In Lyons v. U.S. Bank Nat. Association, No. 89132-0, the Washington Supreme Court clarified that a damage claim by a borrower against a trustee for violations of the deed of trust act (DTA), chapter 61.24 RCW, fails as a matter of law in the absence of a nonjudicial foreclosure sale of the property. However, the absence of a completed sale is not fatal to the availability of the Consumer Proctection Act (CPA) claim based on the same alleged misconduct. “[A] CPA claim may be maintained regardless of the status of the property,” the Court held. The plaintiff/borrower alleged that the adult-care business she operated in her house was directly impacted by the trustee’s misconduct. This was sufficient to satisfy the injury element of a CPA claim. The borrower’s claim for intentional infliction of emotional distress (outrage) failed because the trustee’s alleged misconduct was not sufficiently egregious to support an outrage claim in the foreclosure context.
