      FILED
  May 16, 2013
 Court of Appeals
     Division I
State of Washington



                    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



       ROGER GARDNER and                                NO. 67375-1-1

                               Appellant,               DIVISION ONE

       LYLE SINCLAIR,

                               Defendant,

                                                        ORDER GRANTING RESPONDENTS'
                                                        MOTION TO PUBLISH OPINION
       FIRST HERITAGE BANK, a
       Washington Bank Corporation;
       SEL, INC., a Washington Corporation,

                               Respondents.



              The respondents Columbia State Bank and SEL, Inc. filed a motion to publish

       opinion filed March 25, 2013. Appellant Gardner filed a response. The court has

       determined that the motion should be granted; therefore it is

              ORDERED that respondents' motion to publish opinion is granted.
                               16th.
                  DATED this       day of May 2013.

                                       FOR THE PANEL:
         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON                        ro
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ROGER GARDNER and                               NO. 67375-1-1                           O-n.
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                    Appellant,                  DIVISION ONE
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LYLE SINCLAIR,                                                                          -jo

                    Defendant,

                                                   PUBLISHED OPINION

FIRST HERITAGE BANK, a                          FILED: March 25, 2013
Washington Bank Corporation;
SEL, INC., a Washington Corporation,

                    Respondents.



      Lau, J. — Developer Roger Gardner defaulted on loans secured by deeds of trust

on three contiguous parcels of real property. First Heritage Bank conducted nonjudicial

foreclosures in succession on each parcel. We hold the deed of trust act's (chapter

61.24 RCW) antideficiency provisions do not restrict the bank's ability to exhaust

multiple items of collateral in a series of nonjudicial foreclosure proceedings. And
because no disputed material facts remain as to the properties' nonagricultural use on

the deed of trust grant date under RCW 61.24.030(2), we affirm the trial court's

summary judgment order in the bank's favor and its award of attorney fees.
67375-1-1/2



                         FACTS AND PROCEDURAL HISTORY

       In 2004, through an entity then called "Younggardner LLC," developers Roger

Gardner and Stuart Young purchased approximately 153 acres of undeveloped land in

Snohomish County to subdivide as a residential development they later named Sky

River Estates. They platted this land into ten 10-acre lots and three contiguous lots

varying in acreage and commonly referred to as lots 10,11, and 12. As declarants,

Gardner and Young also formed the Sky River Estates Home Owners Association.

Sometime in 2006, Younggardner recorded covenants on all 13 lots, which restricted

the property's use to "single family residence" and expressly limited any commercial

activity on the property to "a cottage business." Gardner chose lot 10 to build his new

single-family residence.1 He selected lot 11 to build a large barn facility for a new horse
boarding and training business,2 which he planned to operate with his partner, Lyle
Sinclair.3

       On February 27, 2007, Gardner and Sinclair obtained a construction loan from

the bank secured by a construction deed of trust on lot 10 in the principal amount of

$750,000. Gardner and Sinclair used the proceeds to finance construction of Gardner's



        1 In December 2006, Younggardnerconveyed lot 10 by statutory warranty deed
to Gardner through a statutory warranty deed. In December 2007, Gardner conveyed
his interest in lot 10 to Lyle Sinclair who, in February 2008, reconveyed the interest to
Gardner and Sinclair as joint tenants with a right of survivorship.

     2 In November 2007, Gardner and Lyle Sinclair established Rising Sun Arabians
LLC. According to Gardner, the "purpose of [the] company was to have a training
facility for the horses being bred and sold as part of the enterprise."
       3 On November 4, 2010, Sinclair filed a chapter 7 bankruptcy petition. During
that proceeding, Gardner purchased all of Sinclair's interest in the current lawsuit.
Gardneralso acquired Sinclair's interest in lot 10. Sinclair is not a party to this appeal.
                                           -2-
67375-1-1/3



lot 10 residence and to "pay down various personal debts [and] miscellaneous other

expenses." The deed of trust also contained a statement that lot 10 "is not used

principally for agricultural purposes." SEL Inc. served as successor trustee on the

February 2007 deed of trust and on all deeds of trust relevant to this appeal. On

October 31, 2007, Gardner obtained a second loan from the bank in the principal

amount of $212,160.26, secured by a deed of trust on separate Snohomish property

owned by Gardner.

       In November 2007, Gardner obtained a $100,000 extension of credit from the

bank on the construction loan to cover construction cost overruns and to pay down

other debt, resulting in a modified deed of trust.

       On April 22, 2008, Gardner refinanced the February 27, 2007 loan by executing a

new $869,688.17 promissory note, secured principally by lots 10 and 12, with a maturity

date of April 20, 2009. By the terms of the deeds of trust, the loans were all cross

collateralized, such that any indebtedness that had been secured by one property was

also secured by each other property.4 The parties agree that the February 2007and
April 2008 deeds oftrust secured the same obligation—i.e., the April 22, 2008 note.5


       4The November 2007 deed of trust included the following provision:
"CROSS-COLLATERALIZATION. In addition to the Note, this Deed of Trust secures all
obligations, debts and liabilities, plus interest thereon of Grantor to Lender, or anyone or
more of them, as well as all claims by Lender against Grantor, or anyone or more of
them, whether now existing or hereafter arising, whether related or unrelated to the
purpose of the Note ...."

       5The February 2007 deed of trust contained a provision securing "future
advances." In addition, the April 2008 deed of trust states that it was granted to secure
performance of all obligations under "the note." The deed of trustgoes on to define
"note" as "the promissory note dated April 22, 2008, in the original principal amount of
$869,688.17 . . . ."
                                           -3-
67375-1-1/4



       Due to a general economic downturn, the horse boarding and training business

suffered a significant loss of customers and earnings in the third quarter of 2008. When

Gardner's three loans matured in April 2009, Gardner defaulted due to nonpayment,

and the bank issued a statutory notice of default.6 The next month, the trustee issued a

notice of sale for lots 10, 11, and 12 and the Snohomish property. Gardner filed a

chapter 11 bankruptcy petition resulting in a stay of the nonjudicial foreclosure

proceedings. The bankruptcy court lifted the stay on March 18, 2010, as to all of

Gardner's properties except lot 10. Gardner never sought to enjoin the sale.

       On May 14, 2010, the trustee's sale occurred on lots 11 and 12 and the

Snohomish property.7 In June 2010, however, the bankruptcy court dismissed
Gardner's chapter 11 petition. Thetrustee issued a new notice ofsale for lot 10.fi The
sale was later continued to November 5, 2010. As noted above, on November 4, 2010,

Sinclair, a joint tenant and coborrower with Gardner, filed for bankruptcy and the

trustee's sale was again continued to February 9, 2011, when automatic stay relief was

granted.




       6The barn construction on lot 11 was principally funded by a Small Business
Association (SBA) guaranteed loan funded through the bank. Because the SBA loan
had a longer term, the defaulted loans did not include this loan on lot 11.

       7 Unlike lot 10, Gardner never sought to enjoin the nonjudicial foreclosure sale of
lots 11 and 12 on the ground that these lots are used principally for agricultural
purposes.

       8 In August 2010, Gardner filed a chapter 13 bankruptcy petition that stayed lot
10's foreclosure sale. The bankruptcy court dismissed the chapter 13 petition on
Gardner's motion.
67375-1-1/5



       In the meantime, on October 19, 2010, Gardner and Sinclair sued the bank,

the foreclosing trustee, and various unnamed defendants, seeking a restraining order,

injunctive relief, declaratory relief, and an order quieting title in lot 10. They also sought

damages for intentional trespass to land and consumer protection act (CPA) violations,

chapter 19.86 RCW. Gardner filed a separate motion to enjoin the trustee's sale of

lot 10. The CPA claim alleged that the bank deceptively conducted a sale of

"agricultural property" and then unlawfully sought a "deficiency judgment." Their main

claims alleged that the sale of lot 10 would violate the deed of trust act's antideficiency

provision under RCW 61.24.100(1) and that the sale would violate the deed of trust

act's prohibition on nonjudicial foreclosure of land "used principally for agricultural

purposes," found at RCW 61.24.030(2).9
       The bank opposed the restraining order and the injunctive relief motion,

claiming that it never sought a deficiency judgment as a matter of law and that the

property was not "used in an operation that produces crops, livestock, or aquatic

goods." RCW 61.24.030(2). On October 27, 2010, the trial court denied the motion,

premised mainly on Gardner and Sinclair's failure to present sufficient evidence of the

property's use for agricultural purposes. The court explained, "Plaintiffs' request for

injunctive relief rests entirely on the conclusory statement in their Complaint that the
property at issue is used for agricultural purposes. This statement remains unsupported

by factual evidence


     9The complaint separately alleged that the Bank trespassed to land byfailing to
remove a barn on lot 11 (then owned by the Bank) that encroached onto lot 10 (still
owned at the time by Gardner and Sinclair). Gardner abandoned this claim on appeal.
Br. of Appellant at 3 n.1.
67375-1-1/6



      In December 2010, the bank and SEL moved for summary judgment or,

alternatively, for dismissal of Gardner and Sinclair's claims. In January 2011, Gardner

and Sinclair moved for summary judgment. Due to the Sinclair bankruptcy proceedings,

the court postponed hearing the motions. In February 2011, Gardner and Sinclair

refiled their summary judgment motion, which the court denied. In March 2011, with the

trustee's sale of lot 10 drawing near, Gardner and Sinclair moved again for a temporary

restraining order, asserting the same arguments rejected by the court's February 2011

order denying Gardner and Sinclair's summary judgment motion.

      After the bankruptcy court lifted the automatic stay, the trustee's sale of lot 10

occurred on April 1, 2011. The bank purchased lot 10 by credit bid. On the same day,
Gardner and Sinclair unsuccessfully moved for reconsideration of the order denying

their summary judgment motion.

       On April 15, 2011, the bank and SEL moved for summary judgment, arguing that
"[njothing remains of Plaintiffs' claims after the completion of the foreclosure sales."
Just before the summary judgment hearing, Gardner requested leave to remove Sinclair
as a party and to add a new claim based on a fraudulent boundary line adjustment
allegedly committed by the bank before theApril 1, 2011 trustee's sale. The court
granted Gardner's motion to remove Sinclair but denied his motion to amend to add the
fraud claim.




                                           -6-
67375-1-1/7



        On May 25, 2011, the court granted the defendants' motion for summary

judgment in an oral ruling.10 The court found as a matter of law that the bank's
nonjudicial foreclosure sale of lot 10 did not constitute a "deficiency judgment."

Verbatim Report of Proceedings (VRP) (May 25, 2011) at 35, 38. The court also found

no factual dispute as to whether Gardner's loan was "commercial in nature." VRP (May

25, 2011) at 34. On June 10, 2011, the court entered judgment in favor of the

defendants and awarded $47,537.23 in attorney fees. The court also granted the

bank's motion to substitute Columbia State Bank, as successor in interest, to First

Heritage Bank.11 This appeal followed.
                                        ANALYSIS

       Gardner appeals the trial court's (1) March 22, 2011 order denying his motion for

summary judgment; (2) April 12, 2011 order denying his motion for reconsideration;12
(3) March 31, 2011 order denying his motion for a temporary restraining order;13


       10 Our record shows no written order granting defendants' motion for summary
judgment. Our record does show a subsequent June 10, 2011 judgment entered on the
oral ruling.

       11 Columbia State Bank acquired First Heritage Bank on May 27, 2011. In this
opinion, we refer to both First Heritage Bank and Columbia State Bank as "the bank."

      12 We review this order under RAP 2.4(f), which provides, "An appeal from a final
judgment brings up for review the ruling of the trial court on an order deciding a timely
motion based on ... (3) CR 59 (reconsideration ...)." Gardner's motion for
reconsideration advances essentially the same arguments disposed of by the trial
court's summary judgment orders.

       13 Gardner argues that the trial court erroneously denied his October 2010 and
March 2011 motions for a temporary restraining order and a preliminary injunction
enjoining the trustee's sale of lot 10. Br. of Appellant at 1 (assignments of error 1 &2).
The Bank argues that Gardner's claims are moot because the trustee's sales already
occurred. We need not resolve whether Gardner's claims are moot. To determine
67375-1-1/8



(4) June 10, 2011 orderimposing terms;14 and (5) final judgment entered June 10,
2011, following the grant of summary judgment in favor of the bank and SEL. In his

opening brief, Gardner also assigned error to the court's oral ruling granting the bank

and SEL's motion for summary judgment.15 We affirm the trial court's grant ofsummary
judgment in favor of the bank and SEL and its award of attorney fees.

       We review a grant or denial of summary judgment de novo. Tiffany Family Trust

Corp. v. Citv of Kent. 155 Wn.2d 225, 230,119 P.3d 325 (2005). Summary judgment is

proper only where there is no genuine issue of material fact and the moving party is




Gardner's entitlement to injunctive relief, we must examine, among other things, "the
likelihood that the moving party will prevail on the merits." Rabon v. City of Seattle. 135
Wn.2d 278, 285, 957 P.2d 621 (1998). As discussed below, each of Gardner's claims
fails on the merits. Therefore, the trial court properly denied Gardner's October 2010
and March 2011 motions.

       14 The trial court imposed sanctions of $500 on Gardner's counsel for failure to
comply with the service rules. See VRP (May 25, 2011) at 40-46 (oral ruling). Gardner
did not assign error to the court's imposition of terms. We decline to address this issue.

       15 The Bank argues that we may not review the orderdenying Gardner's
summary judgment motion because the order is not appealable under RAP 2.2(a). See
Br. of Resp'ts at 14. Our cases generally prohibit this court from reviewing an order
denying summary judgment after a case goes to trial. See, e.g.. Brothers v. Pub. Sch.
Emps.ofWash.. 88 Wn. App. 398, 409, 945 P.2d 208 (1997) ("A summary judgment
denial cannot be appealed following a trial ifthe denial was based upon a determination
that material facts are disputed and must be resolved by the fact finder."). Gardner
argues that no trial was held in this case and that he properly brought all issues before
this court by appealing the final judgment. Appellant's Reply Br. at 7. Under the
circumstances presented here, we agree. Although Gardner did not designate for
review the trial court's oral summary judgment denial in his notice of appeal, it is clear
that he intended to appeal the court's dismissal of his claims. As our Supreme Court
has made clear, '"technical violation of the rules will not ordinarily bar appellate review,
where justice is to be served by such review [and where] the nature of the challenge is
perfectly clear     '" State v. Williams. 96 Wn.2d 215, 220, 634 P.2d 868 (1981)
(quoting Dauahtrv v. Jet Aeration Co.. 91 Wn.2d 704, 710, 592 P.2d 631 (1979)).
                                           -8-
67375-1-1/9



entitled to judgment as a matter of law. CR 56(c); Jones v. Allstate Ins. Co.. 146 Wn.2d

291, 300-01, 45 P.3d 1068 (2002).

       Deficiency Judgment

       Gardner claims that the April 2011 trustee's sale of lot 10 constituted an unlawful

attempt by the bank to seek a "deficiency judgment" on the obligation outstanding after

the May 2010 trustee's sale of lots 11 and 12. He claims that successive or "serial"

trustee's sales of multiple items of collateral securing the same obligation violate the

deed of trust act's antideficiency judgment provision. That provision states, "Except to

the extent permitted in this section for deeds of trust securing commercial loans, a

deficiency judgment shall not be obtained on the obligations secured by a deed of trust

against any borrower, grantor, or guarantor after a trustee's sale under that deed of

trust."16 RCW 61.24.100(1).
       Relying on this provision, Gardner claims, "[l]f there is more than one deed of

trust and multiple collateral securing the same obligation, it is incumbent upon the party

using nonjudicial foreclosure to take them all at a single sale, rather than spreading out

the foreclosures in a piecemeal fashion." Reply Br. of Appellant at 10. The bank

responds that the trustee's sale of lot 10 does not implicate RCW 61.24.100's

antideficiency provision because "no such judgment was sought in this case."17 Br. of
Resp'ts at 15-16.


       16 Gardner does not contend that this provision is ambiguous.
       17 The trial court agreed with this argument, concluding that the bank did not and
could not seek a deficiency judgment "[ajbsent an explicit prayer for relief... seeking
entry of a judgmentfor a deficiency following a non-judicial foreclosure." (Emphasis
added).
                                          -9-
67375-1-1/10



      The deed of trust act provides no express definition for "deficiency judgment."

However, "the difference between the sale price and debt is commonly referred to as a

'deficiency.'" Executive Summary of 1998 Proposed Amendments to the Washington

Deed ofTrust Act Prepared by the Deed ofTrust Act Working Group Members.18 We
also look to our case law on mortgages, chapter 61.12 RCW, to determine the relevant

definition. Our Supreme Court has held a deed of trust to be, in effect, a mortgage.

Morrill v. Title Guar. & Sur. Co.. 94 Wash. 258, 162 P. 360 (1917). In Boeing

Employees' Credit Union v. Burns. 167 Wn. App. 265, 272 P.3d 908 (2012), a case

involving disbursement of surplus funds following a trustee's sale, we stated:

              Our examination of the questions before us begins with consideration of
       relevant Washington case law regarding mortgages. First, the state supreme
       court has stated that a deed of trust is "in general a species of mortgage." This
       principle is expressly memorialized in the Deeds of Trust Act, which states
       "[e]xcept as provided in this [act], a deed of trust is subject to all laws relating to
       mortgages on real property." Thus, case law respecting mortgages generally can
       be useful in deciding issues regarding deeds of trust, except where the Deeds of
       Trust Act dictates otherwise-

Boeing. 167 Wn. App. at 272 (alterations in original) (emphasis added) (footnotes and

boldface omitted) (quoting Rustad Heating &Plumbing Co. v. Waldt. 91 Wn.2d 372,

376-77, 588 P.2d 1153 (1979)). Under chapter 61.12 RCW governing foreclosure of

mortgages and personal property liens, a deficiency judgment "arises if the amount ofa

      18 This group was chaired by Gordon W. Tanner, then immediate past chair of
the Washington State BarAssociation Real Property, Probate and Trust Section. The
diverse, 32-member work group included attorneys whose practices emphasize
commercial, residential, and consumer lending practices; state legislators; and other
interested parties such as title insurance company representatives. The product ofthe
work group's efforts resulted in the 1998 comprehensive amendments to the
Washington deed oftrust act, chapter 61.24 RCW. These amendments revise 12 ofthe
14 sections of the former act, create four new sections, and modify other related
statutes.


                                           -10-
67375-1-1/11



judgment in a judicial foreclosure exceeds the value of the security at the foreclosure

sale."19 Boeing. 167 Wn. App. at 282. Once obtained, a deficiency judgment is "similar
in all respects to other judgments for the recovery of money ...." RCW 61.12.080; see

Lassen v. Curtis. 40 Wn.2d 82, 86, 241 P.2d 210 (1952) ("In our opinion, a personal

judgment for the amount due on a separate obligation entered as part of a decree of

foreclosure of a mortgage given to secure such obligation, in effect amounts to a

judgment over for the deficiency ...."). As in the mortgage foreclosure context,

"deficiency judgment" under RCW 61.24.100 means a money judgment20 sought by a
trust deed beneficiary (or other creditor) following a trustee's sale that fails to satisfy the

obligation secured by the deed of trust. We conclude that a "deficiency judgment" for

purposes of RCW 61.24.100's antideficiency provision means a money judgment

against a debtor for a recovery of the secured debt measured by the difference between

the debt and the net proceeds received from the foreclosure sale.21
       Gardner acknowledges that "the Bank did not seek a 'deficiency judgment' in the

conventional sense." Appellant's Reply Br. at 1. He acknowledges that the bank did

not attempt to obtain a money judgment against him. He relies on RCW

       19 The court must provide for a deficiency judgment in the decree of foreclosure
unless the mortgagee expressly waived the right to a deficiency judgment in its
complaint. RCW 61.12.070.

       20 The term "money judgment" is synonymous with the term "personal judgment."
      21 Numerous jurisdictions have adopted a similar definition of deficiency
judgment. See, e^, Drevfuss v. Union Bank of Cal.. 24 Cal. 4th 400, 11 P.3d 383, 387,
101 Cal. Rptr. 29 (2000); Jones v. England. 782 P.2d 119, 121 (Okla. 1989); Kries v.
Allen Carpet. Inc.. 146 Ariz. 348, 706 P.2d 360, 361-62 (1985); Stretch v. Murphy. 166
Or. 439, 112 P.2d 1018, 1021 (1941); Harbor Credit Union v. Samp. 796 N.W.2d 813,
819-21 (Wis. Ct. App. 2011); 3 W. Invs.. LLC v. Hamilton State Bank. 728 S.E.2d 843,
846 (Ga. App. 2012).
                                            -11-
67375-1-1/12



61.24.100(3)(b) to argue, "Because the statute only permits serial nonjudicial

foreclosure on different collateral for the same obligation in the context of commercial

loans, as a matter of law this second nonjudicial foreclosure violated RCW

61.24.1 (H)(3)(b)." Br. of Appellant at 22.

       RCW 61.24.100(3)(b) provides an exception to RCW 61.24.100(1)'s

antideficiency provision quoted above that allows commercial creditors to foreclose on

multiple deeds of trust securing the same obligation:

              (3) This chapter does not preclude any one or more of the following after a
       trustee's sale under a deed of trust securing a commercial loan executed after
       June 11, 1998:

              (b) Any judicial or nonjudicial foreclosures of any other deeds of trust...
       covering any real or personal property granted to secure the obligation that was
       secured by the deed of trust foreclosed.

According to Gardner:

       By including the 'exception clause' for commercial loans in the very section
       prohibiting obtaining 'a deficiency judgment' [RCW 61.24.100(1)] after a trustee's
       sale, the Legislature is telling us that the exceptions specifically listed are
       equivalent to obtaining a 'deficiency judgment.' Under §(3)(b), the Legislature
       also tells us that coming back against a personal borrower by a subsequent
       foreclosure on another deed of trust securing the same obligation is equivalent to
       coming back against a personal borrower with an action for money. They are
       both second bites at the apple, and the fact that one is directly for money and the
       other is for additional collateral that has value and can be converted into money,
       is not legally relevant under this statute.
              .... [T]here can be no question that §(3)(b) is an exception to the
       deficiency judgment prohibition created by §(1) of the statute, and that the
       exception only applies to commercial loans. It necessarily follows that
       subsequent nonjudicial foreclosure on a deed of trust securing the same
       personal obligation is prohibited by the combined effect of RCW 61.24.100(1)
       and (3)(b).

Reply Br. of Appellant at 12-13 (formatting omitted).




                                              -12-
67375-1-1/13



      Gardner cites no controlling authority or legislative history to support his

interpretation of RCW 61.24.100(1) and (3)(b).22 As defined above, a deficiency
judgment requires a money judgment against the debtor. The bank undisputedly

obtained no money judgment against Gardner. Thus, RCW 61.24.100(1 )'s prohibition

against a deficiency judgment involving a noncommercial loan is not implicated in this

case.23

      The available legislative history on the 1998 deed of trust act amendments does

not support Gardner's statutory interpretation claim. In 1998, a set of comprehensive

amendments to Washington's deed oftrust act took effect.24 The 1998 amendments
made significant changes to RCW 61.24.100's antideficiency rules. The house bill


      22 As Gardner argues in his opening brief and in his statement of additional
authority, the deed of trust act "'must be construed in favor of borrowers because of the
relative ease with which lenders can forfeit borrowers' interests and the lack of judicial
oversight in conducting nonjudicial foreclosure sales.'" Bain v. Metro. Morto. Group.
Inc.. 175 Wn.2d 83, 93, 285 P.3d 34 (2012) (quoting Udall v. T.C. Escrow Servs.. Inc.,
159 Wn.2d 903, 915-16,154 P.3d 882 (2007)). Notwithstanding this mandate, we find
nothing in the relevant statutory scheme to support his interpretation.

       23 The bank argued in the alternative that Gardner's loan was "commercial" and,
therefore, that it fell within RCW 61.24.100(3)(b)'s exception allowing nonjudicial
foreclosure of multiple deeds of trust securing the same commercial loan. Gardner
argued that his loan was noncommercial and, thus, subject to RCW 61.24.100(1 )'s
antideficiency provision. Even if we assume that Gardner's loan was noncommercial,
Gardner cannot show that the trustee's sale of lot 10 violated RCW 61.24.100(1).
Therefore, we need not decide whether Gardner's loan was commercial or
noncommercial.

       24 The Washington State Bar Association sponsored this bill in response to "the
perceived need to clarify and update the act" because "[practice in this area has
departed somewhat from the strict statutory requirements        " S.B. Rep. on S.B. 6191,
at 1, 55th Leg., Reg. Sess. (Wash. 1998). The final bill report stated, "The Deed of
Trust Act is amended to clarify and modernize its procedures, and reflect current
practices." Final B. Rep. on Engrossed Substitute S.B. 6191, at 1, 55th Leg., Reg.
Sess. (Wash. 1998).
                                           -13-
67375-1-1/14



analysis summarized these amendments. Relevant to RCW 61.24.100(1) and (3)(b),

the bill analysis states:

              A deficiency judgement is not available after a trustee's sale except for a
       deed of trust securing a commercial loan. The beneficiary may seek a deficiency
       judgment against the borrower in the following two situations, but only ifthe fair
       value of the property sold at the trustee's sale is less than the obligation, and if
       the property is not occupied by the borrower as a principal residence: (1) for a
       decrease in the fair market value in the property caused by abusive or
       destructive use of the property by the borrower; or (2) for damages caused by the
       wrongful retention of rents, insurance proceeds, or condemnation awards.

H.B. Bill Analysis, Engrossed Substitute S.B. 6191, at 3, 55th Leg., Reg. Sess. (Wash.

1998) (emphasis added). Under the prior version of that section, the borrower had no

personal liability for a deficiency following a trustee's sale. The current act clarifies that

if the underlying obligation is a "commercial loan"25 and the deed oftrust does not
encumber the borrower's principal residence on the date of the trustee's sale, a lender

has limited recourse against the borrower. The beneficiary may seek a deficiency

judgment against the borrower under the two specific circumstances noted above. See




       25 The prior version stated, "Foreclosure, as in this chapter provided, shall satisfy
the obligation secured by the deed of trust foreclosed, regardless of the sale price or fair
value, and no deficiency decree or other judgment shall thereafter be obtained on such
obligation, except that ifsuch obligation was not incurred primarily for personal, family.
or household purposes, such foreclosure shall not preclude any judicial or nonjudicial
foreclosure of anv other deeds of trust, mortgages, security agreements, or other
security interests or liens covering any real or personal property granted to secure such
obligation. Where foreclosure is not made under this chapter, the beneficiary shall not
be precluded from enforcing the security as a mortgage nor from enforcing the
obligation by any means provided by law." Laws of 1998, ch. 295, § 12 (emphasis
added). While this prior version did not use the term "commercial loan," the
underscored portion conforms with the current definition of "commercial loan" found in
the act. That provision defines "commercial loan" as "a loan that is not made primarily
for personal, family, or household purposes." RCW 61.24.005(4). Thus, it appears that
the commercial loan exception was available even under the Act's prior version.
                                            -14-
67375-1-1/15



Craig Fielden, An Overview of Washington's 1998 Deed of Trust Act Amendments.

Wash. State Bar Ass'n Real Prop., Prob. & Trust, Summer 1998, at 4.

       The Executive Summary of 1998 Proposed Amendments to the Washington

Deed of Trust Act prepared by the Deed of Trust Act Working Group Members and

chaired by Gordon Tanner provides a brief section-by-section commentary on the bill.

This summary repeats the essential features of the 1998 amendments to RCW

61.24.100(1) and (3)(b) found in the house bill summary discussed above. In sum,

nowhere in the available legislative history materials is there support for Gardner's claim

that the legislature intended to prohibit serial nonjudicial foreclosure proceedings

against multiple items of collateral as an "equivalent to obtaining a [prohibited]

'deficiency judgment.'" Reply Br. of Appellant at 12. Given the significant 1998

amendments to RCW 64.12.100's antideficiency provisions, if the legislature had

intended to prohibit serial nonjudicial foreclosures in the manner proposed by Gardner,

it could have expressly done so. Absent clear expression of legislative intent, we

decline to read into the statute a prohibition against serial nonjudicial foreclosures.

       Gardner also argues that even if the bank did not seek a deficiency judgment in

the "conventional" sense, the April 2011 trustee's sale of lot 10 was in "substance" a

deficiency judgment. Appellant's Reply Br. at 13 (emphasis added). In Drevfuss v.
Union Bank of California. 24 Cal. 4th 400, 11 P.3d 383, 101 Cal. Rptr.2d 29 (2000), the

California Supreme Court rejected a similarargument. There, a group of borrowers

defaulted on a loan secured by separate deeds of trust on three parcels of real property.

Drevfuss. 11 P.3d at 384. The creditor bank nonjudicially foreclosed on one property,

then "proceeded with serial foreclosure sales of the remaining properties." Drevfuss. 11
                                           -15-
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P.3d at 384. The sales occurred within a five-month span. Drevfuss. 11 P.3d at 385-

86. At no point did the bank attempt to obtain a money judgment against the borrower.

Drevfuss. 11 P.3d at 386. The borrowers argued that the nonjudicial foreclosures of the

second and third properties "constituted wrongful attempts to obtain a deficiency

judgment after the foreclosure of the [first] property ...." Drevfuss. 11 P.3d at 386.

The borrowers contended that California law required the bank to credit the fair market

value of the first property to the outstanding debt before foreclosing on the remaining

properties. The court affirmed summary judgment in favor of the bank, holding that the

antideficiency provisions of the California Code of Civil Procedure did not "restrict the

ability of a creditor to exhaust multiple items of collateral in a series of nonjudicial

foreclosure proceedings." Drevfuss. 11 P.3d at 386. The court explicitly rejected the

borrowers' argument, similar to the one now made by Gardner, that "the antideficiency

provisions preclude a creditor from obtaining not only a deficiencyjudgment, but what

[the borrowers] characterize as the 'functional equivalent of a deficiency judgment.'"
Drevfuss. 11 P.3d at 389. Relying on well-settled decisional law, Drevfuss reasoned:

       [A] creditor's resort to any and all security on a debt does not implicate the
       antideficiency provisions. As we held nearly 60 years ago in Hatch v. Security-
       First Nat. Bank fof Los Angeles. 19 Cal.2d] 254, [258] 120 P.2d 869 [(1942)],
       Code of Civil Procedure section 580a applies only to shield a borrower from
       personal liability; it has "no application to a situation where ... no attempt is
       made by the creditor to secure a personal judgment against a debtor for a
       deficiency remaining after sale under a deed of trust." fHatch. 120 P.2d at 871].
             We subsequently reaffirmed that rule in Freedland v. Greco (1955) 45
       Cal.2d 462, 466, 289 P.2d 463, expressly referring also to Code of Civil
       Procedure section 580d. When a note is secured by multiple items of security,
       "the creditor may exhaust the additional security and need not follow the
       procedure following a sale under a trust deed prescribed by section 580a of the
       Code of Civil Procedure!,] nor is he prevented from exhausting the othersecurity
       where the trust deed is a purchase money one on which no deficiency judgment
       may be given.... By analogy the same rule would apply to section 580d ...
                                            -16-
67375-1-1/17



       here involved .... [T]he pursuit of additional security is not a deficiency
       judgment       " Freedland. [289 P.2d at 466.] As one treatise summarizes the
       rule: "When the beneficiary holds two or more deeds of trust on separate parcels
       of property to secure the same debt, he can foreclose the lien on one parcel of
       real property ... and then proceed to foreclose the liens on the remaining
       parcels by non-judicial sales .... [H]owever, once the beneficiary has exercised
       the power of sale and the property has been sold, the beneficiary cannot recover
       a personal judgment against the trustoreither before or after he has enforced the
       additional security." (4 Miller &Starr, Cal. Real Estate (2d ed. 1989) Deeds of
       Trust and Mortgages, § 9:156, at 528-29).

Drevfuss. 11 P.3d at 387-88 (some alterations in original) (footnotes omitted).

       California and Washington's antideficiency statutes are similar. California's

antideficiency statute states in part:

       No judgment shall be rendered for any deficiency upon a note secured by a deed
       of trust or mortgage upon real property or an estate for years therein hereafter
       executed in any case in which the real property or estate for years therein has
       been sold by the mortgagee or trustee under power of sale contained in the
       mortgage or deed of trust.

Cal. Civ. Proc. § 580d (West). Under this provision, "a lenderthat chooses to sell
property securing a debt through private nonjudicial foreclosure cannot pursue the
borrower for any deficiency resulting from the difference between the net proceeds
received from the foreclosure sale and the total amount of the debt." Michaelson v.

Camp. 72 Cal. App. 4th 955, 85 Cal. Rptr. 2d 539 (1999). By prohibiting deficiency
judgments following nonjudicial foreclosures, the statute protects the borrower but
provides the creditor "the certainty of a 'quick, inexpensive and efficient remedy."'
Drevfuss. 11 P.3d at 390 (quoting Moeller v. Lien. 25 Cal. App. 4th 822, 30 Cal. Rptr. 2d
777, 782 (1994)). The prohibition appears to be categorical. Drevfuss. 11 P.3d at407
n.2.




                                           -17-
67375-1-1/18



       Washington's antideficiency statute also categorically prohibits a deficiency

judgment following a nonjudicial foreclosure. Like California's provision, Washington's

statute sacrifices a creditor's right to a deficiency judgment in favor of an "inexpensive

and efficient" nonjudicial foreclosure procedure. Thompson v. Smith. 58 Wn. App. 361,

365, 793 P.2d 449 (1990). Drevfuss's rationale is persuasive. We conclude that RCW

61.24.100(1)'s antideficiency provision does not restrict the creditor's ability to exhaust

multiple items of collateral in a series of nonjudicial foreclosure proceedings.

Specifically, these provisions are not implicated when a creditormerely exercises the

right to exhaust all of the real property pledged to secure an obligation. Drevfuss

rejected the argument that such "serial" nonjudicial foreclosures were the "functional
equivalent" ofa deficiency judgment. We are unpersuaded by Gardner's argument that
the trustee's sale of lot 10 was in "substance" a deficiency judgment.

       Agricultural Use

       Gardner contends that the April 2011 trustee's sale of lot 10 violated RCW

61.24.030(2), which forbids nonjudicial foreclosure of land "used principally for
agricultural purposes." Br. of Appellant 32. Gardner contends that at the time of the
trustee's sale, lot 10 was used principally for agricultural purposes. In his February

2011 cross motion for partial summary judgment, Gardner acknowledges that the loans
related to lot 10 were personal, not commercial, because lot 10 "contains Plaintiffs
primary residence, though it is also used as part of a livestock program . . .." The bank
argues that even if lot 10 were used for "some agricultural activity," no genuine issue of
material fact remains as to whether Gardner used lot 10 "principally for agricultural

purposes." Br. of Resp'ts at 18.
                                           -18-
67375-1-1/19



       RCW 61.24.030 provides:

       It shall be requisite to a trustee's sale:

             (2) That the deed of trust contains a statement that the real property
       conveyed is not used principally for agricultural purposes; provided, ifthe
       statement is false on the date the deed of trust was granted or amended to
       include that statement, and false on the date of the trustee's sale, then the deed
       of trust must be foreclosed judicially. Real property is used for agricultural
       purposes if it is used in an operation that produces crops, livestock, or aquatic
       goods.

In Schroeder v. Excelsior Management Group LLC. No. 86433-1, slip opinion at 10

(Wash. Feb. 28, 2013), the Court concluded:

              The statutory language is quite plain on its face. "It shall be requisite to a
       trustee's sale" that ifthe land is used principally for agricultural purposes on both
       the day the deed is granted or amended and the day of the trustee's sale, "the
       deed of trust must be foreclosed judicially."

(Quoting RCW 61.24.030(2).)

       Under RCW 61.24.030(2), lot 10 is used for "agricultural purposes" if it is used

principally in an operation that produces livestock, i.e., horses. In addition, this principal

use must be established as of the date the deed of trust is granted and the date of the

trustee's sale. Before the beneficiary can foreclose nonjudicially, the deed of trust act

requires the deed of trust to include in its terms that the real property is not used

principally for agricultural purposes. If the nonagricultural use statement is false as of
both the date the deed of trust was granted and the date of the trustee's sale, the

property must be foreclosed judicially.26 Thus, if the deed's nonagricultural use
statement was true on either of those two dates, nonjudicial foreclosure is allowed.


       26 Judicial foreclosure of agricultural property allows the landowner a longer
foreclosure process as well as a one-year redemption period in order to provide farmers
facing foreclosure the opportunity to harvest seasonal crops from their land. See
                                             -19-
67375-1-1/20



       Before the 1998 amendments to the deed of trust act, RCW 61.24.030(2) stated,

"It shall be requisite, to foreclosure under this chapter... (2) That the deed of trust

provides in its terms that the real property conveyed is not used principally for

agricultural or farming purposes ...." Laws of 1998, ch. 295, § 1. Under the 1998

amendments, this requirement remains except the term "farming" was dropped as

vague. The amendments now require that

       in addition to the statement that the encumbered property is not used for
       agricultural purposes, the property is not in fact so employed. To this end, the
       revised section requires that if the statement is false as of both the date the deed
       of trust was granted and the date of the trustee's sale, the property must be
       foreclosed judicially. Thus, a nonjudicial foreclosure is allowed if the statement is
       true as of either of those two dates. This prohibits the grantor from changing
       nonagricultural property to an agricultural use in an attempt to circumvent the
       beneficiary's contractual right to foreclose nonjudicially.

Fielden, supra, at 7 (last emphasis added) (Washington State Bar Association article

written in consultation with a principal drafter27 of the amendments). The major impetus
for this amendment was to prevent fraud.

       The February 2007 deed of trust contained a nonagricultural use provision that

lot 10 was "not used principally for agricultural purposes." Under the nonagricultural use

provision quoted above, the April 2011 trustee's sale of lot 10 was improper (and the

deed of trust must be foreclosed judicially) if this statement was false when Gardner

granted the deed of trust on February 27, 2007, and also when the trustee's sale of lot
10 occurred on April 1, 2010. If the statement was true on either date, then the trustee's

sale of lot 10 was proper. The bank contends that the statement was true at least as of

Fielden, supra, at 4 (legislative history relating to the 1998 amendment to RCW
61.24.050).
       27 Attorney Gordon W. Tanner, chair ofthe committee that drafted the 1998 deed
of trust act amendments.

                                           -20-
67375-1-1/21



the date of the trustee's sale. See Br. of Resp'ts at 20. To defeat summary judgment,

Gardner must "set forth specific facts which sufficiently rebut the moving party's

contentions and disclose the existence of a genuine issue as to a material fact." Meyer

v. Univ. of Wash.. 105 Wn.2d 847, 852, 719 P.2d 98 (1986). Gardner satisfies this

burden if he establishes that material fact questions exist about lot 10's nonagricultural

use on February 27, 2007, and April 1, 2010.

       Gardner contends that on both critical dates, lot 10 was used for agricultural

purposes. Even assuming genuine fact disputes over lot 10's nonagricultural use on the

trustee's sale date, Gardner demonstrates no material fact disputes involving lot 10's

use on the date he granted the February 2007 deed of trust. Gardner argues that as of

that date, "Lot 10 was used for no purpose other than pasturing horses ...." Br. of

Appellant at 33. Nothing in the record shows, as required under RCW 61.24.030(2),

that Gardner used lot 10 principally for the operation of a horse training and breeding

enterprise.

       The undisputed facts show the following: Lots 10,11, and 12 are situated within

the residential development known as "Sky River Estates" and are subject to the Sky

River Estates Home Owners Association declaration and covenants. Lot 10 was vacant

land when Garnder purchased it sometime in January 2007. Four months later, in April

2008, Gardner and Sinclair—"because of our plans to develop a horse boarding and

breeding facility [on lots 11 and 12]"—secured approval from the Snohomish County
assessor to classify lots 10, 11, and 12 for tax purposes as farm and agricultural land
under RCW 84.34.020(2). On February 27, 2007, Gardner obtained a construction loan
from the bank, secured by a construction deed of trust on lot 10, to build "the house that

                                          -21-
67375-1-1/22



I was building for my family." In the loan "Disbursement Request and Authorization"

form Gardner signed, he represented and warranted that the primary purpose of the

loan was "personal, family, or household purposes or personal investment."

(Capitalization omitted.) The form shows he requested the loan funds to be disbursed

to pay personal credit card debts and for residence construction. The residence was

completed and his family moved in around November or December 2007.28 Around the
same time, Gardner and Sinclair formed Rising Sun Arabians LLC. The horse breeding

and training facility29 on lot11 was completed in January 2008. The horse trainers
moved in during February 2008. Gardner and Sinclair used lot 12 as pasture land for
horses. After the barn's completion in January 2008, Gardner and Sinclair "began

soliciting and securing occupants for our boarding services." According to Gardner,
some months later, the horse boarding and training business had diminished

significantly:

       [In] early 2008, the housing crisis hit hard   [T]he business of real estate and
       the horse boarding was affected drastically. As the months went on more and
        more of the clients moved out of the bar, most of the clients moved their horses
       to their own homes or sold them.

He explains, "[B]ecause ofthe decline in the economy our business began to lose
boarding customers and my personal earnings began ... to decline. As a result of this
we began to have both personal and professional difficulties in making payments on our
obligations."




        28 Gardner states, "Three lots 10,11,12 were to build my house on Lot 10, the
barn would be on Lot 11 and Lot 12 just for pasture."

        29 Also referred to as "the barn" or "stable and arena facility."
                                            -22-
67375-1-1/23



       Although Gardner states, "we have had approximately 14 foals born to our

breeding stock," nothing in the record demonstrates that any foals were born on lot 10.

Our review of the competition records, Arabian Horse Association records, breeding

agreements, and miscellaneous records shows no evidence that a single horse was

bred or pastured on lot 10. We hold that Gardner failed to raise a genuine issue of fact

regarding whether, as of February 27, 2007, he was using lot 10 "principally" in "an

operation that produces crops, livestock, or aquatic goods." RCW 61.24.030(2)

(emphasis added). The overwhelming undisputed record demonstrates he used lot 10

principally as his family residence.

       Gardner's evidence of lot 10's agricultural use on the deed of trust grant date

consists of his bare statement that he used lot 10 "as part of a livestock program," and

his attorney's assertion that "immediately following acquisition and continuing until the

present day the Plaintiff began using the land for agricultural purposes, specifically as

pasture solely for horses." Gardner may not rely on conclusory statements of facts

unsupported by evidence to defeat summary judgment. Discover Bank v. Bridges. 154

Wn. App. 722, 727, 226 P.3d 191 (2010) ("Mere allegations or conclusory statements of
facts unsupported by evidence do not sufficiently establish such a genuine issue.");
Strong v. Terrell. 147 Wn. App. 376, 384, 195 P.3d 977 (2008) ("[Statements of

ultimate fact and conclusory statements of fact will not defeat a summary judgment

motion."). None of the voluminous documents he submitted on summary judgment
indicates he used lot 10 principally for agricultural purposes. Some activity on the

property does not establish that it is used "principally for agricultural purposes," as set
forth in the statute.

                                           -23-
67375-1-1/24



       The deed of trust's statement regarding nonagricultural use was true on the date

Gardner granted the deed of trust. Because the deed of trust act permits a nonjudicial

foreclosure ifthe statement regarding nonagricultural use is true on either of the

relevant dates (assuming satisfaction of other statutory prerequisites), we hold that the

April 1, 2011 trustee's sale did not violate the deed of trust act.30
       Consumer Protection Act

       Gardner argues that his CPA claims should be remanded for trial.31 Br. of
Appellant at 44. In his opening brief, Gardner alleges four unfair or deceptive acts,

including

       (1) nonjudicial foreclosure against agricultural land; (2) serial nonjudicial
       foreclosure which in effect seeks a deficiency on a personal loan; (3) the unfair
       practice of appropriating the Ellis PSA after opposing it for inadequate price;1321




       30 Given our disposition, we need notdecide whether the deed oftrust's
statement regarding agricultural use was accurate on April 1, 2011, thedate ofthe
trustee's sale.

       31 Gardner argues waiver does notapply here. But we may decide an issue on
any ground supported by the record. Soraoue v. Sumitomo Forestry Co.. 104 Wn.2d
751, 758, 709 P.2d 1200 (1985) ("It is a general rule ofappellate practice thatthe
judgment of the trial court will not be reversed when it can be sustained on any theory,
although different from that indicated in the decision of the trial judge.").
        32 On April 9, 2010, approximately a month before the May 2010 trustee's sale of
lot 12, Gardner entered into a purchase and sale agreement with Guerdon Ellis and
Tammy Knight in which they agreed to purchase lot 12 for $230,000. Gardner
rescinded the purchase and sale agreement after the bank opposed the saleduring
Gardner's bankruptcy proceeding on grounds of undervaluation. The bank later sold
lot 12to Ellis for $230,000. Gardner refers to the purchase and sale agreement as the
"Ellis PSA."


                                            -24-
67375-1-1/25



       and (4) by the Motion to Amend filed May 9, 2011, the fraudulent boundary line
       adjustment.

Br. of Appellant at 44. Under the test articulated in Hangman Ridge. Gardner must

establish five elements to make a prima facie case of a CPA violation: "(1) [an] unfair or

deceptive act or practice, (2) occurring in trade or commerce, (3) public interest impact,

(4) injury to plaintiff in his or her business or property, [and] (5) causation." Hangman

Ridge Training Stables. Inc. v. Safeco Title Ins. Co.. 105 Wn.2d 778, 780, 719 P.2d 531

(1986). Given our resolution discussed above, we need not address grounds 1 and 2.

We need also not reach Gardner's third CPA allegation because Gardner failed to

allege a CPA violation involving the Ellis purchase and sale agreement below.33 The
assignment of error is waived. RAP 2.5(a); Roberson v. Perez. 156 Wn.2d 33, 39,123
P.3d 844 (2005) (an "'appellate court may refuse to review any claim of error which was

not raised in the trial court.'") (quoting RAP 2.5(a)).

       Motion to Amend34

       Gardner argues that the trial court erred in denying his motion to add a new claim

for fraudulent boundary line adjustment. Br. of Appellant at 2 (assignment of error5).
He brought the motion on May 9, 2011, contemporaneously with his response to the
bank's motion for summaryjudgment. The court denied the motion in an oral ruling.

VRP (May 25, 2011) at 36.




       33 Based on Gardner's description of the Ellis transaction, we question whether it
meets any of the required CPA elements.
       34 As a matter of law, the trial court's grant or denial of a motion to amend does
not constitute a CPA violation.
                                            -25-
67375-1-1/26



       We review a denial of leave to amend for abuse of discretion. Wilson v. Horslev.

137 Wn.2d 500, 505, 974 P.2d 316 (1999). "The touchstone for the denial of a motion

to amend is the prejudice such an amendment would cause to the nonmoving party."

Wilson. 137 Wn.2d at 505. "Factors which may be considered in determining ...

prejudice include undue delay, unfair surprise, and jury confusion." Wilson. 137 Wn.2d

at 505-06 (citation omitted). In addition, "[a] trial court may consider whether the new

claim is futile or untimely." Ino Ino. Inc. v. Citv of Bellevue. 132 Wn.2d 103,142, 937

P.2d 154 (1997) (citations omitted).

       Here, the trial court denied Gardner's motion for leave to amend after concluding

that Gardner could not prove damages and that the motion was untimely because he

filed it together with his summary judgment response. See VRP (May 25, 2011) at 36,

38. The court stated:

       [T]here is no showing that these representations [by the bank to the Snohomish
       County Planning and Development Office] had any legal effect on anything. The
       boundary in fact was not adjusted until after the foreclosure sale occurred.
              So as a matter of law it's one of those things that it's like so what? There
       is no claim that I can perceive of any possible damages flowing from that.

              .... [The motion to amend] comes too late in the process. It doesn't
       assert any meritorious sorts of claims, at least in this court's opinion, that would
       survive either a new summary judgment motion or a CR 6 motion ....

VRP (May 25, 2011) at 36, 38. The court determined the motion was untimely and

futile. The court did not abuse its discretion.

       Attorney Fees

       Gardner argues that the court abused its discretion by awarding $47,537.23 in

attorney fees to the bank and SEL. Br. of Appellant at 2 (assignment of error 6). We



                                           -26-
67375-1-1/27



review an award of attorney fees for abuse of discretion. Bowers v. Transamerica Title

Ins. Co.. 100 Wn.2d 581, 597, 675 P.2d 193 (1983).

       Gardner contends that the bank's lead counsel, Thomas Lerner, billed at an

excessive rate. Lerner states in his fee declaration that he billed at a rate of $365 an

hour in 2010 and $375 an hour in 2011. The trial court concluded that Lerner's rates

were reasonable in light of his experience and knowledge and in light of the locality in

which he practiced.35 The court did not abuse its discretion. Gardner also contends
that Lerner billed an excessive number of hours. By way of example, he claims that

Lerner billed for time spent working on the underlying nonjudicial foreclosure. Gardner

argues that the bank should have paid Lerner for these hours using proceeds from the
trustee's sales. Gardner also argues that the 135.3 total hours billed by Lerner and his

firm were "plainly excessive," when the bank "only had to defend two preliminary
injunctions, one summary judgment, and then make their own summary judgment." Br.
ofAppellant at 47. The court concluded that, to the contrary, Lerner "tried to be as lean
as possible in terms of taking out various hours thatwere more involved in the
bankruptcy, et cetera, and so the number of hours was reasonably expended." VRP
(June 10, 2011) at 54. The courtdid not abuse its discretion.
       Attorney Fees and Costs on Appeal




       35 The trial courtstated, "It is true that in terms of Snohomish County the billable
rate that I'm familiar with is less than the 375, although I am told that there are a few
firms in Snohomish County who do bill that....
       "I'm also aware, however, that the billable rate for attorneys in Seattle, or more
appropriately, King County, has historically been higher than that of the attorneys in
Snohomish County." VRP (June 10, 2011) at 54-55.
                                           -27-
67375-1-1/28



       Gardner requests attorney fees under RAP 18.1 pursuant to a fee provision in

the "Notes and [Deeds of Trust] in issue." Br. of Appellant at 48. We deny Gardner's

fee request given our resolution discussed above. The bank also requests attorney

fees under RAP 18.1. RAP 18.1(b) requires a party to "devote a section of its opening

brief to the request for the fees or expenses." Here, the bank failed to devote a section

of its response brief to its request. Its request appears only in the response briefs

"Conclusion," and it merely states: "Ifthe Bank prevails on appeal, it is entitled to

additional attorney fees and costs under RAP 18.1." Br. of Resp'ts at 25. The bank

provides no citation to authority or any argument in support of its fee request. We deny

the bank's request for failure to comply with RAP 18.1(b). See Osborne v. Seymour.

164 Wn. App. 820, 866, 265 P.3d 917 (2011) (compliance with RAP 18.1(b) is

mandatory); Thweatt v. Hommel. 67 Wn. App. 135, 148, 843 P.2d 1058 (1992) ("RAP

18.1(b) requires more than a bald request for attorney fees on appeal.").

                                       CONCLUSION

       For the reasons discussed above, we affirm the trial court's grant of summary

judgment and its attorney fee award.




WE CONCUR:




     C&A^-

                                           -28-
