                                                 FILED
                                               APRIL 2, 2019
                                       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


U.S. BANK NATIONAL                )   No. 35791-1-III
ASSOCIATION, AS TRUSTEE, ON       )
BEHALF OF THE HOLDERS OF          )
ADJUSTABLE RATE MORTGAGE          )
TRUST 2007-2 ADJUSTABLE RATE      )
MORTGAGE-BACKED PASS-             )
THROUGH CERTIFICATES, SERIES      )
2007-2,                           )
                                  )
               Respondent,        )
                                  )
          v.                      )
                                  )
ANGELA UKPOMA,                    )   PUBLISHED OPINION
                                  )
               Appellant,         )
                                  )
STATE OF WASHINGTON,              )
DEPARTMENT OF SOCIAL AND          )
HEALTH SERVICES, FINANCIAL        )
SERVICES ADMINISTRATION;          )
BOEING EMPLOYEES CREDIT           )
UNION; KUBESH’S SITE MIXED        )
CONCRETE, INC.; CARRIE SURIANO;   )
COLVILLE VALLEY CONCRETE          )
CORPORATION; RAMPART MMW;         )
NORSTAR HEATING & COOLING;        )
ISLAND PROPERTY INVESTMENTS;      )
UNKNOWN OCCUPANTS OF THE          )
No. 35791-1-III
U.S. Bank Nat’l Ass’n v. Ukpoma


SUBJECT REAL PROPERTY; ALL                      )
OTHER UNKNOWN PERSONS OR                        )
PARTIES CLAIMING ANY RIGHT,                     )
TITLE, ESTATE, LIEN, OR INTEREST                )
IN THE REAL ESTATE DESCRIBED IN                 )
THE COMPLAINT HEREIN,                           )
                                                )
                      Defendants.               )

       LAWRENCE-BERREY, C.J. — Angela Ukpoma defaulted on her home installment

loan. U.S. Bank National Association’s (U.S. Bank’s) agent sent Ms. Ukpoma a notice

that her loan balance was accelerated and the entire amount was immediately due and

payable. The notice contradictorily stated she could reinstate the loan if she paid the

delinquent payments plus various charges 11 or more days before an unscheduled

trustee’s sale. No such sale ever occurred. For various reasons, U.S. Bank did not bring

this judicial foreclosure action until more than eight years after its agent sent its notice.

       We are asked to decide whether the agent’s notice was sufficiently clear and

unequivocal so as to constitute an acceleration of the installment loan. A majority of this

panel concludes that the agent’s notice was unclear and did not accelerate the loan.

       We also discuss whether initiating a nonjudicial foreclosure tolls the statute of

limitations for commencing a judicial foreclosure action. This author believes there is no

tolling but a majority of this panel believes otherwise. We publish this opinion to

encourage further debate of this important issue.

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U.S. Bank Nat’l Ass’n v. Ukpoma


        We unanimously conclude that U.S. Bank can judicially foreclose its deed of trust,

and we affirm the trial court.

                                          FACTS

        In December 2006, Angela Ukpoma executed a promissory note for the purchase

of her home. The note, secured by a deed of trust, required her to pay monthly

installments for 30 years. U.S. Bank is the note holder and assignee of the deed of trust.

        Ms. Ukpoma failed to make a scheduled payment on October 1, 2007, and has

failed to make any further payments. On or about February 1, 2008, Quality Loan Service

Corporation (QLS) sent Ms. Ukpoma a notice of default. The notice provides in relevant

part:

        You are hereby notified that [U.S. Bank] has elected to accelerate the loan
        described herein, and has declared the entire balance of $252,000.00, plus
        accrued costs, immediately due and payable. NOTWITHSTANDING
        SAID ACCELERATION, YOU HAVE THE RIGHT TO REINSTATE
        THE LOAN BY PAYING THE DELINQUENT PAYMENTS, LATE
        CHARGES, COSTS AND FEES ON OR BEFORE THE ELEVENTH
        (11TH) DAY BEFORE THE DATE OF THE TRUSTEE’S SALE . . . .[1]




        1
        By statute, the borrower has a right to reinstate the loan by paying the delinquent
payments, late charges, costs, and fees at any time 11 days or more before the trustee’s
sale. See part V of the statutory form for “Notice of Trustee’s Sale” contained in
RCW 61.24.040(2)(d); see also part V of the form in former RCW 61.24.040(1)(f)
(2008).

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U.S. Bank Nat’l Ass’n v. Ukpoma


Clerk’s Papers (CP) at 307. In the notice, QLS identified itself as “Agent for U.S.

Bank . . . , the Beneficiary.” CP at 307.

       QLS did not initiate a trustee’s sale until its notice of trustee’s sale dated

November 7, 2008. The notice set forth the delinquent balance. The cure amount showed

that the loan had not been accelerated. QLS discontinued the first sale.

       QLS subsequently initiated and discontinued multiple other trustee’s sales. The

initiation dates are June 18, 2009, February 23, 2010, May 14, 2010, June 11, 2010,

August 22, 2011, and March 13, 2014. Similar to the initial notice of trustee’s sale, these

notices set forth the delinquent balance and cure amounts. All of the notices showed that

the loan had not been accelerated.

       Ms. Ukpoma also filed for bankruptcy protection in 2008 and again in late 2010.

The bankruptcy stays shielded Ms. Ukpoma’s property for approximately one year.

       On May 13, 2016, U.S. Bank filed the present action to judicially foreclosure its

deed of trust. U.S. Bank moved for summary judgment. Ms. Ukpoma responded that the

February 1, 2008 default notice accelerated the installment loan so that the action was

barred by RCW 4.16.040, the six-year statute of limitations.




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No. 35791-1-III
U.S. Bank Nat’l Ass’n v. Ukpoma


       The trial court concluded that QLS’s notice was ineffective to accelerate the

installment loan. It alternatively concluded that the statute of limitations had not run

because the bankruptcies combined with the nonjudicial foreclosures sufficiently tolled

the statute. Given these conclusions, the trial court granted U.S. Bank’s motion for

summary judgment.

       Ms. Ukpoma appeals.

                                        ANALYSIS

       A.     DE NOVO REVIEW OF SUMMARY JUDGMENT

       We review summary judgment rulings de novo and engage in the same inquiry as

the trial court. Int’l Marine Underwriters v. ABCD Marine, LLC, 179 Wn.2d 274, 281,

313 P.3d 395 (2013). A motion for summary judgment is properly granted where there is

no genuine issue as to a material fact and the moving party is entitled to judgment as a

matter of law. CR 56(c); Ruvalcaba v. Kwang Ho Baek, 175 Wn.2d 1, 6, 282 P.3d 1083

(2012) (quoting Michak v. Transnation Title Ins. Co., 148 Wn.2d 788, 794-95, 64 P.3d 22

(2003)).

       B.     THE FORECLOSURE ACTION WAS PROPER BECAUSE SOME INSTALLMENT
              PAYMENTS REMAINED DUE AND CONTINUED TO ACCRUE

       RCW 4.16.040(1) provides that an “action upon a contract in writing, or liability

express or implied arising out of a written agreement” shall be commenced within six

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No. 35791-1-III
U.S. Bank Nat’l Ass’n v. Ukpoma


years. This provision governs the statute of limitations for actions on promissory notes

and deeds of trust. Westar Funding, Inc. v. Sorrels, 157 Wn. App. 777, 784-85, 239 P.3d

1109 (2010). For an installment note, “‘the statute of limitations runs against each

installment from the time it becomes due.’” 4518 S. 256th, LLC v. Karen L. Gibbon, PS,

195 Wn. App. 423, 434, 382 P.3d 1 (2016) (quoting Herzog v. Herzog, 23 Wn.2d 382,

388, 161 P.2d 142 (1945)).

       However, if the installment note is accelerated, “the entire remaining balance

becomes due and the statute of limitations is triggered for all installments that had not

previously become due.” 4518 S. 256th, 195 Wn. App. at 434-35. Ms. Ukpoma argues

that QLS’s February 2008 notice accelerated the installment note. We disagree.

       Acceleration of an installment note must be made in a clear and unequivocal

manner that effectively apprises the maker that the holder has exercised his right to

accelerate the installment debt. Weinberg v. Naher, 51 Wash. 591, 594, 99 P. 736 (1909);

4518 S. 256th, 195 Wn. App. at 435; Glassmaker v. Ricard, 23 Wn. App. 35, 38, 593 P.2d

179 (1979). The question before us is whether to construe the February 2008 notice as a

clear and unequivocal acceleration of the installment note. We decline to do so.

       The February 2008 notice was unclear. It declared the full amount immediately

due and payable. But it then contradicted itself by advising Ms. Ukpoma that she could


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No. 35791-1-III
U.S. Bank Nat’l Ass’n v. Ukpoma


reinstate the loan by paying the delinquent payments plus various charges 11 or more days

before an unscheduled trustee’s sale. Nine months later, when QLS first initiated the

trustee’s sale, the notice showed that the note had not been accelerated. It unequivocally

permitted Ms. Ukpoma to reinstate her loan by paying the delinquent payments, plus late

charges, costs, and fees. All subsequent notices showed that the note had not been

accelerated. To construe the February 2008 notice as a clear and unequivocal

acceleration of the installment note would provide a windfall to Ms. Ukpoma, who never

lost her right to reinstate the loan by simply paying the delinquent payments, plus late

charges, costs, and fees.

       We therefore hold that QLS’s February 2008 notice did not accelerate the

installment note. And because the note never accelerated, the six-year statute of

limitations has not run on all of the installment payments. We conclude that the trial

court did not err in granting U.S. Bank’s motion for summary judgment.

       C.     THIS AUTHOR BELIEVES THAT INITIATING NONJUDICIAL FORECLOSURE DOES
              NOT TOLL THE STATUTE OF LIMITATIONS

       Because the installment note was never accelerated, we need not address whether

commencement of the various nonjudicial foreclosures tolled the statute of limitations.

But because the secondary opinion addresses this issue, this author wishes to respond.




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No. 35791-1-III
U.S. Bank Nat’l Ass’n v. Ukpoma


       This author believes that Bingham v. Lechner, 111 Wn. App. 118, 45 P.3d 562

(2002) should be overruled. The Bingham court writes, “The trial court found, and the

parties agree, that commencement of a nonjudicial foreclosure tolls the statute of

limitations.” Id. at 127. The Bingham court never questioned or analyzed this issue. In

fact, nothing in the nonjudicial foreclosure statute, RCW 61.24.030, mentions tolling.

This is impliedly acknowledged by the secondary opinion’s reliance on RCW 4.16.230

instead of RCW 61.24.030.

       RCW 4.16.230 provides in relevant part: “When the commencement of an action is

stayed by injunction or a statutory prohibition, the time of the continuance of the

injunction or prohibition shall not be a part of the time limited for the commencement of

the action.” 11 U.S.C. § 362 automatically stays all proceedings against a debtor,

including the action here, a judicial foreclosure action. Apart from this, the secondary

opinion does not cite any statute that stays a judicial foreclosure action.

       RCW 61.24.030(4), cited in the secondary opinion, is certainly not such a statute.

RCW 61.24.030 provides in relevant part: “It shall be requisite to a trustee’s sale . . .

(4) [t]hat no action commenced by the beneficiary of the deed of trust is now pending to

seek satisfaction of [the secured debt].” (Emphasis added). A trustee’s sale is a

nonjudicial foreclosure. RCW 61.24.005(17).


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No. 35791-1-III
U.S. Bank Nat 'l Ass 'n v. Ukpoma


       RCW 61.24.030(4) thus prevents a deed of trust beneficiary from commencing a

nonjudicial foreclosure if a judicial foreclosure action is pending. It does not operate in

reverse-to prevent a deed of trust beneficiary from commencing a judicial foreclosure

action if a nonjudicial foreclosure is pending. Because RCW 61.24.030(4) did not stay

the commencement of this judicial foreclosure action, RCW 4.16.230 did not toll the

statute of limitations.

       Affirmed.




                                                                                   C.. ~.
                                                  Lawrence-Berrey, C.J.

I CONCUR:




                                              9
                                      No. 35791-1-III

       KORSMO, J. ( concurring) -    I agree with the lead opinion that the notice of

acceleration was ambiguous and that the behavior of the parties demonstrates that the

note was never accelerated. I also agree with the concurrence that if the note had been

accelerated, the numerous bankruptcy filings and nonjudicial foreclosure proceedings

tolled the statute of limitations.

       With these observations, I join both opinions.
                                      No. 35791-1-III

       SIDDOWAY, J. (concurring in part and dissenting in part)- I agree with the lead

opinion that we should affirm the dismissal of Angela Ukpoma's complaint. Because I

disagree with the lead opinion's reason for affirming, I write separately.

       The notice of default that Quality Loan Service Corporation (QLS), as trustee, sent

to Ms. Ukpoma on February 1, 2008, is not ambiguous. It could hardly be more clear,

stating, "[T]he beneficiary has elected to accelerate the loan described herein" and "[the

beneficiary] has declared the entire principal balance of $252,000.00, plus accrued costs,

immediately due and payable." Clerk's Papers (CP) at 307. "NOTWITH-STANDING

SAID ACCELERATION" reinforces the fact of acceleration, even if it is followed by an

offer of terms on which Ms. Ukpoma could reinstate the loan. Id. Ms. Ukpoma never

reinstated the loan. The unambiguous acceleration stands.

       The lead opinion acknowledges that it finds ambiguity sua sponte. It does so in a

matter that was decided on summary judgment. Three declarations were offered in

support of summary judgment by U.S. Bank National Association on behalf of the

beneficiary mortgage trust 1 (the Trust), and none of the three assert that the Trust did not

elect to accelerate the obligation in 2008. For all we know, the reason the Trust later



       1
       Specifically, the Adjustable Rate Mortgage Trust 2007-2 Adjustable Rate
Mortgage-Backed Pass-Through Certificates, Series 2007-2.
No. 35791-1-111
US. Bank Nat 'l Ass 'n v. Ukpoma


offered lesser cure amounts was the result of loss mitigation and mediation requirements

enacted beginning in 2009. 2

       The Trust argues that it was entitled to summary judgment on.different grounds

(reason enough not to speculate about ambiguity). It argues first, that the acceleration

language in QLS' s notice of default was ineffective. Its second argument is that as a

result of tolling, its judicial foreclosure action was not time barred when commenced on

May 13, 2016.

       The first ground is unpersuasive. The Trust does not deny that in 2008 it "elected

to accelerate the loan described [in QLS's notice of default]" and "declared the entire

principal balance of $252,000.00, plus accrued costs, immediately due and payable," as

asserted by QLS's notice. CP at 307. For summary judgment purposes, we assume that

it did. But it argues that QLS' s notice of default failed to comply with Ms. Ukpoma' s



      2
        Beginning in 2009, the legislature responded to a wave of residential
foreclosures with a series of amendments to the "Deeds of Trust Act," chapter 61.24
RCW, that added additional protections and prerequisites to foreclosures of deeds of trust
recorded against certain types of "residential real property," which is a defined term in
the Act. 2 WASH. STATEBARASS'N, WASHINGTONREALPROPERTYDESKBOOK SERIES:
REAL ESTATE ESSENTIALS§ 21.11(2) at 21-31 (4th ed. 2014). In the case of certain
noncommercial loans secured by owner-occupied residential property, the foreclosure
process can be delayed by loss mitigation and mediation requirements or by a senior
beneficiary's obligation to respond to a short sale offer. Id. at§ 21.11(3)-(5) at 21-31
to -36.




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No. 35791-1-111
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deed of trust in two respects: first, it was issued by QLS, not the Trust; 3 and second, it did

not provide Ms. Ukpoma with notice and an opportunity to cure prior to acceleration.

       If the Trust elected to accelerate and declare the entire loan balance due without

providing the required form of notice, then the promisee-Ms. Ukpoma-could elect

whether to claim a breach or waive it. E.g., Colo. Structures, Inc. v. Ins. Co. of W, 161

Wn.2d 577, 588-89, 167 P.3d 1125 (2007) (plurality opinion). But the Trust provides no

authority that a party can use its own breach as the basis for a defense. As Washington

appellate courts frequently say, when an appellant cites no authority in support of a

proposition, we may assume that counsel, after diligent search, found none. State v.

Young, 89 Wn.2d 613, 625, 574 P.2d 1171 (1978).

       The Trust cites an opinion of this court for the proposition that "[w ]hether a lender

has elected to accelerate a loan must be determined based on the language of the deed of

trust." Resp't's Answering Br. at 6 (citing 4518 S. 256th, LLC, v. Karen L. Gibson, PS,

195 Wn. App. 423, 441-42, 382 P.3d 1 (2016)). But that is not what the case holds.

       In 4518 S. 256th, unlike this case, the beneficiary declared a default in an effort to

collect only past due installments. 195 Wn. App. at 428-29. "Nothing in th[e] notice of

default to the borrowers stated that the lender chose to declare the unpaid balance of the

       3
         While the Trust now argues that only it could issue the notice of default, its
complaint seeking judicial foreclosure relied on a notice of default that had been issued
by its servicer, whom it averred, "stands in the shoes of the Lender under the Deed of
Trust." CP at 94. Its complaint characterized the servicer's notice as "satisftying] each
of the requirements [for effective notice of acceleration]." Id. at 93-94.
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No. 35791-1-111
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loan due and payable" and the notice identified the amount required to cure the default as

$15,255.56, at a time when the unpaid principal balance of the loan was $255,932.00.

Id. at 429. Not long thereafter, the original successor trustee under the deed of trust

recorded a notice of trustee's sale. Id. "Nothing in th[e] notice of trustee's sale to the

borrowers stated that the lender chose to declare the unpaid balance of the loan due and

payable." Id. at 430. The scheduled foreclosure sale never occurred.

       When a new successor trustee served a notice of trustee's sale more than six years

later, the owners of the encumbered property filed their own suit to restrain the sale and

quiet title. Id. They argued that collection of the entire obligation, not just the more-

than-six-year-old installments, was time barred, because the first notices of default and of

trustee's sale operated as an acceleration. Given no hint in those notices that the

beneficiary intended to accelerate the loan balance, the property owners tried to rely,

instead, on language in the deed of trust. They argued that the court should construe the

deed of trust as providing that the beneficiary could only invoke the power of sale by

accelerating the loan, so its notice of trustee sale implicitly operated as an election to

accelerate. Id. at 441-42. Their argument was unsuccessful.

       Contrary to the Trust's argument, the decision in 4518 S. 256th does not focus on

provisions of the deed of trust; it emphasizes the intention of the beneficiary that is

communicated to the borrower following a default: "To accelerate the maturity of a

promissory note, ' [sJome affirmative action is required, some action by which the holder

                                               4
No. 35791-1-111
U.S. Bank Nat 'l Ass 'n v. Ukpoma


of the note makes known to the payors that he intends to declare the whole debt due.' "

Id. at 435 (alteration in original) (internal quotation marks omitted) (quoting Glassmaker

v. Ricard, 23 Wn. App. 35, 37, 593 P.2d 179 (1979)). '"[A]cceleration [of the maturity

of the debt] must be made in a clear and unequivocal manner which effectively apprises

the maker that the holder has exercised his right to accelerate the payment date.'" Id.

(alterations in original) (quoting Glassmaker, 23 Wn. App. at 38). The Trust cannot rely

on its failure to comply with its obligations under the deed of trust to avoid the plain

acceleration language in QLS' s notice of default.

       The second ground for dismissal relied on by the Trust is rejected by the lead

opinion but provides a legitimate basis on which to affirm the judgment in the Trust's

favor. The Trust demonstrated that when tolling is taken into consideration, the Trust's

commencement of its judicial foreclosure action was timely.

       During the period after the notice of acceleration was sent and the foreclosure

action was commenced, Ms. Ukpoma filed four bankruptcy actions. The automatic stay

provided by the bankruptcy code, 11 U.S.C. § 362(a)(3), is a statutory prohibition that

tolls the statute oflimitations. Merceri v. Deutsche Bank AG, 2 Wn. App. 2d 143, 408

P.3d 1140, review denied, 190 Wn.2d 1027, 421 P.3d 457 (2018) (applying RCW

4.16.230).

       Also during the period before the Trust filed suit, it commenced nonjudicial

foreclosure proceedings seven times by serving notices of trustee's sales. By statute, a

                                              5
No. 35791-1-III
U.S. Bank Nat 'l Ass 'n v. Ukpoma


beneficiary who wishes to foreclose nonjudicially may not rely on the grantor's default to

pursue an action seeking satisfaction of an obligation secured by the deed of trust. RCW

61.24.030(4). Generally, it may not obtain a deficiency judgment against a borrower.

RCW 61.24.100(1 ). These provisions are mirrored by a judicial foreclosure provision,

RCW 61.12.120, which prohibits concurrent actions. And see RCW 61.24.100(2)

(providing that before initiating nonjudicial foreclosure and after discontinuing it, other

action against a person liable on the secured obligation can be pursued).

       The shortest time frame for the nonjudicial foreclosure process, absent any

complications or postponements, is 190 days. RCW 61.24.040(12). A trustee may

continue the sale for a period or periods not exceeding a total of 120 days. RCW

61.24.040(10). The statute outlining the requisites to a trustee's sale provides that

mortgage servicers and beneficiaries may discontinue any foreclosure action initiated

under the "Deeds of Trust Act," chapter 61.24 RCW, in favor of other allowed methods

for pursuit of foreclosure of the security interest or deed of trust security interest. RCW

61.24.030(12).

       In Bingham v. Lechner, 111 Wn. App. 118, 131, 45 P.3d 562 (2002), this court

affirmed the trial court's determination that the institution of a nonjudicial foreclosure

proceeding tolls the statute of limitations to the date scheduled for foreclosure or, given

the trustee's right to continue the sale for a period or periods not exceeding 120 days, to

the date 120 days thereafter. While the author of the lead opinion in this case declines to

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No. 35791-1-111
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follow Bingham, I find the decision consistent with RCW 4.16.230, which provides for

tolling "[w ]hen the commencement of an action is stayed by ... statutory prohibition."

      The Deeds of Trust Act "furthers three basic objectives: an efficient and

inexpensive nonjudicial foreclosure process, adequate opportunity to prevent wrongful

foreclosure, and promotion of the stability of land titles." Cedar W Owners Ass 'n v.

Nationstar Mortg., LLC, No. 76812-3-1, slip op. at 11 (Wash. Ct. App. Feb. 5, 2019),

https://www.courts.wa.gov/opinions/pdf/768123.pdf (citing Cox v. Helenius, 103 Wn.2d

383, 387, 693 P.2d 683 (1985)). Given the Act's protections for borrowers, the

nonjudicial foreclosure procedure is time consuming. A beneficiary who is pursuing

nonjudicial foreclosure is taking action. Because the beneficiary is prohibited by RCW

61.24.030(4) from suing on its note while it is taking nonjudicial foreclosure action,

RCW 4.16.230 applies. 4 I would affirm the trial court on that basis.




I CONCUR:




       4
        Ms. Ukpoma does not challenge the Trust's demonstration that when tolling for
the bankruptcy and nonjudicial foreclosure proceedings are taken into effect, the action
below was not time barred.
                                             7
