Summary
finding that where "[t]he delinquency on the note is undisputed. . . . Summary judgment was proper."
Summary of this case from Westburg Media Capital, L.P. v. West Alabama RadioOpinion
No. 60023-1-I.
June 16, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-2-04844-0, William L. Downing, J., entered April 23, 2007.
Affirmed by unpublished per curiam opinion.
The trial court granted summary judgment to the holder of the promissory note, Quick Recovery Services, Inc. (Quick Recovery). The court did not abuse its discretion by denying the defendants' motion to continue the summary judgment hearing. Moreover, there was no genuine issue of material fact and Quick Recovery was entitled to judgment as a matter of law. We affirm.
In January 2000, Mary Bevier loaned Bedrock Concrete, Inc. $50,000. The loan was evidenced by a promissory note signed by David Zehm personally and in his capacity as president of Bedrock Concrete, Inc.("Bedrock Note") The loan was due in full on February 7, 2000.
In February 2006, Bevier assigned the Bedrock Note to Quick Recovery. The loan was not paid when due.
Quick Recovery commenced this action on the Bedrock Note against David Zehm, his wife, and Bedrock Concrete, Inc. (collectively "the defendants"). Quick Recovery moved for summary judgment in October 2006. The defendants opposed the motion, arguing that Quick Recovery lacked standing because it was acting as an unlicensed collection agency in violation of Collection Agency Act. The court denied the summary judgment motion without prejudice.
Quick Recovery later moved for summary judgment again. This motion was supported by evidence that Bevier and another person had agreed to adjust the terms of loans she had previously made to that person. Moreover, the adjustment required Bevier to assign all of her right, title, and interest in the Bedrock Note to Quick Recovery. The evidence included a copy of a document memorializing the agreement and "Assignment Agreement."
Clerk's Papers at 85, 88.
The defendants moved to continue the hearing. The court denied the motion, concluding
there has been an insufficient showing of a basis for such delay? both in terms of the reasons for the absence of the evidence at this late juncture and also the lack of specificity as to material evidence that would likely be obtainable should the further delay be granted.
Clerk's Papers at 133.
The court went on to grant Quick Recovery's summary judgment motion.
In doing so, the court explained:
In October, the scant evidence available left open the possibilities that Quick Recovery Services, Inc. had solicited this claim from Ms. Bevier and that she might yet retain a financial interest in their collection efforts. Of the greatest concern was that her Assignment to the plaintiff made specific reference to another agreement between them and the terms of that agreement were not before the Court.
That "Amendment Agreement" between Ms. Bevier and Quick Recovery Services, Inc. is now in evidence. By its terms, it can be concluded that the assignment grew out of a pre-existing business relationship rather than a solicitation and also that the assignment of the rights under the note was complete. In short, this document, along with the sworn declarations submitted by its signers, establishes that Quick Recovery Services, Inc. is acting solely in its own behalf in this legal action and is not acting as a collection agency.
Whether the plaintiff has legal standing to bring this action is a legal question for the Court to decide; the Court determines that it does. Following entry of judgment, the defendants appealed.
Clerk's Papers at 133.
CONTINUANCE
The defendants contend that the superior court abused its discretion by denying the defendants' request for a continuance. We disagree.
Before ruling on a motion for summary judgment, the court may provide the nonmoving party with a reasonable opportunity to complete the record. CR 56(f) states when a court may grant a continuance of a hearing on a summary judgment motion:
Vant Leven v. Kretzler, 56 Wn. App. 349, 352, 783 P.2d 611 (1989).
Should it appear from the affidavits of a party opposing the motion that he cannot, for reasons stated, present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
Denial of a continuance motion is proper (1) when the moving party does not offer a good reason for the delay, (2) the moving party does not state what evidence would be established through additional discovery, or (3) the desired evidence will not raise a genuine issue of material fact. We review the denial of a request to continue a summary judgment motion for a manifest abuse of discretion.
Ernst Home Ctr. v. United Food Workers, 77 Wn. App. 33, 49, 888 P.2d 1196 (1995).
Janda v. Brier Realty, 97 Wn. App. 45, 54, 984 P.2d 412 (1999); Coggle v. Snow, 56 Wn. App. 499, 507, 784 P.2d 554 (1990).
Here the defendants argue that their motion for continuance was filed nearly three months before the discovery cutoff date. But they fail to cite any case or other authority that requires a court to continue a motion merely because the discovery cutoff is not imminent. Quite the contrary is true.
Guile v. Ballard Community Hosp., 70 Wn. App. 18, 25 n. 4, 851 P.2d 689 (1993) (discovery schedule not intended to restrict the trial court's ability to grant summary judgment when a motion is properly brought).
The defendants also argue that they did not realize until shortly before the summary judgment hearing that an important witness was involved in the case, that Bonacic had moved to California, or that Bevier resided in Michigan. These assertions do nothing to address the problem here: they failed to initiate discovery in a timely manner to avoid putting themselves in the situation.
More importantly, there is no showing that a delay in the hearing would have made any difference. The record does not reveal what specific evidence the defendants would have been able to locate or how the evidence would raise a genuine issue of material fact.
The superior court did not abuse its discretion by denying the defendants' request for a continuance.
SUMMARY JUDGMENT
The defendants also contend that summary judgment was improper because there is a genuine issue of material fact whether Quick Recovery was acting as an unlicensed collection agency when it filed the lawsuit against them. We disagree.
Quick Recovery was not "licensed as a collection agency or out-of-state collection agency in the state of Washington." Clerk's Papers at 51.
Summary judgment is appropriate where "the pleadings, affidavits, and depositions establish that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." We consider the facts and reasonable inferences from the facts in the light most favorable to the non-moving party. The burden is on the moving party to establish its right to judgment as a matter of law, but the opposing party may not rely on mere speculation and unsupported assertions. We review de novo an order on summary judgment.
Jones v. Allstate Ins. Co., 146 Wn.2d 291, 300-01, 45 P.3d 1068 (2002), citing Lybbert v. Grant County, 141 Wn.2d 29, 34, 1 P.3d 1124 (2000); CR 56(c).
Reid v. Pierce County, 136 Wn.2d 195, 201, 961 P.2d 333 (1998).
Higgins v. Stafford, 123 Wn.2d 160, 169, 866 P.2d 31 (1994); Grimwood v. University of Puget Sound, Inc., 110 Wn.2d 355, 364-65, 753 P.2d 517 (1988).
Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998).
RCW 19.16.260 provides that "[n]o collection agency or out-of-state collection agency may bring or maintain an action in any court of this state involving the collection of a claim of any third party without alleging and proving that he or it is duly license under this chapter." A collection agency is further defined in RCW 19.16.100(2)(a) as:
Any person directly or indirectly engaged in soliciting claims for collection, or collecting or attempting to collect claims owed or due or asserted to be owed or due another person.
The defendants' argument appears to be based primarily on perceived differences in the two affidavits filed by Bevier. The defendants note that Bevier in her first affidavit stated that she received certain sums of money from Quick Recovery as consideration for the assignment of the Bedrock Note whereas in her second affidavit Bevier stated that the assignment was predicated on a preexisting business transaction she had with a third party. Because Bevier must have "lied on at least one occasion," the defendants argue, there are disputed fact questions which preclude summary judgment. Again, we disagree.
Reply Brief of Appellant at 1.
Even assuming we are able to discern any discrepancies between Bevier's first and second affidavits concerning the consideration she received for assigning her rights and interest in the note, it is difficult to conceive how that discrepancy makes it any more likely that Quick Recovery was "now acting as an unlicensed collection agency" as the defendants allege. Nothing in this record establishes that Quick Recovery was acting as a collection agency as that term is defined in RCW 19.16.100(2)(a).
Reply Brief of Appellant at 1.
The delinquency on the note is undisputed. There are no other issues that were before the court. Summary judgment was proper.
ATTORNEY FEES
Quick Recovery requests an award of attorney fees on appeal pursuant to RAP 18.1. In Washington, attorney fees may be awarded only when there is a contractual, statutory, or recognized equitable basis. Here the Bedrock Note contains a clause providing that attorney fees reasonably expended in any lawsuit brought to enforce the terms of the note will be paid to the prevailing party. Because Quick Recovery, the holder of the note, is the prevailing party, it is entitled to attorney fees on appeal, subject to compliance with the provisions of RAP 18.1(c).
Miotke v. City of Spokane, 101 Wn.2d 307, 338, 678 P.2d 803 (1984).
The note provided in relevant part:
Maker shall pay all costs incurred by Holder in collecting sums due under this Note after a default, including attorneys' fees, whether or not suit is brought. If Maker or Holder sues to enforce this Note or obtain a declaration of its rights hereunder, the prevailing party in any such proceeding shall be entitled to recover its reasonable attorneys' fees and costs incurred in the proceeding (including those incurred in any bankruptcy proceeding or appeal) from the nonprevailing party.
Clerk's Papers at 102.
See RCW 4.84.330; Richter v. Trimberger, 50 Wn. App. 780, 786, 750 P.2d 1279 (1988).
We affirm the trial court's grant of summary judgment in favor of Quick Recovery.
For the Court: