                                                                           FILED 

                                                                         March 5, 2015 

                                                                 In the Office of the Clerk of Court 

                                                                WA State Court of Appeals, Division III 





          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                             DIVISION THREE 


SUNTRUST MORTGAGE INC.,                           )
                                                  )
                        Respondent,               )
                                                  )
CHRISTIANA TRUST, A DIVISION OF )                        No. 32011-1-III
WILMINGTON SAVINGS FUND                           )
SOCIETY, FSB, AS TRUSTEE FOR                      )
STANWICH MORTGAGE LOAN                            )
TRUST, SERIES 2012-13, its successors             )
in interest and/or assigns,                       )
                                                  )
                        Plaintiff,                )
                                                  )
                v.                                )
                                                  )
STEVEN M. MILLER and LETICIA                      )
MILLER, individually and the marital              )
community comprised thereof,                      )
                                                  )
                        Appellants,               )
                                                  )
CITIBANK SOUTH DAKOTA, N.A.;                      )      UNPUBLISHED OPINION
OCCUPANTS OF THE PREMISES; and )
any persons or parties claiming to have           )
any right, title, estate, lien or interest in the )
real property described in the complaint,         )
                                                  )
                        Defendants,               )

       SIDOOWAY, C.J. -      Steven and Leticia Miller appeal the trial court's summary
No. 32011-1-111
Christiana Trust v. Miller


judgment dismissal of counterclaims they asserted in response to this mortgage

foreclosure action initiated against them by SunTrust Mortgage, Inc. l The Millers'

counterclaims alleged violations ofthe federal Fair Debt Collection Practices Act,

(FDCPA) 15 U.S.C. § 1692, and Washington's Consumer Protection Act, chapter 19.86

R.C.W. (CPA), as well as defamation of character and intentional infliction of emotional

distress. The Millers contend that SunTrust failed to honor an alleged obligation to

permanently modify their mortgage loan and reduce their monthly payments to an

estimate it provided in August 2009. They argue that the existence of a genuinely

disputed contract right to that loan modification creates issues of fact for their four

counterclaims.

          The federal program under which the Millers sought a modification requires that a

borrower be qualified for the modification that he or she seeks. That requirement was

made clear in SunTrust's communications to the Millers. Because the Millers presented

literally no evidence that they qualified for loan terms different from those that SunTrust

offered and that the Millers refused, the trial court properly granted the motion. We

affirm.




        While the litigation was pending, SunTrust sold its interest in the loan; the new
          I
owner, Christiana Trust, as trustee for Stanwich Mortgage Loan Trust, Series 2012-13,
was substituted as plaintiff; and SunTrust was realigned as a third party defendant.

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No. 32011-1-111
Christiana Trust v. Miller


                    FACTS AND PROCEDURAL BACKGROUND

       In October 2008, Steven and Leticia Miller found themselves faced with sizable

cost overruns and defective work by a contractor they had hired to build a home on their

property located at 13210 South Campbell Road in Rockford. In order to satisfy earlier-

incurred costs and complete construction, they borrowed $417,000 from the Bank of

Whitman, secured by a deed of trust on the property. SunTrust Mortgage Inc. began

servicing the loan in November 2008.

      The Millers' initial monthly payments under the note were $2,400.49; with the

addition of taxes and insurance required to be paid and held in escrow, their total monthly

payment was nearly $3,000. Mr. Miller claims to have had monthly take home pay of

only $3,800, so this presented what he would later characterize as "an immediate

impossible situation." Clerk's Papers (CP) at 252.

       In February 2009, the Secretary of the United States Treasury announced a

national loan modification program-the Home Affordable Modification Program, or

"HAMP"-funded and authorized by the Troubled Asset Relief Program (TARP) created

by the Emergency Economic Stabilization Act of2008. 2 Under the HAMP, home

mortgage loan servicers would be compensated by the Treasury for providing

homeowners that were at risk of default with sustainable monthly payments. See U.S.


      2 Emergency Economic Stabilization Act of2008, Pub. L. No. 110-343, 122 Stat.
3765 (codified as 12 U.S.C. §§ 5201-5261).

                                            3

No. 32011-1-III
Christiana Trust v. Miller


Dep'ts of Treasury & Hous. & Urban Dev., HAMP Suppl. Directive (SD) 09-01, at 1

(Apr. 6, 2009).3 Mr. Miller heard about the HAMP, contacted SunTrust, and began

working with SunTrust representatives on an application for modification in the spring of

2009.

        Under the HAMP's uniform loan modification process, once a mortgage servicer

obtains preliminary hardship and income information from a borrower, it may offer a

Trial Period Plan (TPP). A TPP identifies a reduced total monthly payment that is the

servicer's estimate of the payment to be required under the projected permanent

modification agreement. If the borrower accepts the TPP, it must make the estimated

monthly payment for three successive months. During that trial period, the servicer is

required to further review supporting documentation and confirm the borrower's

eligibility. If eligibility is confirmed and the borrower has made the three required TPP

payments, the servicer will provide the borrower with a loan modification agreement that

sets forth terms of a permanent modification.

        Events occurring during the review process can result in no permanent

modification being offered or being offered on different payment terms. Among the

information the servicer is required to obtain and review to confirm a borrower's



        3 Available at
https:llwww.hmpadmin.com/portal/programs/docs/hamp_ servicerlsd090 l.pdf (last
visited Feb. 27, 2015).

                                             4

No. 32011-1-III
Christiana Trust v. Miller


representations and eligibility are tax returns, the most recent paystubs of an employed

borrower, and a credit report, in order to validate installment debt and other liens. SD 09­

01 at 7, 10. If the initial information or documents provided by a borrower prove to be

incorrect following the offer of the TPP, then the borrower might turn out to be ineligible

or the total monthly payment required under the permanent modification might change

from the initial estimate provided by the TPP.

         In addition, the net present value (NPV) of the permanent modification must be

calculated using a standardized test dictated by the Treasury Department. A lender is not

required to offer any permanent modification whose NPV is not equal to or greater than

the NPV of the existing loan. See SD 09-01 at 4-5.

         In late July 2009, SunTrust sent the Millers a written offer of a TPP that would

lower their monthly payments to an estimated $2,113.31. The Millers accepted by

executing the TPP and made the first payment of the new estimated monthly liability on

August 1. While $2,113.31 was some $800 a month less than their existing payments,

the Millers believed it was still too high a payment to be sustainable, so Mr. Miller

contacted SunTrust and requested a plan under which their payment would be even

lower.

         In response to the Millers' request for a lower monthly payment, SunTrust sent the

Millers a written offer of a second TPP in August 2009 that would lower their monthly

payments to an estimated $1,311.87. The Millers accepted by executing this second TPP

                                              5

No. 3201 I-I-III
Christiana Trust v. Miller


on August 24, and they thereafter made the first and second payments of the new

estimated monthly liability on or about September 1 and October 1.

       On or about October 20, SunTrust sent the Millers a home affordable modification

agreement, reflecting the terms on which it was willing to make a permanent

modification of their loan. This permanent modification agreement provided for an

initial interest rate of 3.625 percent and a new 30-year term ending in 2039. It provided

for an initial total monthly payment of$2,084.85, consisting of$I,927.18 in principal and

interest and $157.67 as payment to be escrowed to cover tax and insurance. The letter

accompanying the agreement stated that in order to accept the offered modification, the

Millers must sign and return the agreement by October 27.

       On October 22 Mr. Miller called SunTrust to ask why the permanent modification

payment was higher than the estimated payment under the second TPP. According to Mr.

Miller, a Sun Trust representative informed him that the second TPP had been offered to

the Millers by "mistake." CP at 255. Mr. Miller would later be told by representatives of

SunTrust that the estimated payment of $1,311.87 was "based on a verbal." CP at 258.

The Millers did not execute and return the permanent modification agreement. Instead,

they continued making monthly payments in the amount of $1,311.87 and Mr. Miller

continued to correspond and speak with SunTrust representatives and later,

representatives of the Federal Home Loan Mortgage Corporation (Freddie Mac), in an

effort to obtain a more affordable modification.

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No. 32011-I-III
Christiana Trust v. Miller


       Eight months later, in a letter dated June 30, 2010, SunTrust notified the Millers

that

       After thoroughly reviewing your financial information and request for
       payment assistance, we are writing to advise you that SunTrust Mortgage,
       Inc. is unable to assist you with a loss mitigation workout option at this
       time. Should your financIal cIrcumstances change in the future, or if you
       decIde to sell your property, please immediately contact our Loss
       Mitigation Department to discuss new opportunities.

CP at 215. The letter provided contact information for SunTrust's Loss Mitigation

Department; the HOPE NOW Alliance, which offers HUD4-approved counseling; and a

HUD-approved credit counselor location service. It concluded by stating that "all

collection activity, including foreclosure proceedings, will continue." Id.

       Mr. Miller then wrote to the office of the president of SunTrust Mortgage, among

others, to complain. SunTrust responded with a letter that explained that the Millers had

been approved for a loan modification in October 2009, but since the permanent

modification was declined, their loan was removed from loss mitigation and the denial

letter was sent.

       In the meantime, Mr. Miller had received a call at work from Maxine McCluen of

Sun Trust, who told him she was his "last hope before foreclosure" and encouraged him to

re-apply for a modification. CP at 257. Between then and November 22, Ms. McCluen

followed up several times, encouraging Mr. Miller to provide the information needed for


       4 Department of Housing and Urban Development.

                                             7

No. 32011-1-111
Christiana Trust v. Miller


her to process an application. On November 22,2010, after two aborted offers,5 Ms.

McCluen sent the Millers another proposed permanent modification agreement that

required immediate execution and return, along with a check for $2,341.78. She called

and spoke with Mr. Miller about it on November 23.

       Rather than sign the November agreement, the Millers retained an attorney who

wrote to SunTrust and asserted that the servicer was bound by a valid agreement

requiring payments of only $1,311.87. SunTrust thereafter served a notice of default and

proceeded with this judicial foreclosure action, which it filed in September 2012.

       The Millers filed an answer and counterclaims and amended them shortly

thereafter. As amended, the Millers' counterclaims alleged violations of the FDCPA,

violations of the CPA, defamation, and intentional infliction of emotional distress.

       In July 2013, SunTrust moved for summary judgment on all of the Millers'

counterclaims. The trial court concluded that the success of the counterclaims depended

on the Millers' allegation that the second TPP offered in August gave rise to a contract

that was breached-and that no contract was breached. It granted the motion. The

Millers moved for reconsideration, which was denied. The Millers appeal.

                                       ANALYSIS

       SunTrust argues that we need not reach the issue of whether the second TPP


       5 Three offers were sent to the Millers in November, the first two of which
described a property in Delaware. SunTrust confirmed that they were in error.

                                             8

No. 3201 I-I-III
Christiana Trust v. Miller


signed by the Millers created a contract because the Millers' claims for relief fail on

additional and independent grounds that it raised below. While we conclude that

SunTrust's arguments are well-taken, the Millers' briefing strenuously insists that they

demonstrated a genuine issue of material fact as to a contract right. We choose to address

the contract issue first. We then briefly address SunTrust's additional bases for

dismissal.

                   1. Contract rights arising under the HAMP procedures

       The Millers argue that the TPP they signed in August 2009 resulted in a contract-

implicitly, they argue that this second TPP resulted in a contract requiring that SunTrust

offer them a permanent loan modification requiring total monthly payments of $1 ,311.87

a month. A number of cases support the Millers' position that the second TPP resulted in

a contract. But they have not identified any authority that supports their position that the

August TPP resulted in a contract requiring SunTrust to offer a permanent modification

requiring payments of only $1,311.87 a month. Neither the language of the TPP nor the

operation of the RAMP supports the Millers' position.

       In a leading case addressing the obligations arising under TPPs offered under the

RAMP, the Seventh Circuit Court of Appeals surveyed dozens of federal cases in which

mortgagors had brought HAMP-re1ated claims. Wigod v. Wells Fargo Bank, NA., 673

F.3d 547, 559 & nA (7th Cir. 2012). While the court noted that a number of courts had

dismissed even contract-based claims, it concluded that a contract theory was a viable

                                             9

No. 32011-1-111
Christiana Trust v. Miller


basis for a cause of action based on a TPP.

         The Treasury Department "strongly encourage[ s]" loan servicers to use plans,

agreements, and correspondence prepared by the Treasury and requires approval of most

variations, so provisions of the TPP used by Wells Fargo in Wigod are virtually identical

to provisions of the TPP that SunTrust sent to the Millers. 6 SD 09-01 at 15. The Wigod

court found that provisions of the TPP promised to offer a borrower a permanent loan if

two conditions were satisfied: that "(1) [the borrower] complied with the terms of the

TPP by making timely payments and disclosures; and (2) [the borrower's] representations

remained true and accurate." Wigod, 673 FJd at 560. Equivalent provisions appear in

the first full paragraph of the August TPP offered by SunTrust and in its paragraph 3, and

state:

         If! am in compliance with this Trial Period Plan (the "Plan") and my
         representations in Section 1 continue to be true in all material respects, then
         the Lender will provide me with a Home Affordable Modification
         Agreement ("Modification Agreement"), as set forth in Section 3, that
         would amend and supplement (1) the Mortgage on the Property, and (2) the
         Note secured by the Mortgage.


         If I comply with the requirements in Section 2 and my representations in
         Section 1 continue to be true in all material respects, the Lender will send
         me a Modification Agreement for my signature which will modify my Loan


         The Treasury-prepared forms are available at www.financialstability.gov. With
         6
limited exceptions, servicers choosing to revise the HAMP documents or draft their own
documents are required to obtain prior written approval from the Treasury or from the
Federal National Mortgage Association (Fannie Mae). SD 09-01 at 15.


                                               10 

No. 32011-1-111
Christiana Trust v. Miller


       Documents as necessary to reflect this new payment amount and waive any
       unpaid late charges accrued to date.

CP at 187, 189.

       The Seventh Circuit recognized, however, that the TPP "allowed the lender to

determine the precise contours of the permanent modification at a later date." Wigod,

673 F.3d at 564. The August TPP offered by SunTrust likewise provided that "[t]he Trial

Period Payment is an estimate of the payment that will be required under the modified

loan terms, which will be finalized in accordance with Section 3." CP at 188. This

uncertainty was not fatal to the existence of a contract, Wigod reasoned, because the

HAMP guidelines provided an existing standard by which the ultimate terms of

permanent modification would be set. It pointed out that "[i]n its program directives, the

Department of the Treasury set forth the exact mechanisms for determining borrower

eligibility and for calculating modification terms-namely, the waterfall method and the

NPV [net present value] test." Wigod, 673 F.3d at 565. "Although the trial terms were

just an 'estimate' of the permanent modification terms, the TPP fairly implied that any

deviation from them in the permanent offer would also be based on Wells Fargo's

application of the established HAMP criteria and formulas." Id.

       Corvello v. Wells Fargo Bank, NA., 728 F.3d 878, 883 (9th Cir. 2013), on which

the Millers rely, accepted the reasoning of Wigod as "sound." It held that "[u]nder

Paragraph 20 of the TPP, there could be no actual mortgage modification until all the


                                            11 

No. 32011-1-111
Christiana Trust v. Miller


requirements were met, but the servicer could not unilaterally and without justification

refuse to send the offer." Id. 7 In Young v. Wells Fargo Bank, NA., 717 F.3d 224,232-33

(Ist Cir. 2013), the First Circuit Court of Appeals explicitly held that a loan servicer did

not breach a contract created by the TPP by offering a permanent loan modification that

required higher monthly payments than those required during the trial period.

       In moving for summary judgment, SunTrust presented evidence that it had sent the

Millers a proposed permanent modification agreement on October 20,2009, specifying a

monthly payment of$2,084.85, which required acceptance by October 27. The

permanent modification agreement would have provided the Millers with a $900

reduction, approximately, from their existing monthly payment. SunTrust presented

evidence that later, in November 2010, it offered the Millers yet another modification

agreement. It presented evidence that neither offer of a loan modification was ever

accepted by the Millers.

       Summary judgment is appropriate when the moving party shows there is "no



       7   Paragraph 2G of SunTrust's August TPP stated in part:

       I understand that the Plan is not a modification of the Loan Documents and
       that the Loan Documents will not be modified unless and until (I) I meet all
       of the conditions required for modification, (II) I receive a fully executed
       copy of a Modification Agreement, and (III) the Modification Effective
       Date has passed.

CP at 189.

                                             12
No. 32011-1-111
Christiana Trust v. Miller


genuine issue as to any material fact and that the moving party is entitled to a judgment

as a matter oflaw." CR 56(c). A defendant may move for summary judgment on the

ground that the plaintiff lacks competent evidence to support its claim. Young v. Key

Pharm., Inc., 112 Wn.2d 216,225,770 P.2d 182 (1989) (quoting Celotex Corp. v.

Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). After a party moving

for summary judgment submits adequate affidavits, the nonmoving party must set forth

specific facts rebutting the moving party's contentions and disclosing that a genuine issue

of material fact exists. Seven Gables Corp. v. MGMlUA Entm 't Co., 106 Wn.2d 1, 12-13,

721 P.2d 1 (1986).

       In the case of a motion for summary judgment asking the court to dismiss a breach

of contract claim, it is the burden of the nonmoving party to present specific evidence of

a breach in order to be entitled to go to trial on the claim. Hartford Ins. Co. v. Ohio Cas.

Ins. Co., 145 Wn. App. 765, 780, 189 P.3d 195 (2008). The evidence presented must be

"specific, detailed, and disputed facts; speculation, argumentative assertions, opinions,

and conclusory statements will not suffice." Sanders v. Woods, 121 Wn. App. 593,600,

89 P.3d 312 (2004).

       The reviewing court "engages in the same inquiry as the trial court when

reviewing an order for summary judgment." Folsom v. Burger King, 135 Wn.2d 658,

663,958 P.2d 301 (1998). All facts and inferences will be construed in the light most

favorable to the nonmoving party. Jones v. Allstate Ins. Co., 146 Wn.2d 291,300,45

                                             13 

No. 32011-1-111
Christiana Trust v. Miller


P.3d 1068 (2002).

       Once SunTrust showed that it had offered permanent modification agreements

reducing the Millers' monthly payments, it was incumbent upon the Millers to set forth

and support specific facts rebutting SunTrust's position that the permanent modification

terms it proposed were determined as required by the TPP and the HAMP. Instead, the

Millers merely speculated that the terms reflected in the October 2009 and November

2010 offers of permanent modification were noncompliant.

      The Millers could have obtained SunTrust's analysis oftheir loan through

discovery, since HAMP servicers are subject to document retention requirements:

      Servicers must retain all documents and information received during the
      process of determining borrower eligibility, including borrower income
      verification, total monthly mortgage payment and total monthly gross debt
      payment calculations ... (assumptions, inputs and outputs), evidence of
      each step of the standard waterfall, escrow analysis, escrow advances, and
      escrow set-up ....

      Servicers must retain detailed records of borrower solicitations or
      borrower-initiated inquiries regarding the HAMP, the outcome ofthe
      evaluation for modification under the HAMP and specific justification with
      supporting details if the request for modification ... was denied.

SD 09-01 at 13-14. Yet the Millers presented no evidence obtained from SunTrust

revealing that SunTrust's analysis was flawed or supported a lower permanent monthly

payment.

      Alternatively, the Millers could have engaged a qualified expert, familiar with the

HAMP modification process, to review true and complete information about the Millers'

                                           14 

No. 32011-1-111
Christiana Trust v. Miller


finances and circumstances in order to express an opinion whether SunTrust had arrived

at erroneous permanent modification terms. An affidavit from such an expert

demonstrating that the payment terms offered by SunTrust were not the terms that should

have been arrived at after applying the Treasury-dictated methods would have presented a

genuine issue of material fact as to the existence of a contract breach.

       The Millers did neither.

       The Millers also argued that the October 2009 offer of a permanent modification

agreement breached the August TPP because the modification agreement was sent before

the date of the last (November 2009) payment required by the August TPP. Yet the

Treasury's directives "encourage[d]" loan servicers to "wait to send the Agreement to the

borrower for execution until after receipt of the second to the last payment under the trial

period." SD 09-01 at 15 (emphasis added).

       Given the language in the TPP that the trial period payment was an estimate, that a

permanent modification would be offered only to eligible borrowers, and the implicit fact

that final terms ofa modification would depend on SunTrust's verification of information

and its calculations under the HAMP program, the Millers' evidence that the August TPP

reflected an estimated payment different from the payment required under the permanent

modifications offered is no evidence of breach of contract. Given the Millers' failure to

present evidence that the permanent terms offered were not the terms for which the

Millers were eligible, the trial court properly granted summary judgment.

                                             15
No. 32011-1-III
Christiana Trust v. Miller


                             II. Other grounds supporting dismissal

       Additional grounds for dismissing the Millers' claims were argued by SunTrust

below and are independently sufficient to support the dismissal. In reviewing a trial

court's order, an appellate court may consider any argument raised and argued at the trial

court, even if the trial court did not consider the argument in reaching its conclusion. See

Alton V. Phillips Co. v. State, 65 Wn.2d 199,202,396 P.2d 537 (1964).

       FDCPA claim. SunTrust argues that it cannot be held liable under the FDCPA

because it is not a debt collector. The FDCPA defines a "debt collector" as any person

"who regularly collects or attempts to collect, directly or indirectly, debts owed or due or

asserted to be owed or due another." 15 U.S.C. § 1692a(6). The term does not include

any person who collects a debt owed or due another to the extent such activity "concerns

a debt which was originated by such person," or "concerns a debt which was not in

default at the time it was obtained by such person." 15 U.S.C. § 1692a(6)(F)(ii), (iii).

       A number of courts have held that the FDCPA's definition of debt collector "does

not include the consumer's creditors, a mortgage servicing company, or an assignee of a

debt, as long as the debt was not in default at the time it was assigned." Perry v. Stewart

Title Co., 756 F.2d 1197, 1208 (5th Cir. 1985); see also Roth v. CitiMortgage Inc., 756

F3d 178, 183 (2d Cir. 2014). The Ninth Circuit has agreed in an unpublished opinion.

Diessner v. Mortg. Elec. Registration Sys., 618 F. Supp. 2d 1184, 1188 (D. Ariz. 2009),

ajJ'd, 384 F. App'x 609 (9th Cir. 2010) (unpublished). Washington cases are in accord.

                                             16 

No. 32011-1-111
Christiana Trust v. Miller


Walker v. Quality Loan Servo Corp., 176 Wn. App. 294, 315, 308 PJd 716 (2013)

(mortgage servicer companies and others who service outstanding debts for others are not

debt collectors so long as the debts were not in default when acquired for servicing).

       SunTrust began servicing the Millers' home loan on or about November 24, 2008,

and the Millers made full payments through July 2009. Accordingly, no claim under the

FDCPA could be asserted against SunTrust.

       Defamation. The Millers' amended answer and counterclaims alleged that

SunTrust "has defamed [the Millers'] name and credit through its credit recovery

actions." CP at 103. In order to succeed on a claim of defamation, a party must prove (1)

falsity, (2) an unprivileged communication, (3) fault, and (4) damages. Markv. Seattle

Times, 96 Wn.2d 473,486,635 P.2d 1081 (1981). Available defenses include truth and

privilege. Id. at 482.

       The Millers' defamation counterclaim does not specifically identify the date,

speaker, or the content of any communication alleged to be false. The only evidence of

defamation they offered in opposition to SunTrust's motion to dismiss the defamation

claim was included in an unsworn narrative by Mr. Miller, which states in relevant part,

"On September 4,2012, SunTrust filed a lawsuit against us in which it attacked my

character by publicly stating that lowed thousands of dollars to CitiBank and Garco




                                            17 

No. 32011-1-111
Christiana Trust v. Miller


Construction from previous judgments against me."g CP at 268.

       "Allegedly libelous statements, spoken or written by a party or counsel in the

course of a judicial proceeding, are absolutely privileged if they are pertinent or material

to the redress or relief sought, whether or not the statements are legally sufficient to

obtain that relief. The defense of absolute privilege or immunity avoids all liability ."

McNeal v. Allen, 95 Wn.2d 265, 267,621 P.2d 1285 (1980) (citation omitted) (citing

Gold Seal Chinchillas, Inc. v. State, 69 Wn.2d 828, 420 P.2d 698 (1966)). The Millers

failed to present specific evidence of any potentially actionable defamatory statements.

       Outrage. In order to succeed on a claim for the tort of outrage (intentional

infliction of emotional distress), a party is required to prove (1) extreme and outrageous

conduct, (2) the intentional infliction of emotional distress, and (3) the resulting

emotional distress is severe. Kloepfel v. Bokor, 149 Wn.2d 192, 194-95 & n.l, 66 P.3d

630 (2003). The conduct must be '" so outrageous in character, and so extreme in

degree, as to go beyond all possible bounds ofdecency, and to be regarded as atrocious,

and utterly intolerable in a civilized community.'" Dicomes v. State, 113 Wn.2d 612,

630, 782 P.2d 1002 (1989) (quoting Grimsby v. Samson, 85 Wn.2d 52,59,530 P.2d 291

(1975)). As a matter oflaw, the Millers did not allege extreme and outrageous conduct.

       CPA claim. RCW 19.86.020 makes unlawful "[u]nfair methods of competition


      g SunTrust objected to the admission ofthe unsworn narrative in both its reply to
the Millers' response to its motion for summary judgment, as well as at the hearing.

                                              18 

No. 3201 I-I-III
Christiana Trust v. Miller


and unfair or deceptive acts or practices in the conduct of any trade or commerce." In

order to succeed on a CPA claim, a plaintiff must establish (I) an unfair or deceptive act,

(2) in trade or commerce, (3) which affects the public interest, (4) injury to plaintiffin his

or her business or property, and (5) a causal link between the unfair or deceptive act

complained of and the injury suffered. Hangman Ridge Training Stables, Inc. v. Safeco

Title Ins. Co., 105 Wn.2d 778, 784-85, 719 P.2d 531 (1986). A CPA claim should be

dismissed if anyone of these elements is not established. Sorrel v. Eagle Healthcare,

110 Wn. App. 290, 298, 38 P.3d 1024 (2002). As additional grounds for dismissing the

CPA claim, SunTrust argues that the Millers can present no evidence that would support

the third, fourth, and fifth elements ofthe claim. We address only the public interest

element.

       In Hangman Ridge, the court announced factors to be considered when

determining whether the public has an interest in a certain transaction. If the transaction

is essentially a consumer transaction the court should consider: "(1) Were the alleged acts

committed in the course of defendant's business? (2) Are the acts part of a pattern or

generalized course of conduct? (3) Were repeated acts committed prior to the act

involving plaintiff? (4) Is there a real and substantial potential for repetition of

defendant's conduct after the act involving plaintiff? (5) If the act complained of

involved a single transaction, were many consumers affected or likely to be affected by

it?" Hangman Ridge, 105 Wn.2d at 790.

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No. 3201 I-I-III
Christiana Trust v. Miller


       In opposing summary judgment, the Millers argued that "the public interest arises

out of SunTrust providing false 1099s to the IRS, lying to the Millers about the

modification process, misrepresenting the owner of the loan and not being honest with

the investigation into how they handled the loan. . .. [T]he public has a specific interest

in having mortgage companies and their servicers be truthful with its clients." CP at

248. But the Millers did not direct the court to the existence of any evidence in support

of these alleged acts, let alone to any pattern, repetition or potential for repetition. Again,

to avoid summary judgment, a nonmoving party must "set forth specific, detailed, and

disputed facts." Sanders, 121 Wn. App. at 600. The Millers' opposition was insufficient.

       III. Promissory estoppel; covenant ofgoodfaith andfair dealing; attorney fees

       The Millers did not plead, as counterclaims, breach of contract, breach of the

covenant of good faith and fair dealing, or promissory estoppel. Acknowledging that

these claims were not pleaded, they seek leave from this court to amend their complaint

to add claims of promissory estoppel and breach of the covenant of good faith. No such

relief is available under the rules on appeal. And cf CR 13(a) (certain counterclaims are

compulsory).

       The Millers' brief also requests "all reasonable attorney fees and costs as provided

by under the law," Brief of Appellant at 15, but without complying with RAP 18.1 or

identifYing any basis for a fee award. The request is denied.

       Affirmed.

                                              20
No. 32011-1-111
Christiana Trust v. Miller


       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.



                                                                               o
WE CONCUR: 





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