhetoric). Even if Bill

McKee was a resident of Idaho at the time of the encumbrance, we would conclude that

the Idaho order authorizing the mortgage is invalid. Historically the laws of the place,

where such real property lies, exclusively govern in respect to the rights of the parties, the

modes oftransfer, and the solemnities, which should accompany them. JOSEPH STORY,

COMMENTARIES ON THE CONFLICT OF LAWS § 424 (1834). Thus, the local forum is the

ultimate arbiter of a party litigant's interest in land, or more properly immovables, within

its jurisdiction. See RUSSELL J. WEINTRAUB, COMMENTARY ON THE CONFLICT OF LAWS

ch. 8 (1971); ROBERT A. LEFLAR, THE LAWOF CONFLICT OF LA WS § 22 (1959); Herbert

F. Goodrich, Two States and Real Estate, 89 U. PA. L. REv. 417 (1941).

       Based on these ancient principles, a court of one state has no jurisdiction over the

real estate in a second state. Brown v. Brown, 46 Wn.2d 370,372,281 P.2d 850 (1955).

It is a fundamental maxim of international jurisprudence that every state or nation

possesses an exclusive sovereignty and jurisdiction within its own territory. Brown, 46

Wn.2d at 372. The rule is well established that the courts of one state cannot directly

affect the legal title to land situated in another state. Brown, 46 Wn.2d at 372.

       Legions of cases, olden and modem, hold that a court of one state cannot

administer or affect title to real property sited in another state. Therefore, the home state

of the property need not enforce decrees entered by a foreign state concerning the home

                                             20 

No. 3 1944-0-III
One West Bank v. Erickson


state's real estate. Decrees of one state affecting interests in land of another state are not

accorded full faith and credit under the United States Constitution. Fall v. Eastin, 215

U.S. 1,30 S. Ct. 3,54 L. Ed. 65 (1909).

       The United States Supreme Court even issued an opinion on this subject. In Fall,

the court affirmed the Supreme Court of the State of Nebraska, which held that a deed to

land situated in Nebraska, made by a commissioner under the decree of a court of the

State of Washington in an action for divorce, was not effective in Nebraska because the

Washington court lacked in rem jurisdiction. The divorcing wife argued that the

Nebraska court must give full faith and credit to the Washington court's order authorizing

the commissioner to transfer the husband's land in Nebraska to the wife. The high Court

disagreed. The Court wrote:

              This doctrine is entirely consistent with the provision of the
       Constitution of the United States, which requires a judgment in any state to
       be given full faith and credit in the courts of every other state. This
       provision does not extend the jurisdiction of the courts of one state to
       property situated in another, but only makes the judgment rendered
       conclusive on the merits of the claim or subject-matter of the suit. "It does
       not carry with it into another state the efficacy of a judgment upon property
       or persons, to be enforced by execution. To give it the force of a judgment
       in another state, it must be made a judgment there; and can only be
       executed in the latter as its laws may permit."

Fall, 215 U.S. at 12 (quoting McElmoyle v. Cohen, 38 U.S. (13 Pet.) 312, 324, 10 L. Ed.

177 (1839)).

       In Green v. Wilson, 163 N.C. App. 186,592 S.E.2d 579 (2004), Wadell H. Pate



                                              21 

No. 31944-0-III
One West Bank v. Erickson


deeded real property in North Carolina to his wife, Mildred Green Pate, and stepson,

Aaron L. Green (the Greens). The administratrix of Mildred Pate's estate, Polly Pate

Wilson, asserted that the deeds were conveyed by undue influence and sought to have the

deeds reformed. The Greens sued in North Carolina to quiet the title. Thereafter, the

administratrix filed suit in Georgia, where the Greens resided, seeking to set aside the

deeds. The North Carolina trial court granted Wilson's motion to stay the proceedings to

allow the Georgia suit to proceed. The trial court granted the motion on the ground that

the Georgia forum was the more convenient forum for the parties. The North Carolina

Court of Appeals reversed. The court held that North Carolina has exclusive in rem

jurisdiction to address the validity of a deed executed to convey property located entirely

within North Carolina. The convenience of the parties was irrelevant. "In rem"

proceedings encompass any action brought against a person in which the essential

purpose of suit is to determine title to or affect interests in specific property located

within territory over which court has jurisdiction. A court in a jurisdiction foreign to the

subject property could not determine title to the property. Going further the courts of the

situs of lands cannot be compelled to enforce the decrees affecting the lands and issued

by the courts of another state.

       Washington follows the rule that only courts within the Evergreen State hold

jurisdiction to impact title or transfers of Washington land. Werner v. Werner, 84 Wn.2d

360,367,526 P.2d 370 (1974). In State ex ret. Mann v. Superior Court, Thurston

                                              22 

No. 31944-0-111
One West Bank v. Erickson


County, 52 Wash. 149, 100 P. 198 (1909), Edward Harkness died testate at his home in

Los Angeles, California. He left an estate in California and real property in Thurston

County, Washington. The California estate was in process of administration in

California, when the will and California probate papers were filed with the Thurston

County Superior Court. Devisees named in the will moved the superior court to dismiss

the probate proceedings instituted in this state on the ground that there was no necessity

for administration here. The trial court denied the petition and the Supreme Court

affirmed. The court ruled there was a necessity for administration in this state, since the

California court had no jurisdiction over the real property of the decedent having its situs

in this state.

        More on point is Smith v. McKelvey, 28 Ohio App. 361, 162 N.E. 722 (1928),

because the issue was whether one state may authorize a guardian to dispose of property

rights of the ward in an adjoining state and the transfer was not of fee simple. A party

objected to a warranty deed executed and delivered in Indiana, by Solon Arms, guardian

of Gertrude Arms Whicker, a person of unsound mind. The Franklin County, Indiana,

court authorized the guardian to sign the deed, which conveyed the undivided inchoate

interest and right of dower in Ohio property of Gertrude Arms Whicker. The Ohio court

held that the courts of the state of Indiana had no authority to authorize and empower a

guardian to convey real estate, or, more particularly, an inchoate right of dower in land

situated in Ohio. The rule that one state will not take jurisdiction of an action concerning

                                             23 

No. 31944-0-III
One West Bank v. Erickson


real estate situated in another state is the necessary result of the independence of distinct

sovereignties. The action for authorization should have been brought in the courts of the

state of Ohio.

       In Richardson v. Allen, 185 S. W. 252 (Mo. Ct. App. 1916), the Missouri court

appointed L. L. Allen as guardian of Banks M. Burrow, an incompetent person. Banks

owned real estate in Texas and Allen sought to sell the land. Allen did the right thing.

He got approval from the Missouri court to sell the land, but then petitioned a Texas court

for an ancillary guardianship and authorization to sell the land. The Texas court

appointed a guardian in Texas to sell the land. The Texas guardian delayed forwarding

the sale proceeds, and Caleb Richardson, the predecessor guardian in Missouri, argued

that Allen should pay interest on the proceeds during the delay and even as far back as

the date that the Missouri court authorized the sale. In ruling to the contrary, the

Missouri court noted that its probate courts have no extraterritorial jurisdiction, and any

Missouri order to sell lands in Texas was void. The court noted that courts repeatedly

hold that any attempted sale of lands in another state by an administrator, executor, or

guardian made by virtue of his appointment in Missouri and authority derived from our

courts is so utterly void that such administrator, executor, or guardian cannot be charged

with and compelled to account for the proceeds of such land, much less for interest

thereon. Richardson, 185 S.W. at 253.




                                             24 

No. 31944-0-III
One West Bank v. Erickson


       In re Bruhns' Estate, 58 Mont. 526, 193 P. 1115 (1920), a California resident, who

owned land in Montana died intestate. Heirs of the decedent argued that the Montana

court should apply California law, to the detriment of the widow, when distributing the

Montana land. The court disagreed and wrote:

              We do not deem it necessary to cite authorities to the effect that
      jurisdiction of the courts in Montana in probate matters pertaining to real
      estate is confined solely to property situated in this state, and that any order
      or decree affecting realty in another state would be a nullity. Likewise the
      California probate courts may make no binding orders pertaining to real
      property in this state.

193 P. at 1116.

       Finally, we return home to Sparkman & McLean Income Fund v. Wald, 10 Wn.

App. 765, 772, 520 P.2d 173 (1974), which extends the prohibition of one state's

authority to real property in another state to the handling of mortgages. The Walds

successfully defended a suit for the collection of a debt by proving usury. Penalties

accrued because of usury extinguished the debt. Both Washington and Oregon real

property secured the debt, and the trial court ordered the lender to release the mortgages

on the Washington and Oregon property. The Wald court affirmed all rulings, except the

trial court order releasing the mortgage on the Oregon land. The court wrote:

              The trial court's attempt to directly affect the title to Oregon real
       property by extinguishing the Oregon mortgages was, however, of no force
       or effect. Courts of one state cannot directly affect the title to real property
       beyond that state's territorial limits.




                                              25 

No. 31944-0-III
One West Bank v. Erickson



10 Wn. App. at 772.

       A grantor can convey no greater title or interest than the grantor has in the

property at issue. Firth v. Hefu Lu, 146 Wn.2d 608, 615, 49 P.3d 117 (2002); Sofie v.

Kane, 32 Wn. App. 889, 895, 650 P.2d 1124 (1982). Since Freedom Financial's

mortgage on the South Pender Lane property was invalid, it could not assign an effective

interest in the property to One West Bank.

       One West Bank argues that Maureen Erickson had the opportunity to litigate

before the Idaho court the question of whether the Idaho court could authorize an Idaho

conservator to encumber the property. Alternatively, OneWest Bank argues that the

Idaho court must have ruled that Bill McKee was a domiciliary of Idaho for the Idaho

court to proceed as it did. OneWest Bank complains that Maureen Erickson's defense of

this suit is a collateral attack on Shelley Bruna's authority.

       We reject OneWest Bank's arguments for several reasons. The record before the

trial court and this court does not show that the Idaho court rendered any ruling

concerning the domiciliary of Bill McKee. Nor does the record show that the Idaho court

specifically held that it had jurisdiction to encumber real property in Washington State.

We also question whether Maureen Erickson was a party to the Idaho proceeding and

would be bound by the Idaho court ruling.

       Even if the Idaho District Court ruled it had jurisdiction to approve a mortgage on


                                              26 

No. 31944-0-III
One West Bank v. Erickson


Washington property, we would and could reject the ruling. Even if the Idaho District

Court held Bill McKee to be an Idaho resident, we would and could reject authorization

to encumber Washington property. Such a ruling is not entitled to full faith and credit.

Fall, 215 U.S. 1.

       The only fact relevant to the Idaho court's authority to authorize an encumbrance

is the location of the mortgaged property being in Washington State. This fact cannot be

disputed. When the facts are not in dispute, this court may grant summary judgment to

the nonmoving party. Leland v. Frogge, 71 Wn.2d 197,201,427 P.2d 724 (1967); Wash.

Ass 'n ofChild Care Agencies v. Thompson, 34 Wn. App. 225, 660 P.2d 1124 (1983);

Impecoven v. Dep't ofRevenue, 120 Wn.2d 357, 365,841 P.2d 752 (1992). Maureen

Erickson did not formally move for summary judgment on the issue of the validity of the

Idaho order directing the conservator to enter the reverse mortgage, but she asked for

such a ruling in response to One West Bank's summary judgment motion. She also

requested this ruling on appeal. Therefore, we grant Erickson summary judgment on this

issue. Upon reversal of summary judgment in favor of one party, a grant of summary

judgment to the other party can be an appropriate remedy when the two motions take

diametrically opposite positions on the dispositive legal issue and raise no issues of fact.

Weden v. San Juan County, 135 Wn.2d 678, 710, 958 P.2d 273 (1998); Ki Sin Kim v.

Allstate Ins. Co., 153 Wn. App. 339, 353, 223 PJd 1180 (2009).




                                             27 

No. 31944-0-III
One West Bank v. Erickson


       In its complaint, One West Bank asks for a money judgment against "the

defendants." CP at 201. Technically this request seeks a money judgment against

Maureen Erickson, but the request appears to be an error, since elsewhere One West Bank

waives any right to a deficiency judgment. In one paragraph of the claim for relief,

One West Bank asks. "that no deficiency judgment be taken against the defendants." CP

at 202. OneWest Bank asserts no claim against Maureen Erickson other than a claim to

have its interest in the property be declared first in priority over Erickson's interest in the

property.

       In its complaint, One West Bank asserts an interest in the South Pender Lane home

only by reason of the reverse mortgage. We declare the reverse mortgage invalid.

Because we rule against OneWest Bank on the only claim it asserts, we dismiss OneWest

Bank's complaint.

                                       CONCLUSION

       We declare the October 22,2007 Idaho court order ineffective to the extent it

sought to approve conservator Shelley Bruna's encumbering the Pender Lane, Spokane

residence. In turn, we declare the October 25,2007 deed of trust, signed by Shelley

Bruna and encumbering South Pender Lane, invalid. We reverse the trial court's grant of

summary judgment in favor of One West Bank and instead grant Maureen Erickson




                                              28 

No. 31944-0-I11
One West Bank v. Erickson


summary judgment dismissing OneWest Bank's complaint with prejudice.




WE CONCUR:
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                                       29 

