September 18, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-2-10102-0, Katherine M. Stolz, J., entered June 9, 2006.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Hunt and Quinn-Brintnall, JJ.
Timothy and Brook Krienke appeal from the summary judgment dismissal of their claims for (1) wrongful foreclosure, (2) slander of title, (3) violation of the Fair Credit Reporting Act, (4) violation of the Consumer Protection Act, (5) breach of contract, and (6) emotional distress. They also claim that the trial court erred in denying their motion for reconsideration. We affirm.
Timothy R. and Brook L. Krienke purchased a house with a mortgage loan from Chemical Mortgage Company in 1990. Chase Home Finance owned and serviced the Krienkes' home mortgage loan at all relevant times. At various times between 1999 and 2000, the Krienkes received notices from Chase stating that their payments were delinquent. The Krienkes contested the delinquency in writing to Chase. After their correspondence with Chase went unanswered, the Krienkes began remitting their mortgage payments via certified mail, return receipt requested.
On March 28, 2005, the Krienkes received a notice of default issued by Northwest Trustee Services, Inc. (NWTS), stating that $6,617.45 was due on the mortgage. A foreclosure sale of the house was scheduled for July 29, 2005.
The Krienkes retained Melissa Huelsman as counsel and, on July 22, 2005, filed (1) a complaint to enjoin the foreclosure sale and for damages, (2) a motion for preliminary injunction to restrain the foreclosure sale, and (3) the declaration of Brook Krienke in support of the motion (the July 22, 2005 declaration). Shortly thereafter, Ms. Huelsman and counsel for defendant NWTS agreed to discontinue the foreclosure sale.
On November 14, 2005, Ms. Huelsman filed a motion to withdraw, stating that she and the Krienkes could not agree on how to handle the case. On December 8, 2005, the court granted Ms. Huelsman's motion to withdraw.
Also, on December 8, 2005, Chase filed a motion to dismiss under CR 12(b)(6) or, alternatively, for summary judgment under CR 56. Pro se, on December 29, 2005, Ms. Krienke filed a motion and declaration for continuance. The court noted that it was not clear what the Krienkes wanted continued. On January 6, 2006, the court dismissed the motion for continuance and advised the Krienkes to retain "a new attorney as soon as possible" and that, absent a request by an attorney to continue this matter, Chase's motion would be heard on January 20, 2006. RP (Jan. 6, 2006) at 8-9.
However, one day before the hearing, and again without representation, Ms. Krienke filed an affidavit and declaration. At that time, Ms. Krienke accused her former attorney of professional misconduct, alleging that Ms. Huelsman had engaged in conduct involving dishonesty, fraud, deceit, and misrepresentation. Ms. Krienke also accused Ms. Huelsman of failing to fully investigate their claims, to add all defendants to their lawsuit, and to conduct discovery. But the Krienkes failed to address the merits of their claims or any arguments raised in Chase's motion to dismiss or for summary judgment, and they failed to submit any documentary evidence in opposition to Chase's summary judgment motion.
On January 20, 2006, Ms. Krienke appeared at the hearing pro se. Each party had an opportunity to present oral argument. Again, Ms. Krienke neither offered any evidence in opposition to Chase's summary judgment motion, nor called the court's attention to any exhibits or documents.
The court granted Chase's motion for summary judgment, dismissing the Krienkes' claims against both Chase and NWTS. The Krienkes then filed a motion for reconsideration. In her declaration in support of the motion, Ms. Krienke repeated the same arguments she had previously made, citing attorney misconduct and incompetence. She also claimed they were denied their right for more time to seek new counsel.
Finding that the Krienkes failed to specify grounds for reconsideration under CR 59 or address the merits of their claims, the court denied the Krienkes' motion for reconsideration. The Krienkes timely filed this appeal.
ANALYSIS A. Motion for Reconsideration
The Krienkes' first challenge the trial court's denial of their motion for reconsideration under CR 59. We review a trial court's decision to deny a motion for reconsideration under the abuse of discretion standard. Rivers v. Wash. State Conference of Mason Contractors, 145 Wn.2d 674, 685, 41 P.3d 1175 (2002).
The Krienkes' CR 59 motion for reconsideration repeats the arguments they made at their summary judgment hearing. It alleges the court proceedings were improper and did not allow them to fully present their arguments and evidence because they were pro se at the time of the hearing. The Krienkes' arguments encompass CR 59(a)(1), irregularity of the court proceeding; CR 59(a)(4), newly discovered evidence; CR 59(a)(7), insufficient evidence supporting decision; and CR 59(a)(9), lack of substantial justice.
1. No Irregularity
A new trial is available under CR 59(a)(1) if an "[i]rregularity in the proceedings of the court . . . prevented [the moving party] from having a fair trial." We review a trial court's disposition of a motion for a new trial for abuse of discretion. See Storey v. Storey, 21 Wn. App. 370, 377, 585 P.2d 183 (1978), review denied, 91 Wn.2d 1017 (1979).
The Krienkes' allegation regarding irregularity is unpersuasive. The Krienkes were on notice as early as November 14, 2005, when Ms. Huelsman moved to withdraw, that they needed new counsel. The court also advised them to retain new counsel on January 6, 2006. Moreover, the Krienkes fail to provide specific evidence of any irregularity in the court's proceedings or that the court abused its broad discretion in denying their motion for reconsideration. That they were unrepresented by counsel is not a basis for reversal. See, e.g., State v. Smith, 104 Wn.2d 497, 508, 707 P.2d 1306 (1985) (pro se defendant must comply with procedural rules); In re Marriage of Olson, 69 Wn. App. 621, 626, 850 P.2d 527 (1993) (pro se litigants are subject to the same procedural and substantive laws as counsel).
We hold that the Krienkes failed to establish that there was an irregularity in the trial court proceedings warranting a reversal under CR 59(a)(1). The trial court did not err in denying the motion for reconsideration on this ground.
2. No Newly Discovered Evidence
"Under CR 59(a)(4), reconsideration is warranted if the moving party presents new and material evidence that it could not have discovered and produced at trial." Wagner Dev., Inc. v. Fidelity Deposit Co. of Maryland, 95 Wn. App. 896, 906, 977 P.2d 639, review denied, 139 Wn.2d 1005 (1999). If the evidence was available but not offered until after that opportunity passes, the parties are not entitled to another opportunity to submit that evidence. Meridian Minerals Co. v. King County, 61 Wn. App. 195, 203, 810 P.2d 31, review denied, 117 Wn.2d 1017 (1991); Adams v. W. Host, Inc., 55 Wn. App. 601, 608, 779 P.2d 281 (1989) ("The realization that [the] first declaration was insufficient does not qualify the second declaration as newly discovered evidence.").
In their appeal, the Krienkes rely primarily on Ms. Krienke's July 22, 2005 declaration. But the Krienkes did not proffer this declaration in opposition to Chase's motion for summary judgment. Moreover, this declaration, which is primarily a summation of the arguments already made to the court, was neither called to the attention of the court during oral argument, nor listed among the documents the court considered in granting defendants' motion. See RAP 9.12. The evidence that the Krienkes claim to have newly discovered (i.e., Ms. Krienke's July 22, 2005 declaration) was clearly available to them when Chase filed its motion for summary judgment. Moreover, the Krienkes failed to explain below why they did not offer this declaration to the court, nor do they do so on appeal.
We hold that the Krienkes failed to establish that there was newly discovered evidence before the trial court warranting reconsideration under CR 59(a)(4). The trial court did not err when it denied reconsideration on this ground.
3. Insufficient Evidence Supporting Decision
In order to prevail on a motion for reconsideration under CR 59(a)(7), the Krienkes must show that the court's decision was contrary to the evidence. On appeal, the Krienkes reason that because they "had not engaged in any discovery or had opportunity to fully explore the claims and defenses raised by each of the parties," the court should have granted their motion for reconsideration. Br. of Appellant at 9. But the Krienkes do not offer any reason for their failure to engage in discovery other than their being pro se. They maintain that the evidence filed with the court presented enough material issues of fact sufficient to prevent summary judgment. But simply stating that the verdict is contrary to the evidence is not sufficient, and that is all the Krienkes do on appeal.
We hold that the Krienkes failed to establish that there was insufficient evidence supporting the trial court's summary judgment order. The trial court did not err when it denied reconsideration on this ground.
4. Lack of Substantial Justice
Finally, the Krienkes argue that we should reverse the trial court's decision because failure to do so would result in a lack of substantial justice. Nevertheless, they fail to address how or why justice has not been served.
Generally, reconsideration under CR 59(a)(9) for lack of substantial justice is rare, due to the other broad grounds afforded under CR 59(a). Lian v. Stalick, 106 Wn. App. 811, 825, 25 P.3d 467 (2001). Considering that the court warned the Krienkes to get an attorney and that Ms. Krienke's declaration was never offered in opposition to Chase's motion for summary judgment, the evidence before it supported denying the Krienkes' motion for reconsideration.
We hold that the Krienkes failed to establish that substantial justice has not been served under CR 59(a)(9). The trial court did not err when it denied reconsideration on this ground.
B. Summary Judgment Dismissal
The Krienkes next challenge the trial court's summary judgment dismissal of their claims. On review of an order for summary judgment, we perform the same inquiry as the court below. Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 860, 93 P.3d 108 (2004). Summary judgment is proper if viewing the evidence in the light most favorable to the nonmoving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Hisle, 151 Wn.2d at 860-61. A material fact is one on which the outcome of the litigation depends. Clements v. Travelers Indem. Co., 121 Wn.2d 243, 249, 850 P.2d 1298 (1993). Only when reasonable minds could reach but one conclusion on the evidence, should the court grant summary judgment. Smith v. Safeco Ins. Co., 150 Wn.2d 478, 485, 78 P.3d 1274 (2003). The appellate court will consider only evidence and issues called to the trial court's attention. RAP 9.12. Documents or other evidence called to the trial court's attention but not designated in the order shall be made a part of the record by supplemental trial court's order or by stipulation of counsel. RAP 9.12.
Because Ms. Krienkes's July 22, 2005 declaration was not properly filed with the court and because, as stated above, it is not considered "[n]ewly discovered evidence," the declaration cannot be relied upon in the appeal. CR 59(a)(4).
1. Wrongful Foreclosure
The Krienkes argue that the trial court erred when it dismissed their claim for wrongful foreclosure under the Washington Deeds of Trust Act (Act) because, although the sale was halted, it was only temporarily halted pending this lawsuit. In effect, the Krienkes argue that their cause of action is for wrongful institution of the foreclosure process.
Deeds of Trust, chapter 61.24 RCW.
Enacted in 1965, the Act supplements the time-consuming judicial foreclosure procedure. John A. Gose, The Trust Deed Act in Washington, 41 Wash. L.Rev. 94, 95-96 (1966). The Act must be construed to further three objectives. First, the nonjudicial foreclosure process should be efficient and inexpensive. Plein v. Lackey, 149 Wn.2d 214, 225, 67 P.3d 1061 (2003). Second, it should provide an adequate opportunity for interested parties to prevent wrongful foreclosure. Plein, 149 Wn.2d at 225. Lastly, it should promote the stability of land titles. Plein, 149 Wn.2d at 225.
To keep the process quick and inexpensive, yet protect all interested parties, the Act grants presale remedies to those wanting to enjoin or restrain a threatened sale. RCW 61.24.130; Koegel v. Prudential Mut. Sav. Bank, 51 Wn. App. 108, 113-14, 752 P.2d 385 (1988). The Krienkes took advantage of this protection when they filed their motion to restrain the sale of their property. NWTS voluntarily cancelled the sale shortly after the date the Krienkes filed their motion.
Because there was no foreclosure, the trial court granted Chase's motion for summary judgment on the Krienkes' wrongful foreclosure claim. But without citing to authority, the Krienkes argue that "[h]alting the [foreclosure] pursuant to the provisions of [chapter 61.24 RCW] does not negate the cause of action." Br. of Appellant at 13. But there is no case law supporting a claim for damages for the initiation of an allegedly wrongful foreclosure sale. Moreover, there is no statutory basis supporting a claim for damages for wrongful institution of foreclosure proceedings. On the contrary, courts promote the Act's objectives, declining to invalidate completed sales even where trustees have not complied with the statute's technical requirements. E.g., Koegel, 51 Wn. App. at 112-13 (upholding sale even though the notice of trustee's sale did not accurately describe the property); Steward v. Good, 51 Wn. App. 509, 515, 754 P.2d 150 (upholding sale even though trustee did not record the notice of sale 90 days prior), review denied, 111 Wn.2d 1004 (1988).
Based on the lack of statutory authority or case law to the contrary, the Krienkes failed to establish that there is an issue of material fact supporting a claim for damages based on the initiation of an allegedly wrongful foreclosure sale. The trial court did not err when it dismissed their claim.
2. Slander of Title
Next, the Krienkes argue that the trial court erred when it dismissed their action for slander of title. Again, we disagree.
The necessary elements of a slander of title action are that the words must: (1) be false; (2) be maliciously published; (3) be spoken with reference to some pending sale or purchase of the property; (4) result in a pecuniary loss or injury to the plaintiff; and (5) be such as to defeat the plaintiff's title. Brown v. Safeway Stores, Inc., 94 Wn.2d 359, 375, 617 P.2d 704 (1980).
The Krienkes have failed to establish the essential element of malicious publication. "Malice is not present where the allegedly slanderous statements were made in good faith and were prompted by a reasonable belief in their veracity." Brown, 94 Wn.2d at 375. In Brown, an action was initiated against Safeway for an alleged breach of a written lease. Brown, 94 Wn.2d at 362. Safeway claimed the action constituted slander of title precluding a proposed sublease to a third party. Brown, 94 Wn.2d at 363. The court held "[t]he initiation of litigation to determine the rights of the respective parties to a lease cannot, without more, be characterized as malicious conduct." Brown, 94 Wn.2d at 375. Likewise, the initiation of foreclosure proceedings cannot be deemed malicious in the context of a bona fide dispute over mortgage payments. See, e.g., Hulse v. Owen Fed. Bank, FSB, 195 F. Supp. 2d 1188, 1208 (2002).
Moreover, the Krienkes have failed to establish a question of fact as to whether the words were spoken with reference to a pending sale or purchase of the property. Although they argue that whether there was or could have been a pending sale is an issue for the trier of fact, this argument is not sufficient. CR 56 obligates the Krienkes to produce evidence of a pending sale to establish an issue of fact. See Ellis v. City of Seattle, 142 Wn.2d 450, 458, 13 P.3d 1065 (2001) (Bare assertions that a genuine material issue exists are not sufficient to defeat a summary judgment motion in the absence of actual evidence.).
We hold that the Krienkes failed to establish that there was an issue of material fact as to the required elements of the slander of title cause of action and affirm the trial court's decision.
3. Fair Credit Reporting Act
We next affirm the trial court's dismissal of the Krienkes' Fair Credit Reporting Act (FCRA) claim. Although the Krienkes argue that the trial court erred when it dismissed their FCRA claim under 15 U.S.C. § 1681s-2(b), it did so because the Krienkes failed to file a complaint with the credit reporting agency (CRA).
The FCRA was enacted in 1970 to thwart unfair credit methods that undermine the public confidence in the functioning of the banking system. Nelson v. Chase Manhattan Mortgage Corp., 282 F.3d 1057, 1058-59 (9th Cir. 2002). In Nelson, the court was asked to decide whether §§ 1681n and 1681o permitted suit against a furnisher of credit-reporting information that violated the duties imposed under § 1681s-2. Nelson, 252 F.3d at 1059. The Nelson court held that a private cause of action existed under §§ 1681n and 1681o, but that § 1681s-2(b) provides a mechanism that filters consumer disputes once a CRA is notified and offers the furnisher the opportunity to save itself from liability by taking certain steps. Nelson, 252 F.3d at 1060. Thus, § 1681s-2(b) specifies what happens after a furnisher receives notice pursuant to § 1681i(a)(2).
Section 1681i(a)(1) requires a CRA to reinvestigate the accuracy of the information once a dispute notice is filed. The CRA must provide notification of the dispute to the person who furnished the information within five business days from the day the dispute notice was filed. Section 1681i(a)(2). Section 1681s-2(b) only takes effect once a furnisher of information receives notice under § 1681i(a)(2) of a dispute regarding the accuracy of the information. See also Elmore v. N. Fork Bancorp., Inc., 325 F. Supp. 2d 336, 340 (S.D.N.Y. 2004); Aklagi v. Nationscredit Fin. Servs. Corp., 196 F. Supp. 2d 1186, 1193 (D. Kan. 2002) (duties imposed by § 1681s-2(b) arise only after the furnisher receives notice of the dispute from a CRA, not just the consumer).
Here, the Krienkes notified Chase that they disputed the accuracy of the information it furnished to the CRA, but they never notified the CRA that the information in its file was disputed. Because § 1681s-2(b) only takes effect after a CRA receives notice of a dispute, we hold that the trial court did not err when it dismissed the Krienkes' FCRA claim.
4. Consumer Protection Act
The Krienkes next argue that the trial court erred when it dismissed their claim arising under the Washington Consumer Protection Act (CPA). We affirm the trial court's dismissal of the Krienkes' CPA claim.
Consumer Protection Act, chapter 19.86 RCW.
Washington's CPA provides that unfair or deceptive acts or practices in the conduct of any trade or commerce are unlawful. RCW 19.86.020. To prevail in a private action based on a CPA violation, a party must establish five distinct elements: (1) an unfair or deceptive act or practice, (2) occurring in trade or commerce, (3) public interest impact, (4) injury to the party in his business or property, and (5) causation. Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 780, 719 P.2d 531 (1986). Whether a particular action or conduct gives rise to a CPA violation is a question of law that we review de novo. Leingang v. Pierce County Med. Bureau, Inc., 131 Wn.2d 133, 150, 930 P.2d 288 (1997); State v. J.P., 149 Wn.2d 444, 449, 69 P.3d 318 (2003).
The Krienkes argue that they have established the unfair act or practice element because Chase "[had] erroneously begun foreclosure proceedings under the assumption that their mortgage payments were delinquent when in fact they were not." Br. of Appellant at 19. Although the CPA does not define the term "unfair," we consider three criteria from the Federal Trade Commission Act to determine whether a practice or act is unfair:
"(1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law or otherwise-whether, in other words, it is within at least the penumbra of some common-law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers (or competitors or other business men)."
Blake v. Fed. Way Cycle Ctr., 40 Wn. App. 302, 310, 698 P.2d 578 (quoting Fed. Trade Comm'n v. Sperry Hutchinson Co., 405 U.S. 233, 244 n. 5, 92 S. Ct. 898, 31 L. Ed. 2d 170 (1972)), review denied, 104 Wn.2d 1005 (1985). But the Krienkes claim that Chase made an erroneous assumption when it began foreclosure proceedings. An erroneous assumption does not support a conclusion that Chase acted in a manner that can be characterized as immoral, unethical, oppressive, or unscrupulous.
Moreover, the Krienkes fail to explain how the public is impacted by a mortgage servicer's erroneous assumption that led to a halted foreclosure. A breach of contract affecting no one but the parties to the contract ordinarily is not an act or practice affecting the public interest. See Hangman Ridge, 105 Wn.2d at 790. Instead, the Krienkes must show a "likelihood that additional plaintiffs have been or will be injured in exactly the same fashion" for their private dispute to be one that affects the public interest. See Hangman Ridge, 105 Wn.2d at 790.
We hold that the Krienkes failed to establish that Chase's erroneous assumption rises to the level of unethical, oppressive, or unscrupulous practices. We affirm the trial court's decision to dismiss their CPA claim.
5. Breach of Contract
The Krienkes next argue that the trial court erred when it dismissed their breach of contract claim. We affirm the trial court's dismissal of the Krienkes' breach of contract claim.
A breach of contract is actionable only if the contract imposes a duty, the duty is breached, and the breach proximately causes damage to the claimant. Nw. Indep. Forest Mfrs. v. Dep't of Labor Indus., 78 Wn. App. 707, 712, 899 P.2d 6 (1995).
We turn first to duty. The Krienkes assert that Chase had a duty to accept the payments and credit their account "upon the date of their receipt rather than the date that Chase got around to cashing the check." Br. of Appellant at 21-22. We assume, without so holding, that these assertions are correct and that the Krienkes established the duty element.
We turn next to breach. The Krienkes assert that Chase breached its duty when it failed to accept timely payments and credit their account accordingly. The Krienkes rely on Ms. Krienke's July 22, 2005 declaration as the sole evidence of the alleged breach. But as stated above, the Krienkes did not properly submit the declaration to the trial court and is therefore not before this court. RAP 9.12. Relying solely on Ms. Krienke's July 22, 2005 declaration, the Krienkes fail to establish any breach of duty.
Even if we did consider the documents Ms. Krienke attached to her declaration, it does not show that Chase failed to accept payments or credit the Krienkes' account. Instead, the documents provided by Ms. Krienke show that they failed to pay for late charges and other assessed fees, which ultimately led to their default. See Saluteen-Maschersky v. Countrywide Funding Corp., 105 Wn. App. 846, 856, 22 P.3d 804 (2001) (dismissing claim of negligent breach of duty to account for payments received because the plaintiff failed to explain how the defendant's decision to apply the remainder of the balance to fees and late charges was improper).
Notwithstanding the Krienkes' inability to establish a breach of duty, they also fail to show any recoverable damages as a result of the alleged breach. Simply alleging "significant emotional distress" because of the "potential" loss of their home, as the Krienkes have done, is not enough. CP at 150. A breach of contract claim does not give rise to liability for emotional distress. Gaglidari v. Denny's Rests., Inc., 117 Wn.2d 426, 440, 448, 815 P.2d 1362 (1991).
We hold that the Krienkes failed to establish that Chase breached its duty or that they suffered recoverable damages, and we affirm the trial court's decision dismissing their claim for breach of contract.
6. Emotional Distress
The Krienkes' final argument is that the trial court erred when it dismissed their emotional distress claim. We affirm the trial court's dismissal of the Krienkes' claim for emotional distress.
The elements of the tort of outrage are: "(1) extreme and outrageous conduct; (2) intentional or reckless infliction of emotional distress; and (3) actual result to the plaintiff of severe emotional distress." Rice v. Janovich, 109 Wn.2d 48, 61, 742 P.2d 1230 (1987). Whether certain conduct is sufficiently outrageous is generally a question for the trier of fact. See Jackson v. Peoples Fed. Credit Union, 25 Wn. App. 81, 84, 604 P.2d 1025 (1979). But the trial court must first make an initial determination as to whether the conduct may reasonably be regarded as "so extreme and outrageous" as to warrant a factual determination by the jury. Jackson, 25 Wn. App. at 84 (citing Restatement (Second) of Torts § 46, cmt. h.)
Relying on both Rice and Jackson, the Krienkes argue that their claim for emotional distress was wrongfully dismissed because case law supports a claim for outrage in a situation where credit has been erroneously damaged. But the Krienkes are incorrect; the tort of outrage has not been recognized in situations where credit has been erroneously damaged. Furthermore, both Rice and Jackson do not apply.
In Rice, the plaintiff brought civil claims under the Racketeer Influenced and Corrupt Organizations statute for injuries resulting from the fire bombing of a tavern where he worked. The jury found for the plaintiff. On appeal, the question was whether the jury could be instructed on both assault and the tort of outrage. Rice, 109 Wn.2d at 61. The holding in Rice was that recovery for the tort of outrage is permissible only if other tort remedies are unavailable. Rice, 109 Wn.2d at 62. The Rice court then cited several cases supporting their ruling that Washington allows recovery for outrage, one of which was Jackson.
In Jackson, this court was faced with a creditor-debtor question, where the debtor alleged that an attempted repossession aggravated her diabetic condition. Jackson, 25 Wn. App. at 84. We held that "the interests of the creditor in collecting his debt are balanced against the degree of invasion of the debtor's privacy, . . . and `a rule of reason' is applied." Jackson, 25 Wn. App. at 85-86 (quoting Housh v. Peth, 99 Ohio App. 485, 135 N.E.2d 440 (1955)). We then cited the Restatement (Second) of Torts, § 46, comment g and held that "one is not liable for knowingly causing emotional distress where all he does is to insist on his legal rights in a permissible way." Jackson, 25 Wn. App. at 88.
The Krienkes also cite to Werlinger v. Clarendon Nat. Ins. Co., 129 Wn. App. 804, 120 P.3d 593 (2005), review denied, 157 Wn.2d 1004 (2006), to support their argument that Washington supports claims for emotional distress in light of a party's bad faith. Br. of Appellant at 22. But Werlinger does not apply to a claim for emotional distress in situations where credit has erroneously been damaged. Instead, Werlinger dealt with bad faith in the insurance context, where Division Three of this court held that a policy holder must show that the insurer's breach of the insurance contract was unreasonable, frivolous, or unfounded. Werlinger, 129 Wn. App. at 808.
The Krienkes fail to offer any analysis or justification for their proposed cause of action. Chase is correct that there is no authority supporting an outrage or a bad faith claim against a lender for reporting of bad credit to the appropriate agencies. The Krienkes also fail to address the preliminary issue of whether Chase's conduct may reasonably be regarded as "extreme and outrageous." See Jackson, 25 Wn. App. at 84.
Furthermore, courts have inferred that, based on the plain language of 15 U.S.C. § 1681t of the FCRA, Congress intended the FCRA to be the sole remedy for a consumer against furnishers of information to credit reporting agencies. Howard v. Blue Ridge Bank, 371 F. Supp. 2d 1139, 1143 (N.D. Cal. 2005). When federal law preempts the area of private consumer actions against furnishers of credit information, summary judgment dismissal of the private consumer actions is proper. Lin v. Universal Card Servs., Corp., 238 F. Supp. 2d 1147, 1152-1153 (N.D. Cal. 2002).
Section 1681t of the FCRA provides: No requirement or prohibition may be imposed under the laws of any State —
(1) with respect to any subject matter regulated under —
. . .
. . .
(F) section 1681s-2 of this title, relating to the responsibilities of persons who furnish information to consumer reporting agencies. Section 1681t(b)(1)(F).
For all these reasons, we affirm the trial court's decision dismissing the Krienkes' claim for emotional distress.
C. Attorney Fees
The Krienkes ask for attorney fees on appeal under the CPA, FCRA and RCW 4.84.330, under a contract provision in the Deed of Trust. Unless they prevail, they are not entitled to fees. They have not prevailed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HUNT, J. and QUINN-BRINTNALL, J., concur.