21ST MORTGAGE CORPORATION v. LLC 10 (2025)

OPINION PUBLISHED IN PART

¶1 This is Duncan Robertson's fourth appeal from the underlying judicial foreclosure action, which 21st Mortgage Corporation (21st) initiated to foreclose a deed of trust encumbering a property that Robertson purchased through a previous foreclosure sale. In the last appeal, we directed the trial court to grant a decree of foreclosure in favor of 21st after a jury found that it was in possession of both the original underlying promissory note and the original allonges evidencing its status as a holder entitled to enforce the note.

¶2 In this appeal, Robertson claims he has new evidence showing that 21st did not have standing to enforce the note. In the published portion of this opinion, we grant 21st's motion to dismiss Robertson's appeal as untimely. In the unpublished portion of this opinion, we address the alternate basis to grant 21st's motion, that Robertson failed to preserve his challenges for appeal, and grant 21st's request for fees on appeal.

FACTS

¶3 The facts leading up to Robertson's last appeal are set forth in our prior opinions. See 21st Mortg. Corp. v. Nicholls, 25 Wash. App. 2d 795, 525 P.3d 962 (published in part), review denied sub nom., Robertson v. Residential Funding Co., 1 Wash.3d 1023, 532 P.3d 162 (2023); 21st Mortg. Corp. v. Robertson, No. 75262-6-I, slip op., 2017 WL 4883329 (Wash. Ct. App. Oct. 30, 2017) (unpublished), https://www.courts.wa.gov/opinions/pdf/752626.pdf.¹ Accordingly, they will not be fully restated here. Briefly, Robertson purchased the underlying property, a house in south King County (Property), after he foreclosed on a deed of trust securing a loan he made to the Property's former owner, Linda Nicholls. See Nicholls, 25 Wash. App. 2d at 798, 525 P.3d 962. Robertson's deed of trust was junior to a deed of trust securing a loan that Nicholls had previously obtained from Old Kent Mortgage Company (Nicholls Loan). Id.

¶4 In 2014, 21st filed a complaint for judicial foreclosure against Robertson.² 21st alleged that it was “the owner and holder of the Deed of Trust and the Note secured thereby.” Robertson answered and filed counterclaims against 21st and cross claims against others, including Ocwen Loan Servicing. “In summary, Robertson claimed that 21st did not have standing to bring a foreclosure action because it had obtained the note underlying the foreclosure fraudulently,” and he claimed that Ocwen also participated in the fraud. Id. at 799, 525 P.3d 962.

¶5 21st and Robertson both moved for summary judgment. In support of his motion, Robertson relied on an affidavit and report from James Kelley, a purported expert in forensic document examination, who had examined what 21st Mortgage claimed were the original promissory note evidencing the Nicholls Loan and the original allonges evidencing 21st's status as a holder entitled to enforce the note. Kelley concluded that the note was “not the original adjustable rate note but a copy thereof”; he also concluded that various endorsements and allonges were copies.

¶6 The trial court denied Robertson's motion for summary judgment, granted 21st's motion, and concluded that 21st was entitled to a decree of foreclosure. On appeal from that order, we reversed in part and remanded, holding, “To the extent that [Kelley's] affidavit is an admissible expert opinion, which is a question that is not before us, it creates a genuine issue of fact whether 21st is the holder of the note” and “entitled to enforce [it].” Robertson, slip op. at 7.

¶7 On remand, 21st moved to exclude Kelley's testimony, and the trial court granted the motion, concluding that Kelley's training and experience were not sufficient to qualify him as an expert. Nicholls, 25 Wash. App. 2d at 801, 525 P.3d 962. The case was then submitted to a jury, which “f[ound] that 21st was in possession of the original note (verdict question 1) and the original allonges (verdict question 2), but that the original allonges were not affixed to the original note on July 24, 2014, i.e., the date the complaint was filed (verdict question 3).” Id. at 802, 525 P.3d 962. 21st moved for judgment as a matter of law to strike verdict question 3. Id. The trial court denied the motion and declared Robertson the prevailing party. Id.

¶8 Robertson appealed and challenged the exclusion of Kelley's testimony. Id. 21st cross appealed and challenged the denial of its motion for judgment as a matter of law, arguing that “verdict question 3 (and its related jury instructions) had no factual or legal basis.” Id. at 803, 525 P.3d 962. We agreed with 21st, holding that “whether 21st possessed the note and allonges (affixed or not) at the time of the complaint or indorsement does not affect the outcome of the foreclosure as a question of law or fact.” Id. at 813, 525 P.3d 962. Accordingly, we reversed the denial of 21st's motion for judgment as a matter of law and remanded to the trial court with directions to “grant the decree of foreclosure in favor of [21st], which the jury found possessed the original note and allonges.” Id. at 813, 797, 525 P.3d 962. We also affirmed the trial court's decision to exclude Kelley's testimony, holding that the trial court's conclusion that Kelley was not qualified as an expert was supported by “Kelley's own testimony about the limitations of his qualifications.” Nicholls, slip op. (unpublished portion) at 26, https://www.courts.wa.gov/opinions/pdf/833472.pdf.

¶9 On October 4, 2023, on remand from Nicholls, the trial court entered a money judgment and decree of foreclosure (judgment) in 21st's favor. The judgment declared that 21st's deed of trust was a “valid first security interest” in the Property, foreclosed the deed of trust, ordered the sale of the Property via sheriff's sale, awarded 21st its reasonable attorney fees and costs, and directed that the “proceeds of sale shall be applied toward the satisfaction of [21st]’s judgment awarded herein and any and all costs of sale incurred by [21st]; and the surplus, if any to the Clerk of the Court to be distributed to such party or parties as may establish their right thereto.”

¶10 On November 3, Robertson filed an “Objection” to the judgment and a new declaration from Kelley that, according to Robertson, “serve[d] to charge and support with unrefuted (and irrefutable) evidence the fact that 21st does not now and has never had standing or authority to bring this Action or to be awarded any relief, costs or attorney fees resulting from it” and “to provide fair notice of forthcoming filings of a Motion for Evidentiary Hearing; Motion to Vacate Judgments and Orders; Motion in opposition to awarding of Court Costs, attorney fees or any relief to [21st] ․, and/or other appropriate motions.”

¶11 On December 29, the King County Sheriff sold the Property and deposited the sale proceeds with the King County Superior Court Clerk. On February 23, 2024, the trial court entered an order confirming the sale, and on March 7, the trial court entered an order authorizing the clerk to disburse the sale proceeds to 21st.³

¶12 On March 22, Robertson filed a notice of appeal designating the March 7, 2024 order to disburse funds, the February 23, 2024 order confirming the sale, the October 4, 2023 judgment, and “[a]ll other judicial orders upon which the [foregoing] Orders ․ are premised.” 21st moved to dismiss Robertson's appeal, and a commissioner of this court referred the motion to this panel.

ANALYSIS

I. Motion To Dismiss

¶13 21st argues that Robertson's appeal must be dismissed because it is both untimely and procedurally improper. We agree.

A. Timeliness

¶14 To properly initiate an appeal, the party seeking review must file a notice of appeal “within the time provided by [RAP] 5.2.” RAP 5.1(a). Under RAP 5.2, as relevant here, an appellant must file their notice of appeal in the trial court within “30 days after the entry of the decision of the trial court that the party filing the notice wants reviewed.” RAP 5.2(a).

¶15 Here, Robertson contends that he has new evidence that “reveals the falsity of all courts’ presumptions that 21st has ever been a ‘Holder’ of the [note] in question” and that the courts “were deceived that 21st has ever had lawful authority/standing/capacity to initiate and litigate this Case and be awarded relief.” In other words, the “decision of the trial court” that Robertson “wants reviewed,” for purposes of RAP 5.2, is the trial court's judgment which declared that 21st had a valid lien on the Property, foreclosed that lien, authorized the sale of the Property, entered judgment in 21st's favor, and directed that the proceeds of sale be applied to satisfy the judgment. The trial court entered that decision on October 4, 2023. So, Robertson had until November 3, 2023 to file a notice of appeal challenging the judgment. However, Robertson did not file his notice of appeal until March 22, 2024, long after that deadline had passed, and, thus, his appeal is untimely.

¶16 Still, Robertson contends that review is proper because the judgment was not the final decision in the case. In support, he cites Franz v. Lance, where the court stated, “A party need not file a notice of appeal within 30 days of every appealable order or judgment but may instead await the final decision in the case.” 119 Wash.2d 780, 781, 836 P.2d 832 (1992) (per curiam). The question in Franz was whether an appeal from a postjudgment order awarding attorney fees also brought an earlier judgment up for appeal. See id. In that case, the earlier judgment did not resolve the parties’ entitlement to fees. See Kemmer v. Keiski, 116 Wash. App. 924, 934-35, 68 P.3d 1138 (2003) (discussing Franz). Franz does not excuse a party from timely appealing a judgment, like the judgment entered in this case, that “finally determines the rights of the parties in the action[,] ․ even if it directs performance of certain subsidiary acts in carrying out the judgment, the right to the benefit of which is adjudicated in that judgment.” Wlasiuk v. Whirlpool Corp., 76 Wash. App. 250, 255, 884 P.2d 13 (1994) (emphasis added); accord Farmers State Bank v. Sponaugle, 157 Ohio St.3d 151, 2019-Ohio-2518, 133 N.E.3d 470, at ¶32 (2019) (foreclosure decree that resolved all rights and liabilities of parties was final, appealable judgment even though it did not specify all amounts due); MDG Supply, Inc. v. Diversified Invs., Inc., 51 Haw. 375, 463 P.2d 525 (1969) (“A judgment of foreclosure ․ is final, although it contains a direction ․ to make a report of sale and to bring the proceeds into court for an order regarding their disposition.”).

¶17 Robertson also contends that his timely appeal from the postjudgment orders confirming the sale and authorizing the disbursement of sale proceeds brought the judgment up for review, apparently relying on the rule set forth in RAP 2.4(b). Robertson is incorrect.

¶18 RAP 2.4(b) provides:

The appellate court will review a trial court order or ruling not designated in the notice [of appeal], including an appealable order, if (1) the order or ruling prejudicially affects the decision designated in the notice, and (2) the order is entered, or the ruling is made, before the appellate court accepts review.

A previous order prejudicially affects the order designated in the notice of appeal “if the order appealed cannot be decided without considering the merits of the previous order.” Right-Price Recreation, LLC v. Connells Prairie Cmty. Council, 105 Wash. App. 813, 819, 21 P.3d 1157 (2001).

This requires some connection between the two [orders] other than that the appealed order would not have occurred if the earlier order had been decided differently. The issues in the two orders must be so entwined that to resolve the order appealed, the court must consider the order not appealed.

Id. (emphasis added).

¶19 Here, Robertson's opening brief does not address the trial court's decisions to confirm the sale and authorize the disbursement of proceeds, much less raise any issues about those decisions that are so entwined with those addressed in the judgment that this court must consider the judgment. Cf. RCW 6.21.110(3) (trial court must confirm sale unless there were substantial irregularities in the sale proceedings to the probable loss or injury of an objecting party); RCW 61.24.080 (explaining order in which sale proceeds must be applied). Instead, as explained, Robertson's challenges on appeal go directly to the propriety of the judgment itself. It cannot be, given the well-recognized interest in finality of judgments, that Robertson may belatedly attack the judgment by appealing later orders that merely carried out the directives contained in that judgment, particularly where he does not even address the merits of those later orders. See In re Marriage of Burkey, 36 Wash. App. 487, 491 n.3, 675 P.2d 619 (1984) (recognizing “the policy favoring the finality of judgments”); accord Shuput v. Lauer, 109 Wis.2d 164, 173-74, 325 N.W.2d 321 (1982) (“There is general agreement that ․ a party who wishes to contest the judgment of foreclosure ․ must appeal from that judgment” and an appeal from an order confirming the sale is limited to challenging the “regularity of the proceedings subsequent to the judgment of foreclosure.”).

¶20 We grant 21st's motion to dismiss Robertson's appeal as untimely. Cf. Buckner, Inc. v. Berkey Irrig. Supply, 89 Wash. App. 906, 911, 951 P.2d 338 (1998) (“A necessary prerequisite to appellate jurisdiction is the timely filing of the notice of appeal.”).

¶21 Having concluded that the remainder of this opinion has no precedential value, the panel has determined that it will be filed for public record in accordance with the rules governing unpublished opinions. See RCW 2.06.040.

B. Procedural Propriety of Appeal

¶22 21st also argues that Robertson's appeal must be dismissed because the issues he raises are not properly before us. We agree, albeit for slightly different reasons than those advanced in 21st's motion to dismiss.

¶23 The thrust of Robertson's appeal is that the trial court “took no appropriate action” in response to his November 2023 “objection” to the judgment, in which he presented what he described as “irrefutable proof” that “this entire case and all relief granted has been based upon false evidence and therefore false premise.” (Emphasis and boldface omitted.) But, although Robertson stated that his objection served to provide the parties notice of forthcoming motions seeking appropriate relief, the record does not reveal any such motion. For example, although Robertson asserts that Kelley's November 2023 declaration constituted new evidence proving forgery and falsification by 21st and Ocwen, it does not appear that Robertson sought relief under CR 59(a)(4), which governs motions for a new trial based on newly discovered evidence, or CR 60(b)(3), which governs motions for relief from judgment based on newly discovered evidence.⁴ Robertson's failure to preserve his claims for relief by bringing an appropriate motion or motions before the trial court is an independent basis to dismiss his appeal.⁵ See RAP 2.5(a) (“The appellate court may refuse to review any claim of error which was not raised in the trial court.”); RAP 12.2 (“The appellate court may reverse, affirm, or modify the decision being reviewed and take any other action as the merits of the case and the interest of justice may require.”).

II. Fees on Appeal

¶24 21st requests an award of fees on appeal as a sanction for violating the Rules of Appellate Procedure and for filing a frivolous appeal. RAP 18.9(a) authorizes this court to sanction a party for filing a frivolous appeal or not complying with the rules. “Appropriate sanctions may include ․ an award of attorney fees and costs to the opposing party.” Yurtis v. Phipps, 143 Wash. App. 680, 696, 181 P.3d 849 (2008).

¶25 We are persuaded that sanctions are warranted here. As a commissioner of this court observed in a previous ruling, Robertson repeatedly filed versions of an opening brief that did not comply with the RAPs. When the commissioner directed Robertson to file a corrected brief before March 17, 2025, he failed to do so, and this court accepted his earlier, non-compliant brief as his opening brief. Nevertheless, Robertson later filed yet another brief without permission from this court.⁶ And, even though we have considered that brief, it still does not comply with the rules. For example, together with his brief, Robertson filed five volumes of appendices, in plain contradiction of RAP 10.3(a)(8), without submitting a motion to supplement the record or otherwise seeking permission from this court as required by RAP 9.11(a).⁷ Additionally, Robertson makes various factual assertions without citation to the record, in contravention of RAP 10.3(a)(5), which requires “[r]eference to the record ․ for each factual statement.” (Emphasis added.)

¶26 Furthermore, although we do not reach the substance of Robertson's current appeal, we observe that it relies entirely on a new declaration from Kelley, who the trial court previously excluded based on his lack of qualifications, a decision we affirmed in Nicholls. Yet Robertson does not assert that Kelley's qualifications have changed in any material respect.⁸ Cf. Folsom v. County of Spokane, 111 Wash.2d 256, 263, 759 P.2d 1196 (1988) (questions determined on appeal will not be revisited in subsequent appeal absent substantial change in evidence). Nor does he proffer any argument, supported by legal authority, as to why it would be procedurally appropriate to revisit Kelley's qualifications at this juncture where, as discussed, Robertson failed to seek appropriate relief from the trial court in the first instance. Cf. Haugh, 58 Wash. App. at 6, 790 P.2d 1266 (“[A] contention unsupported by legal argument is deemed waived.”). For the foregoing reasons, we grant 21st's request for an award of fees on appeal, subject to its compliance with RAP 18.1(d).

¶27 We dismiss this appeal.

FOOTNOTES

1.   Pursuant to GR 14.1(c), we may cite unpublished opinions as necessary for well-reasoned opinions. They are cited here solely to establish procedural facts related to this litigation.On a related procedural note, Robertson initiated and then voluntarily withdrew another appeal in the time between Robertson and Nicholls.

2.   21st also named Nicholls in its complaint. Nicholls did not answer and was found to be in default.

3.   According to the sheriff's return on sale, there was no surplus from the sale but instead a deficiency.

4.   To the extent Robertson did seek such relief, it was his burden to so demonstrate by perfecting the record on appeal. See In re Marriage of Haugh, 58 Wash. App. 1, 6, 790 P.2d 1266 (1990) (“The appellant has the burden of perfecting the record so that the court has before it all the evidence relevant to the issue.”).

5.   We express no opinion as to the merits of such a motion.

6.   Robertson filed a declaration in which he attested that he did not receive the commissioner's earlier ruling directing him to file a corrected brief. But, he did not submit a motion to extend time, and his declaration does not excuse his earlier failures to comply with the rules.

7.   Accordingly, we do not consider the appendices.

8.   We note that a federal district court recently excluded Kelley from testifying in a different case because he lacks the requisite knowledge, skill, experience, training, or education to provide expert testimony on forensic document examination and because his testimony “fails to meet the reliability threshold.” See Church of the Gardens v. Qual. Loan Servs. Corp., No. 3:23-cv-06193-TMC, 2025 WL 2524463, at *6-7 (W.D. Wash. Sept. 2, 2025) (court order).

Hazelrigg, C.J.

WE CONCUR: Bowman, J. Coburn, A.C.J.