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                                       2013 JUL 29 AM 9=27




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DEBORAH RODRIGUEZ,
individually,                                    DIVISION ONE


                   Appellant,                    No. 65945-6-




AMERICA ONE FINANCE, INC., a                     UNPUBLISHED OPINION
Washington State Corporation; ALEA
NORTH AMERICA SPECIALTY
INSURANCE COMPANY, BOND
#SUR168122, a Delaware Corporation;
STEWART CAMPBELL and JANE DOE
CAMPBELL, husband and wife and the
marital community composed thereof;
CHICAGO TITLE COMPANY OF
WASHINGTON, a Washington State
Corporation; CLAIRE M. BLODGETTE
and JOHN DOE BLODGETTE,
husband and wife and the marital
community composed thereof,
                                                 FILED: July 29, 2013
                    Respondents.


      Dwyer, J.—Deborah Rodriguez alleged that Stewart Campbell, an

independent contractor for America One Finance, violated the Mortgage Broker

Practices Act, chapter 19.146 RCW (MBPA), by defrauding her of the equity in

her home. In its motion for summary judgment, America One claimed that

Campbell had not acted within the scope of his independent contractor

agreement, butdid not dispute that there were factual issues as to whether it had
No. 65945-6-1/2



assumed responsibility for Campbell's actions under the provisions of the MBPA.

Because America One failed to satisfy its initial burden of demonstrating the

absence of genuine factual issues, the trial court erred in dismissing Rodriguez's

claims against America One on summary judgment. We therefore reverse and

remand for further proceedings.

                                         I


       In 2005, Rodriguez fell behind on the mortgage payments for her Seattle
home. Hoping to refinance her loan at a favorable interest rate, Rodriguez
contacted Stewart Campbell, a member of her church. Rodriguez believed that
Campbell was in the "mortgage business" and had helped other church members
refinance their homes. At the time, Campbell was an independent loan

representative for America One, Inc., a licensed mortgage broker.
       At Campbell's request, Rodriguez filled out a loan application. After
reviewing the application, Campbell told her that he was unable to obtain a loan
because of her poor credit score. He advised her, however, that

       he had a system whereby Icould transfer my home to a third party,
       and that in this transaction I would receive enough money from the
       equity in my home to pay some past debts, make some home
       improvements and pay the mortgage payments for six months.
       As part of the plan, Campbell arranged a loan for Claire Blodgette to
 purchase Rodriguez's home. According to Campbell, Blodgette "would use her
 credit" and hold the property "in trust" for Rodriguez's benefit. Meanwhile,
No. 65945-6-1/3



Rodriguez would continue to live in the home for six months and make the

monthly payments. At the end of six months, Campbell promised, "the property

would be transferred back to me by Blodgette, and I would proceed to obtain a

refinance loan at a lower interest rate." The sale closed on July 19, 2005.

      Based on Campbell's representations, Rodriguez believed that the sale

price of$248,000 would provide her with proceeds ofabout $30,000. Contrary to
Campbell's promises, Rodriguez claims that she lost all equity in her home as a
result of the transaction, apparently as a result of unanticipated fees and costs.
At closing, Blodgette received $5,000 "for the use of her credit." Rodriguez also
executed a promissory note for $21,000 in favor of SDCORP1, LLC, Campbell's
independent business.

       All of the details of the transaction were disclosed in the documents that

Rodriguez signed at closing. She acknowledges that she "did not really read any
documents in this matter, but instead relied on the representations and

assurances of Mr. Campbell, who was very convincing."
       In December 2006, Rodriguez filed this lawsuit against Campbell, Claire
Blodgette, America One, Chicago Title Company, and North American Specialty
Insurance Company, which furnished America One's surety bond pursuant to the
Washington MBPA. Rodriguez alleged that the defendants had fraudulently
deprived her of the equity in her home and raised claims including fraud, violation
of the Consumer Protection Act, and infliction of emotional distress.
No. 65945-6-1/4



      Campbell never responded to the complaint, and the trial court entered a

default judgment against him. The trial court dismissed all claims against all of

the other defendants. On appeal, Rodriguez challenges only the trial court's

June 13, 2008 order dismissing her claims against America One on summary

judgment. America One has not filed a respondent's brief.1

                                              II


       An appellate court reviews summary judgment orders de novo, "standing]

in the same position as the trial court." Greenhalqh v. Dep't of Corr.. 160 Wn.

App. 706, 713-14, 248 P.3d 150 (2011). We consider the materials before the

trial court and construe the facts and inferences in the light most favorable to the

nonmoving party. Hubbard v. Spokane County, 146 Wn.2d 699, 706-07, 50 P.3d

602 (2002). Summary judgment is proper only if there is no genuine issue of

material fact. CR 56(c); Hubbard, 146 Wn.2d at 707.

       The moving party bears the initial burden of showing the absence of an

issue of material fact. Young v. Key Pharm.. Inc.. 112 Wn.2d 216, 225, 770 P.2d

182 (1989). Only after the moving party meets its burden of demonstrating that it



      1In her notice of appeal, Rodriguez designated the trial court's May 28, 2008 order
striking portions of her supporting declaration containing legal conclusions or
inadmissible opinions. Rodriguez has not challenged or even mentioned the ruling in
her appellate brief. Accordingly, she has waived the issue. See State v. Sims, 171
Wn.2d 436, 441, 256 P.3d 285 (2011). We also note that Rodriguez's briefcontains
significant violations of the Rules ofAppellate Procedure. The brief has no assignments
of error, RAP 10.3(4), and the statement of facts and argument are not supported by any
references to the record. RAP 10.3(5), (6).
No. 65945-6-1/5



is entitled to judgment as a matter of law does the burden shift to the nonmoving

party to set forth facts establishing a material issue for trial. See Graves v. P.J.

Taggares Co.. 94 Wn.2d 298, 302, 616 P.2d 1223 (1980). If the moving party

does not sustain its initial burden, "summary judgment should not be granted,

regardless of whether the nonmoving party has submitted affidavits or other

evidence in opposition to the motion." Hash v. Children's Orthopedic Hosp., 110

Wn.2d 912, 915, 757 P.2d 507 (1988).

       In its motion for summary judgment, America One asserted that Campbell

was an independent contractor whose authority to act on America One's behalf

was limited by the terms of an Independent Loan Representative Commissions

Agreement (Independent Contractor Agreement) that America One and

Campbell executed in 2003. Campbell signed the agreement on behalf of

SDCORP1, LLC, and "agreefd] to act as an independent agent for the purpose of

originating real estate loans for America One Finance, Inc."

       America One maintained that because it acted only as the mortgage

broker for the buyer, Claire Blodgette, Campbell's alleged fraudulent

representations to Rodriguez persuading her to sell her house necessarily fell
outside of the scope of his authority to originate loans. See King v. Riveland, 125
Wn.2d 500, 507, 886 P.2d 160 (1994) (generally, agent acts within the scope of

authority if the agent is engaged in the furtherance of the principal's interests).
America One further claimed that there was no admissible evidence supporting


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No. 65945-6-1/6



Rodriguez's beliefthat Campbell was acting as America One's agent. See State

v. French, 88 Wn. App. 586, 595, 945 P.2d 752 (1997) (agent's apparent

authority to bind principal depends on objective manifestations of the principal to

a third person and cannot be inferred from acts of the agent). Based on

Campbell's purported limited authority to act only as a loan originator

independent contractor, America One argued that it was not vicariously liable for
his equity-skimming scheme as a matter of law.

       America One failed, however, to refute or even address Rodriguez's

contention that America One was vicariously liable for Campbell's conduct under

provisions of the Washington MBPA. RCW 19.146.0201 declares that it is a
violation of the MBPA for a licensed loan originator or mortgage broker, "in

connection with a residential mortgage loan," to

              (1) Directly or indirectly employ any scheme, device, or
       artifice to defraud or mislead borrowers or lenders or to defraud any
       person;
              (2) Engage in any unfair or deceptive practice toward any
       person.

Violation ofthe MBPA is a per se violation of the Consumer Protection Act,
chapter 19.86 RCW (CPA). See RCW 19.146.100 (any violation of the MBPA
constitutes "an unfair or deceptive act or practice and unfair method of
competition in the conduct of trade or commerce" for purposes of the CPA); State
v. WWJ Corp., 138 Wn.2d 595, 598, 980 P.2d 1257 (1999).



                                             -6-
No. 65945-6-1/7



      America One also failed to address the Mortgage Broker License

Independent Contractor Agreement (Mortgage BrokerAgreement) that the

parties executed at the same time as the Independent Contractor Agreement.

The Mortgage Broker Agreement expressly referenced former RCW 19.146.200
(2007), in effect at the time Rodriguez sold her house, which provided that a

person who independently contracts with a licensed mortgage broker

       need not be licensed if the licensed mortgage broker and the
       independent contractor have on file with the director a binding
       written agreement under which the licensed mortgage broker
       assumes responsibility for the independent contractor's violations of
       any provision ofthis chapter or rules adopted under this chapter.
Under the terms of the Mortgage Broker Agreement, America One accepted
"responsibility, without limitation, for any and all violations of the [Mortgage
Broker Practices Act] committed by the Independent Contractor named herein."
Because it expressly accepted responsibility for Campbell's violations of the
MBPA, America One's reliance on the alleged limited scope of authority set forth
in the Independent Contractor Agreement was misplaced.
       America One did not dispute that Rodriguez had raised factual issues as
to whether Campbell's conduct occurred "in connection with a residential
mortgage loan" and whether it constituted a scheme to "defraud any person" or a
"deceptive practice toward any person," thereby violating the MBPA. Nor did
America One dispute that any violations created a factual issue as to whether
 Rodriguez could recover for a per se CPA violation. See Keyes v. Bollinger, 31

                                              -7-
No. 65945-6-1/8



Wn. App. 286, 290, 640 P.2d 1077 (1982) (to establish claim for per se CPA

violation, plaintiff must show (1) the existence of a pertinent statute; (2) its

violation; (3) that such violation was the proximate cause of damages sustained;

and (4) that they were within the class of people the statute sought to protect).
         "It is the responsibility of the moving party to raise in its summary

judgment motion all ofthe issues on which it believes it is entitled to summary
judgment." White v. Kent Med. Ctr.. Inc.. P.S., 61 Wn. App. 163, 168, 810 P.2d 4
(1991). Here, because America One did not dispute that it was responsible for
Campbell's violations of the MBPA under the terms of the Mortgage Broker
Agreement or that there were genuine factual issues as to whether his conduct
violated the MBPA, America One failed to satisfy its initial burden of
demonstrating that it was entitled to summary judgment on Rodriguez's CPA
claim.

         Accordingly, the burden never shifted to Rodriguez to demonstrate the
existence of a genuine factual issue and America One was not entitled to
summary judgment. See Jacobsen v. State, 89 Wn.2d 104, 110-11, 569 P.2d
1152 (1977). We reverse the entry of summary judgment in favor of America
One and remand for further proceedings.




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No. 65945-6-1/9



      Reversed and remanded.




We concur:
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