
    [No. 33192-0-III.
    Division Three.
    April 14, 2016.]
    First Bank of Lincoln, Appellant, v. Donald C. Tuschoff et al., Respondents.
    
    
      
      Donald C. Tuschoff, pro se.
    
      Jane Doe Tuschoff, pro se.
    
      Michael A. Roozekrans (of Michael A. Roozekrans PLLC)\ and Erika Balazs, for appellant.
    
      Thomas T. Bassett (of Foster Pepper PLLC), for respondent Banana Belt Gaming LLC.
   Lawrence-Berrey, J.

¶1 Donald Tuschoff sold a bowling alley to the Schwab family, who financed the purchase with a note secured by a deed of trust. Mr. Tuschoff and his daughter thereafter borrowed money from First Bank of Lincoln to purchase Hotel Lincoln, located in the state of Montana. As additional collateral to secure the loan from First Bank, Mr. Tuschoff assigned the Schwab/Tuschoff deed of trust to First Bank. First Bank properly recorded the assignment of the deed of trust. Banana Belt Gaming LLC purchased the bowling alley from the Schwab family and paid Mr. Tuschoff the balance owing on the Schwab/ Tuschoff note, but failed to secure a release of the assigned deed of trust from First Bank.

¶2 First Bank later learned of the sale and sued Mr. Tuschoff and Banana Belt. In addition, First Bank conducted a nonjudicial sale of the Hotel Lincoln property in Montana. Banana Belt successfully moved for summary judgment. The trial court determined as a matter of law that Banana Belt’s payment of the Schwab/Tuschoff note extinguished First Bank’s assigned Schwab/Tuschoff deed of trust. First Bank appeals.

¶3 Most of the issues on appeal involve whether Banana Belt’s purchase of the bowling alley is subject to First Bank’s recorded assigned deed of trust. In the published portion of this opinion, we answer these issues in the affirmative, in favor of First Bank. The last issue on appeal is whether First Bank’s election to foreclose nonjudicially against the Hotel Lincoln property in Montana extinguished the underlying obligation and also the Schwab/ Tuschoff deed of trust. In the unpublished portion, we direct Banana Belt to file suit in Montana to have this issue resolved, due to the fact that resolution of this issue requires application of Montana law and because the controlling precedent is unclear. In general, we reverse and remand for the trial court to proceed consistent with this opinion.

FACTS

¶4 This case involves a series of real estate transactions related to a bowling alley located in Clarkston, Washington. Mr. Tuschoff originally bought the bowling alley in July 1994 from Rex and Mary Helen Humphrey for $550,000. Mr. Tuschoff financed the sale by executing a note and deed of trust.

A. Tuschoff sells the bowling alley to Schwab

¶5 In 1998, Mr. Tuschoff sold the bowling alley to a group of investors for $1.1 million. The group of investors included Gene Schwab, Ladene Schwab, James Schwab, and several others (Schwab). Schwab financed the sale by executing a $1.1 million note, payable to Mr. Tuschoff in monthly installments of $9,791.65. To secure repayment, Schwab executed a deed of trust listing Mr. Tuschoff as the beneficiary. The Schwab/Tuschoff deed of trust stated:

This deed is for the purpose of securing performance of each agreement of Grantor herein contained, and payment of the sum of One Million One Hundred Thousand and No/100 Dollars ($1,100,000.00) with interest, in accordance with the terms of a promissory note of even date herewith payable to Beneficiary or order, and made by Grantor, and all renewals, modifications and extensions thereof, and also such further sums as may be advanced or loaned by Beneficiary to Grantor, or any of their successors or assigns, together with interest thereon at such rate as shall be agreed upon.

Clerk’s Papers (CP) at 82. On November 2, 1998, Mr. Tuschoff recorded the Schwab/Tuschoff deed of trust with the Asotin County Auditor’s Office. The Humphreys remained as senior lienholders.

¶6 Mr. Tuschoff placed the Schwab/Tuschoff note and deed of trust in escrow with Land Title of Nez Perce County, which held the original loan documents, collected Schwab’s monthly payments, and disbursed those payments to Mr. Tuschoff.

B. Tuschoff buys Hotel Lincoln and assigns the Schwab/ Tuschoff deed of trust to First Bank

¶7 On January 27, 2011, First Bank lent $440,000 to Mr. Tuschoff and his daughter Laurie Parks so the two could buy Hotel Lincoln in Lincoln, Montana. At the time Mr. Tuschoff and Ms. Parks applied for the loan, the then-owners of Hotel Lincoln did not have adequate financial statements so that First Bank could analyze the business’s cash flow. To secure the $440,000 loan, Mr. Tuschoff offered to provide additional collateral to First Bank in the form of an assignment of his beneficial interest in the Schwab/ Tuschoff deed of trust and a security interest in the Schwab/Tuschoff note. First Bank agreed to loan the money in exchange for the additional collateral. Mr. Tuschoff and Ms. Parks thereafter signed a promissory note for $440,000, partially secured by a deed of trust against the purchased property. The promissory note was payable in full on February 1, 2014. It contained a due-on-sale clause that allowed First Bank to “declare the entire balance of this Note to be immediately due and payable upon the . .. sale of. .. any part of the Property,” earlier defined as “any property . . . that secures . . . performance of the obligations of this Loan.” CP at 72 (para 12), 70 (para. 1(E)).

¶8 That same day, Mr. Tuschoff executed further documents to provide First Bank the additional agreed-on collateral. Specifically, Mr. Tuschoff executed an “Assignment of Deed of Trust,” by which Mr. Tuschoff assigned his beneficial interest in the Schwab/Tuschoff deed of trust to First Bank. CP at 86. The assignment broadly assigned “all right title and interest in said Note and all rights accrued under said Deed of Trust.” Id. First Bank recorded the assignment with the Asotin County auditor. Despite this purported assignment of all right title and interest in the note, Mr. Tuschoff continued receiving monthly installment payments from Schwab.

¶9 Mr. Tuschoff also signed a security agreement wherein he granted First Bank a security interest in all property described therein, including:

B. Instruments, Documents and Chattel Paper. All instruments and rights I have now or in the future to payments including, but not limited to, rights to payment arising out of all present and future documents, instruments, tangible and electronic chattel paper, and loans and obligations receivable. This includes any rights and interests . . . which I may have by law or agreement against any Account Debtor or obligor of mine.
C. Specific Property. DEED OF TRUST Chattel Paper Issued to DONALD C. TUSCHOFF by . [sic] and. executed on October 22, 1998 in the amount of $1,100,000, secured by [the bowling alley property].[ ]

CP at 95 (emphasis added). First Bank then filed a UCC-1 statement with the Washington Department of Licensing providing notice of its secured interest in

[a]ll instruments, including... promissory notes .... DEED OF TRUST Chattel Paper issued to DONALD C. TUSCHOFF by . [sic] and. executed, on October 22, 1998 in the amount of $1,100,000.00 . . . secured by [the bowling alley property].

CP at 101-02 (emphasis added).

C. Banana Belt buys the bowling alley from Schwab

¶10 In June 2013, Schwab agreed to sell the Clarkston, Washington, bowling alley to Banana Belt for $1.35 million. Banana Belt hired First American Title Company to close the sale with Schwab. First American’s limited practice officer Tonja Hatcher handled the closing. Ms. Hatcher obtained the title commitment on the bowling alley property and reviewed it. She noticed in paragraph 21 of that commitment an exception that listed the Humphreys/ Tuschoff deed of trust. She also noticed in paragraph 23 an exception that listed Mr. Tuschoff’s assignment of the Schwab/Tuschoff deed of trust to First Bank. She did not contact First Bank to inquire about First Bank’s rights.

¶11 Banana Belt borrowed $600,000 from Columbia Bank to finance the purchase. Columbia Bank sent a letter instructing First American to assure that its hen rights were in first position, and “request [ed] that exceptions [listed in paragraphs] 21 and 23 [in the title commitment] be released.” CP at 222.

¶12 Accordingly, Ms. Hatcher sent Rita Johnson, the Land Title employee who handled the Humphreys/Tuschoff and Schwab/Tuschoff note escrow accounts, an e-mail asking for a full payoff amount for the Schwab/Tuschoff note. The e-mail attached the pages of the title commitment listing both the Humphreys/Tuschoff deed of trust as well as the Schwab/Tuschoff deed of trust. Ms. Hatcher drew an arrow next to Mr. Tuschoff’s assignment of the Schwab/ Tuschoff deed of trust to indicate “that there [was] somebody else involved.” CP at 202. Ms. Johnson did not get the title commitment pages, nor did she notice the assignment of the Schwab/Tuschoff deed of trust.

¶13 Ms. Hatcher sent a follow-up e-mail to Ms. Johnson requesting confirmation that Land Title would pay off the deeds of trust so that she would be able to guarantee clear title to Banana Belt and Columbia Bank. Ms. Johnson believed she was required to pay off Mr. Tuschoff personally and responded, “This is a wrap and both Deeds of Trust will be paid.” CP at 247. Ms. Hatcher and Ms. Johnson never discussed whether Land Title would pay First Bank, as opposed to Mr. Tuschoff. Ms. Johnson testified in her deposition that she does not review the title commitment to determine who Land Title needs to pay, but instead follows the instructions in Land Title’s file.

¶14 Several days later, Ms. Johnson sent Ms. Hatcher a payoff quote for the Schwab/Tuschoff note, which showed an outstanding balance of $359,271.82. First American then sent Land Title a check for $359,271.82, which it said represented full payoff for the Schwab/Tuschoff note. The letter specified that it sent the check in exchange “for a release of the original Promissory Note and original Deed of Trust/Mortgage recorded November 02, 1998.” CP at 492. Land Title then disbursed $355,375.75 to Mr. Tuschoff and $3,855.93 to the Humphreys. This fully satisfied Schwab’s obligation to Mr. Tuschoff on the Schwab/Tuschoff note. Schwab then conveyed the bowling alley to Banana Belt by statutory warranty deed.

D. First Bank sues Tuschoff and Banana Belt

¶15 First Bank’s Hotel Lincoln loan to Mr. Tuschoff matured on February 1, 2014, and a remaining principal balance existed of $400,430.42. In reviewing whether to renew the loan, First Bank learned that the bowling alley had been sold and funds disbursed to Mr. Tuschoff, despite the recorded assignment to First Bank of the Schwab/ Tuschoff deed of trust.

¶16 First Bank sued Mr. Tuschoff and Banana Belt in Asotin County Superior Court, seeking a declaratory judgment that Mr. Tuschoff’s assignment of his beneficial interest in the Schwab/Tuschoff deed of trust remained a valid hen against the bowling alley property.

¶17 First Bank held a nonjudicial foreclosure sale for the Hotel Lincoln property on August 25, 2014. First Bank was the only bidder at the trustee’s sale and successfully purchased the property. First Bank asserts that a $250,000 balance will remain unpaid in connection with the Montana note after First Bank liquidates the Hotel Lincoln property. First Bank never disclosed during discovery the amount it bid at the trustee’s sale to reacquire Hotel Lincoln.

¶18 First Bank also sued Mr. Tuschoff in Lewis and Clark County District Court, Montana, under case no. DDV 2014-326. The Montana trial court’s decision is unclear and will be discussed in further detail later. Ultimately, First Bank obtained a money judgment against Mr. Tuschoff. Mr. Tuschoff has since absconded.

¶19 On October 24, 2014, Banana Belt moved the trial court for summary judgment and an order to quiet title and reconvey the Schwab/Tuschoff deed of trust. Banana Belt’s principal argument was that its payment to Schwab extinguished the Schwab/Tuschoff deed of trust. First Bank filed a cross motion for summary judgment. On February 10, 2015, the trial court granted Banana Belt’s motion and denied First Bank’s motion.

¶20 First Bank appeals and requests that this court grant summary judgment in its favor as a matter of law.

ANALYSIS

¶21 This court reviews a summary judgment order de novo. Lunsford v. Saberhagen Holdings, Inc., 166 Wn.2d 264, 270, 208 P.3d 1092 (2009). When reviewing a summary judgment order, the appellate court engages in the same inquiry as the trial court, viewing the facts and all reasonable inferences in the light most favorable to the nonmoving party. Riojas v. Grant County Pub. Util. Dist., 117 Wn. App. 694, 697, 72 P.3d 1093 (2003). Summary judgment is appropriate only if the moving party can show that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” CR 56(c). “A material fact is one upon which the outcome of the litigation depends in whole or in part!’ Atherton Condo. Apt.-Owners Ass’nBd. of Dir s. v. Blume Dev. Co., 115 Wn.2d 506, 516, 799 P.2d 250 (1990). Finally, we may affirm a trial court’s summary judgment order on any basis supported by the record. Lewark v. Davis Door Servs., Inc., 180 Wn. App. 239, 242, 321 P.3d 274, review denied, 180 Wn.2d 1026, 328 P.3d 902 (2014).

A. A seller of property can convey only the seller’s interest

¶22 A seller of property can convey no greater interest in the property than the seller has. Firth v. Hefu Lu, 146 Wn.2d 608, 615, 49 P.3d 117 (2002). Applying this rule to the present facts, Mr. Tuschoff conveyed only his interest in the property when he reconveyed the deed of trust to Schwab, and Schwab conveyed only his interest in the property when he deeded the property to Banana Belt. Here, because Mr. Tuschoff could not convey the property free and clear of the Schwab/Tuschoff deed of trust that he had earlier assigned to First Bank, Banana Belt purchased the bowling alley property subject to First Bank’s assigned deed of trust.

B. The bowling alley property secured two debts

¶23 Banana Belt argues that its payment of the underlying Schwab/Tuschoff note satisfied the deed of trust because a security interest cannot exist without an obligation. In support of its argument, Banana Belt cites 18 William B. Stoebuck & John W. Weaver, Washington Practice: Real Estate: Transactions § 17.1, at 253 (2d ed. 2004). The flaw in Banana Belt’s argument is that the Hotel Lincoln note created a separate obligation against the bowling alley property. Although Banana Belt’s payment to Mr. Tuschoff extinguished Mr. Tuschoff’s right to foreclose if Schwab failed to pay the Schwab/Tuschoff note, it did not extinguish First Bank’s right to foreclose if Mr. Tuschoff failed to pay the Hotel Lincoln note—a separate obligation that encumbered the property.

C. RCW 65.08.120 does not protect a subsequent purchaser with notice

¶24 Banana Belt argues RCW 65.08.120 allows it to pay the note payee rather than the payee’s assignee because the recording of a seller’s assignment is not notice that its payment was improper. RCW 65.08.120 provides:

Assignment of mortgage—Notice. The recording of an assignment of a mortgage is not in itself notice to the mortgagor, his or her heirs, assigns or personal representatives, to invalidate a payment made by any of them to a prior holder of the mortgage.

(Emphasis added.) Assuming without deciding that the above rule applies beyond mortgages to notes and deeds of trust, the rule does not advance Banana Belt’s position. First, the rule applies to obligors and certain successors in interest to the obligor who make payments on a debt. This rule therefore would apply to payments made by Schwab to Mr. Tuschoff, but would not apply to payments made by Banana Belt to Mr. Tuschoff since Banana Belt is not an “heir, assign, or personal representative” of Schwab. Second, the rule protects obligors on a debt and certain successors in interest to the obligor when payments are made to an assignor of the debt when the obligor or its successor had no notice that the payments should have been directed to the assignee. Here, a subsequent purchaser such as Banana Belt who actually knows of First Bank’s recorded assignment may not ignore First Bank’s interest by claiming it did not know of it.

D. Banana Belt is not a bona fide purchaser

¶25 Because a bona fide purchaser can obtain rights greater than a seller has, we next determine whether this doctrine protects Banana Belt.

[I]f the purchaser has knowledge or information that would cause an ordinarily prudent person to inquire further, and if such inquiry, reasonably diligently pursued, would lead to discovery of title defects or of equitable rights of others regarding the property, then the purchaser has constructive knowledge of everything the inquiry would have revealed.

Albice v. Premier Mortg. Servs. of Wash., Inc., 174 Wn.2d 560, 573, 276 P.3d 1277 (2012). Here, Banana Belt had constructive knowledge—through either its agent, First American, or the recording of the assignment itself—that First Bank claimed an interest in the bowling alley property. Had First American’s closing agent contacted First Bank in June 2013, First American would have learned that Mr. Tuschoff had assigned First Bank the Schwab/Tuschoff deed of trust to secure a $440,000 promissory note that was payable in full in less than eight months, that over $400,000 was owing on the note, and that the note had a due-on-sale clause that allowed First Bank to accelerate payment in full if the bowling alley was sold. In addition, First American would have learned that First Bank had a perfected security interest in the promissory note itself. All of this information is imputed to Banana Belt because First American was the closing agent for Banana Belt. Nat’l Bank of Wash. v. Equity Inv’rs, 81 Wn.2d 886, 910, 506 P.2d 20 (1973). We therefore conclude that Banana Belt was not a bona fide purchaser and was thus incapable of obtaining a greater interest in the bowling alley property than Schwab (through Mr. Tuschoff) had the right to convey.

E. First Bank’s recorded interest is entitled to protection even though Tuschoff had not defaulted on the Hotel Lincoln note

¶26 Banana Belt argues that First Bank merely had a conditional assignment of the Schwab/Tuschoff note and deed of trust, and that its interests did not become absolute until or unless Mr. Tuschoff defaulted. Whether First Bank’s interest was absolute or conditional is of no consequence to our inquiry. Mr. Tuschoff was unable to convey title free and clear of First Bank’s assigned deed of trust to Schwab, and hence Schwab was unable to convey clear title to Banana Belt.

F. Whether First Bank is precluded from recovering against Banana Belt under Montana law

¶27 Banana Belt argues that First Bank’s decision to foreclose nonjudicially against the Hotel Lincoln property prevents First Bank from collecting further on First Bank’s note with Mr. Tuschoff and therefore extinguishes the assigned Schwab/Tuschoff deed of trust. First Bank responds that a Montana trial court decided this issue contrary to Banana Belt’s argument, that the obligation was not extinguished, and that we should give comity to that decision. We reject First Bank’s argument and conclude that application of comity to this issue would be inappropriate.

¶28 The comity doctrine allows a court, acting within its discretion, to give effect to the law and resulting orders of another jurisdiction out of deference and respect, considering the interests of each jurisdiction. Haberman v. Wash. Pub. Power Supply Sys., 109 Wn.2d 107, 160-61, 744 P.2d 1032, 750 P.2d 254 (1987). The doctrine of comity, however, does not apply beyond the “immediate parties and the underlying claim.” In re Estate of Toland, 180 Wn.2d 836, 848, 329 P.3d 878 (2014). Here, Banana Belt was not a party to the Montana action. Rather, the Montana action was brought by First Bank against Mr. Tuschoff. For this reason, Banana Belt had no right to appear in that controversy, could not protect its interests, and could not appeal an adverse decision. Notice of the litigation, an opportunity to participate, and the ability to appeal an adverse decision are important considerations in determining whether to apply comity. See id. We conclude that comity cannot be applied to a foreign state’s decision where the party resisting its application did not have the right to participate or appeal the foreign state’s decision.

¶29 Reversed and remanded.

¶30 The remainder of this opinion has no precedential value. Therefore, it will be filed for public record in accordance with RCW 2.06.040, the rules governing unpublished opinions.

Fearing, C.J., and Korsmo, J., concur. 
      
       The parties dispute whether Mr. Tuschoff assigned the Schwab/Tuschoff note to First Bank but retained the right to monthly payments, or whether Mr. Tuschoff only gave First Bank a secured interest in the note. Because an owner of property does not also take a security interest in it, the execution of the security agreement makes clear that First Bank had only a security interest in the note.
     
      
       An assignor of a conditional security interest may foreclose on its interest. See Uni-Com Nw., Ltd. v. Argus Publ’g Co., 47 Wn. App. 787, 794, 737 P.2d 304 (1987). Even after Mr. Tuschoff assigned the Schwab/Tuschoff deed of trust to First Bank, Mr. Tuschoff retained the right to foreclose if Schwab defaulted. In that event, First Bank could have protected its interests by becoming a bidder at the foreclosure sale and assuring that the bid was sufficient to pay all or part of the $400,000 balance of the Hotel Lincoln note.
     