         IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON


UNION BANK, N.A.,                         )
                                          )      No. 72606-4-1                     CZ2



                      Respondent,         )                                        f



                                          )      DIVISION ONE
         v.                               )                                        i   A




                                          )
DANIEL GLAEFKE,                           )      UNPUBLISHED OPINION
                                          )                                            O

                     Appellant.           )      FILED: Januarv 19. 2016               ro




         Spearman, C.J. — Danial Glaefke executed a deed of trust on his home in

favor of Union Bank, N.A., (Union Bank) to secure a loan. While the loan amount

was still outstanding, the deed of trust was mistakenly reconveyed. Before the

error was discovered, however, Glaefke filed for Chapter 7 bankruptcy. Union

Bank filed a motion for relief from stay to foreclose on the deed of trust. When

Union Bank discovered the error, it brought an action to rescind the

reconveyance and reinstate the deed of trust. The trial court granted summary

judgment in favor of Union Bank. Glaefke appeals, arguing that Union Bank's

claim was discharged in bankruptcy. We affirm the trial court's order granting

summary judgment, rescinding the reconveyance and reinstating the deed of

trust.
No. 72606-4-1/2


                                           FACTS

        Danial Glaefke purchased real property located at 16341 Inglewood Place

NE, Bothell, WA 98020 (Property) in August of 1989. On December 10, 2006

Glaefke executed a Promissory Note (Note) in the amount of $61,000 in favor of

Frontier Bank. Union Bank was the successor in interest to Frontier Bank. The

Note was secured by a deed of trust (Deed of Trust) for the Property recorded on

February 8, 2008.

        On January 24, 2012, a full reconveyance of the Deed of Trust was

recorded in error. No explanation was given for the error nor the timing and

circumstances of its discovery.1 At the time the reconveyance was recorded,

Glaefke owed approximately $41,061.80 in unpaid principal.

        On March 12, 2013, Glaefke filed for Chapter 7 bankruptcy. Union Bank

was listed as a secured creditor. Union Bank moved for relief from the automatic

stay and was granted relief to foreclose upon the Property.

        On June 26, 2013, Glaefke's debts were discharged. At some point Union

Bank discovered that its Deed of Trust had been mistakenly reconveyed. Union

Bank filed its Complaint for Rescission of Deed of Reconveyance and

Reinstatement of Deed of Trust on April 10, 2014. Glaefke and Union Bank filed

cross-motions for summary judgment. The trial court denied Glaekfe's motion

and granted Union Bank's motion, entering a judgment that reinstated the Deed




        11t is not discernible from the record how the reconveyance came to be recorded or the
circumstances surrounding Union Bank's discovery of the recordation. It appears undisputed that
Glaefke was also unaware of the recording of the reconveyance.
No. 72606-4-1/3


of Trust "to the same valid priority lien position on the Property, upon the same

terms that the deed of trust enjoyed before the Reconveyance." Clerk's Papers

(CP) at 252. Glaefke appeals.

                                    DISCUSSION


       Whether a trial court's grant of summary judgment is proper is a question

of law we review de novo. Hertog, ex rel. S.A.H. v. City of Seattle, 138 Wn.2d

265, 275, 979 P.2d 400 (1999) (citing Taqqart v. State, 118Wn.2d 195, 199, 822

P.2d 243 (1992); CR 56(c)). We engage in the same inquiry as the trial court,

construing all facts and reasonable inferences from the facts in the light most

favorable to the nonmoving party, id. Whether a creditor's claim for equitable

relief is discharged in bankruptcy is also a question of law that we review de

novo. Crafts v. Pitts. 161 Wn.2d 16, 22, 162 P.3d 382 (2007).

       Glaefke argues that the trial court erred when it failed to dismiss Union

Bank's complaint. He does not dispute that the reconveyance of the Deed of

Trust, releasing Union Bank's security interest in the property at issue, was

inadvertent. And he concedes that generally, equitable principles allow a party to

reinstate an inadvertently released security interest. But he claims the intervening

bankruptcy proceeding, following the inadvertent reconveyance, discharged

Union Bank's claim for reinstatement and rescission of the Deed of Trust.

       In support of the argument, Glaefke cites 11 U.S.C. § 727(b), which

provides that a discharge in a Chapter 7 bankruptcy "discharge^] the debtor from

all debts that arose before the date of the order for relief under this chapter...,"
No. 72606-4-1/4


except as provided in section 523.2 And he notes it is undisputed that Union

Bank's claims arose prior to the filing of his bankruptcy petition. Glaefke then

points out that 11 U.S.C. §101(12), defines "debt" as "liability on a claim" and that

a "claim" is broadly defined to mean:

        (A) right to payment, whether or not such right is reduced to
        judgment, liquidated, unliquidated, fixed, contingent, matured,
        unmatured, disputed, undisputed, legal, equitable, secured, or
        unsecured; or
        (B) right to an equitable remedy for breach of performance if such
        breach gives rise to a right to payment, whether or not such right to
        an equitable remedy is reduced to judgment, fixed, contingent,
        matured, unmatured, disputed, undisputed, secured, or unsecured.

11 U.S.C. § 101(5). Glaefke argues that Union Bank's rescission and

reinstatement action is a right to payment within the meaning of Section

101(5)(A) because reinstating the Deed of Trust provides "Union Bank

with the right to foreclosure and as such the right to payment in the form of

proceeds from the sale of the Property." Brief of Appellant at 6.

Accordingly, Glaefke argues that under 11 U.S.C. § 727(b), Union Bank's

rescission and reinstatement action was discharged as a claim that

existed prior to the bankruptcy petition.

        Glaefke is correct that the term "claim" as used in 11 U.S.C. 101(5), is

given the "'broadest possible definition'" to ensure that "'all legal obligations of

the debtor, no matter how remote or contingent, will be able to be dealt with in

the bankruptcy case.'" In re Hexcel Corp., 239 B.R. 564, (Bankr. N.D. Cal. 1999)




        2 11 U.S.C. § 523 contains a number of exceptions to discharge, none of which the
parties' claim apply to this case.
No. 72606-4-1/5


(quoting H.R. Rep. No. 95-595 (1977)). But his argument that Union Bank's claim

for rescission and reinstatement of the Deed of Trust falls within that definition

fails because it conflates Union Bank's right to foreclose on the Deed of Trust

with its right to equitable relief.

       The case upon which Glaefke principally relies, Johnson v. Home State

Bank, 501 U.S. 78, 111 S. Ct2150, 115 L Ed. 2d 66 (1991) does not support his

argument that the equitable relief Union Bank seeks is a right to payment.

Instead, that case simply affirms the unremarkable proposition that a mortgage

interest which survives bankruptcy is still a claim because the mortgage holder

retains a right to payment in the form of proceeds from a foreclosure sale.

        In Johnson, the debtor defaulted on promissory notes secured with a

mortgage on his farm. When the bank that held the note began foreclosure

proceedings, Johnson filed for liquidation under Chapter 7 of the Bankruptcy

Code and the Bankruptcy Court subsequently discharged him from personal

liability on the notes. However, the bank's right to foreclose on the property

survived the bankruptcy under 11 U.S.C. § 522(c)(2). The bank reinitiated

foreclosure proceedings in the state court, which entered judgment for the bank.

But before the foreclosure sale could take place, Johnson filed for reorganization

under Chapter 13 of the Bankruptcy Code and listed the mortgage as a claim

against his estate. The bankruptcy court confirmed Johnson's plan to pay the

bank's judgment, but the Court of Appeals held that the Bankruptcy Code

prohibited Johnson from including a mortgage obligation in a Chapter 13 plan if
No. 72606-4-1/6


his personal liability on the obligation had been discharged in a Chapter 7

proceeding.

       On appeal, the Supreme Court framed the issue as "whether a mortgage

lien that secures an obligation for which a debtor's personal liability has been

discharged in a Chapter 7 liquidation is a 'claim' subject to inclusion in an

approved Chapter 13 reorganization plan." Johnson, at 82. The court concluded

that it was, stating that "[ejven after the debtor's personal obligations have been

extinguished, the mortgage holder still retains a 'right to payment' in the form of

its right to the proceeds from the sale of the debtor's property." Johnson, at 84.

The Court further observed that "[alternatively, the creditor's surviving right to

foreclose on the mortgage can be viewed as a 'right to an equitable remedy' for

the debtor's default on the underlying obligation." jd. Thus, the Court held that

regardless of whether analyzed under 11 U.S.C. 101(5)(A) or(B), "[ejither way,

there can be no doubt that the surviving mortgage interest corresponds to an

'enforceable obligation' of the debtor." Id.

       Johnson is of no help to Glaefke because the claim Union Bank asserts

here is not a "right to payment" under subsection 101(5)(A) nor a "right to an

equitable remedy" under subsection 101(5)(B). It is not a right to payment

because at this juncture, Union Bank does not seek payment in the form of

proceeds from a foreclosure sale, instead it seeks only to be put back into the

position it would have held but for the undisputed mistaken reconveyance. Union

Bank's claim for rescission and reinstatement do not fall within subsection

101(5)(B) because Union Bank's right to this equitable remedy did not arise from
No. 72606-4-1/7


"the debtor's default on the underlying obligation." Johnson, at 84. Union Bank's

right to equitable relief does not arise from Glaefke's default, but instead from its

own conduct in mistakenly reconveying the Deed of Trust.

       The facts of this case are more like those in In re Irizarry, 171 B.R. 874

(9th Cir. BAP 1994). In that case, the debtor received real property via a grant

deed from the decedent. The decedent's heirs filed a lawsuit to rescind the deed

and the debtor filed Chapter 7 bankruptcy, listing the property as an asset and

the heirs as unsecured creditors. The debtor was discharged and the heirs filed

to cancel the deed and reconvey the property. The bankruptcy court granted

summary judgment to the heirs. On appeal, the bankruptcy appellate panel

affirmed. It found that the discharge did not prevent a prepetition state court

action seeking equitable remedies such as cancellation of the deed,

reconveyance of the property or cancellation of liens.

       The Irizarry court first concluded that because the heirs sought equitable

remedies and not money damages, a judgment in their favor would not constitute

a right to payment under subsection 101(5)(A). 171 B.R. at 878. It reached the

same result under subsection 101(5)(B) because the heirs sought equitable relief

on the grounds that the decedent did not have the requisite mental capacity to

execute the grant deed transferring the property to the debtor. The court held that

"the equitable remedies do not constitute claims as defined in § 101(5)(B), since

these remedies do not arise from a breach of performance and do not give rise to

a right to payment." Id. Similarly, in this case, because Union Bank seeks an

equitable remedy that is not money damages and does not arise from Glaefke's
No. 72606-4-1/8


failure to perform, it is neither a right to payment nor a right to an equitable

remedy for breach of performance.

        Glaefke contends that Irizarry is distinguishable because the petitioners

there sought reconveyance of the property, but did not, as Union Bank does

here, seek to reinstate a deed of trust with its concurrent right to foreclose on the

property. But the Irizarry court expressly considered that a judgment awarding

equitable relief could give rise to a later contingent right to payment if the debtor

failed to perform, but only if an additional breach were to occur. Id. at 878-79.

Similarly, here, once the Deed of Trust has been reinstated, Union Bank may

bring an action to foreclose that would give rise to a right to payment, but that

right arises from Glaefke's failure to make payments on the Note. It is unrelated

to the basis for Union Bank's claim for equitable relief which arose from its own

mistake.3

        We hold that because Union Bank's equitable action for rescission and

reinstatement of the Deed of Trust was not a debt as that term is defined in the

Bankruptcy Code, it was not discharged as a result of Glaefke's bankruptcy




         3 In any event it is undisputed that the right to foreclose on the property survives the
bankruptcy proceeding. Principles of equity dictate that once the deed of trust is reinstated that
right remains intact. Otherwise, Union Bank's mistake would unjustly deprive it of its interest in
the property and Glaefke would be the beneficiary of a windfall to which he was not entitled and
for which he did nothing to earn. See, Kinne v. Kinne. 27 Wn. App. 158, 162, 617 P.2d 442 (1980)
(quoting Scvmanski v. Dufault, 80 Wn.2d 77, 491 P.2d 1050 (1971)), an equitable lien or
constructive trust may properly be found "despite the absence of fraud or wrongdoing, when
property is acquired under circumstances such that the holder of legal title would be unjustly
enriched at the expense of another party at interest.")
No. 72606-4-1/9


proceeding. The trial court did not err in granting Union Bank's motion for

summary judgment on its claim.

      Affirm.




                                                 C                    Of
WE CONCUR:




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