Kerr & Wagstaffe obtains reversal of summary judgment with instructions to dismiss in case over downpayment assistance in Washington

On June 11, 2018, the Washington Court of Appeals Division I reversed a summary judgment against one of Kerr & Wagstaffe’s clients, remanding the action to be dismissed for lack of standing.

 

The firm’s client, National Homebuyers’ Fund, Inc. (“NHF”), is a California nonprofit public benefit corporation that provides downpayment assistance to low-moderate income homeowners in connection with federally insured mortgages in various states including Washington.  NHF was sued by the Washington State Housing Finance Commission, which also provides downpayment assistance to such homeowners.  The Commission claimed that NHF was not legally authorized to provide downpayment assistance in Washington State.  A trial court agreed, granting summary judgment to the Commission and enjoining NHF from providing downpayment assistance in Washington.

 

Kerr & Wagstaffe, working with Washington co-counsel at McNaul Ebel, filed an appeal. Kerr & Wagstaffe partner Michael von Loewenfeldt presented oral argument to the court. Mr. von Loewenfeldt is certified as an appellate specialist by the State Bar of California Board of Legal Specialization and leads the firm’s appellate practice.

 

The Court of Appeals reversed, holding in a unanimous opinion that the Commission lacked standing to sue to enjoin NHF’s activities in Washington because the Commission has neither enforcement power nor any monopoly right to avoid competition from NHF. The Court also held that the Commission’s assertions that NHF’s activities cost the Commission to lose business were “merely speculative and do not satisfy the standing requirement of injury in fact.”  The Washington Court of Appeals’ opinion can be found here.

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