           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

UNION BANK, N.A., a national banking
association,                                   NO. 70327-7-1


                                               DIVISION ONE
                    Appellant,

      v.                                       UNPUBLISHED OPINION


EAST CREEK VILLAGE, LLC, a
Washington limited liability company;          FILED: June 9, 2014
SHORELINE BUSINESS AND
PROFESSIONAL CENTER, LLC, a
Washington limited liability company;
KENNETH LYONS, MELANI A. LYONS,
individually and the marital community
thereof; TODD ARRAMBIDE, KIM M.
ARRAMBIDE, individually and the
marital community thereof,

                    Defendants,

ELIZABETH Y. VANDERVEEN, A.
MARKVANDERVEEN, individually
and the marital community thereof;
HARLEY O'NEIL, JR., MICHELE
O'NEIL, individually and the marital
community thereof; the TORI LYNN
NORDSTROM TRUST, a Washington
state trust; and HARLEY O'NEIL, JR.,
Trustee for the Tori Lynn Nordstrom
Trust,

                     Respondents.


       Leach, J. — Union Bank appeals the trial court's summary dismissal of its action

for a deficiency judgment against the guarantors of a loan following a trustee's sale
NO. 70327-7-1 / 2




under a deed of trust securing that loan. Kenneth Lyons and Melani Lyons, A. Mark

Vanderveen and Elizabeth Vanderveen, Todd Arrambide and Kim M. Arrambide, Harley

O'Neil Jr. and Michele O'Neil, and Harley O'Neil Jr. as trustee for the Tori Lynn

Nordstrom Trust (Guarantors), each signed a commercial guaranty of payment of loan

to East Creek Village LLC and Shoreline Business and Professional Center LLC.

Based on its reading of RCW 61.24.100(10), the trial court granted the Guarantors'

motion for summary judgment, dismissing this action.1 Because the trial court erred

both in its interpretation of this statute and its application of the statute to relevant loan

documents, we reverse and remand for further proceedings.

                                           FACTS


       In 2008 East Creek and Shoreline borrowed $5,100,000 from Frontier Bank and

delivered their promissory note in that amount to the bank. A deed of trust executed by

East Creek and Shoreline secured payment of the note. The Guarantors each executed

a commercial guaranty of payment of the loan.

       Union Bank acquired all of Frontier Bank's interest in the note, deed of trust, and

commercial guaranties.     East Creek and Shoreline defaulted on the bank loan. As a

result, Union Bank elected to commence a nonjudicial foreclosure proceeding.

       In July 2011, the trustee under the deed of trust then held by Union Bank

conducted a sale based on the borrowers' default. Union Bank was the successful




       1Lyons and Arrambide settled before the trial court granted summary judgment
and are not parties to this appeal.
                                            -2-
NO. 70327-7-1 / 3




bidder at the sale, with a bid of $1,767,000. This left a substantial deficiency allegedly

owed.


        In 2012, Union Bank filed this lawsuit against the Guarantors to enforce their

guaranties and to obtain a deficiency judgment based on the amount the bank claimed

remained owing after the trustee's sale. The Guarantors moved for summary judgment,

contending that the foreclosed deed of trust secured their guaranty obligations and

RCW 61.24.100(10) barred the bank's request for a deficiency judgment. The trial court

agreed, dismissed the bank's lawsuit, and awarded the Guarantors attorney fees.

        Union Bank appeals.

                                       ANALYSIS


        Union Bank argues that RCW 61.24.100(10) does not bar its lawsuit for a

deficiency judgment against the Guarantors. We agree.

        This court reviews de novo summary judgment orders and engages in the same

inquiry as the trial court.2 Summary judgment is appropriate when there is no genuine

issue of material fact and the moving party is entitled to a judgment as a matter of law.3

        In Washington Federal v. Gentry,4 we addressed the same issue as here:

whether RCW 61.24.100(10) bars a lawsuit against the guarantors of a commercial loan

following the nonjudicial foreclosure of the deed of trust securing payment of the loan.

There, we held this provision does not bar such a lawsuit.5 Here, the same principles

      Cornish Coll. of the Arts v. 1000 Va. Ltd. P'ship, 158 Wn. App. 203, 215-16, 242
P.3d 1 (2010).
        3 CR 56(c).
        4 Wash. Fed, v. Gentry,     Wn. App.      , 319 P.3d 823 (2014), petition for
review filed, No. 90085-0 (Wash. Apr. 1, 2014).
       5 Gentry, 319 P.3d at 832.
NO. 70327-7-1 / 4




that we applied in Gentry apply.      RCW 61.24.100(10) does not bar Union Bank's

lawsuit.


       We also disagree with the trial court's determination that the foreclosed deed of

trust secured the Guarantors' guaranty obligations. We have compared the deed of

trust in Gentry with the deed of trust here. They have similar provisions defining whose

obligations are secured. In both cases, the secured obligations are limited to those of

the "Grantors" under the deeds of trust.   Neither deed of trust states that the secured

obligations include those of a guarantor of the loan. Following our analysis in Gentry

again, we conclude that the foreclosed deed of trust did not secure the Guarantors'

guaranty obligations. For this reason as well, RCW 61.24.100(10) does not bar Union

Bank's claims against the Guarantors.

       Because of our resolution of the application of RCW 61.24.100(10), we do not

reach Union Bank's challenge to the trial court's determination that enforcement of any

waiver of the protections of RCW 61.24.100 violates the statute and public policy.

      The trial court awarded the Guarantors attorney fees as the prevailing party. In

light of our disposition of the issues, we vacate this award. Because a prevailing party

has not yet been determined, we decline to award fees to any party on appeal.

       Finally, we address Union Bank's motion to strike appendix C to respondents'

brief, which a commissioner of our court referred to the panel for decision. "Motions to

strike sentences or sections out of briefs waste everyone's time."6 Union Bank's motion

unnecessarily required the commissioner and the panel to read four pleadings. It cited


      6 Redwood v. Dobson. 476 F.3d 462, 471 (7th Cir. 2007).
                                           -4-
NO. 70327-7-1 / 5




a court rule, GR 14.1, and a statute, RCW 2.06.040, which apply only to unpublished

court of appeals decisions and not to trial court decisions. It generated unnecessary

expense to all litigants. A simple statement in Union Bank's reply brief addressing

appendix C's lack of precedential value would have better served the interests of the

parties and furthered judicial economy. We deny the motion.

                                     CONCLUSION


      RCW 61.24.100(10) does not bar a lawsuit against the guarantors of a

commercial loan following the nonjudicial foreclosure of the deed of trust securing

payment of the loan.    Therefore, we reverse the trial court and remand for further

proceedings consistent with this opinion.



                                                          /L*c*>A //
WE CONCUR:




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