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       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



WASHINGTON FEDERAL, a federally                       No. 69791-9-1
chartered savings association,
                                                      DIVISION ONE
                     Appellant,



LANCE HARVEY, individually and the                    UNPUBLISHED
marital community comprised of LANCE
HARVEY and JANE DOE HARVEY,                           FILED: February 18, 2014
husband and wife,

                       Respondents.



       Cox, J. — The Deeds of Trust Act generally prohibits an action for a

deficiency judgment against a guarantor of a loan following a trustee's sale under

a deed of trust securing that loan.1 In Washington Federal v. Gentry, we held

that RCW 61.24.100(10) does not bar an action for a deficiency judgment after a

trustee's sale against a guarantor for a certain type of commercial loan if the

deed of trust secures the guaranty.2



       1 RCW 61.24.100(1).

       2Washington Federal v. Gentry. No. 70004-9, slip op. at 12-13 (Wash. Ct.
App. Feb. 18, 2014).
No. 69791-9-1/2


       Washington Federal commenced this action for a deficiency judgment

against Lance Harvey and his wife. Lance Harvey executed a guaranty of

payment for a commercial loan to Kaydee Gardens 9 LLC. Based on its reading

of RCW 61.24.100, the trial court granted the Harveys' motion for summary

judgment, dismissing this action. 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.

       In 2007, Kaydee Gardens 9 LLC obtained a loan from Horizon Bank. This

loan was evidenced by a promissory note that was secured by a July 11, 2007

deed of trust. Harvey executed a commercial guaranty of payment of the loan.

       In 2008, Harvey became the sole member of Kaydee Gardens.

Consequently, the parties modified the documentation for the loan that then had

an outstanding balance of $2,559,482.25. The loan was evidenced by a new

promissory note but continued to be secured by the July 11, 2007 deed of trust.

       Horizon Bank failed. In June 2011, the Federal Deposit Insurance

Corporation, as receiver, assigned that bank's interest in the note, the deed of

trust, and the guaranty to Washington Federal.

       Based on the borrower's failure to make the periodic monthly payments

due on the promissory note, the bank elected to commence a nonjudicial

foreclosure proceeding. Moreover, Harvey failed to honor the guaranty.

       In November 2011, the trustee under the deed of trust then held by

Washington Federal conducted a sale based on the borrower's default. The
No. 69791-9-1/3


bank was the successful bidder at the sale. But it did not credit bid the full

amount of the debt. Thus, a substantial deficiency allegedly remains.

       In January 2012, the bank commenced this action against the Harveys to

enforce the guaranty and to obtain a deficiency judgment based on the shortfall

that remained after the trustee's sale.

       The bank moved for summary judgment. The Harveys made a cross-

motion for summary judgment. They argued that the Deeds of Trust Act

prohibited the bank from seeking a deficiency judgment against them.

       The trial court granted the Harveys' motion, denied the bank's motion, and

dismissed this action with prejudice. The trial court also denied the bank's

motion for reconsideration.


       This appeal followed.

                           THE DEEDS OF TRUST ACT

       The bank argues that RCW 61.24.100(10) does not bar this action for a

deficiency judgment against these guarantors. We agree.

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

same inquiry as the trial court.3 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.4




       3 Cornish Coll. of the Arts v. 1000 Va. Ltd. P'ship. 158 Wn. App. 203, 215-
16, 242P.3d 1 (2010).

       4 CR 56(c).
No. 69791-9-1/4


       Statutory construction is a question of law.5 This court's objective is to
determine the Legislature's intent.6 "Where the language of a statute is clear,
legislative intent is derived from the language of the statute alone."7 "The 'plain
meaning' of a statutory provision is to be discerned from the ordinary meaning of

the language at issue, as well as from the context of the statute in which that

provision is found, the related provisions, and the statutory scheme as a whole."8
       In Washington Federal v. Gentry, we addressed the same issue as here:

whether RCW 61.24.100(10) bars this action against the guarantors of this

commercial loan.9 There, we held this provision does not bar such an action.10
       Here, the same principles that we applied in that case apply in this case.

RCW 61.24.100(10) does not bar this action, even if this guaranty is secured by

the deed of trust that was the subject of the prior trustee's sale for this

commercial loan.




       5 City of Spokane v. Rothwell. 166 Wn.2d 872, 876, 215 P.3d 162 (2009).

       8Ji


       8 \± at 876-77 (quoting State v. Jacobs. 154 Wn.2d 596, 600-01, 115 P.3d
281 (2005)).

       9 Gentry. No. 70004-9, slip op. at 12-13.

       10 Id.
No. 69791-9-1/5


      The Harveys cite a 1998 WSBA newsletter to support their reading of

RCW 61.24.100(10).11 They argue that the newsletter supports their assertion
that "RCW 61.24.100 reflects the legislative intent to preclude deficiency

judgments against secured commercial loan guaranty obligations through

subsection (10)."12
      Assuming without deciding that the newsletter supports the Harveys'

assertion, we disagree with the conclusion. We do so for the reasons fully

explained in Gentry.

       The Harveys also cite Beal Bank. SSB v. Sarich and Glenham v. Palzer.13
They argue these cases show that "Washington courts have created a clear line

of demarcation prohibiting deficiency actions on obligations secured by a non

judicial^ foreclosed deed oftrust."14 We again disagree.
       While deficiency judgments against guarantors of loans are generally

prohibited for deeds of trust that are not foreclosed as mortgages, there are

specified exceptions for guarantors of certain commercial loans. The Harveys

fall within an exception, specifically RCW 61.24.100(3)(c).




       11 Brief of Respondents at 27-29 (citing Craig A. Fielden, An Overview of
Washington's 1998 Deed of Trust Act Amendments. WSBA Real Prop., Probate
& Trust Section Newsletter, Summer 1998 at 4).

       12 Id, at 28.
      13 JU at 28-29 (citing Beal Bank. SSB v. Sarich. 161 Wn.2d 544, 167 P.3d
555 (2007); Glenham v. Palzer. 58 Wn. App. 294, 792 P.2d 551 (1990)).

       14 Id. at 28.
No. 69791-9-1/6


       We next consider the other apparent bases for the trial court's ruling. In

its letter ruling, the court stated:

               RCW 61.24.100 entitled: Deficiency Judgments,
       Foreclosure, Trustees Sale, Application of Chapter presents a fairly
       clear structure. The general rule is that: "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."
       RCW 61.24.100(1). What this means to this court is that to sue for
       a deficiency judgment one must then qualify under one of the
       exceptions in this section. In this section there are three
       exceptions: (3), (6) and (10).

              The Exceptions: Under RCW 61.24.100(3), an action for a
       deficiency judgment may be pursued under two narrow
       circumstances: (a) any decrease in fair market value caused
       by waste and (b) wrongful retention of any rents, insurance
       proceeds or condemnation awards. Under RCW 61.24.100(6),
       an action for a deficiency judgment may be pursued against a
       guarantor granting a deed of trust to secure its guaranty but
       only to the extent stated in subsection (3)(a)(i) - which refers to
       waste and wrongful retention. Under RCW 61.24.100(10), an
       action for a deficiency judgment may be pursued against borrowers
       or guarantors if the obligation was not secured by a deed of trust.
       This one is more wide open. But what it means is that if you do
       not qualify under (10) then you are limited to waste and
       wrongful retention as grounds for pursuing a deficiency
       judgment.™
       The trial court correctly stated the general rule. Deficiency judgments

following a trustee's sale are generally prohibited. But, as the court recognized,

there are exceptions. The court identified these "exceptions" as subsections (3),

(6), and (10) of RCW 61.24.100. We consider each provision, in turn.

       As we previously stated in this opinion and in Gentry, subsection (10)

does not bar this action for a deficiency judgment against the guarantors of this


        15 Clerk's Papers at 10-11 (emphasis added).
No. 69791-9-1/7


commercial loan. The trial court's interpretation of this statute to the contrary

was erroneous.


       Additionally, a plain reading of subsection (6) shows that it is inapplicable

to this case. There is no evidence in this record that Harvey "grant[ed] a deed of

trust to secure [this] guaranty ofa commercial loan."16 Rather, they contend the
Borrower/Grantor did so.

       We also held in Gentry that subsection 3(c) is not limited by the provisions

of subsection 3(a) and (b). Thus, waste and wrongful retention of funds does not

restrict a lender's ability to seek a deficiency judgment against guarantors under

subsection 3(c). To the extent the trial court held otherwise in this case, that was

erroneous.


       In sum, we conclude that RCW 61.24.100(10) does not preclude this

action for a deficiency judgment against the guarantors of these commercial

loans. The trustee's sale under the deed of trust securing this commercial loan

does not bar this action. Moreover, this action is not barred by the limitations

stated in RCW61.24.100(3)(a) and (b).

                             THE LOAN DOCUMENTS

       Based on the incorrect premise that RCW 61.24.100(10) should be

interpreted as they argue, the Harveys further argue that the guaranty was

secured by the deed of trust securing this loan. Accordingly, they claim that the

trustee's sale under the deed of trust bars this action for a deficiency judgment.




       16
            RCW 61.24.100(6).
No. 69791-9-1/8


Even if we agreed with their premise, we would still disagree with their

conclusion. We hold that the deed of trust does not secure Harvey's guaranty.

       This court reviews de novo a trial court's interpretation of the language of

a contract.17 "When interpreting a contract our primary goal is to discern the
intent of the parties, and such intent must be discovered from viewing the

contract as a whole."18

       Washington follows the "objective manifestation theory of contracts" to

determine the parties' intent.19 Courts focus on the "objective manifestations of
the agreement, rather than on the unexpressed subjective intent of the parties."20
"[W]hen interpreting contracts, the subjective intent of the parties is generally

irrelevant ifthe intent can be determined from the actual words used."21 This

court does not "interpret what was intended to be written but what was written."22
       Here, the first page of the deed of trust identifies the "Grantor" as Kaydee

Gardens 9 LLC. Horizon Bank, the predecessor in interest to Washington




       17 Knipschield v. C-J Recreation. Inc.. 74 Wn. App. 212, 215, 872 P.2d
1102(1994).

     18 Weyerhaeuser Co v. Commercial Union Ins. Co.. 142 Wn.2d 654, 669,
15P.3d115(2000).

      19 Hearst Commc'ns. Inc. v. Seattle Times Co.. 154 Wn.2d 493, 503, 115
P.3d 262 (2005).

       20 \jL
       21 id, at 503-04.

       22 Id. at 504.
No. 69791-9-1/9


Federal, is identified as the "Grantee" or Beneficiary/Lender. Harvey is not a

party to this deed of trust.

       At page three of the deed of trust, the Grantor states what is secured:

       THIS DEED OF TRUST, INCLUDING THE ASSIGNMENT OF
       RENTS AND THE SECURITY INTEREST IN THE RENTS AND
       PERSONAL PROPERTY, IS GIVEN TO SECURE (A) PAYMENT
       OF THE INDEBTEDNESS AND (B) PERFORMANCE OF ANY
       AND ALL OBLIGATIONS UNDER THE NOTE, THE RELATED
       DOCUMENTS, AND THIS DEED OF TRUST. THIS DEED OF
       TRUST, INCLUDING THE ASSIGNMENT OF RENTS AND THE
       SECURITY INTEREST IN THE RENTS AND PERSONAL
       PROPERTY, IS ALSO GIVEN TO SECURE ANY AND ALL OF
       GRANTOR'S OBLIGATIONS UNDER THAT CERTAIN
       CONSTRUCTION LOAN AGREEMENT BETWEEN GRANTOR
       AND LENDER OF EVEN DATE HEREWITH. ANY EVENT OF
       DEFAULT UNDER THE CONSTRUCTION LOAN AGREEMENT,
       OR ANY OF THE RELATED DOCUMETNS REFERRED TO
       THEREIN, SHALL ALSO BE AN EVENT OF DEFAULT UNDER
       THIS DEED OF TRUST. THIS DEED OF TRUST IS GIVEN AND
       ACCEPTED ON THE FOLLOWING TERMS:[23]

This provision discusses the Grantor's obligations. It does not mention the

guarantor's obligations. The next paragraph further clarifies whose payment

and performance obligations are secured by the deed of trust:

       PAYMENT AND PERFORMANCE. Except as otherwise provided
       in this Deed of Trust, Grantor shall pay to Lender all amounts
       secured by this Deed of Trust as they become due, and shall
       strictly and in a timely manner perform all of Grantor's obligations
       under the Note, this Deed of Trust, and the Related Documents.[24]
Reading these two paragraphs together, the deed of trust must be read as

securing the payment and performance obligations of the Grantor. There simply

is no way to read these provisions so that this deed of trust secures the payment


       23 Clerk's Papers at 556 (emphasis added).

       24 IcL (some emphasis added).
No. 69791-9-1/10


and performance obligations of anyone other than the Grantor. Harvey, the

guarantor of the loan, is not the Grantor. Thus, the deed of trust does not

secure Harvey's guaranty.

       Later in the deed of trust, another provision discusses full performance of

the secured obligations:

      FULL PERFORMANCE. If Grantor pays all the Indebtedness
      when due, and otherwise performs all the obligations imposed upon
       Grantor under this Deed of Trust, Lender shall execute and deliver
      to Trustee a request for full reconveyance and shall execute and
      deliver to Grantor suitable statements of termination of any
      financing statement on file evidencing Lender's security interest in
      the Rents and the Personal Property"251
This language reinforces our conclusion. The exclusive focus is on the payment

and performance obligations of the Grantor of the deed of trust. There is simply

no mention of such obligations of Harvey, the guarantor.

       In sum, we conclude when we read this deed of trust as a whole, it does

not secure Harvey's guaranty. Accordingly, the argument that RCW

61.24.100(10) bars this action is wholly unpersuasive for a second reason.

      The Harveys also rely on First-Citizens Bank &Trust Co. v. Cornerstone

Homes & Development, LLC, a recent Division Two case provided to this court

as supplemental authority in this case.26 We note that in this case, Washington
Federal submitted to the trial court in its motion for reconsideration copies of the

loan documents, including the deeds of trust at issue in First-Citizens.27 Thus,


       25 ]d. at 559 (some emphasis added).
       26 _ Wn. App. _, 314 P.3d 420 (2013).
       27 Clerk's Papers at 94-181.
                                             10
No. 69791-9-1/11


copies of the loan documents in First-Citizens are in this record. Comparing the

respective loan documents, there are slight variations between the deeds of trust

in that case and the deed of trust in this case.28

       Nevertheless, in Gentry, we addressed why we disagree with the rationale

and conclusion in First-Citizens.29 Here, having compared the deeds of trust in
that case with the deed of trust here, we note that 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. None state the

secured obligations include those of the guarantor of the loan. Having confirmed

in this case that the loan documents in First-Citizens contain similar language in

material respects to that in the deed of trust here, we must disagree with the

rationale of that case for this additional reason.

       We note that the trial court in this case reached a conclusion similar to that

in First-Citizens. It concluded that "the guaranty in this matter was a Related

Document under the subject Deed of Trust clause." It reached this conclusion by

construing the deed of trust instrument against the bank, the drafter:

       Even ifambiguous, at minimum, the ambiguity must be construed
       against the drafter, which means it is still subject to the Related
       Documents clause. As such, the guaranty was secured by the
       Deed of Trust. Given that security; to sue for deficiency requires
       that the plaintiff bank must meet either the conditions of either RCW
       61.24.100(3) or (6). Since the deficiency sought by the bank is not
       based in either waste orwrongful retention its law suit must fail.[30]

       28 Compare jg\ at 119-27, 146-54, 169-77, with jg\ at 554-64.

       29 Gentry. No. 70004-9, slip op. at 17.
       30
            Clerk's Papers at 11.


                                              11
No. 69791-9-1/12




Construing the deeds of trust instruments against the drafter was also a rationale

that Division Two pointed to in a footnote.31

       As we stated in Gentry, the problem with this approach is that this

rationale applies only where an instrument is ambiguous.32 As we discussed
previously in this opinion, the deed of trust in this case is not ambiguous when

read as a whole. The Grantor expressly stated that the deed of trust secured the

obligations of the Grantor. The Grantor did not include Harvey. Thus, this

principle of interpretation does not apply in this case.

       The Harveys also cite a Michigan case to supports it reading of the deed

of trust.33 In Greenville Lafayette LLC v. Elgin State Bank, the Michigan Court of

Appeals examined a Michigan statute regarding foreclosure by advertisement.34
As part of its analysis, the court concluded that "the plain language of the

mortgage contract specifically includes guaranties in the indebtedness secured

by the mortgage."35 The court guoted some ofthe definitions from the mortgage
that appear to be similar to the definitions in this case.36 But we have no means


       31 First-Citizens Bank. 314 P.3d at 423 n.8.

       32 See Gentry. No. 70004-9, slip op. at 26 (citing Rouse v. Glascam
Builders. Inc.. 101 Wn.2d 127, 135, 677 P.2d 125 (1984)).

       33 Brief of Respondents at 17-18 (citing Greenville Lafayette. LLC v. Elgin
State Bank. 296 Mich. App. 284, 818 N.W.2d 460 (2012)).

       34 296 Mich. App. 284, 285, 818 N.W.2d 460 (2012).

       35 jd, at 291.
       36 Id. at 290.


                                                12
No. 69791-9-1/13


of knowing if other relevant portions of the mortgage are the same or similar to

the provisions of these loan documents that we have discussed previously in this

opinion. Thus, we decline to rely on that case here.

       In sum, the unambiguous language in the deed of trust shows that the

Grantor under this instrument did not intend to secure Harvey's guaranty. RCW

61.24.100(10) simply does not apply to this case, even if we accepted the

Harveys' erroneous interpretation of this statute. The bank may seek a

deficiency judgment against the Harveys. The trial court erred when it granted

the Harveys' motion for summary judgment, denied the bank's similar motion,

and dismissed the complaint with prejudice.

       Because of our resolution of the two issues in this opinion, we need not

reach the third question: whether the waiver of anti-deficiency defenses language

in the guaranty of payment is enforceable against the Harveys. In order to make

clear that the trial court's decision on this question is not binding on these parties,

we vacate that portion of that court's decision.

       There is an outstanding issue that is not presently before us. The Harveys

are entitled to a fair value hearing under RCW 61.24.100(5). That hearing has

not yet occurred because the trial court decided this matter on summary

judgment. Thus, remand for such a hearing is required.

                                 ATTORNEY FEES

       The Harveys seek an award of attorney fees based on the contract

provision in the guaranty. The bank reserves the right to seek fees under the

same provision following remand and further proceedings.


                                              13
No. 69791-9-1/14



       Because a prevailing party has not yet been determined and will not be

determined until after a fair value hearing under RCW 61.24.100(5) on remand,

we decline to award fees now. That determination may be made by the trial

court at such time as it makes an award of reasonable attorney fees.

       We reverse and remand for further proceedings. We also vacate that

portion of the trial court's decision concerning the enforceability of waiver of anti-

deficiency defenses. We also deny an award of attorney fees as premature.



                                                           Ccx.^~.
WE CONCUR:




                                              14
