Frias v Asset Foreclosure Services, No 89343-8 (WSC-September 18, 2014)
The defendant allegedly violated the Deed of Trusts Act (DTA) but did not complete the foreclosure. The majority held there was no implied right of action under the DTA if there was no improper foreclosure. The plaintiff had a potential CPA claim for damage to business or property. Under the CPA, there is no right to other damages like mental distress.
Test for implying a statutory cause of action in Washington State
The dissent argued for an implied cause of action under the DTA. The dissent stated the law of implied statutory causes of action as follows:
The legislature may implicitly or explicitly create a cause of action. See Ducote v. Dep’t of Soc. & Health Servs , 167 Wn.2d 697, 702-03, 222 P.3d 785 (2009). Whether a statute creates a cause of action is a matter of statutory construction. Transamerica Mortg. Advisors, Inc. v. Lewis, 444 U.S. 11 , 15, 100 S. Ct. 242, 62 L. Ed. 2d 146 (1979). As in most matters of statutory construction, our ultimate goal is to determine the intent of the legislature. See id. at 15-16. If the legislature does not expressly create a cause of action, our court utilizes a three-part test to determine the legislature’s intent. Bennett v. Hardy, 113 Wn.2d 912, 920-21 , 784 P.2d 1258 (1990). We determine whether the plaintiff is “within the class for whose ‘especial’ benefit the statute was enacted”; whether “legislative intent, explicitly or implicitly, supports creating or denying a remedy”; and “whether implying a remedy is consistent with the underlying purpose of the legislation .” Id.