Aaron & Jaime Reinstra v. Glepco, Llc And Greg & Pamela Hinton ( 2013 )


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  • IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
    GLEPCO, LLC, a Washington limited                No. 67934-1-1
    liability company; and GREG and
    PAMELA HINTON, husband and wife,
    DIVISION ONE
    c
    Respondents,                                                 r     *
    <~\ i :
    PUBLISHED OPINION               no
    rv>       --::
    v.
    AARON REINSTRA and JAIME,                                                        K.O
    REINSTRA, husband and wife and
    NORTHWEST TRUSTEES SERVICES,
    INC.,
    Appellants.                  FILED: July 22. 2013
    Spearman, A.C.J. — The underlying case is a quiet title action involving
    property purportedly sold at a nonjudicial foreclosure sale. At the sale, the
    respondents made a successful bid on the appellants' property, believing, based
    on the address and other references in the deed of trust and notice of trustee's
    sale, that they were bidding on a three-acre lot with a house on it. After the sale,
    however, the buyers discovered that the legal description of the property in those
    documents described only the drain field portion of the land. The respondents
    brought a quiet title action against the appellants, arguing that the deed oftrust
    beneficiary's security interest was in fact on the entire three-acre lot and that the
    erroneous legal description should be reformed because it was the result of
    No. 67934-1-1/2
    scrivener's error or mutual mistake in the deed of trust between the beneficiary
    and appellants. The trial court denied the appellants' CR 12(b)(6) motion, which
    argued that reformation was unavailable as a matter of law. The court granted
    summary judgment in favor of the respondents, ordered reformation of the legal
    description in the trustee's deed, and quieted title in the respondents. The
    questions on appeal are whether a court in equity may reform the legal
    description of real property in conveyance documents in the context of a
    nonjudicial foreclosure and, if so, whether the trial court in this case properly
    granted summary judgment reforming the legal description based on mutual
    mistake or scrivener's error. We hold that a trial court may reform conveyance
    documents in this context. We further hold that the trial court properly granted the
    trustee's sale buyers' requests for reformation and to quiet title to the disputed
    property in their favor.
    FACTS
    On April 15, 2003, Aaron and Jaime Reinstra ("the Reinstras"), a married
    couple, purchased property in Skagit County and received a statutory warranty
    deed. The deed conveyed two adjacent lots, "A" ("The east 105 feet of the west
    314 feet of the north 418 feet") and "B" ("The west 209 feet of the north 418
    feet").1 Clerk's Papers (CP) at 111-12. To develop the property as they wished,
    the Reinstras were required by Skagit County ("the County") to make a boundary
    line adjustment to combine the two lots into one lot ("combined lot").
    1The statutory warranty deed uses the term "parcel" rather than "lot." The parties use the
    terms interchangeably.
    No. 67934-1-1/3
    On October 5, 2005, to complete the joining of the lots, the Reinstras
    recorded a quit claim deed, and conveyed to themselves the property described.
    The quit claim deed provided a legal description of LotA and then stated:
    The herein described property will be combined or aggregated with
    the contiguous property to theWest[2] owned by the Grantees. This
    boundary adjustment is not for the purposes of creating an
    additional building lot.
    Id. The County issued a permit for the construction of a single residence and on-
    site sanitary system to be built on the combined lot.
    In 2006, the Reinstras borrowed $200,000 from Peoples Bank to build the
    house on former Lot B. The loan was secured by a deed of trust dated May 4,
    2006. The legal description of the land in the deed of trust described the
    combined lot. The "assessor's parcel or tax account number" on the deed of trust
    is the tax parcel number (P123543) assigned by the Skagit County Assessor to
    the combined lot. In late 2006, the Reinstras refinanced and obtained a new loan
    from Peoples Bank for $208,500, with the deed oftrust securing that loan also
    describing the combined lot. The title policy for both loans refers to tax parcel
    number P123543.
    Between 2007 and 2008, Peoples Bank sold the Reinstras' loan to GMAC
    Bank. On May 19, 2008, the Reinstras refinanced with GMAC, obtaining a loan
    for $250,100 secured by a deed of trust. GMAC drew up the refinancing
    paperwork and the Reinstras signed it. The Reinstras assumed GMAC had the
    same security for the 2008 loan that Peoples Bank had: the combined lot. |dL
    2The "contiguous property to the West" referred to Lot B.
    3
    No. 67934-1-1/4
    That deed of trust was recorded with the Skagit County Auditor and granted
    GMAC a security interest in the "Property." "Property" is defined as "the property
    that is described under... the heading 'Transfer of Rights in the Property.'" CP
    at 341. The "Transfer of Rights in the Property" section identifies the address of
    the property as 14022 Dodge Valley Road, in La Conner, Washington 98257,
    with tax parcel number P123543. CP at 342. The section instructs, "[S]ee
    attached legal description." |d. The attached legal description identifies the
    Assessor's Parcel Number as P123543 and describes:
    The East 105 ft. of the West 314 ft. of the North 418 ft. of the
    Northwest quarter of the Northwest quarter of Section 9,
    Township 33 North, Range 3 East, W. M. lying South of the
    county road running along the North line of said subdivision.
    CP at 355. This description includes former Lot A, but not former Lot B.
    The Reinstras defaulted on their 2008 loan from GMAC. Northwest
    Trustee Services, Inc. recorded a notice of trustee's sale with the Skagit County
    Auditor on June 17, 2010. The notice states that the "Property" subject to the
    May 19, 2008 deed of trust and described on the first page would be sold on
    September 17, 2010. The property is identified as "commonly known as: 14022
    Dodge Valley Road, La Conner, WA 98257" with tax parcel number P123543. CP
    at 305. The Dodge Valley address is the address for the house on former Lot B.
    The first page of the notice of trustee's sale states, "The Tax Parcel ID number
    and Abbreviated Legal Description are provided solely to comply with the
    recording statutes and are not intended to supplement, amend or supersede the
    Property's full legal description provided herein." CP at 305. As in the deed of
    No. 67934-1-1/5
    trust, the legal description includes only former Lot A, as follows: "The East 105
    ft. of the West 314 ft. of the North 418 ft." jU
    Before the trustee's sale, Greg and Pamela Hinton, a married couple
    (collectively with GLEPCO, LLC,3 "the Hintons"), checked Skagit County
    Assessor records, which showed the property at the Dodge Valley Road address
    as being three acres—the approximate size of the combined lot—and included a
    photograph ofthe house with tax parcel number P123543. The Hintons visited
    the property, examined the house and outbuilding, and saw that the three-acre
    property was fenced on all sides except the north side abutting the street. No
    fences ran through the interior ofthe property. They believed they would be
    bidding on the combined lot.
    At the trustee's sale, the Hintons made a successful bid of $283,137.51
    and paid the trustee at the time of sale. As a result of the sale, the trustee
    satisfied the obligation secured by the deed oftrust in the amount of
    $278,831.27, recovered its own costs, and deposited the $3,541.24 surplus with
    the court on December 28, 2010. The Reinstras moved out of the house 21 days
    after the sale.4
    The trustee's deed was recorded on September 29, 2010. Like the deed of
    trust and notice of trustee's sale, the trustee's deed describes only former Lot A.
    3GLEPCO's members are Greg and Pamela Hinton individually.
    4The Reinstras claim they moved under pressure from the Hintons. At the hearing on the
    Reinstras' CR 12(b)(6) motion, the Hintons' attorney stated that at that time the Hintons were in
    possession of the house and had a renter in it. The Reinstras argue that the fact of their moving
    outshould notbe considered for purposes ofthe CR 12(b)(6) motion, because the Hintons did
    not allege possession of the house in their complaint.
    No. 67934-1-1/6
    Sometime after the trustee's sale, the Hintons became aware that the legal
    description in the deed of trust, notice of trustee's sale, and trustee's deed did not
    include former Lot B.
    On January 26, 2011, the Hintons filed a complaint to quiet title and for
    declaratory relief against the Reinstras.5 They alleged the Reinstras remained
    record title holder of former Lot B by mutual mistake or through scrivener's error.
    They sought a judgment reforming the trustee's deed and deed of trust and
    quieting title to former Lot B in their favor. The Reinstras counterclaimed for
    wrongful eviction and sought a judgment quieting title in their favor.
    The Reinstras filed a CR 12(b)(6) motion to dismiss, arguing that the
    remedy of reformation was barred by the statute offrauds and chapter 61.24
    RCW. The trial court denied the motion. After the parties engaged in discovery,
    the Hintons filed a summary judgment motion. Following a hearing, the trial court
    found there were no disputed issues of material fact and granted summary
    judgment on the Hintons' reformation and quiet title claims.
    The Reinstras appeal from the order denying their CR 12(b)(6) motion and
    the order granting summary judgment to the Hintons.
    DISCUSSION
    CR 12(b)(6) Ruling
    Atrial court's ruling on a CR 12(b)(6) motion is a question of law reviewed
    de novo. Cutlery. Phillips Petroleum Co., 
    124 Wn.2d 749
    , 755, 
    881 P.2d 216
    5The Hintons also sued the trustee who conducted the trustee's sale but this appeal
    does not involve the trustee.
    No. 67934-1-1/7
    (1994). Under CR 12(b)(6), a complaint may be dismissed for failure to state a
    claim upon which relief can be granted. "A CR 12(b)(6) motion is properly granted
    when it appears from the face of the complaint that the plaintiff would not be
    entitled to relief even if he proves all the alleged facts supporting the claim."
    Citizens for Rational Shoreline Planning, et. al.. v. Whatcom County. 172Wn.2d
    384, 389, 
    258 P.3d 36
     (2011).
    It is well settled that instruments subject to the statute of frauds6 may be
    reformed where scrivener's error or mutual mistake leads to a deficient description
    of land. Berg v. Ting, 
    125 Wn.2d 544
    , 553-54, 
    886 P.2d 564
     (1995) (courts may
    reform contract where scrivener's error or mutual mistake leads to deficient legal
    description of land); Tenco, Inc. v. Manning, 
    59 Wn.2d 479
    , 485-86, 
    368 P.2d 372
    (1962) (courts may reform defective legal description resulting from mutual
    mistake); Geooheoan v. Dever. 
    30 Wn.2d 877
    , 888-89, 
    194 P.2d 397
     (1948)
    (courts in equity may reform contract to correct scrivener's error or mutual
    mistake). Where a legal description of property is inadequate due to scrivener's
    error or mutual mistake, a document is not tested for compliance with the statute
    offrauds until it is reformed to reflect the parties' intent.7 Halbert v. Forney, 88
    6The real estate statute of frauds provides, "Every conveyance of real estate, or any
    interest therein, and every contract creating or evidencing any encumbrance upon real estate,
    shall be by deed       " RCW 64.04.010: see also Martin v. Seiqel. 35Wn.2d 23, 
    212 P.2d 107
    (1950) (requiring every contract or agreement involving sale or conveyance of real property to
    contain legal description of property, including lot number, block number, addition, city, county,
    and state).
    7Therefore, we rejectthe Reinstras' argumentthat, because the legal description in the
    trustee's deed did not include the disputed land, reformation is precluded by the statute of frauds.
    It is undisputed that the trustee's deed complied with the statute offrauds insofar as it related to
    former Lot A; the only issue is whether the legal description should be reformed to also include
    former Lot B.
    No. 67934-1-1/
    8 Wn. App. 669
    , 673, 
    945 P.2d 1137
     (1997) (citing Tenco, 
    59 Wn.2d at 485
    ). Deeds
    of trust and trustee's deeds are subject to the statute of frauds.
    The Reinstras argue that trial courts are nonetheless precluded from
    exercising their equitable powers of reformation if the instrument at issue arises
    in the context of a nonjudicial foreclosure sale. Initially, the Reinstras contend the
    Hintons lacked standing to bring a quiet title action because they had no "valid
    subsisting interest" under RCW 7.28.0108 to former Lot B. We disagree. The
    Hintons alleged in their complaint that they had an interest in former Lot B based
    on having purchased the property in a trustee's sale, and their quiet title action is
    concurrent with their effort to seek reformation of the trustee's deed based on
    scrivener's error or mutual mistake. The Reinstras point to no authority
    interpreting the statute to preclude the Hintons from asserting a valid subsisting
    interest in former Lot B under these circumstances.
    The Reinstras next contend the Hintons' failure to read the legal description
    in the deed of trust and notice of trustee's sale cannot be excused, citing
    Washington Federal Sav. & Loan Ass'n v. Alsager, 165 Wn. App 10, 
    266 P.3d 905
    (2011) rev. denied, 
    173 Wn.2d 1025
    , 
    272 P.3d 851
     (2012) and Skagit State Bank
    v. Rasmussen, 
    109 Wn.2d 377
    , 
    745 P.2d 37
     (1987). In Washington Federal, the
    court rejected the argument of borrowers that no valid loan agreement had been
    8 RCW 7.28.010, the statutory authority for quiet title actions, provides:
    Any person having a valid subsisting interest in real property, and a right
    to the possession thereof, may recover the same by action in the
    superior court ofthe proper county, to be brought against the tenant in
    possession; if there is no such tenant, then against the person claiming
    the title or some interest therein, and may have judgment in such action
    quieting or removing a cloud from plaintiffs title;....
    8
    No. 67934-1-1/9
    formed and they did not breach the agreement because a notary misinformed
    them about the terms of the loan and rushed them through the signing process.
    Washington Federal. 
    165 Wn. App. at 12-14
    . The court refused to excuse the
    borrowers from their failure to take the opportunity to read the loan documents. Id.
    at 17. Similarly, in Skagit State Bank, a borrower signed loan documents without
    reading them and sought to avoid the obligations contained therein on the ground
    that the legal effect of the documents was misrepresented to him. Skagit State
    Bank, 
    109 Wn.2d at 378
    . The court rejected his argument, explaining that the
    evidence showed he would have understood the documents had he read them
    and that he was not entitled to rely on another person's understanding of the
    documents. Jd. at 384-86. These cases are inapposite; in neither was reformation
    sought by a trustee's sale buyer based on mutual mistake or scrivener's error in
    the legal description of property.
    The Reinstras further argue that reformation is contrary to RCW
    64.04.020, which requires that "[ejvery deed shall be in writing, signed by the
    party bound thereby, and acknowledged by the party before some person
    authorized by this act to take acknowledgments of deeds." In connection with
    their reliance on this statute, the Reinstras cite Berg. Neither the statute nor Berg
    prohibits reformation. The court in Berg, which involved property owners' quiet
    title action over an easement across their neighbor's property, acknowledged the
    remedy of reformation but noted there was no evidence of mutual mistake or
    scrivener's error in that case. Berg. 
    125 Wn.2d at 553-55
    .
    No. 67934-1-1/10
    The Reinstras also contend the Deed of Trust Act ("the Act"), chapter
    61.24 RCW, does not give courts authority to look beyond an unambiguous deed
    of trust, notice of trustee's sale, and trustee's deed, citing McPherson v. Purdue.
    
    21 Wn. App. 450
    , 
    585 P.2d 830
     (1978) in support. In McPherson. the deed of
    trust at issue conveyed two easements, but the grantor had title to only one of
    them. jd. at 451. The trustee knew the easement was not included in the interest
    to be foreclosed under the deed of trust but did not disclose this to the buyer. 
    Id.
    The notices and deed purported to convey both easements but disclaimed all
    express or implied warranties. ]d The buyer sued to quiet title and establish a
    prescriptive easement. Id at 450. The court relied on the policy underlying
    chapter 61.24 RCW and concluded that requiring a trustee to guarantee title or
    make disclosures concerning defects of title would add burdens on the lender
    and borrower. ]d at 452. The court stated that generally caveat emptor applied to
    sales based on foreclosure of deeds of trust, ]d But, unlike here, the plaintiff in
    McPherson did not seek reformation or assert mutual mistake or scrivener's error
    in the deed of trust.
    Next, the Reinstras argue reformation denies their right under RCW
    61.24.100(1)9 to be free of deficiency judgment. They contend the court's role
    should be limited to determining whether the procedures in the Act have been
    followed, citing Udall v. T.D. Escrow Services. Inc.. 
    159 Wn.2d 903
    , 911, 154
    9RCW 61.24.100(1) provides, "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."
    10
    No. 67934-1-1/
    11 P.3d 882
    , (2007). They contend that ifthe bank had bid at the trustee's sale and
    received former Lot A, itwould be barred by RCW 61.24.100(1) from receiving
    former Lot B. They note that GMAC had the option under RCW 61.24.100(2)(a)10
    to sue on its note and have recourse to their assets, including former Lot B.
    Because it did not, it is bound by the trustee's sale. They contend a trustee's sale
    buyer should not receive more relief than the lender under the same
    circumstances.
    This argument is not supported by the cited authority. It is not clear that
    RCW 61.24.100(1) would bar the bank from seeking reformation if it had
    purchased the property at the trustee's sale. The statute prohibits a deficiency
    judgment after a trustee's sale, but it is unclear why reformation—whether sought
    by the bank or the Hintons—would equate to a deficiency judgment if the
    evidence showed that the property in dispute was subject to the lender's security
    interest and should have been incorporated in the legal description to begin with.
    Moreover, the Reinstras assume, without explaining why, that the Hintons are
    prohibited from doing what the bank may not. Finally, the cited portion of Udall
    addressed whether a trustee could withhold the deed from a purchaser after a
    nonjudicial foreclosure because of insufficient price. Udall, 
    159 Wn.2d at 911
    .
    The court concluded that the trustee could not do so "unless the sale itself was
    void due to a procedural irregularity that defeated the trustee's authority to sell
    10 RCW 61.24.100(2)(a) provides, "Nothing in this chapter precludes an action against
    any person liable on the obligations secured by a deed of trust or any guarantor prior to a notice
    of trustee's sale being given pursuant to this chapter or after the discontinuance of the trustee's
    sale."
    11
    No. 67934-1-1/12
    the property." Jd Butthis is not the issue before us. Udall says nothing about the
    issue presented here, whether mutual mistake or scrivener's error can be the
    basis for reformation of a deed following a trustee's sale.
    The Reinstras also contend the Hintons, as trustee's sale buyers, may not
    seek reformation because they were not a party to the 2008 deed of trust. We
    disagree. "Standing to assert a claim in equity resides in the party entitled to
    equitable relief; it is not dependent on the legal relationship of those parties."
    Smith v. Monson, 
    157 Wn. App. 443
    , 445, 
    236 P.3d 991
     (2010) (party who
    conveyed property to relatives had standing to seek equitable remedy of quiet
    title based on equitable mortgage to challenge the relatives' conveyance to third
    parties). In Martin v. Walters, 5Wn. App. 602, 
    490 P.2d 138
     (1971), the court
    rejected the argument that reformation of an instrument was impermissible
    because the original parties to the instrument were not involved in the action:
    The successors in interest to the two parties were before the
    court and if the original instrument contained, as the court
    found that it did, a mutually mistaken description of the
    property leased, reformation was a proper remedy.
    ]d at 604-05. Though these cases do not involve a trustee's sale buyer, as here,
    the Hintons are successors in interest to the deed oftrust. They would benefit
    from establishment of mutual mistake or scrivener's error in that instrument. The
    Reinstras cite no authority holding that reformation can be sought only by the
    parties to the contract.
    Finally, the Reinstras argue that a party cannot invoke mutual mistake
    where it assumes the risk ofthat mistake, citing Denaxas v. Sandstone Court of
    12
    No. 67934-1-1/13
    Bellevue. LLC 
    148 Wn.2d 654
    , 667-68, 
    63 P.3d 125
     (2003) and CPL
    (Delaware) LLC v. Conlev. 
    110 Wn. App. 786
    , 791-92, 
    40 P.3d 679
     (2002). They
    contend the Hintons should not be able to invoke mutual mistake or scrivener's
    error because a trustee makes no warranties under the Act and the Act allocates
    risk to trustee's sale buyers. But those cases refer to the risk at the time a party
    enters into an agreement. The Hintons were not a party to the deed of trust and
    no risk was assumed by them as part of the creation or signing of that document.
    We disagree with the Reinstras that anything in the Act or the cited
    authorities precludes a trial court from exercising its equitable power to reform a
    legal description in a conveyance instrument because the instrument in question
    arises in the context of a nonjudicial foreclosure sale. The Act is silent on
    reformation. It is true that under RCW 61.24.040, potential buyers are notified
    that "[t]he sale will be made without warranty, express or implied, regarding title,
    possession, or encumbrances . . ."11 RCW 61.24.040(1 )(f)- But we do not
    understand this statute to preclude reformation where a defect in the legal
    description is alleged as the product of scrivener's error or mutual mistake. The
    trial court did not err in denying the CR 12(b)(6) motion.
    11 Here, the trustee's deed stated, in accordance with the statute:
    This conveyance is made without representations or warranties of any kind,
    expressed or implied. By recording this Trustee's Deed, Grantee understands,
    acknowledges and agrees that the Property was purchased in the context of a
    foreclosure, that the trustee made no representations to Grantee concerning the
    Property and that the trustee owed no duty to make disclosures to Grantee
    concerning the Property, Grantor relying solely upon his/her/their/its own due
    diligence investigation before electing to bid for the Property.
    CPat310.
    13
    No. 67934-1-1/14
    Summary Judgment
    Next we determine whether the trial court, after concluding that
    reformation was an available remedy, properly found mutual mistake or
    scrivener's error based on the evidence before it and properly granted the
    Hinton's motion for summary judgment. We review summary judgment motions
    de novo, engaging in the same inquiry as the trial court. Sheikh v. Choe, 
    156 Wn.2d 441
    , 447, 
    128 P.3d 574
     (2006). Summary judgment is appropriate if,
    viewing the facts and all reasonable inferences therefrom in the light most
    favorable to the nonmoving party, there is no genuine issue of material fact and
    the moving party is entitled to judgment as a matter of law. Michael v. Mosouera-
    Lacv. 
    165 Wn.2d 595
    , 601-02, 
    200 P.3d 695
     (2009); CR 56(c). Summary
    judgment is appropriate if reasonable minds could reach but one conclusion from
    all the evidence. Clements v. Travelers Indem. Co., 
    121 Wn.2d 243
    , 249, 
    850 P.2d 1298
     (1993). The exercise by the superior court of equity discretion is
    reviewed under the abuse of discretion standard. Wilhelm v. Beversdorf. 
    100 Wn. App. 836
    , 848-50, 
    999 P.2d 54
     (2000).
    The Reinstras point to no specific issues of disputed fact on summary
    judgment.12 They argue, instead, that summary judgment was improperly granted
    because the deed of trust, notice of trustee's sale, and trustee's deed all describe
    former Lot A and not former Lot B. But this is the very genesis of the parties'
    12 At the summary judgment hearing below, the trial courtasked the Reinstras whether
    there was any evidence that the actual intent of GMAC and the Reinstras was to sell only former
    Lot A at the foreclosure sale or evidence that the legal description in the deed of trust was in fact
    the intended legal description. The Reinstras acknowledged they did not have evidence directly
    on that point. The Reinstras also agreed that there were no disputed issues of fact forwhich trial
    was necessary.
    14
    No. 67934-1-1/15
    dispute and does not show that a scrivener's error or mutual mistake was not
    made at the time the deed of trust was executed.
    Reformation by a court is an equitable remedy that brings a writing that is
    materially different from the parties' agreement into conformity with that
    agreement. Denaxas. 
    148 Wn.2d at
    669 (citing Akers v. Sinclair. 
    37 Wn.2d 693
    ,
    702, 
    226 P.2d 225
     (1950)). A party seeking reformation must prove the facts
    supporting it by clear, cogent, and convincing evidence. Akers, 
    37 Wn.2d at 703
    .
    A mutual mistake occurs if the parties had the same intentions but their written
    agreement does not accurately express their intentions. Snyder v. Peterson. 
    62 Wn. App. 522
    , 527, 
    814 P.2d 1204
     (1991). A mistake is a belief not in accord
    with the facts. Simonson v. Fendell. 
    101 Wn.2d 88
    , 91, 
    675 P.2d 1218
     (1984). "A
    scrivener's error occurs when the intention of the parties is identical at the time of
    the transaction but the written agreement errs in expressing that intention."
    Reynolds v. Farmers Ins. Co.. 
    90 Wn. App. 880
    , 885, 
    960 P.2d 432
     (1998). A
    court ascertains the parties' intent "'by viewing the contract as a whole, the
    subject matter and objective of the contract, all the circumstances surrounding
    the making of the contract, the subsequent acts and conduct of the parties to the
    contract, and the reasonableness of respective interpretations advocated by the
    parties.'" Berg v. Hudesman. 
    115 Wn.2d 657
    , 667, 
    801 P.2d 222
     (1990) (quoting
    Stenderv. Twin City Foods. Inc.. 
    82 Wn.2d 250
    , 254, 
    510 P.2d 221
     (1973)).
    To establish either mutual mistake or scrivener's error, it must be shown
    that the parties to the instrument possessed the same intentions. Here, the
    undisputed evidence establishes that GMAC and the Reinstras, in executing the
    15
    No. 67934-1-1/16
    2008 deed of trust, intended to secure the loan with the combined lot and thus
    have the legal description in the deed of trust describe the combined lot. By
    2005, a single legal lot had been created so that the Reinstras could build a
    house and drain field on the property. The deeds of trust for the 2006 Peoples
    Bank loan and the subsequent refinance with Peoples Bank contained a legal
    description of the combined lot. The Reinstras' deposition testimony establishes
    that when they signed the loan documents for the 2006 Peoples Bank loan and
    the 2007 refinance, they correctly assumed that the bank's security interest was
    on the combined lot.13 Peoples Bank then sold the Reinstras' loan, with no
    change in the legal description of the property, to GMAC in 2007 or 2008.
    The change in the legal description arose during the May 2008 refinance
    with GMAC.14 There were no discussions, however, between the Reinstras and
    GMAC about modifying the legal description or the security from the previous
    loan with Peoples Bank. The Reinstras assumed GMAC would have the same
    security for the 2008 loan that Peoples Bank had in 2006. While there is no
    evidence in the record from GMAC, we can discern no logical reason
    whatsoever, nor is any offered, as to why GMAC would have agreed to eliminate
    the valuable part of the security with the house on it. We can also discern no
    reason why the parties would have agreed that the security on the loan would
    only be part of what was a single legal lot. Moreover, all other references to the
    13
    The testimony of Aaron Reinstra and Jaime Reinstra does not materially differ.
    14 The Hintons suggest that the source of the defect in the legal description in the 2008
    deed of trust is the 2005 quit claim deed from the Reinstras to themselves, which combines
    former Lots A and B but contains a legal description of only former Lot A and was the last "vesting
    document" at the time of the 2008 loan.
    16
    No. 67934-1-1/17
    property in the 2008 deed of trust (the street address and tax parcel number)
    make it clear that the parties to the deed of trust intended GMAC to have a
    security interest in the combined lot.
    The undisputed evidence shows the incorrect legal description in the 2008
    deed of trust was the result of a mutual mistake. GMAC and the Reinstras
    intended to secure the loan with the combined lot. But the legal description did
    not accurately describe the entire property subject to the bank's security interest.
    Thus, the parties' belief as to what land was described by the legal description
    was not in accord with the fact that the legal description actually only covered
    former Lot A, not former Lot A and former Lot B. The trial court properly granted
    summary judgment on this issue.
    The undisputed evidence also shows that the inaccurate legal description
    was the result of scrivener's error. The Reinstras point to the lack of evidence
    regarding GMAC's document preparation and the scrivener. However, proof of a
    fact to be established may be by direct or circumstantial evidence. Lamphiear v.
    Skagit Corp.. 
    6 Wn. App. 350
    , 356, 
    493 P.2d 1018
    (1972); see ajso 6
    Washington pattern jury Instructions (WPI) 1.03 (evidence may be direct or
    circumstantial, and one is not necessarily more or less valuable than the other).
    And here, there is substantial, undisputed circumstantial evidence that the
    incorrect legal description was due to a scrivener's error. The parties to the deed
    of trust intended GMAC's security interest to include the combined lot. The
    Reinstras relied on GMAC to do the paperwork for the 2008 refinance. The legal
    description failed to capture that intent. The mistake was adopted by the
    17
    No. 67934-1-1/18
    Reinstras and GMAC when they signed the deed of trust, and was then carried
    over into the notice of trustee's sale and trustee's deed. On this issue, because
    reasonable minds could reach but one conclusion from the evidence, summary
    judgment was properly granted. Clements. 
    121 Wn.2d at 249
    .
    Finally, as noted, reformation is an equitable remedy reviewed for abuse
    of discretion. Wilhelm. 100 Wn. App. at 848-50. The trial court did not abuse its
    discretion in determining that the equities weighed in favor of the Hintons. The
    Hintons believed they were bidding on the combined property and the Reinstras
    believed the trustee's sale was on the combined property.15 If title to former Lot B
    is left in the Reinstras, the Hintons' payment to the trustee would satisfy the
    Reinstras' obligation to GMAC while the Reinstras would be able to keep the
    valuable part of the property with the house and the Hintons would be left with
    only the drain field.
    It was possible the Reinstras could have been harmed by the defective
    legal description in the deed of trust ifother interested bidders, who would have
    bid and paid more than what the Hintons did, were dissuaded after having
    noticed the defective description. However, the Reinstras do not argue that they
    were entitled to additional proceeds from the sale or present other evidence that
    they were actually harmed as a result of the defective legal description.16 The
    Reinstras present no evidence of a lack of actual competition in bidding on their
    15 The Reinstras were not aware of the difference in the legal description between the
    2008 GMAC deed of trust and the 2006 Peoples Bank deed of trust until after the trustee's sale.
    16 RCW 61.24.080 governs the disposition of the proceedsof a trustee's sale. The
    Reinstras do not explain whether there were any other interests in or liens on the property before
    they could collect any surplus as provided under subsection (3).
    18
    No. 67934-1-1/19
    property. They provide the affidavit of real estate broker Peter Papadopulos, who
    stated that he decided not to participate in the sale because he noticed the
    discrepancy in the legal description. But Papadopulos's declaration states only
    that after noticing the discrepancy he "chose not to investigate any further." CP at
    329. He did not state that he would have bid a specific amount over what the
    Hintons offered had he believed former Lot B was included. Moreover, the
    Reinstras do not point to evidence contradicting the Hintons' claim that they
    made a "full-price" cash offer.17
    The trial court correctly determined on summary judgment that the legal
    description in the 2008 deed of trust did not express the identical intentions of
    GMAC and the Reinstras and was the result of mutual mistake or scrivener's
    error. It properly determined that reformation was appropriate and ordered the
    legal description in the trustee's deed reformed to include former Lot B. Finally,
    after the trial court properly granted reformation of the trustee's deed to include
    former Lot B, there were no remaining disputed issues for purposes of the quiet
    title action. The trial court therefore properly granted summary judgment on that
    issue.
    Attorney's Fees on Appeal
    The Hintons seek attorney's fees on appeal based on the following
    provision in the 2008 deed of trust:
    17 While the trustee's sale price was less than the assessor's value of $559,500 for tax
    year 2010, there is no evidence in the record that any other bidder would have offered more than
    the Hintons did at the foreclosure sale.
    19
    No. 67934-1-1/20
    Attorneys' Fees. Lender shall be entitled to recover its reasonable
    attorneys' fees and costs in any action or proceeding to construe or
    enforce any term of this Security Instrument. The term "attorneys'
    fees," whenever used in this Security Instrument, shall include
    without limitation attorneys' fees incurred by Lender in any
    bankruptcy proceeding or on appeal.
    CP at 189. The Hintons' request is denied. The quoted language provides no
    basis for awarding fees to the Hintons; it provides for fees to the lender in an
    action to construe or enforce the deed of trust.
    Affirmed and remanded for further proceedings.18
    AiA
    WE CONCUR:                                                  0               ^