176 Wash. App. 475 | Wash. Ct. App. | 2013
¶1 Primarily at issue in this appeal of a CR 12(b)(6) dismissal is whether OneWest Bank FSB and Mortgage Electronic Registration Systems Inc. (MERS) met their burden to show that Marisa Bavand failed to show any set of facts that would justify granting relief.
¶2 We hold that the motion to dismiss was, for the most part, erroneously granted. The order validating the trustee’s sale was also erroneously granted. We affirm in part, reverse in part, and remand for further proceedings.
¶3 In 2007, Marisa Bavand obtained a loan for $722,950 from IndyMac Bank FSB. The loan was evidenced by a promissory note that was secured by a deed of trust encumbering her property. The deed of trust named “IndyMac Bank, F.S.B.” as the “Lender” and Ticor Title Insurance Co. as the “Trustee.” It also named MERS as “the beneficiary under this Security Instrument” and “as a nominee for Lender and Lender’s successors and assigns.”
¶4 On December 16, 2010, “OneWest Bank, FSB,” claiming to be the “present beneficiary” of Bavand’s deed of trust, executed an “Appointment of Successor Trustee.”
¶5 On December 16, 2010, one day after this purported appointment of RTS as successor trustee, MERS executed an “Assignment of Deed of Trust.”
FOR VALUE RECEIVED, the undersigned, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS NOMINEE FOR INDYMAC BANK, F.S.B., A FEDERALLY CHARTERED SAVINGS BANK, by these presents, grants, bargains, sells, assigns, transfers and sets over unto OneWest Bank, FSB, all beneficial interest under that certain Deed of Trust dated 8/7/2007, and executed by Marisa Bavand ....
Together with the Note or Notes therein described . . . [5 ]
¶6 On January 6, 2011, RTS commenced a nonjudicial foreclosure proceeding of the deed of trust encumbering Bavand’s property by mailing a “Notice of Foreclosure” to her for allegedly defaulting in payments under the promissory note. The trustee’s sale was scheduled for May 13, 2011.
¶7 Eight days before the then scheduled trustee’s sale, Bavand commenced this action against OneWest, MERS, RTS, and others, seeking declaratory and other relief. RTS postponed the scheduled trustee’s sale to a later date upon learning of this action.
¶8 Over a month after filing this action, Bavand moved for a temporary restraining order (TRO) to enjoin the rescheduled trustee’s sale of her property. On June 10, the trial court denied her motion because of her failure to provide proof of service and proper notice of the motion. But the court granted Bavand’s renewed motion for a TRO, and
¶9 RTS conducted the trustee’s sale of the Bavand property sometime on June 17, the same date the TRO was entered. At oral argument in this appeal, the parties confirmed to this court that following this sale, RTS recorded with the county auditor a trustee’s deed that conveyed the property to “OWB REO, Inc.,” the successful bidder at this trustee’s sale.
¶10 By its consolidated order entered on November 29, 2011, the trial court ruled on several motions made by Bavand, two by One West and MERS, and others by RTS. Specifically, this order denied most of Bavand’s motions and granted all of the defendants’ motions. Among the latter motions, the court granted the joint OR 12(b)(6) motion to dismiss of One West and MERS as well as RTS’s motion to validate its June 17, 2011 trustee’s sale. On December 20, 2011, the trial court denied Bavand’s motion for reconsideration of the order to vacate the trustee’s sale.
¶11 This appeal followed.
FAILURE TO STATE A CLAIM
¶12 Bavand first argues that the trial court erred when it granted MERS and One West’s joint OR 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted. Specifically, she argues that a material procedural defect in the appointment of RTS as successor trustee under the deed of trust made the trustee’s sale invalid. We agree that Bavand has stated sufficient facts to demon
¶13 Under CR 12(b)(6), a motion to dismiss for failure to state a claim “should be granted only if the plaintiff cannot prove any set of facts which would justify recovery.”
¶14 Either party may submit documents not contained in the original complaint for consideration by the court in assessing a CR 12(b)(6) motion.
¶15 Summary judgment is appropriate only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.
The Deeds of Trust Act
¶16 Chapter RCW 61.24, the “Deeds of Trust Act,” governs deeds of trust in Washington.
When [a promissory note is] secured by a deed of trust that grants the trustee the power of sale [and] if the borrower defaults on repaying the underlying obligation, the trustee may*486 usually foreclose the deed of trust and sell the property without judicial supervision.[14 ]
The supreme court has repeatedly stated that the Deeds of Trust Act “ ‘must be construed in favor of borrowers because of the relative ease with which lenders can forfeit borrowers’ interests and the lack of judicial oversight in conducting nonjudicial foreclosure sales.’ ”
¶17 Under the Deeds of Trust Act, only a properly appointed trustee may conduct a nonjudicial foreclosure. Moreover, only a proper beneficiary has the power to appoint a successor to the original trustee named in the deed of trust.
¶18 Former RCW 61.24.010(2) (2009) states:
The trustee may resign at its own election or be replaced by the beneficiary .... If a trustee is not appointed in the deed of trust, or upon the resignation, incapacity, disability, absence, or death of the trustee, or the election of the beneficiary to replace the trustee, the beneficiary shall appoint a trustee or a successor trustee. Only upon recording the appointment of a successor trustee in each county in which the deed of trust is recorded, the successor trustee shall be vested with all powers of an original trustee[16 ]
¶19 The plain words of this statute establish that the beneficiary of a deed of trust is the sole entity entitled to appoint a successor trustee if the beneficiary elects to replace the original trustee named in that deed of trust. This statute makes equally clear that only upon the recording of the appointment of a successor trustee with the auditor in the relevant county is a successor trustee “vested
¶20 The only reasonable reading of this statute is that the successor trustee must be properly appointed to have the powers of the original trustee.
¶21 Here, the CR 12(b)(6) motion was supported by numerous documents. Among these documents is the Appointment of Successor Trustee, dated December 15, 2010, that “OneWest Bank, FSB” executed.
¶22 Notwithstanding OneWest’s representation in this appointment that it was “the present beneficiary” of Bavand’s deed of trust, this record shows that was not true. Rather, on December 15, 2010, MERS was the named beneficiary in that instrument.
¶23 We note that a thorough review of this record shows that OneWest is not named either in the deed of trust or the promissory note that Bavand executed in favor of IndyMac Bank.
¶24 Because OneWest was not the beneficiary of the deed of trust at the time it attempted to appoint a successor trustee, it had no authority under former RCW 61.24.010(2) (2009) to appoint RTS as successor trustee. Absent that authority, RTS was not vested with any of the powers of the original trustee under the 2011 deed of trust. Specifically, RTS had no authority to conduct a foreclosure and trustee’s sale of Bavand’s property.
¶25 As we noted earlier in this opinion, MERS was the named beneficiary of the deed of trust as of the date of One West’s purported appointment of RTS as successor trustee. Whether MERS, the named beneficiary at the time of the purported appointment of RTS, was authorized to cure the defect in the appointment of the successor trustee is a related question. We conclude MERS was not so authorized. That is because MERS is not a proper beneficiary under the Deeds of Trust Act. The reason for this is that a proper beneficiary under the Act must be a “holder” of the note or other secured obligation.
¶26 MERS, a consortium of mortgage investment companies, altered this state’s traditional three-party structure of a deed of trust.
££[t]he MERS business plan ... is based in large part on amending this traditional model.... MERS is, in fact, neither*489 a borrower nor a lender, but rather purports to be both ‘mortgagee of record’ and a ‘nominee’ for the mortgagee.”[27 ]
¶27 In Bain, the supreme court decided the effect of this change on the traditional structure of the parties to a deed of trust.
¶28 We note that the Bain court declined to answer what legal effect arose from MERS acting as an unlawful beneficiary under our state statutes.
¶29 Here, OneWest and MERS both conceded at oral argument in this appeal that MERS never had possession of the promissory note that Bavand executed in favor of IndyMac Bank in 2007. A legal consequence of this failure to establish possession of the promissory note is that MERS was never a “holder” of this instrument.
¶30 This is a material procedural defect and not a mere technicality. The purported appointment of RTS as successor trustee by OneWest on December 15, 2010 was invalid because this institution was not then a beneficiary of the deed of trust. Rather, MERS was then the purported beneficiary under the deed of trust. Further, MERS itself had no authority to appoint RTS because it was not the “holder” of the note. Consequently, MERS was not a proper beneficiary.
¶31 Without a proper appointment, RTS did not succeed to any of the original trustee’s powers under the deed of trust. Specifically, it had no power to conduct a nonjudicial foreclosure and trustee’s sale of Bavand’s property.
¶32 OneWest and MERS make a number of arguments in an attempt to defeat the application of the plain words of the statute to this case. None do so.
¶33 First, OneWest and MERS argue that Bavand has waived any claims by failing to properly pursue remedies under the terms of RCW 61.24.130 and RCW 61.24-.127.
¶34 Waiver is an intentional relinquishment of a known right.
¶35 RCW 61.24.040, which specifically governs foreclosure and trustee’s sales, provides:
Anyone having any objection to the sale on any grounds whatsoever will be afforded an opportunity to be heard as to those objections if they bring a lawsuit to restrain the sale pursuant to RCW 61.24.130. Failure to bring such a lawsuit may result in a waiver of any proper grounds for invalidating the Trustee’s sale.[41 ]
¶36 RCW 61.24.130(1) of the act further provides that a trustee’s sale may be enjoined by “the borrower, grantor, any guarantor, or any person who has an interest in, lien or claim of lien against the property or some part thereof----” To enjoin the sale, RCW 61.24.130(1) requires that “as a condition of granting the restraining order or injunction,” the interested party “pay to the clerk of the court the sums that would be due on the obligation secured by the deed of trust if the deed of trust was not being foreclosed ....” The person seeking a TRO must also give “five days notice to the trustee of the time when, place where, and the judge before whom the application for the restraining order or injunction is to be made.”
¶37 RCW 61.24.127 contains similar language to that in RCW 61.24.040. This statute states:
(1) The failure of the borrower or grantor to bring a civil action to enjoin a foreclosure sale under this chapter may not be deemed a waiver of a claim for damages asserting:
(a) Common law fraud or misrepresentation;
(b) A violation of Title 19 RCW;
(c) Failure of the trustee to materially comply with the provisions of this chapter; or
*492 (d) A violation of RCW 61.24.026.[43 ]
¶38 Here, One West and MERS do not and cannot argue that Bavand failed to seek injunctive relief prior to the trustee’s sale. She did. Rather, they contend that she failed to strictly conform to the provisions of relevant statutes when doing so. According to them, these failures constitute a waiver of her right to seek any relief. This claim is without merit.
¶39 Most recently, the supreme court, in Schroeder v. Excelsior Management Group, LLC, reinforced the principal that waiver does not occur where the trustee’s actions in a nonjudicial foreclosure are unlawful.
¶40 In so holding, the supreme court reinforced a basic statement of law that it originally had made in Cox v. Helenius: Even where a party fails to timely enjoin a trustee sale under RCW 61.24.130, if a trustee’s actions are unlawful, the sale is void.
¶42 In Frizzell v. Murray, Division Two echoed the supreme court’s opinion in Albice
¶43 Division Two reversed, rejecting the trial court’s analysis, holding that under RCW 61.24.040(l)(f )(IX), “we apply waiver only where it is equitable under the circumstances and where it serves the [Deeds of Trust Act goals].”
¶44 Here, Bavand obtained a TRO on June 17, 2010, the date of the trustee’s sale. But she failed to provide the security that both the order and the statute require. Further, it appears that she failed to provide the five day notice to RTS prior to seeking to enjoin the sale.
¶45 But under our case law — including Schroeder, Albice, and Frizzell — these failures cannot, by themselves, constitute a waiver of her right to relief.
¶46 MERS and OneWest rely on Plein v. Lackey
¶48 Nor did this court address any such deficiencies in Brown
¶50 Here, as in Walker, OneWest and MERS primarily rely on Vawter v. Quality Loan Services Corp. of Washington
¶51 First, we pointed out that Vawter was decided before the supreme court’s Bain decision.
¶52 Third, we noted that the availability of causes of action under the Deeds of Trust Act could actually address some of the concerns expressed by the Vawter court regarding a rash of litigation under the act, given the complication that the emergence of MERS has spawned.
¶53 Finally, we held that in contrast to the Vawter opinion, prejudice could be shown given the respondent’s
¶54 Here, in addition to these reasons stated in Walker, there is another reason to reject the analysis in Vawter. Our supreme court has repeatedly stressed that our courts must be mindful that the Deeds of Trust Act should be construed to further three basic objectives.
¶55 The legislature could not have intended that the first of these three goals — an “efficient and inexpensive process” — could be accomplished at the expense of the other two. For example, One West and RTS disregarded the plain words of former RCW 61.24.010(2) (2009) governing appointment of successor trustees. Without a valid appointment of a successor trustee in this case, the foreclosure and sale that followed were wrongful because they were without statutory authority. Thus, our conclusions in this case are consistent with a proper balancing of the objectives of this legislation, particularly the first two.
¶56 One West and MERS next contend that where a borrower has “clearly defaulted,” she may not bring a claim under the Deeds of Trust Act complaining about “wrongful foreclosure.” We again disagree.
¶57 In Frizzell, Frizzell also defaulted on her loan payments.
¶58 Further, the cases on which OneWest and MERS rely do not require a different result in this case. They do not address this state’s Deeds of Trust Act.
¶59 In an attempt to avoid the effect of failing to comply with RCW 64.24.130, OneWest and MERS next argue that the trial court in this case was shown documentation that OneWest is the noteholder, citing Clerk’s Papers at 3 and 136 to 140. This appears to be an attempt to show OneWest was a beneficiary at the time of its purported appointment of RTS as successor trustee. These citations to this record do not support this argument.
¶60 The citation to Clerk’s Papers 136 to 140 is to a document that bears a stamp near the top of the first page, stating that the document is “certified to be a true and correct copy of the original” note.
¶61 We also note that nowhere in this document on which OneWest relies is there any mention of OneWest, by way of endorsement or otherwise. This further undercuts its claim that it is a holder of the instrument on which it relies to establish its status as a beneficiary for the purpose of appointing RTS as successor trustee under Bavand’s deed of trust.
¶62 In rejecting this particular argument, we are aware that others have claimed that lenders must “show-me-the-note” in order to pursue foreclosure.
¶63 Similarly, the citation to Clerk’s Papers at 3 fares no better. There, Bavand admits signing a note and deed of trust in favor of IndyMac Bank. How that shows that OneWest is the holder of these instruments is left unexplained.
¶64 For these reasons, this record fails to substantiate One West’s claim that it was the holder of Bavand’s note in favor of IndyMac Bank. Without such a showing, it cannot establish its beneficiary status for purposes of appointment of RTS as successor trustee.
¶65 Without squarely addressing in their briefing the failure to comply with former RCW 61.24.010(2) (2009), OneWest and MERS attempt to avoid the impact of Bain on this case. They argue that MERS neither sought to foreclose this deed of trust in its own name nor appointed RTS as successor trustee.
¶66 For the first time at oral argument in this appeal, OneWest and MERS made a new argument that is not in their brief. They appear to argue that MERS was acting solely as a nominee for the lender when it executed the assignment to OneWest. The chief problem with this new argument is that it makes no difference to the outcome that we reach. Even if we assume that the terms of the December 16, 2010 assignment show that MERS was then acting solely as a nominee, the fact remains that the purported appointment of RTS by OneWest was done one day earlier. Thus, whether MERS was acting as a nominee when it executed the assignment is analytically irrelevant.
¶67 Another problem is that OneWest and MERS fail to establish the scope and nature of the authority of MERS to act as nominee when it executed the December 16, 2010 assignment. MERS failed to overcome a similar agency problem in Bain
¶68 OneWest and MERS contend that because Bavand knew that OneWest was purporting to be the legal beneficiary, she possesses no justifiable claim against it or MERS now. We disagree.
¶70 To summarize, MERS and One West, with one exception that we shall address momentarily, are unable to show that Bavand has failed to state a claim upon which relief could be granted. Reversal and remand for further proceedings is the proper remedy.
Validity of Trustee’s Sale
¶71 One of the rulings that the trial court made in its consolidated order of November 29, 2011 was that the June 17, 2011 trustee sale is valid. For the reasons we have just discussed in this opinion, we disagree.
¶72 The appointment of RTS as successor trustee was fatally flawed because it failed to comply with the express provisions of former ROW 61.24.010 (2009). Without a proper beneficiary making the appointment, RTS was not vested with any of the powers of the original trustee under this deed of trust.
Quiet Title Claim
¶73 Bavand also argues that the trial court improperly dismissed her claim to quiet title. At oral argument in this appeal, Bavand confirmed that the primary focus of this claim is to extinguish the lien of the deed of trust given to secure her obligation to IndyMac Bank. Her counsel ac
¶74 This claim to quiet title is based on the argument that “the subject deed of trust was irreparably severed from any underlying obligation. As a result any security interest on the property arising from the deed of trust... is null and void.”
¶75 In Walker, we recently dealt with a similar quiet title claim based on a similar premise: that the note and deed of trust were severed by the actions of the defendants.
¶76 Here, Bavand’s quiet title claim does not involve either title to or ownership of the property. But the underlying principle that one must succeed on the strength of one’s own claim, not on the weakness of the adversary’s
¶77 In ruling on this specific claim, we express no opinion in whom title to this property should vest for this litigation. That is a claim to ownership, and ownership is not presently before us. This particular claim addresses only the request to extinguish the lien of the deed of trust.
CONSUMER PROTECTION ACT
¶78 Bavand also contends that the trial court improperly dismissed her Washington Consumer Protection Act (CPA), chapter 19.86 RCW, claim. We agree.
¶79 Under Washington’s CPA, “[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are . . . unlawful.”
¶80 On appeal, One West and MERS expand their arguments beyond what they argued below. They argue that the only possible deceptive act or practice impacting the public interest is the presence of MERS in the deed of trust.
Unfair or Deceptive Acts or Practices
¶81 In Bain, the supreme court considered the effect of MERS’s presence in the deed of trust.
“To prove that an act or practice is deceptive, neither intent nor actual deception is required. The question is whether the conduct has ‘the capacity to deceive a substantial portion of the public.’ Even accurate information may be deceptive ‘if there is a representation, omission or practice that is likely to mislead.’*505 Misrepresentation of the material terms of a transaction or the failure to disclose material terms violates the CPA. Whether particular actions are deceptive is a question of law that we review de novo.”[109 ]
¶82 The court went on to discuss the fact that MERS appeared as the named beneficiary in the deed of trust despite the fact that it is not a lawful beneficiary under the statutes of this state.
¶83 In addition to this deceptive practice identified by the Bain court, we note that the case before us presents additional facts that may constitute an unfair or deceptive practice on the part of One West. As we already discussed in this opinion, One West falsely represented that it was the beneficiary under the deed of trust when it purportedly appointed RTS as the successor trustee. The record shows that it was not then the beneficiary of record; MERS was. Former RCW 61.24.010(2) (2009) expressly provides that only a beneficiary may appoint a successor trustee to conduct a foreclosure. As this record shows, there was no valid appointment of a successor trustee to conduct the foreclosure and trustee’s sale of Bavand’s property.
¶84 In Schroeder, the supreme court held that a failure to comply with express provisions of the Deeds of Trust Act could satisfy the unfair or deceptive practice element of a CPA claim.
¶85 For similar reasons, the failure to comply here with the provisions of former RCW 61.24.010(2) (2009), which controls the appointment of successor trustees, is also arguably an unfair or deceptive practice that serves to fulfill the first element of a CPA claim. Thus, subject to pleading and proof of this and the other CPA claim elements, liability could be established.
Public Interest Impact
¶86 A plaintiff may show that a deceptive commercial act or practice has affected the public interest by satisfying five different factors.
(1) Were the alleged acts committed in the course of defendant’s business? (2) Are the acts part of a pattern or generalized course of conduct? (3) Were repeated acts committed prior to the act involving plaintiff? (4) Is there a real and substantial potential for repetition of defendant’s conduct after the act involving plaintiff? (5) If the act complained of involved a single transaction, were many consumers affected or likely to be affected by it?[117 ]
¶87 In the context of a similar CPA claim based on MERS’s representation that it was a beneficiary, the Bain court noted that “there is considerable evidence that MERS is involved with an enormous number of mortgages in the country (and our state) . . . .”
¶88 Here, MERS’s status as the named beneficiary in this deed of trust presumptively meets the public interest element of a CPA claim. As in Bain, the alleged acts of MERS were done in the course of its business, and MERS’s listing as a “beneficiary” was a generalized practice that was a course of conduct repeated in hundreds of other deeds of trust.
¶89 MERS and OneWest argue that all of Bavand’s arguments are predicated on OneWest’s actions, not those of MERS. Thus, they argue that the conclusion in Bain regarding the public interest prong does not apply here. They are mistaken.
¶90 MERS purported to assign its beneficial interest to OneWest one day after the latter purported to appoint RTS as successor trustee. But under the Deeds of Trust Act, MERS was never a holder of the note or deed of trust, meaning it had no beneficial interest in the note to assign.
¶91 To make out a CPA claim, a plaintiff must also show that he or she was injured in his or her “ ‘business or property.’ ”
¶92 In Panag, the plaintiff was involved in a car accident and sued the other driver’s insurance company and its collection agency for violation of the CPA.
¶93 Here, Bavand’s property was sold as a result of MERS’s, One West’s, and RTS’s actions. Thus, Bavand can show an injury to her property sufficient to withstand summary judgment as to her CPA claim.
¶95 OneWest and MERS also contend that Bavand cannot demonstrate that any of her alleged injuries were proximately caused by their commercial practices. But, if reasonable minds could differ, as is the case here, proximate cause is a factual issue to be decided by the jury.
¶96 In sum, Bavand has pleaded sufficient facts that, if proved, could satisfy all elements of a CPA claim. Dismissal of this cause of action against MERS and OneWest was not warranted.
¶97 In her briefing on appeal, Bavand also asserts that RTS violated the CPA.
¶98 The trial court’s consolidated order makes a number of other rulings on issues we need not decide. To assist the court and the parties on remand, we identify what we do not decide and why.
¶99 Bavand argues that the trial court erred when it refused to compel the enforcement of an alleged CR 2A settlement agreement it claims to have made with RTS to suspend the June 17, 2011 trustee’s sale. Bavand also argues that a valid TRO enjoined this same sale. Both of these issues are moot because this court cannot give any relief for either claim.
¶100 Generally, this court will not consider a moot issue unless it involves “ ‘matters of continuing and substantial public interest’.”
¶101 Here, the trustee’s sale has already occurred. Further, as RTS confirmed at oral argument, it issued a trustee’s deed to the successful bidder at that sale. While we have concluded that the trustee’s sale did not lawfully comply with the Deeds of Trust Act, any argument as to the TRO obtained by Bavand to halt the sale is now moot, as this court can no longer provide that relief. Thus, we need not address Bavand’s claims that the trial court erred when it refused to compel what she characterizes as a settlement agreement between her counsel and RTS regarding the
¶102 MERS and OneWest argue that assignments of deeds of trust are recorded for notice purposes only. They also contend that the note and deed of trust were not severed and thus MERS had the right to transfer its interest to OneWest. We need not address these arguments because they are not relevant to our primary decision in this appeal.
ATTORNEY FEES
¶103 Bavand and OneWest each seek an award of attorney fees based on the provision for fees in the deed of trust. RTS does not seek an award of fees. We note that Bavand may also seek an award of attorney fees against each defendant against whom her CPA claim is successful. But an award of fees to any party on any basis is premature, and we consequently deny all requests.
¶104 There is, as yet, no prevailing party for any of the claims in this action. Accordingly, it is premature to award fees to any party. The decision on this question should abide the trial court’s judgment after remand and further proceedings.
¶105 We affirm the dismissal of the quiet title claim. We reverse the remainder of the trial court’s order granting OneWest and MERS’s CR 12(b)(6) motion to dismiss. We also reverse the order validating the trustee’s sale. We remand for further proceedings.
Reconsideration denied October 16, 2013.
See Postema v. Pollution Control Hr’gs Bd., 142 Wn.2d 68, 122, 11 P.3d 726 (2000) (noting that a motion to dismiss pursuant to CR 12(b)(6) should be granted only if the plaintiff cannot prove any set of facts that would justify recovery).
Clerk’s Papers at 27-28.
Id.
Id. at 24-25.
Id. at 24.
Id. at 97.
Postema, 142 Wn.2d at 122.
Bravo v. Dolsen Cos., 125 Wn.2d 745, 750, 888 P.2d 147 (1995) (alteration in original) (quoting Halvorson v. Dahl, 89 Wn.2d 673, 674, 574 P.2d 1190 (1978)).
Id (internal quotation marks omitted) (quoting Haberman v. Wash. Pub. Power Supply Sys., 109 Wn.2d 107, 120, 744 P.2d 1032 (1987)).
Rodriguez v. Loudeye Corp., 144 Wn. App. 709, 726, 189 P.3d 168 (2008).
Hansen v. Friend, 59 Wn. App. 236, 239, 797 P.2d 521 (1990).
CR 54(c).
Michael v. Mosquera-Lacy, 165 Wn.2d 595, 601, 200 P.3d 695 (2009).
Bain v. Metro. Mortg. Grp., Inc., 175 Wn.2d 83, 93, 285 P.3d 34 (2012).
Schroeder v. Excelsior Mgmt. Grp., LLC, 177 Wn.2d 94, 105, 297 P.3d 677 (2013) (quoting Udall v. T.D. Escrow Servs., Inc., 159 Wn.2d 903, 915-16, 154 P.3d 882 (2007)); Bain, 175 Wn.2d at 93 (quoting Udall, 159 Wn.2d at 915-16).
(Emphasis added.)
Former RCW 61.24.010(2) (2009).
Id.
Clerk’s Papers at 27.
Id.
Id. at 28.
Id. at 24-25.
Id at 136-60.
Bain, 175 Wn.2d at 102-04; former RCW 62A.1-201(20) (2001).
Bain, 175 Wn.2d at 94, 96.
175 Wn.2d 83, 96, 285 P.3d 34 (2012) (alteration in original).
Id. at 97 (quoting In re Agard, 444 B.R. 231, 247 (Bankr. E.D.N.Y. 2011)).
Id. at 91.
Id. at 108.
(Emphasis added.)
Bain, 175 Wn.2d at 99 (internal quotation marks omitted).
Id. at 114.
Id. at 110.
See RCW 62A.3-301 (“ ‘Person entitled to enforce’ an instrument means (i) the holder of the instrument. . . .”).
Bain, 175 Wn.2d at 104.
See RCW 62A.3-301.
Appellant’s Opening Brief at 11-15.
Schroeder, 177 Wn.2d at 106 (quoting Bowman v. Webster, 44 Wn.2d 667, 669, 269 P.2d 960 (1954)).
176 Wn.2d 771, 783 n.7, 295 P.3d 1179 (2013).
Id. (quoting Albice v. Premier Mortg. Servs. of Wash., Inc., 174 Wn.2d 560, 570, 276 P.3d 1277 (2012)).
RCW 61.24.040(l)(f)(IX) (emphasis added).
RCW 61.24.130(2).
(Emphasis added.)
177 Wn.2d 94, 111-12, 297 P.3d 677 (2013).
Id. at 100-01.
Id. at 112.
Id.
103 Wn.2d 383, 388-89, 693 P.2d 683 (1985).
174 Wn.2d 560, 570, 276 P.3d 1277 (2012).
Id.
Id. (emphasis added) (alterations in original) (quoting RCW 61.24.040(i)(f)(IX)).
170 Wn. App. 420, 422, 283 P.3d 1139 (2012), review granted, 176 Wn.2d 1011 (2013).
Id. at 422.
Id. at 422, 424.
Id. at 424.
Id.
Id.
Id.
Id. at 424-25.
Id. at 427.
Id.
See Frizzell, 170 Wn. App. at 422; Albice, 174 Wn.2d at 570; Schroeder, 177 Wn.2d at 112.
149 Wn.2d 214, 227, 67 P.3d 1061 (2003).
146 Wn. App. 157, 189 P.3d 233 (2008).
Schroeder, 177 Wn.2d at 111.
Id.
Id. at 111-12 (citation omitted) (citing Albice, 174 Wn.2d at 568).
Id. at 112.
Brown, 146 Wn. App. at 164-65.
Id.
Id. at 166-67.
Albice, 174 Wn.2d at 570.
Id.
Appellants’ Opening Brief at 16.
176 Wn. App. 294, 307, 308 P.3d 716 (2013).
707 F. Supp. 2d 1115 (W.D. Wash. 2010).
Walker, 176 Wn. App. at 310-12.
Id. at 310.
Id. at 310-11.
Id. at 311.
Id. at 311-12.
Id. at 312.
See Plein, 149 Wn.2d at 225 (citing Cox, 103 Wn.2d at 387).
Id.
Frizzell, 170 Wn. App. at 422.
Id. at 427.
Id. (quoting RCW 61.24.040(l)(f)).
See Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1038 (9th Cir. 2011) (dismissing the plaintiff class’s “wrongful foreclosure” claims as interpreted under Arizona state law); see also Marks v. Green Tree Servicing, 461 F. App’x 534, 534 (9th Cir. 2011) (stating only that “Marks failed to show that she was not in default on her mortgage loan”).
Clerk’s Papers at 136 (emphasis added).
See Elene-Arp v. Fed. Home Fin. Agency, No. C12-2154 RAJ, 2013 WL 1898218, at *4, 2013 U.S. Dist. LEXIS 65358, at *11 (W.D. Wash.) (court order) (noting that “federal courts in Washington” have rejected “show-me-the-note” arguments).
Opening Brief of Respondents at 24.
Bain, 175 Wn.2d at 106-07.
Id.
See RCW 61.24.010(2) (“The trustee may resign at its own election or be replaced by the beneficiary. . . . Only upon recording the appointment of a successor trustee in each county in which the deed of trust is recorded, the successor trustee shall be vested with all powers of an original trustee.”).
Clerk’s Papers at 9.
Walker, 176 Wn. App. at 320-21.
Id. at 322 (quoting Kobza v. Tripp, 105 Wn. App. 90, 95, 18 P.3d 621 (2001)). Under ROW 7.28.120, “[t]he plaintiff in [a quiet title] action shall set forth in his or her complaint the nature of his or her estate, claim, or title to the property, and the defendant may set up a legal or equitable defense to plaintiff’s claims; and the superior title, whether legal or equitable, shall prevail.”
Desimone v. Spence, 51 Wn.2d 412, 415, 318 P.2d 959 (1957) (emphasis added) (citing City of Centralia v. Miller, 31 Wn.2d 417, 197 P.2d 244 (1948); Eckley v. Bonded Adjustment Co., 30 Wn.2d 96, 190 P.2d 718 (1948); Lewis v. City of Seattle, 174 Wash. 219, 24 P.2d 427 (1933); Rohrbach v. Sanstrom, 172 Wash. 405, 20 P.2d 28 (1933); Nyman v. Erickson, 100 Wash. 149, 170 P. 546 (1918); City of Spokane v. Sec. Sav. Soc’y, 82 Wash. 91, 143 P. 435 (1914); Brown v. City of Bremerton, 69 Wash. 474, 125 P. 785 (1912)).
RCW 19.86.020.
Panag v. Farmers Ins. Co. of Wash., 166 Wn.2d 27, 37, 204 P.3d 885 (2009) (quoting RCW 19.86.090).
Bain, 175 Wn.2d at 115 (quoting Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 780, 719 P.2d 531 (1986)).
Chau Ngoc Nguyen v. Doak Homes, Inc., 140 Wn. App. 726, 733, 167 P.3d 1162 (2007).
Panag, 166 Wn.2d at 47 (citing Leingang v. Pierce County Med. Bureau, Inc., 131 Wn.2d 133, 150, 930 P.2d 288 (1997)).
Clerk’s Papers at 133.
Id.
Opening Brief of Respondents at 32.
Id. at 34.
Bain, 175 Wn.2d at 115-16.
Id. (citations and internal quotation marks omitted) (quoting State v. Kaiser, 161 Wn. App. 705, 719, 254 P.3d 850 (2011) (quoting Hangman Ridge, 105 Wn.2d at 785; Panag, 166 Wn.2d at 50)).
Id. at 116-17.
Id. at 117.
Id.
Schroeder, 177 Wn.2d at 114.
Id. at 105, 114.
Id.
Hangman Ridge, 105 Wn.2d at 789.
Id. at 790.
Bain, 175 Wn.2d at 118.
id.
See id. at 94-95.
RCW 61.24.005(2).
Hangman Ridge, 105 Wn.2d at 792 (quoting ROW 19.86.090).
105 Wn.2d 778, 792, 719 P.2d 531 (1986).
166 Wn.2d 27, 58, 204 P.3d 885 (2009) (citation omitted).
Id. at 34-36.
Id. at 58.
Id. at 63-64.
Id. (quoting Reiter v. Sonotone Corp., 442 U.S. 330, 340, 99 S. Ct. 2326, 60 L. Ed. 2d 931 (1979)).
Id. at 58.
Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999).
Walker, 176 Wn. App. at 320.
Appellants’ Opening Brief at 25, 28, 31.
In re Cross, 99 Wn.2d 373, 377, 662 P.2d 828 (1983) (quoting Sorenson v. City of Bellingham, 80 Wn.2d 547, 558, 496 P.2d 512 (1972)).
Dioxin/Organochlorine Ctr. v. Pollution Control Hr’gs Bd., 131 Wn.2d 345, 350-51, 932 P.2d 158 (1997) (citations omitted) (quoting Snohomish County v. State, 69 Wn. App. 655, 660, 850 P.2d 546 (1993)).
Hilltop Terrace Homeowner’s Ass’n v. Island County, 126 Wn.2d 22, 29, 891 P.2d 29 (1995).