No. 58934-2-I.The Court of Appeals of Washington, Division One.
July 23, 2007.
Appeal from a judgment of the Superior Court for King County, No. 06-2-14561-5, LeRoy McCullough, J., entered October 6, 2006.
Affirmed by unpublished per curiam opinion.
PER CURIAM.
The principle issue in this case is whether the trial court abused its discretion in denying Wayne Richardson’s request for an injunction of a nonjudicial trustee’s sale of real property. We conclude that the court acted within its discretion in denying the motion because Richardson did not comply with the Washington Deed of Trust Act (Act) and did not support his motion for an injunction with any declarations of fact. The other issues Richardson raises either lack merit or were raised for the first time in his reply brief.
FACTS
This case concerns the foreclosure on a deed of trust secured by residential real property and improvements. Wayne Richardson obtained title to the property by statutory warranty deed in June 2004. He granted a security interest in the property to New Century Mortgage in the form of a deed of trust. In January 2005, Richardson refinanced the loan secured against the property with Mylor Financial Group, Inc. In February 2005, Mylor informed Richardson that Countrywide Home Loans, Inc. had purchased the loan.
Richardson did not make his September 2005 payment to Countrywide, and he was served with a notice of default by Recon Trust. Recon Trust served Richardson with a notice of trustee’s sale on January 26, 2006. The sale was scheduled for April 28, 2006, with Recon Trust to serve as the trustee. The notice of trustee’s sale specifically referenced RCW 61.24.130
as the manner in which Richardson could restrain the sale. On April 17, 2006, Countrywide attempted to work with Richardson to cure his default by mailing him a repayment plan agreement. On May 1, 2006, however, Richardson informed Countrywide that he would resort to the judicial process to avoid foreclosure.
Two days later, Richardson filed a “Petition to Stay Foreclosure for Failure to Provide a Copy of the Deed of Trust Pursuant to RCW 61.24.040(2), (3), RCW 61.24.130(b).” Countrywide and Recon Trust, the defendants, answered the petition. Richardson then filed his “Motion to Quiet Title, Injunction, Strike Answer Under CR 12(f) for Conflict of Interest Withholding Evidence by RPC 3.3(f), RPC 1.7(b)(2).” The defendants responded. The trial court denied Richardson’s motion on September 5, 2005, by entering its “Order Denying Plaintiff’s Motion to Quiet Title, Injunction, Strike Answer Under CR 12(f) for Conflict of Interest and Withholding Evidence by RPC 3.3(f), RPC 1.7(B)(2).” In that order, the court added a handwritten note stating that it had “considered the absence of declarations of fact from plaintiff [.]” Richardson then filed a motion for reconsideration, which the trial court also denied. Richardson appeals.
ANALYSIS
Judging from his notice of appeal and his opening brief, Richardson generally contends that the trial court erred by entering its September 5 order denying his motion. His motion sought relief in the form of an injunction of the trustee’s sale. An order denying an injunction is reviewed for an abuse of discretion. Kucera v. Dep’t of Transp., 140 Wn.2d 200, 209, 995 P.2d 63 (2000). “A trial court necessarily abuses its discretion if the decision is based on untenable grounds, or the decision is manifestly unreasonable or arbitrary.” Kucera, 140 Wn.2d at 209. The court acted within its discretion in denying Richardson’s request for an injunction because he did not comply with the Washington Deed of Trust Act (Act) and did not support his motion with any declarations of fact. The Act sets forth the only way in which a party may legally challenge a properly noted nonjudicial trustee’s sale. RCW 61.24.130; Plein v. Lackey, 149 Wn.2d 214, 226, 67 P.3d 1061 (2003) Cox v. Helenius, 103 Wn.2d 383, 388, 693 P.2d 683 (1985).
The Act requires as a condition of granting an injunction that the “applicant pay to the clerk of the court the sums that would be due on the obligation secured by the deed of trust if the deed of trust was not being foreclosed[.]” RCW 61.24.130(1). Richardson failed to present evidence that he submitted payment to the clerk of the court of the sums due. He argues that payment is not required before the court’s hearing on an injunction. The Washington Supreme Court has held, however, that under the Act, “a court cannot grant a `restraining order or injunction to restrain a trustee’s sale’ unless the person seeking the order has provided five days’ notice to the trustee of the attempt to seek the order and has paid amounts due on the obligation secured by the deed of trust.” Plein, 149 Wn.2d at 225-26 (quoting RCW 61.24.130(1), (2) (emphasis added).
The court also did not abuse its discretion because Richardson failed to support his motion with any declarations of fact. In its order denying the motion, the trial court noted that it had “considered the absence of declarations of fact from plaintiff.” King County Local Rule 7(b)(4)(B)(iv) provides that the evidence on which a motion is based “must be specified with particularity.” Richardson did not support his motion with declarations of fact, affidavits, or any other evidence. The trial court acted within its discretion by denying the motion.
In addition to arguing that the court abused its discretion by denying his motion, Richardson makes eight assignments of error. He claims in his first and fourth assignments of error that the trial court erred by “denying plaintiff’s Motion to Quiet Title without oral argument” and “refusing to have an oral argument on defendant’s mislabeled motion to dismiss[.]” Brief of Appellant, at 1. The trial court did not err by denying Richardson’s motion without hearing oral argument because Richardson never requested oral argument when he noted the motion for hearing or afterwards. Additionally, Richardson provides no argument in his opening brief or reply brief to support this assignment of error and, therefore, “is deemed to have abandoned it.” In re Marriage of Lutz, 74 Wn. App. 356, 372, 873 P.2d 566 (1994).
Richardson’s second and third assignments of error allege that the trial court erred by failing to read his petition to quiet title. These assignments of error are without merit because Richardson cites to no evidence that the trial court failed to read his petition.
Richardson’s fifth assignment of error alleges that his “Civil Rights to due process of law was denied under Title 42 U.S.C. § 1983.” Brief of Appellant, at 1. This assignment of error is without merit because Richardson does not explain it or cite to evidence in support of it.
Richardson’s sixth assignment of error claims that the trial court erred by not requiring Countrywide and Recon Trust “to exhibit documents to counter” Richardson’s claim that “Countrywide had no color of title” to the property. Brief of Appellant at 1. Richardson does not support this assignment of error with any argument. “Passing treatment of an issue or lack of reasoned argument is insufficient to merit judicial consideration.” Palmer v. Jensen, 81 Wn. App. 148, 153, 913 P.2d 413
(1996), remanded on other grounds, 132 Wn.2d 193, 937 P.2d 597 (1997). Richardson makes a related argument that Countrywide violated RCW 59.12.030(6) because it had no color of title to the property.[1] This statute does not apply to this case because it concerns physical entry onto the land of another, and Richardson concedes that “Countrywide did not physically enter onto the property. . . .” Brief of Appellant, at 5.
In his reply brief, Richardson makes extensive argument on his seventhassignment of error, which alleges that “Recon Trust was not licensed under chapter 61.24 RCW to foreclose on real property in Washington State” and that the court erred “by not requiring [Countrywide and Recon Trust] to exhibit documents to counter the pleadings statements.” Brief of Appellant, at 2. He did not make an argument based on this assignment of error in his opening brief. Therefore, he waives this issue because he essentially raises it for the first time in his reply brief, thus not allowing Countrywide and Recon Trust an opportunity to respond. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992); see also In re Disciplinary Proceeding of Kennedy, 80 Wn.2d 222, 236, 492 P.2d 1364 (1972) (“Points not argued and discussed in the opening brief are deemed abandoned and are not open to consideration on their merits.”); and Dickson v. United States Fid. Guar. Co., 77 Wn.2d 785, 787-88, 466 P.2d 515 (1970) (“Contentions may not be presented for the first time in the reply brief.”).[2]
Additionally, even in his reply brief he has not produced evidence to raise an issue of material fact. Richardson alleges that Recon Trust is not qualified as a trustee because it described itself in one of the pleadings as a “nationally chartered financial institution.” Richardson argues that this does not satisfy the plain terms of RCW 61.24.010(1)(f), which provides that a “national bank, savings bank, or savings and loan association chartered under the laws of the United States” may be a trustee. Recon Trust’s description of itself as a “nationally chartered financial institution” does not necessarily exclude the possibility that it is a “national bank, savings bank, or savings and loan association chartered under the laws of the United States.” RCW61.24.010(1)(f). Under the circumstances presented, Richardson fails to make a sufficient showing that Recon Trust is unqualified to be a trustee.
Richardson’s final assignment of error alleges that the court erred by”not requiring the defendants to comply with court rules of procedure used against a pro se party without licensed counsel.” Brief of Appellant, at 2. This argument lacks merit because “pro se litigants are bound by the same rules of procedure and substantive law as attorneys.” Westberg v. All-Purpose Structures, Inc., 86 Wn. App. 405, 411, 936 P.2d 1175 (1997).
Richardson also argues in a footnote in his reply brief that Recon Trust cannot be a trustee because it is a subsidiary of Countrywide and under RCW 61.24.020, “No person, corporation or association may be both trustee and beneficiary under the same deed of trust.” This argument is waived because Richardson raises it for the first time in his reply brief. Cowiche Canyon, 118 Wn.2d at 809. This issue is also waived because it is treated only in passing. Palmer, 81 Wn. App. at 153.
For the foregoing reasons, we affirm.