David W. Devin v. Mtc Financial, Inc. ( 2020 )

Filed
Washington State
Court of Appeals
Division Two
July 28, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
DAVID W. DEVIN, an individual, No. 53241-7-II
Appellant,
v. UNPUBLISHED OPINION
MTC FINANCIAL, INC., d/b/a TRUSTEE
CORPS, trustee; THE BANK OF NEW YORK
MELLON f/k/a THE BANK OF NEW YORK,
as trustee for THE CERTIFICATE HOLDERS
OF CWABS, INC. ASSET-BACKED
CERTIFICATES, SERIES 2005-17,
Respondents.
LEE, C.J. — David W. Devin appeals from the trial court’s denial of his motion for
reconsideration of a prior denial of a motion for reconsideration of certain lower court rulings in
his lawsuit against MTC Financial, Inc. (MTC) and Bank of New York Mellon (BONYM).
Although the trial court dismissed Devin’s claims on summary judgment, Devin does not appeal
the trial court’s summary judgment dismissal of his claims. Because Devin does not appeal the
summary judgment orders dismissing his claims, MTC and BONYM move under RAP 2.4(b) and
(c) and RAP 17.4(d) to dismiss this appeal. We grant MTC and BONYM’s motions to dismiss
Devin’s appeal.
FACTS
In 2005, Devin borrowed money to purchase property in Bremerton. Devin’s loan was
secured by a deed of trust. Bank of America was the servicer of the loan and Landsafe Title was
the trustee. Later, the beneficial interests were assigned to BONYM.
No. 53241-7-II
In 2007, Devin defaulted on his loan. He later moved to Vietnam and began using the
property as a rental. Several trustee sales were attempted in 2008 and 2009, but those attempts
were unsuccessful. MTC then became the successor trustee on the deed of trust.
In 2016, MTC posted a notice of default on the property and arranged for a trustee sale.
Devin filed a complaint against MTC and BONYM, and obtained an order restraining the sale of
the property.
On October 10, 2018, BONYM filed a motion for summary judgment dismissal of Devin’s
claims. Devin then filed a “Motion to Stay Review of Defendant’s Bad Faith Motion for Summary
Judgment.” Clerk’s Papers (CP) at 332. The same day he filed his motion to stay, Devin filed a
“Motion to Compel Production of Good Faith Responses to Plaintiff’s Interrogatories.” CP at 91.
On November 16, 2018, MTC filed a motion for summary judgment dismissal of Devin’s claims.
On November 30, 2018, the trial court heard Devin’s motions to stay and compel discovery.
Devin did not appear. The court denied his motions.
Devin filed a motion for reconsideration, arguing a telephone glitch was the reason he
failed to appear at the November 30, 2018 hearing. On December 14, 2018, the trial court heard
argument on Devin’s motion for reconsideration, granted the motion, and allowed him to provide
argument to support his motions to stay and compel discovery. At the same hearing, the trial court
also heard argument on MTC and BONYM’s motions for summary judgment.
The trial court ultimately denied Devin’s motions to stay and compel discovery. The trial
court also struck a “Revised Complaint” Devin filed right before the summary judgment hearing.
CP at 165. And the trial court took MTC and BONYM’s motions for summary judgment under
advisement.
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No. 53241-7-II
Devin again moved for reconsideration of the trial court’s denial of his motions to stay and
compel discovery. The trial court denied Devin’s motion for reconsideration on December 20,
2018. On December 31, 2018, Devin filed another motion for reconsideration of the trial court’s
decision on his motions to stay and compel discovery, asking the trial court to reconsider its
December 20, 2018 order. This was now Devin’s third motion for reconsideration of the trial
court’s denial of his motions to stay and compel discovery. The trial court denied Devin’s motion
for reconsideration on January 3, 2019.
Separately, on January 3, 2019, the trial court entered two orders granting MTC and
BONYM’s motions for summary judgment dismissal of Devin’s claims.
On February 1, 2019, Devin filed a notice of appeal with this court. Devin sought review
of “the ORDER entered on January 3, 2019 denying his Motion for Rule 59 Relief in this matter.”
CP at 255. The notice of appeal states that “[a] copy of the decision is attached to this notice.” CP
at 255. Devin then attached the trial court’s January 3, 2019 order denying reconsideration of the
trial court’s previous order denying reconsideration of Devin’s motions for stay and compel
discovery based on Devin’s failure to provide a sufficient “basis for reconsideration under CR 59.”
CP at 257.
ANALYSIS
Devin contends that (1) Bank of America violated the statute of limitations or had gifted
the house to him when the initial foreclosure proceedings in 2009 were terminated, (2) MTC and
BONYM failed to establish chain of title, (3) the trial court erred in its prior discovery rulings, and
(4) the trial court erred in failing to find that MTC and BONYM violated the Deeds of Trust Act
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No. 53241-7-II
(DTA), chapter 61.24 RCW and Consumer Protection Act (CPA), chapter 19.86 RCW.1 MTC and
BONYM both move to dismiss Devin’s appeal under RAP 2.4(b) and (c) and RAP 17.4(d) because
he did not appeal from the order dismissing his complaint. We agree with MTC and BONYM,
and grant their motions to dismiss.
The Rules of Appellate Procedure (RAPs) govern the procedures a party must comply with
to appeal a decision or order that the party believes is erroneous. RAP 1.1(a). We will generally
review only “the decision or parts of the decision” the appellant designates in the notice of appeal.
RAP 2.4(a); see also RAP 5.3(a)(3) (notice of appeal must designate decision for review). Further,
RAP 2.4(a) governs the scope of our review, and it limits our review to the “decision” listed in the
notice of appeal. However, RAP 2.4(b) sets forth exceptions for when we will review orders or
rulings not designated in the notice of appeal, and RAP 2.4(c) sets forth exceptions for when we
will review final orders not designated in the notice of appeal. A party may include in his or her
brief a motion to dismiss. RAP 17.4(d).
MTC and BONYM moved for dismissal, arguing that none of the exceptions in RAP 2.4(b)
and (c) apply. All of Devin’s arguments in his briefs relate to, or are impacted by, the summary
judgment orders, which were not designated in his notice of appeal.
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Devin appears to move for reconsideration of this court’s May 10, 2019 letter rejecting the
attachments to his original opening brief because they were not part of our record. Because this
motion is untimely under RAP 17.7(a) and because all documents attached to a party’s brief must
be a part of this court’s record under RAP 10.3(a)(8), we deny Devin’s motion.
We also decline to consider the attachments to Devin’s Reply Brief to BONYM, with the
exception of the “Sworn Statement of the Plaintiff,” which is in our record, based on RAP
10.3(a)(8). CP at 194. Similarly, we decline to consider the multiple filings from Devin regarding
his “transcript” for oral argument and questions for the court and supplemental post hearing
memorandum.
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No. 53241-7-II
A summary judgment order dismissing a complaint is a final order. DeYoung v. Cenex
Ltd., 100 Wash. App. 885, 892, 1 P.3d 587 (2000), review denied, 146 Wash. 2d 1016 (2002).
Therefore, we look to RAP 2.4(c) to see if an exception applies or whether the matter should be
dismissed.
Devin argues that under RAP 2.4(c)(3), he can appeal the summary judgment dismissal
orders because he designated an order denying reconsideration under CR 59 in his notice appeal.
We disagree.
RAP 2.4(c)(3) states that “the appellate court will review a final judgment not designated
in the notice only if the notice designates an order deciding a timely motion based on . . . CR 59
(reconsideration, new trial, and amendment of judgments)[.]” Under RAP 2.4(c), an appeal from
an order deciding a CR 59 motion to reconsider allows us to consider the propriety of the
“underlying” order. Davies v. Holy Family Hosp., 144 Wash. App. 483, 492, 183 P.3d 283 (2008),
abrogated on other grounds by Frausto v. Yakima, HMA, LLC, 188 Wash. 2d 227, 393 P.3d 776
(2017).
Here, the orders granting summary judgment dismissal are not underlying orders. The
order on appeal was a third denial of a motion for reconsideration of the trial court’s rulings on the
motions to stay and compel discovery. The order denying reconsideration did not relate to the
summary judgment dismissal of his claims. Thus, RAP 2.4(c)(3) does not apply to allow this court
to review the trial court’s orders granting summary judgment dismissal of Devin’s claims.
Because Devin did not appeal from the summary judgment orders dismissing his complaint
and the undesignated summary judgment orders are not underlying orders to the order denying
Devin’s motion to stay and compel discovery, there is no exception that allows us to review the
summary judgment orders. Devin’s briefs do not address issues related to the order he appealed
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No. 53241-7-II
and address only issues relating to an order he did not appeal. Therefore, we grant MTC and
BONYM’s motions to dismiss.
We dismiss Devin’s appeal.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Lee, C.J.
We concur:
Glasgow, J.
Cruser, J.
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