Appeal
from the Superior Court of the State of Alaska No.
3AN-14-05970 CI, Third Judicial District, Anchorage, Gregory
Miller, Judge.
Gail
M. Ballou, Law Office of Gail M. Ballou, Fairbanks, for
Appellant.
Theodora Accinelli, RCO Legal - Alaska, Inc., Anchorage, for
Appellee Kevin Elfrink. No appearance by Appellee Javed Raja.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and
Carney, Justices.
OPINION
STOWERS, Chief Justice.
I.
INTRODUCTION
Mariam
Bibi and Javed Raj a married and later bought a home in
Anchorage with loans from IndyMac Bank, F.S.B. (IndyMac).
IndyMac's loans were secured by deeds of trust on their
home. The couple later received an additional loan of around
$10,000 from Kevin Elfrink. The loan from Elfrink charged 10%
interest but also included a funding fee of $4,000 rolled
into the rest of the loan for payment over time rather than
charged and paid at the outset. Over the course of six years,
the couple made irregular payments, increased the loan
balance three times until it exceeded $25,000, and eventually
defaulted. Elfrink initiated foreclosure proceedings and then
bought the house at his own foreclosure sale by
credit-bidding all money he asserted was due to him under the
modified promissory note, satisfying the couple's debt to
him.
Following
the foreclosure, Elfrink filed a complaint against Bibi and
Raja for forcible entry and detainer to remove them from the
home. Bibi moved out of her home but filed a counterclaim for
usury, quiet title and possession, and surplus proceeds from
the foreclosure sale. Raja confessed judgment to his removal
from the home. As the lawsuit proceeded, IndyMac initiated a
foreclosure on its senior deed of trust and Elfrink bought
the house for a second time at IndyMac's foreclosure
sale. The superior court ultimately denied Bibi's usury
claim, determining that Bibi had no standing, her claim was
time barred, and in any event, the loan did not violate
Alaska's usury statute because the funding fee was not
interest and the usury statute did not apply once the
loan's principal rose over $25,000[1] The superior
court also denied Bibi's claim for title, ruling that the
foreclosure statutes gave Elfrink clear title.
Bibi
appeals. We hold that (1) Bibi has standing; (2) it was error
for the superior court to deny Bibi's usury claim because
the funding fee was disguised interest and violated the usury
statute, which applied to at least the initial period of the
loan's life; and (3) the superior court correctly denied
Bibi's claim for title and possession of her prior home
because IndyMac's foreclosure extinguished her claim to
the property.
II. FACTS AND PROCEEDINGS
Mariam
Bibi married Javed Raja in Pakistan. The couple moved to
Alaska and had two children. They eventually bought a house
in Anchorage in August 2006. They financed the purchase of
their home with two promissory notes to IndyMac for $216,000
and $54,000. The notes were secured by first and second deeds
of trust on the couple's home. Approximately seven months
after they purchased their home, the couple's pizza
business, Pizza Omega and Luigi's Pizza, were struggling.
They needed money, and Raja went to Kevin Elfrink for help.
Elfrink was a real estate broker who had met Raj a briefly
when Elfrink was selling property near the couple's pizza
business.
Elfrink
started making loans in the 1990s and did a few per year,
borrowing money against his credit cards to finance them.
Elfrink met with Raja and Bibi and they executed a promissory
note in the amount of $14,597, dated March 19,2007, to be
paid back with 10% interest by March 15,2009. But Raja and
Bibi only received $10,597 at the time: $9,950 plus money to
pay for the $647 in closing costs. The extra $4,000 Raja and
Bibi were obligated to pay back was a "funding fee"
Elfrink charged. Elfrink testified that the fee was to
compensate him for educating himself about the pizza
businesses, inventorying their equipment, making calls, and
generally ensuring that he was making a sound loan; he also
testified that he only charges the fee when he decides to
extend a loan, not when he declines. The loan was secured by
a security agreement on the pizza businesses, as well as a
third deed of trust on Bibi and Raja's home. The deed of
trust contained language stating it was for the purpose of
securing "[p]ayment of the indebtedness evidenced by the
promissory note . . . including all renewals, extensions or
modifications thereto."
The
loan was escrowed at First National Bank Alaska (FNBA). Over
the next six years the couple made irregular payments and the
account balance was increased three times through amendments
to the escrow instructions, though Bibi claims these
increases occurred without her knowledge. In September 2007
Raja and Elfrink signed an amendment to the escrow
instructions increasing the account balance by $7,061. The
amendment was not signed by Bibi. In February 2008 Raja and
Elfrink increased the account balance a second time by
$4,532.90 through an amendment to the escrow instructions.
Again, Bibi did not sign the amendment. These two amendments
together brought the account balance up to $23,467.51.
Meanwhile
in May 2007, Raja had hired Elfrink to sell Pizza Omega for
$169,000 and signed a listing with a 10% commission. The
pizza parlor later sold for about $90,000, and for the
commission Raja signed an escrow instruction form in March
2008 making a third and final increase of $12,153.49 to the
loan balance. Bibi's signature is on this amendment form,
but she testified that she did not sign the form, and Raja
testified he did not sign for her. Bibi testified that she
knew nothing about these three balance increases until her
attorney sent her documents obtained from Elfrink through
discovery shortly before trial.
With
the loan increase in March 2008 the account balance rose to
$35,621. The interest rate was increased at that time to 12%,
the maturity date was extended by nine years, monthly
payments were lowered to $500 per month, and Elfrink waived
the existing delinquency. Between May and December 2008 Bibi
and Raja made eight monthly payments of $500. In 2009 they
made another five monthly payments of $500. In 2010 they made
three payments totaling $1,300. Bibi and Raja's last two
payments on the debt were each for $500, one in 2011 and one
in 2012. In addition, Bibi claimed a $500 payment was made in
June 2013, and Raja testified to making a $2,500 payment
outside of the FNBA escrow account sometime after mid-2013.
In June
2013 Elfrink closed the escrow account. FNBA calculated that
interest had been paid only through July 2009 and that the
principal balance was $35,275.72. All in all, Raja and Bibi
had paid Elfrink $13,419.32 or $13,919.32 through the escrow
account, depending on whether they are credited with the
final June 2013 payment of $500.
Elfrink
commenced foreclosure proceedings in August 2013 and notice
of default was sent to Raja and Bibi. Alaska Trustee, LLC
conducted a trustee's sale in November 2013. Based on
audit figures from FNBA, the trustee calculated the amount
due under the deed of trust to be $56,629.65. This was the
amount necessary to cover $35,275.72 in unpaid principal,
$18,486.41 in interest accruing since July 2009 - the date
Bibi and Raja had stopped paying on the interest - plus
escrow fees, late fees, and fees charged by the trustee for
conducting the foreclosure sale. Elfrink purchased the
property at the foreclosure sale by offering this amount as
an offset bid.[2] He was not required to pay any cash
because he was entitled to the amount he bid as the
beneficiary of the deed of trust.[3] Alaska Trustee issued a
trustee's deed to Elfrink that was recorded in Anchorage
in February 2014.
While
Elfrink was preparing to foreclose, Bibi filed for divorce.
By the time the superior court presiding over the divorce
divided Bibi and Raja's marital assets, Elfrink had
already conducted his foreclosure sale and recorded his
trustee's deed. In March 2014 the superior court decided
not to award the couple's home to either party in the
divorce because it had been lost through foreclosure.
That
same month Elfrink served Bibi and Raja with a notice to
surrender possession of the premises. In April he filed a
complaint for forcible entry and detainer,[4] seeking
possession of the property. A few days later, Bibi and her
children removed most of their personal property. They left
to visit Pakistan and Elfrink took possession. That same
month Bibi filed counterclaims for usury, quiet title and
possession, and surplus proceeds from the foreclosure sale;
her attorney subsequently recorded a lis pendens against the
property. For his part, Raja confessed judgment to his
removal from the property.
While
the lawsuit proceeded, IndyMac initiated foreclosure
proceedings on its first deed of trust. The foreclosure sale
was held in March 2015. Elfrink made the highest bid and
bought the property a second time, paying $240,967.18. A
trustee's deed conveying title to the property was
recorded in April.
The
next month, a three-day non-jury trial was held before
Superior Court Judge Gregory Miller, after which the court
entered findings of facts on the record. The court found for
Elfrink on his claim for title and possession and denied all
of Bibi's counterclaims. Final judgment for quiet title,
possession, and expungement of lis pendens was entered in
August 2015. Bibi appeals.
III. STANDARD OF REVIEW
"Whether
a party has standing to sue is a question of law that we
review de novo."[5] Whether a fee is to be treated as an
interest charge in computing an effective interest rate for
purposes of Alaska's usury statute depends on a set of
factual questions.[6]
"A factual finding will be deemed clearly erroneous only
if it leaves us 'with a definite and firm conviction on
the entire record that a mistake has been made.'
"[7] But we review a superior court's
application of the usury statute to these
facts,[8] as well as whether the superior court
applied the correct legal standard, de novo.[9] "We review
the interpretation of a statute de novo, adopting the rule of
law most persuasive in light of precedent, reason, and
policy."[10]
The
interpretation of contractual language is a question of law
that we review de novo, but determining the intent of the
parties when entering a contract is a question of fact and we
therefore review it for clear error.[11]
The
application of Alaska foreclosure statutes is a question of
law, and we apply our independent judgment in reviewing such
decisions.[12]
IV. DISCUSSION
A.
It Was Error To Deny Bibi's Usury Counterclaim.
Alaska's
general usury statute applies to loans of $25,000 or
less.[13] The statute allows a borrower who has
paid usurious interest to recover double the amount of
interest she pays in excess of the statute's
cap,[14] but the borrower's total payments
have to exceed the loan principal plus legal interest before
she can recover.[15]
Bibi
argues she is entitled to recover under the usury statute.
First, she argues that Elfrink's original loan was
usurious because (1) when one treats the funding fee as
disguised interest its initial interest rate exceeded the
usury statute's cap and (2) the third loan
modification's interest rate of 12% violated the usury
statute on its face. Second, she argues that the three
modifications to the original loan were each separate loans,
so every loan was under $25,000 and thus subject to the
interest cap. Third, she argues that adding the escrow
payments and the proceeds from Elfrink's foreclosure
sale, she paid the principal amount plus interest - both
usurious and legal - on each loan, and at least one of these
payments - the foreclosure sale proceeds - was within the
statute of limitations. Accordingly, Bibi contends she
satisfies the requirements for recovery under the usury
statute and should prevail on her claim.
While
we do not agree with all of Bibi's arguments, we conclude
that Bibi is entitled to recover under the usury statute
based on the following: (1) it was error to conclude that
Bibi had no standing to bring her usury claim; (2) it was
error to conclude the funding fee was not disguised interest;
(3) the superior court correctly determined that the usury
statute's cap on interest did not apply to most of the
loan period, but it did apply before the loan's balance
exceeded $25,000; (4) a borrower must make payments that
exceed a usurious loan's principal plus lawful interest
before she can recover under the usury statute; (5) it was
error to conclude foreclosure sale proceeds do not constitute
a payment for purposes of the usury statute; and (6) in light
of the foreclosure sale it was error to conclude that
Bibi's usury claim was time barred. We hold that Bibi may
recover under the usury statute, and we provide instructions
to guide the superior court in calculating her award on
remand.
1.
It was error to conclude that Bibi lacked standing to bring
her usury claim.
a.
Bibi has standing.
The
superior court ruled that Bibi had no standing to bring her
action. It reasoned that because the loan from Elfrink was
taken out to support Bibi and Raja's pizza business, and
the pizza business was awarded to Raj a in the couple's
divorce case, Bibi had no standing to bring claims that
derived from the loan. Elfrink endorses this reasoning. He
argues that Bibi lacks the adversity of interest required for
standing and that any usury claim that may have existed
belonged to Raja, who confessed judgment.
Bibi
responds in her reply brief that she has standing because she
was an obligor on Elfrink's original loan, the superior
court found that she ratified three additional debts to
Elfrink, and she and her ex-husband had record title to the
house on which Elfrink foreclosed, among other reasons. She
therefore argues she has "sufficient stake in the house
and related debts to make her a proper party to litigate
issues relating to them."
Standing
is a "rule of judicial self-restraint based on the
principle that courts should not resolve abstract questions
or issue advisory opinions."[16] "The fundamental
question raised by an objection to standing is whether the
litigant is a proper party to seek adjudication of a
particular issue."[17] "[A] basic requirement of
standing is adversity of interests."[18] One way to
satisfy the adversity of interests requirement is to
"have a 'sufficient personal stake' in the
outcome of a controversy and an 'interest which is
adversely affected by the complained-of-conduct.'
"[19]
Bibi
has standing to sue for usury. Elfrink foreclosed on
Bibi's house to satisfy debts arising from allegedly
usurious loans pursuant to agreements Bibi signed or later
ratified. Bibi also made payments, along with her ex-husband,
toward those allegedly usurious loans. She stands to either
permanently lose or regain payments she made on allegedly
usurious interest. She therefore has a "sufficient
personal stake" in the outcome of this
controversy,[20] and her interests have been adversely
affected by Elfrink's allegedly unlawful and
"complained-of-conduct."[21] The fact that the
original loan was intended to support and was secured in part
by a pizza business that Bibi no longer owns is irrelevant
considering both that she paid on the debt and her home was
sold to satisfy the debt.
b.
Bibi did not waive her standing argument.
Elfrink
additionally argues that because Bibi failed to challenge the
superior court's standing decision in her opening brief
or list it in her statement of points on appeal, she waived
the argument. Normally, her failure to list standing in her
points on appeal would constitute abandonment,[22] her failure
to argue standing in her opening brief would result in
waiver,[23] and her discussion of standing in her
reply brief would not resuscitate the issue.[24] But we have
occasionally chosen to review issues sua sponte that were not
raised on appeal,[25] and we have at times made an exception
to the general rule that an issue omitted from an
appellant's statement of points on appeal will not be
considered. For example, in Mullen v. Christiansen
we excused the omission of an issue from the party's
points on appeal because the issue was raised at the trial
level, was adequately briefed, and opposing counsel was
apprised of it.[26] As with the issue in Mullen,
standing was raised at trial, was adequately briefed in
Bibi's reply, and Elfrink, as the party arguing that Bibi
lacks standing on appeal, is well apprised of the
issue.[27]Further, Bibi listed the usury statute on
appeal and made arguments about the usury statute in her
opening brief; standing must necessarily be addressed before
the court addresses substantive issues. In this context, we
choose to review the superior court's conclusion and hold
that it was error.
2.
It was error to conclude that Elfrink's funding fee was
not interest.
In
March 2007, at the time of Elfrink's initial loan to Bibi
and Raja, AS 45.45.010(b) established the maximum allowable
interest rate for loans under $25,000 at 11.25
%.[28] Under AS 45.45.020, "[a] person may
not, directly or indirectly, receive in money, goods, or
things in action, or in any other manner, a greater sum or
value for the loan or use of money . . . than is prescribed
in AS 45.45.010."
The
superior court found that Elfrink's original loan to Bibi
and Raja was not usurious because the additional $4,000 fee
Bibi was obligated to pay over the life of the loan was a
"service fee or funding fee" rather than disguised
interest. It based its decision on the fact that Elfrink told
the couple that the fee was to pay for the work necessary to
make sure the loan was sound and that both parties testified
they had a conversation to this effect. The court also relied
on an escrow instructions addendum signed by Bibi stating
that "the funding fee contained on the closing statement
is to be considered a service fee and is not to be considered
interest."
Bibi
argues Elfrink's funding fee is simply interest in
disguise. While she concedes that the interest rate on the
face of the deed of trust promissory note was 10%, she argues
that when one looks at the underlying transaction, the
interest rate was actually much higher. Her math is based on
a principal of $ 10,597, the amount of money Bibi and Raja
actually received from Elfrink, rather than $14,597, the
amount received plus the $4,000 funding fee. Bibi argues that
because she and Raj a received $ 10,597 and were obligated to
pay back $14,597 plus 10% interest through 24 monthly
payments of $673.58, she paid over $16,000 ($673.58 x 24) for
a $10,597 loan, which she argues yields an effective interest
rate far exceeding 11.25%, the maximum allowable interest
rate at the time.[29]
Bibi
contends that the escrow instructions addendum stating
"the funding fee on the closing statement is to be
considered a service fee and is not to be considered
interest" merely signals that Elfrink knew he had a
usury problem, noting that we have previously explained that
"[i]n usurious transactions the parties are usually
trying to disguise what they have done"[30] and that
"[a] court must look squarely at the real nature of the
transaction."[31] Bibi argues that regardless of the
fee's name, Elfrink's loan to Bibi and Raja violated
the usury statute because Elfrink received almost 45%
interest, an amount above the allowable maximum, "for
the loan or use of money."[32] Bibi also argues that we
should review the funding fee issue in this case de novo
because she is challenging the superior court's
application of law - AS 45.45.020 - to facts as the superior
court found them.
Elfrink, on the other hand, characterizes the funding fee
issue as a question of fact and argues that we should give
deference to the superior court's factual finding that
the fee was not interest, but rather an earned service fee.
In support of this argument he, like Bibi, cites our previous
statement that "[a] court must look squarely at the real
nature of the transaction,"[33] as well as a Texas case
holding that the question whether a charge is merely a device
to conceal usury is a question of fact.[34] From this
starting point, Elfrink enumerates the various components of
the record that provide support for the superior court's
conclusion. They include Elfrink's testimony about the
various tasks he performed to ensure the loan was sound
before making it, the court's finding that Elfrink's
testimony was credible on this point, and the loan documents
stating that the fee was not interest. Elfrink also suggests
that the court's view of Raja's and Bibi's
credibility supports the court's finding that the fee was
not interest.
Our
precedent demonstrates that determining whether a fee is
considered interest under Alaska's usury laws involves an
application of law to fact that we review de
novo,[35] though factual questions underlie the
determination.[36] We have previously identified the set of
factual questions germane to this determination. In Fikes
v. First Federal Savings &Loan Association of
Anchorage we considered whether a loan fee of
one-and-a-half percent was actually interest for purposes of
a previous version of AS 45.45.010(b) that, like the version
applicable here, prohibited interest rates exceeding the
federal lending rate plus a fixed percentage.[37] The superior
court had found that the one-and-a-half percent service
charge did not constitute interest within the meaning of any
relevant usury statute.[38] We concluded "that the usury
issue [was] incapable of resolution without a more adequate
factual basis"[39] and remanded, stating:
Among the factual questions which we think are germane are
the following: what charges, if any, the loan fee is designed
to defray; whether the loan fee is a one-time charge or
assessed throughout the life of the loan; whether the amount
of the loan fee is dependent on the amount of the loan or the
risk of the enterprise being financed; whether the loan fee
and interest rate are charged on the entire committed amount
no matter what the size and period of the balances
outstanding; and what difference, if any, there is between
[the bank's] internal accounting treatment of the loan
fee and that of interest. The superior court should consider
these matters in determining, in the first instance, whether
there has been usury.[40]
We also
explained that "[i]f the loan fee is either
substantially similar to interest in all material respects or
unreasonably large, the loan fee, or a portion thereof, could
well be treated as an interest charge in computing the
effective interest rate for purposes of AS
45.45.010(b)."[41]
Later
in Metcalf v. Bartrand we reviewed a superior
court's finding that a set of real estate transactions
constituted a loan with usurious interest.[42] We concluded
that in "[l]ooking not to the form but to the substance
of the transactions, there [could] be little doubt but that
they [came] within the broad terms of the Alaska usury
law."[43]
These
decisions establish two principles. First, while a loan
transaction may facially comply with the cap on interest
rates found in AS 45.45.010, it may nevertheless be charging
an effective interest rate in violation of that cap because
of disguised interest.[44] Second, whether this is the case
requires a court to determine if, given the facts regarding
the substance of a given transaction, the transaction
"come[s] within the broad terms of the Alaska usury
law"[45] or, stated alternatively, whether the
service fee is "treated as an interest charge in
computing the effective interest rate for purposes of AS
45.45.010(b)."[46] This determination is an application of
law to fact.
Here
the superior court failed to consider some of the
"factual questions... germane" to the funding fee
issue we identified in
Fikes.[[4]] We find two
questions particularly relevant to the issue before us.
First, the court did not consider whether the funding fee was
"a one-time charge or assessed throughout the life of
the loan."[48] The fee was rolled into the rest of the
loan for payment over time rather than charged and paid at
the outset. Thus it was assessed throughout the life of the
loan, which favors concluding that it was
interest.[49] Second, the court did not consider
whether the funding fee was unreasonably large.[50] Elfrink
claims his work investigating the pizza business assets,
meeting with Bibi and Raja, and making calls was worth
$4,000, all to ensure that a loan for around $ 10,000 was
sound. But the funding fee was over 37% of the value of the
loan Bibi and Raja received. In comparison, the loan fee in
Fikes was only one-and-a-half percent, and we still
required further inquiry into whether it was a vehicle for
disguised interest.[51] This establishes that the funding fee
was unreasonably large. Lastly, given the language of AS
45.45.020, which defines interest as value "for the loan
or use of money," Elfrink's own testimony that his
funding fee is charged only if the loan is made, rather than
regardless of whether it is made, places the funding fee
squarely "within the broad terms of the Alaska usury
law"[52] because it is charged "for the loan
or use of money," not for services.[53]
While
Elfrink argues that we should give the superior court's
determination deference because it is consistent with how the
loan documents characterized the fee and the court was in the
best position to evaluate the credibility of the parties on
this point, these arguments only go so far. Under
Fikes and Metcalf, how a fee is
characterized in a loan document is but one factor in
determining whether a fee constitutes usurious interest,
especially considering that parties to a usurious loan often
attempt to disguise it.[54] And while the superior court gave
considerable weight to Elfrink's testimony regarding the
work he did to justify the funding fee, the court failed to
consider the two relevant Fikes factors discussed
above that are largely divorced from the credibility of the
parties, factors that we believe would have led the court to
apply the usury statute correctly.[55] In light of this
analysis, we hold that Elfrink's funding fee was
disguised interest for purposes of the usury statute and it
was error to conclude otherwise.
When
this disguised interest is taken into account, it is clear
that Elfrink's initial loan to Bibi was well above the
maximum allowable interest rate of 11.25% at the time; the
disguised interest alone was over 37% of the loan's
principal.[56] We conclude that Elfrink's initial
loan to Bibi was usurious.
3.
The superior court did not err in finding that the loan
balance increases were modifications to a single loan that
rendered the usury statute inapplicable once the loan
principal rose over $25,000.
The
superior court found that the final interest rate of 12%
established by the March 2008 modification, while above the
statutory maximum for loans under $25,000 pursuant to AS
45.45.010, was not usurious because modifications to the
original loan had brought the loan principal over $25,000 and
the usury statute no longer applied.[57]
Bibi
argues that each modification constituted a separate loan
under $25,000 subject to the usury statute's cap.
According to Bibi, the four separate transactions included
the original loan in March 2007, a second loan in September
2007, a third loan in February 2008, and the commission
claimed in March 2008. Bibi also argues that each transaction
was a separate loan not only because each was separate in
time, but also because each was documented separately - the
original loan with a promissory note and other documents; the
second and third loans with separate FNBA forms for each; and
the fourth (commission) transaction with a real estate
listing.
Bibi
argues that each loan was usurious when viewed separately.
Specifically, she argues that the original March 2007 loan
was usurious because the funding fee raised its effective
interest rate to near 45% - and was at least usurious by
March 2008 when Elfrink increased the stated interest rate
from 10% to 12% because AS 45.45.010 set the maximum rate at
7.5% at that time. She argues that the second and third loans
were not usurious when made but also became usurious when
Elfrink increased the interest rate to 12% in March 2008.
Lastly, she asserts that the real estate sales commission
Elfrink charged in March 2008 bore interest at a usurious 12%
from the beginning.
Bibi
argues that our decision in Rockstad v. Erikson
supports her view that each balance increase was in fact a
separate loan.[58] In Rockstad we applied AS
45.45.010 and held that one note with two simultaneous
disbursements each below $25,000 was just one loan in excess
of $25,000.[59] While this tends to undermine Bibi's
position, she insists that in Rockstadwe also
suggested that when evidence demonstrates that there are
really two different loans, "such a reading would
necessarily imply that the note constitutes an unlawfully
usurious contract."[60] But while Rockstad did
contemplate a scenario in which sufficient evidence can
demonstrate the existence of multiple usurious loans rather
than a single larger loan with a legal interest rate, we
found no such evidence in that case.[61] In Rockstad we
relied in part on the language of the note, which spoke of a
singular loan for $26,000, to conclude that there was only
one non-usurious loan.[62]
Elfrink
argues that the superior court's finding of one loan
modified three times is a factual finding that is supported
by the record and thus not clearly erroneous. We agree.
"Although the interpretation of contractual language is
a question of law and reviewed de novo, '[t]he intent of
the parties when entering a contract is a question of fact
and is thus reviewed under the clearly erroneous
standard.' "[63] "[A]nd we give' due regard
to the trial court's opportunity to evaluate the
credibility of witnesses.' "[64]Relying in
part on its view of the credibility of the parties, the
superior court found that Bibi signed or ratified all of the
escrow amendments - a finding Bibi does not
appeal.[65]Based on this finding and the testimony
of the parties, the superior court found that the ...