Chen Et Ano v. Jp Morgan Chase Bank ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
HUY-YING CHEN and YUEH HUA
CHEN, husband and wife, No. 80484-7-I
Appellants, DIVISION ONE
v. UNPUBLISHED OPINION
JP MORGAN CHASE BANK, as
trustee, f/k/a THE CHASE
MANHATTAN BANK, successor in
interest to Chase Manhattan Bank,
N.A.; THE BANK OF NEW YORK
MELLON TRUST COMPANY,
NATIONAL ASSOCIATION, f/k/a
Bank of New York Trust Company,
N.A., as successor to JP Morgan
Chase Bank, N.A., as trustee for
Residential Asset Mortgage
Products, Inc., mortgage asset
backed pass through certificates
series 2005 RP3; PAUL D.
SAVITSKY, as vice president of JP
Morgan Chase Bank, N.A., f/k/a JP
Morgan Chase Bank; STEVEN K.
LINKON, attorney of Routh Crabtree
Olsen; CHRISTOPHER LUHUS,
attorney in Washington of McCarthy
& Holthus, LLP; JOHN DOE #1,
unknown parties,
Respondents.
APPELWICK, J. — Huy-Ying Chen, appearing pro se, appeals the trial court’s denial
of his motion to set aside the sheriff’s sale and deed following a judicial foreclosure action
on Chen’s real property. Chen’s claims lack merit. We affirm.
No. 80484-7-I/2
FACTS
In 1999, Huy-Ying Chen and Yueh Hua Chen (collectively Chen) borrowed
$525,000 from Washington Mutual Bank to purchase a home located at 5112 189th Ave.
N.E., Redmond WA 98052.1 In 2006, JP Morgan Chase Bank (Chase), as successor to
Washington Mutual Bank, initiated a judicial foreclosure action on the property. On March
19, 2007, Chen filed for bankruptcy. Chen subsequently removed the judicial foreclosure
action to the bankruptcy court as an adversary proceeding. On November 29, 2007, the
bankruptcy court granted Chase’s motion for summary judgment, awarded Chase a
judgment of $647,478.68, and ordered a foreclosure sale of the property in satisfaction of
the debt. Chen appealed. On March 24, 2008, the federal district court denied Chen’s
motion to stay the sale pending his appeal, noting that Chen was unlikely to prevail on
appeal and that the foreclosure sale of the home was “unavoidable.” Chen’s appeal was
dismissed several months later.
On April 18, 2008, King County Superior Court received Chase’s “Judgment
Summary and Affidavit of Steven K. Linkon for Filing a Foreign Judgment.”2 Chase filed
notice of the foreign judgment in King County Superior Court on May 22, 2008. On
October 2, 2008, the King County Sheriff received Chase’s writ for order of sale to
foreclose on the property. On January 2, 2009, the pending sale was canceled after the
parties reached a settlement.
On September 28, 2011, Chen, acting pro se, filed a lawsuit against Chase and its
successor Bank of New York Mellon Trust Company (BONYMT) in King County Superior
1 Yueh Hua Chen passed away after the judicial foreclosure was filed.
2 King County Superior Court Case No. 08-2-13281-1 SEA.
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Court asserting breach of the settlement agreement contract and violations of the Real
Estate Settlement Procedures Act, 12 U.S.C. § 2605, and the Consumer Protection Act,
chapter 19.86 RCW.3 The superior court dismissed the suit with prejudice.
On October 20, 2016, the King County Sheriff received a new order of sale to
foreclose on Chen’s property. On December 12, 2016, Chen, acting pro se, filed a
“Motion to Dismiss a Wrongful Judicial Foreclosure.” The superior court denied the
motion and permitted the sheriff’s sale to proceed in satisfaction of the judgment. The
sheriff’s sale took place on December 16, 2016. On January 12, 2017, Chen, represented
by counsel, filed an objection to confirmation of the sale. On February 10, 2017, the
superior court overruled Chen’s objections to confirming the sale. In an unpublished
opinion, this court affirmed the superior court’s ruling.4
On February 14, 2018, the superior court issued an order to confirm the sheriff’s
sale nunc pro tunc to February 10, 2017. In August 2018, Chen, acting pro se, filed a
lawsuit in United States District Court seeking to prevent enforcement of the sale. The
district court dismissed the lawsuit for lack of subject matter jurisdiction and denied
Chen’s motion for reconsideration.
On June 5, 2019, Chen, acting pro se, filed a lawsuit in superior court against
Chase, BONYMT, and several other parties (collectively Respondents) again seeking to
prevent enforcement of the sheriff’s sale.5 Respondents moved to dismiss on the basis
of res judicata and failure to state a claim. While the motion was pending, Chen filed a
3King County Superior Court No. 11-2-33383-3 SEA.
4JP Morgan Chase Bank v. Chen, 76624-4-I (Wash. Ct. App. October 8, 2018)
(unpublished), https://www.courts.wa.gov/opinions/pdf/766244.pdf, review denied, 193
Wn.2d 1003, 438 P.3d 125 (2019).
5 King County Superior Court No. 19-2-15034-3 SEA.
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No. 80484-7-I/4
pro se motion to set aside the sale and vacate the deed. The superior court denied
Chen’s motion. This appeal followed.
DECISION
A sheriff’s sale must be confirmed unless “there were substantial irregularities in
the proceedings concerning the sale, to the probable loss or injury of the party objecting.”
RCW 6.21.110(3). “‘[C]onfirmation of judicial sales rests largely within the discretion of
the trial court’ and so is reviewed for manifest abuse of such discretion.” Sixty-01 Ass’n
of Apartment Owners v. Parsons, 181 Wn.2d 316, 322, 335 P.3d 933 (2014) (quoting
Braman v. Kuper, 51 Wn.2d 676, 681, 321 P.2d 275 (1958)). “A trial court abuses its
discretion when its decision is based on untenable grounds or untenable reasons.”
Shandola v. Henry, 198 Wn. App. 889, 896, 396 P.3d 395 (2017).
Chen asserts that the sheriff’s deed is void because the judgment expired prior to
the foreclosure sale. This court previously rejected the same claim raised by Chen in his
2017 objection to confirmation of sale:
Judgments rendered by a Washington court are enforceable for a period of
10 years, unless the party obtains an extension. RCW 6.17.020(1), (3). A
foreign judgment filed in a superior court shall be treated in the same
manner as a judgment of the superior court. RCW 6.36.025(1). Here,
Chase obtained the judgment on November 29, 2007. The sale occurred
on December 16, 2016, within the 10 year time limit. The judgment had not
expired and was enforceable.
JP Morgan Chase Bank v. Chen, No.76624-4-I, slip. op. at 5 (Wash. Ct. App. October 8,
2018) (unpublished), https://www.courts.wa.gov/opinions/pdf/766244.pdf. The superior
court confirmed the sale at the February 10, 2017 hearing. The judgment did not expire
within the 10 year period.
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Chen nevertheless asserts that the sheriff’s deed is void, and the 10 year time limit
has expired, because the sale was not confirmed by the court. The record does not
support Chen’s claim. At the hearing on February 10, 2017, the superior court stated on
the record that it would “overrule [Chen’s] objections and confirm the sheriff’s sale.” The
court specified that it did not find sufficient evidence to establish substantial irregularities
in the sheriff’s sale under RCW 6.21.110. Because counsel for Chase did not bring an
order for confirming the sale to the hearing, counsel submitted it later by motion as
instructed. Accordingly, the superior court entered an order confirming the sale nunc pro
tunc to February 10, 2017, the date of the hearing. “A nunc pro tunc order allows a court
to date a record reflecting its action back to the time the action in fact occurred.” State v.
Hendrickson, 165 Wn.2d 474, 478, 198 P.3d 1029 (2009). The order confirming the sale
nunc pro tunc to the date of the hearing was proper.
Chen next argues that the order confirming sale nunc pro tunc was obtained via a
“conspiracy to defraud” because counsel submitted the request ex parte, in contradiction
to the superior court judge’s instructions. Chen is incorrect. King County Local Civil Rule
40.1(b)(1)(N) requires that motions to confirm a sale be presented ex parte. The record
contains a letter from the superior court to counsel for Chase stating that documents he
had presented for signature were being returned for presentation through ex parte.6
Counsel did so, and a superior court judge signed the order. Chen’s assertion that these
actions were somehow fraudulent or otherwise improper are unsupported and without
merit.
6
We may take judicial notice of trial court records ancillary to the pending appeal.
See ER 201; Spokane Research & Def. Fund v. City of Spokane, 155 Wn.2d 89, 98, 117
P.3d 1122 (2005).
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No. 80484-7-I/6
Chen next argues that the sheriff’s sale and deed should be set aside on equitable
grounds because the property sold for only 40 percent of its fair market value. Although
inadequacy of price alone is generally insufficient to set aside a nonjudicial foreclosure
sale, “a grossly inadequate purchase price together with circumstances of other unfair
procedures may provide equitable grounds to set aside a sale.” Albice v. Premier Mortg.
Servs. Of Wash., Inc., 157 Wn. App. 912, 933, 239 P.3d 1148 (2010). Here, the record
shows that the property sold at public auction for $926,834.20. Chen offers no evidence
in the record to show that this price is inadequate.
Chen next argues that the sheriff’s sale and deed should be set aside because
Respondents are “nonexistent entities without any legal standing for foreclosure.” In
support of this assertion, Chen relies on the September 24, 2019 declaration of William
Paatalo, a private investigator specializing in mortgage issues. Paatalo stated that thus
far in his investigation, he had been “unable to identify and/or verify the existence of any
claimant with rights to enforce the Note, or the whereabouts of said Note.” Based on the
evidence he was able to obtain, Paatalo opined that the assignments were deceptive and
contain indicia of fraud. However, Paatalo specified that in order to complete his
investigation, he would need to inspect the note and review its entire custodial history,
review all documents related to the existence of both assignees in the chain of title as
well as the authorities of all parties claiming to act on their behalf, and review the “Pooling
and Servicing Agreement” recorded with the assignment. This evidence is not sufficient
to demonstrate there were substantial irregularities in the proceedings concerning the
sale.
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No. 80484-7-I/7
Chen next asserts that the sale and deed must be set aside because he did not
receive notice of his rights of redemption every two months following the sale. Under
RCW 6.23.030(1), “[i]f the property is subject to a homestead as provided in chapter 6.13
RCW,” notice must be provided “at least forty but not more than sixty days before the
expiration of the judgment debtor’s redemption period.” There is no requirement to
provide notice every two months following the sale. Moreover, the remedy for failure to
comply with this statutory notice requirement is to extend the judgment debtor’s
redemption period for a period of six months. RCW 6.23.030(2). If this should occur,
“[n]o further notice need be sent” and the time for redemption “shall not be extended.”
RCW 6.23.020(2). Chen has not shown that the sale and deed should be set aside on
this basis.7
Affirmed.
WE CONCUR:
7 Because Chen’s present attempt to litigate the foreclosure and sheriff’s sale is
legally and factually unsupported, we need not reach the Respondents’ assertion that
Chen’s lawsuit is also barred by the doctrine of res judicata.
7