Marisa Bavand v. Onewest Bank Fsb

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

MARISA BAVAND, No. 74347-3-

Appellant, DIVISION ONE

ONEWEST BANK, FSB, a federally PUBLISHED
chartered savings bank; MORTGAGE
ELECTRONIC REGISTRATION FILED: November 28, 2016
SYSTEMS, INC., a Delaware
corporation; and NORTHWEST
TRUSTEE SERVICES, INC., a
Washington corporation,

Respondents,

and

DOE DEFENDANTS 1-10,

Defendants.

Cox, J. — Marisa Bavand appeals the order granting summary judgment

in favor of OneWest Bank, Mortgage Electronic Registration Systems, Inc.

(MERS), and Northwest Trustee Services, Inc. (NWTS). The order denied

Bavand's CR 56(f) motion for a continuance and dismissed with prejudice all

claims against these defendants.
No. 74347-3-1/2

Bavand fails to show that the trial court abused its discretion in denying

her CR 56(f) motion for a continuance. Her challenges to the trial court's

consideration of certain evidence supporting the motions for summary judgment

and striking Bavand's declaration in opposition are unpersuasive. She fails in her

burden to show that any genuine issue of material fact exists for trial. These

defendants are entitled to judgment as a matter of law. We affirm.

In August 2007, Bavand obtained a loan from IndyMac Bank. The loan

was evidenced by a promissory note dated August 6, 2007 in the principal

amount of $240,000. She is the only obligor on the note.

In order to secure payment of the note, Bavand, a married woman as her

separate estate, executed a deed of trust that encumbers real property located in

Snohomish County. Chicago Title Insurance Company is named as the trustee

in this deed of trust. The deed of trust was recorded in the Auditor's Records of

Snohomish County on August 16, 2007.

In July 2008, the federal Office of Thrift Supervision closed IndyMac Bank

and created IndyMac Federal Bank. The Federal Deposit Insurance Corporation

(FDIC) operated IndyMac Federal Bank. The FDIC then sold IndyMac Federal

Bank's assets to OneWest.

OneWest took possession of Bavand's original note, which was endorsed

in blank by IndyMac Federal Bank, and the original deed of trust in March 2009.

OneWest has maintained possession of these loan documents at all times since

then.
No. 74347-3-1/3

Bavand failed to make the monthly September 2010 payment on her note.

She has not made any of the monthly payments on the note since that time. In

May 2011, OneWest, through its agent NWTS, sent Bavand a notice of default.

Thereafter, MERS executed and recorded an Assignment of Deed of Trust

dated June 7, 2011. It purports to assign to OneWest "all beneficial interest"

under Bavand's deed of trust.

In July 2011, OneWest appointed NWTS as successor trustee to Chicago

Title Insurance Company, the original trustee under Bavand's deed of trust.

Thereafter, NWTS recorded a notice of trustee's sale, setting the sale date for

December 2011. NWTS postponed the sale several times and eventually

discontinued the sale in May 2013. No trustee's sale has occurred.

Bavand commenced this suit in December 2011. She claimed wrongful

foreclosure under the Deeds of Trust Act. She also claimed violations of the

Consumer Protection Act (CPA) and the federal Fair Debt Collection Practices

Act. She sought to quiet title to the property subject to the deed of trust as well

as declaratory and injunctive relief, damages, and attorney fees.

MERS and OneWest removed this action to the United States District

Court for the Western District of Washington. The federal trial court granted

summary judgment to OneWest, MERS, and NWTS on most of Bavand's claims

in March 2013. The federal court remanded only Bavand's CPA claim to state

court. The Ninth Circuit Court of Appeals affirmed the federal trial court's

decision.1

1 Bavand v. OneWest Bank. FSB, 587 F. Appx. 392, 395 (9th Cir. 2014).
3
No. 74347-3-1/4

Thereafter, OneWest, MERS, and NWTS moved for summary judgment in

state court. The trial court granted the motions in November 2015, dismissing

with prejudice all of Bavand's claims and denying her CR 56(f) motion for a

continuance.

Bavand appeals.

DEEDS OF TRUST ACT

Continuance

Bavand argues that the trial court abused its discretion in denying her CR

56(f) motion for continuance of the hearing on the summary judgment motions of

OneWest, MERS, and NWTS. We disagree.

Under CR 56(f), a court may order a continuance to allow a party

opposing summary judgment to conduct discovery. We review for abuse of

discretion a trial court's denial of a CR 56(f) motion for a continuance.2

Washington courts may deny a continuance motion "when '(1) the

requesting party does not offer a good reason for the delay in obtaining the

desired evidence; (2) the requesting party does not state what evidence would be

established through the additional discovery; or (3) the desired evidence will not

raise a genuine issue of material fact.'"3

2 Qwest Corp. v. City of Bellevue. 161 Wn.2d 353, 358, 166 P.3d 667
(2007).

3Pitzerv. Union Bank of CaL 141 Wn.2d 539, 556, 9 P.3d 805 (2000)
(internal quotation marks omitted) (quoting Tellevik v. Real Prop. Known as
31641 W. Rutherford St.. Located in City of Carnation. Wash.. & All
Appurtenances & Improvements Thereon. 120 Wn.2d 68, 90, 838 P.2d 111
(1992)).
No. 74347-3-1/5

Here, Bavand sought a continuance of the August 2015 hearing of the

summary judgment motions. She claimed to need additional time to conduct

specified discovery. The discovery she sought may be summarized as follows:

The identity of and documents related to "each and every
owner'' of her note and deed of trust;
The identity of and documents related to "each and every
holder" of her note and deed of trust; and
The originals of her note and deed of trust.[4]

Whether Bavand offered a "'good reason for the delay in obtaining the

desired evidence'" is the first question.5 We conclude she did not.

The request for a continuance came almost four years after she

commenced this action and over two years after the federal court granted

summary judgment to the same moving parties in this action. That hearing in

federal court resulted in dismissal of all of Bavand's claims except for the CPA

claim remanded to state court. Bavand fails to explain satisfactorily why, on this

record, she needed a continuance to conduct additional discovery.

Bavand stated in her motion that she had previously requested the

discovery identified in her motion, but claimed it was not provided. But no

evidence suggests that she moved to compel discovery to obtain what she

believed she was entitled to obtain. On this first basis alone, the trial court

4 Clerk's Papers at 154-55 (emphasis added).

5 Pitzer. 141 Wn.2d at 556 (internal quotation marks omitted) (quoting
Tellevik. 120 Wn.2d at 90).
No. 74347-3-1/6

properly denied Bavand's motion for a continuance because she offered no

"'good reason for the delay in obtaining the desired evidence.'"6

The trial court also properly denied Bavand's motion for a second reason.

That is because Bavand failed to establish that a continuance would produce any

discovery that would show the existence of a genuine issue of material fact.

First, a note owner's identity is immaterial to this litigation, which was

commenced to challenge a nonjudicial foreclosure of Bavand's deed of trust due

to her delinquent note.7

Second, the identity of the note "holder" is material to enforcement of the

delinquent note and deed of trust.8 The record establishes that OneWest has

been the "holder" of Bavand's original note since March 2009. There is no

evidence in this record to refute this status. All that Bavand offers is speculative

and argumentative assertions that unresolved factual issues remain regarding

the note holder's identity. Such unsupported assertions are not sufficient to avoid

summary judgment.9 Thus, further discovery on this point would not have shown

any genuine issue of material fact.

6 Id

7 See Brown v. Dep't of Commerce. 184 Wn.2d 509, 540, 359 P.3d 771
(2015); Truiillov. Nw. Tr. Servs.. Inc., 181 Wn. App. 484, 500-02, 326 P.3d 768
(2014). rev'd on other grounds. 183 Wn.2d 820, 355 P.3d 1100(2015).

8 See Brown, 184 Wn.2d at 540; Truiillo. 181 Wn. App. at 500-02.

9 See Ranger Ins. Co. v. Pierce County. 164 Wn.2d 545, 552, 192 P.3d
886 (2008).
No. 74347-3-1/7

Third, Bavand's discovery request to see her original note is not well

founded. That is because the legislature has specified that a holder of a

promissory note need not produce the original note to prove the right to enforce a

deed of trust under these circumstances. Specifically, RCW 61.24.030(7)(a)

provides:

A declaration by the beneficiary made under the penalty of perjury
stating that the beneficiary is the actual holder of the promissory
note or other obligation secured by the deed of trust shall be
sufficient proof [of the status to enforce the note] as required
under this subsection.[10]

This record shows that OneWest has complied with this requirement to

provide a satisfactory declaration. Bavand fails to argue persuasively why she is

entitled to avoid the legislature's statement of what proof is sufficient to establish

the right to enforce the note under the circumstances of this case. Her "show me

the note" argument is simply untenable.11

For these additional reasons, the trial court properly denied Bavand's

request for a continuance of the summary judgment hearing.

Summary Judgment

Bavand argues, in part, that the trial court improperly considered certain

evidence in support of the motions for summary judgment. We disagree.

10 (Emphasis added): see also Brown. 184 Wn.2d at 534, 544; Truiillo. 181
Wn. App. at 494.

11 Petree v. Chase Bank. No. 12-CV-5548-RBL, 2012 WL 6061219, at *2
(W.D. Wash. Dec. 6, 2012) (court order) (and cases cited there).
No. 74347-3-1/8

Summary judgment is proper "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."12 "A genuine issue of material fact exists if 'reasonable minds could differ

on the facts controlling the outcome of the litigation.'"13

Summary judgment is subject to a burden-shifting scheme.14 The moving

party is entitled to summary judgment by submitting affidavits establishing that it

is entitled to judgment as a matter of law.15 The nonmoving party avoids

summary judgment by setting forth "'specific facts which sufficiently rebut the

moving party's contentions and disclose the existence of a genuine issue'" of

material fact.16 To accomplish this, the nonmoving party may not rely on

argumentative assertions that unresolved factual issues remain or on

speculation.17

12 Scrivener v. Clark Coll.. 181 Wn.2d 439, 444, 334 P.3d 541 (2014); see
also CR 56(c).

13 Knight v. Dep't of Labor & Indus.. 181 Wn. App. 788, 795, 321 P.3d
1275 (quoting Ranger Ins. Co.. 164 Wn.2d at 552), review denied. 181 Wn.2d
1023(2014).

14 Ranger Ins. Co.. 164 Wn.2d at 552.

15id

16 id (quoting Meverv. Univ. of Wash.. 105 Wn.2d 847, 852, 719 P.2d 98
(1986)).

17
Id.
No. 74347-3-1/9

We review de novo a trial court's grant of summary judgment.18 We may

affirm on any basis supported by the record whether or not the argument was

made below.19

Summary Judgment Evidence

Bavand argues that the trial court should not have considered certain

evidence in support of the motions for summary judgement. She is wrong.

Under CR 56, the moving party may support its summary judgment motion

with affidavits, and the adverse party may file opposing affidavits.20 CR 56(e)

states that parties must make supporting and opposing affidavits "on personal

knowledge," must describe facts admissible in evidence, and must affirmatively

show "that the affiant is competent to testify to the matters stated therein."

The Uniform Business Records as Evidence Act ("business records act")

"makes evidence that would otherwise be hearsay competent testimony."21

Statements made by a "custodian or other qualified witness" in a declaration

based on the declarant's review of business records satisfy CR 56(e) if the

18 Id

19 First Bank of Lincoln v. Tuschoff. 193 Wn. App. 413, 422, 375 P.3d 687
(2016).

20 CR 56(a), (c).

21 State v. Fleming, 155 Wn. App. 489, 499, 228 P.3d 804 (2010).
No. 74347-3-1/10

declaration satisfies the business records act—RCW 5.45.020.22 Reviewing

courts broadly interpret "custodian" and "other qualified witness."23

The statute's purpose "is to permit the admission in evidence of

systematically entered records made in the usual course of business without the

necessity of identifying, locating!,] and producing as witnesses each individual

who made the original entries in the records."24 No particular mode or record

form is required.25

Importantly, "where 'the trial court is satisfied that sufficient testimony has

been adduced regarding the manner in which certain records have been kept,

and that their identity has been properly established in compliance with the

[business records] act, no objection on the ground of hearsay can be

entertained.'"26

Barkley v. GreenPoint Mortgage Funding, Inc.27 is instructive. In that

case, Alex Barkley executed a note and deed of trust in favor of GreenPoint

22 Barkley v. GreenPoint Mortg. Funding. Inc.. 190 Wn. App. 58, 67, 358
P.3d 1204 (2015), review denied sub nom.. Barkley v. JPMorgan Chase Bank.
184Wn.2d 1036 (2016).

23 Id

24 City of Seattle v. Heath. 10 Wn. App. 949, 955, 520 P.2d 1392 (1974).

25 ]d

26 State v. Iverson. 126 Wn. App. 329, 338, 108 P.3d 799 (2005) (quoting
Cantrill v. Am. Mail Line. Ltd.. 42 Wn.2d 590, 607-08, 257 P.2d 179 (1953)).

27 190 Wn. App. 58, 358 P.3d 1204 (2015).

10
No. 74347-3-1/11

Mortgage Funding Inc. in 2002.28 GreenPoint endorsed the note in blank. In

2003, U.S. Bank possessed the note and deed of trust.29 Chase Bank serviced

the loan.30

Barkley defaulted on the loan. In 2011, NWTS, acting as U.S. Bank's

agent, sent Barkley a notice of default.31 In 2012, U.S. Bank executed a

beneficiary declaration stating it held "the promissory note" evidencing the loan.32

U.S. Bank also appointed NWTS as successor trustee under the deed of trust.33

In late 2012, NWTS recorded a notice of trustee's sale and postponed the sale

three times before discontinuing it.34

Barkley commenced suit against GreenPoint, U.S. Bank, Chase, NWTS,

and others. He alleged wrongful foreclosure, Deeds of Trust Act violations, and

CPA violations.35 The trial court granted summary judgment to the defendants.36

28
|d at 62.

29
ii
30
id

31
l i at 63.
32
Jd

33
id

34
id at 63-64.

35
id. at 64.

36
Id.

11
No. 74347-3-1/12

On appeal, Barkley argued that the trial court should not have considered

two declarations from officers of Chase, the loan servicer, and NWTS, the

successor trustee, respectively.37

This court concluded that these declarations satisfied CR 56(e) and RCW

5.45.020.38 The declarants declared under penalty of perjury that:

(1) they were officers of Chase and NWTS, respectively; (2) they
had personal knowledge of their company's practice of maintaining
business records; (3) they had personal knowledge from their own
review of records related to Barkley's note and deed of trust; and
(4) the attached records were true and correct copies of documents
made in the ordinary course of business at or near the time of the
transaction.'391

Although Barkley argued that the testimony was conclusory and failed to

demonstrate personal knowledge, this court determined that Barkley did not

identify any genuine issue of material fact as to the declarants' qualifications,

"their statements, or the authenticity of the attached documents."40

Here, Bavand makes the same arguments as those rejected in Barkley.

Because the challenged evidence satisfies the business records act, it also

satisfies CR 56(e).

First, Charles Boyle declared under penalty of perjury that he is Vice

President in Default Litigation for OneWest and that his statements are based

37 id at 66.

38 id at 67.

39 id

40 Id. at 67-68.

12
No. 74347-3-1/13

upon his "personal knowledge[] and/or [his] review of OneWest's business

records."41 He also testified that he based his testimony on his review of the

relevant business records concerning Bavand.

His testimony establishes that OneWest took possession of Bavand's

original promissory note and deed of trust in March 2009. The testimony also

establishes that OneWest has maintained possession of these loan documents

at all times material to this litigation.

Second, Brian Blake declared under penalty of perjury that he is corporate

counsel to MERS. His testimony also establishes that he has "personal

knowledge of the ordinary and customary method and manner of the preparation

and maintenance of MERS business records" due to his general duties. He also

has personal knowledge from his review of records concerning Bavand.

The substance of Blake's declaration explains the relationship between

MERS and OneWest. It further explains the authority of certain bank officers to

act as agents for MERS in connection with the loan documents. Copies of

relevant business records are attached to his declaration.

Lastly, Kevin Flannigan declared under penalty of perjury that he is a

senior loan analyst for Ocwen Financial Corporation, which services Bavand's

loan. Like the two other documents that Bavand challenges, this declaration fully

complies with the requirements of the business records act.

41 Clerk's Papers at 1629.

13
No. 74347-3-1/14

The substance of Flannigan's testimony establishes that the Assignment

of Deed of Trust dated June 7, 2011 purported to assign to OneWest "all

beneficial interest" of MERS under Bavand's deed of trust.

All of these documents satisfy the business records act and CR 56(e).

Bavand argues that the business records referred to and relied on in the

affidavit and declarations "necessarily include" third party records, which "must

be separately authenticated by the third party who compiled" them to satisfy

RCW 5.45.020. She further argues that the "testimony must be based on

personal knowledge of the third party's record custodian" to satisfy the statute.

To the contrary, courts are "not required to examine the person who

actually made a record to admit the record under the business record exception.

Rather, testimony by one who has custody of the record as a regular part of his

work or who has supervision of its creation will be sufficient to introduce the

record."42

The trial court properly considered this evidence in this case.

None of the cases that Bavand cites support her arguments challenging

the trial court's consideration of the challenged evidence. For example, in State

v. Weeks, the supreme court determined that the hospital record in that case was

not "competent evidence" because it did not satisfy RCW 5.45.020.43
Specifically, no evidence by the hospital records custodian or any other qualified

42 Fleming. 155 Wn. App. at 499 (citation omitted).

43 70 Wn.2d 951, 953, 425 P.2d 885 (1967).

14
No. 74347-3-1/15

person suggested that the document in question was a business record, as the

statute requires.44 Contrary to Bavand's assertion, the supreme court did not

hold that third party records must be authenticated by the third party who

compiled the records in order to satisfy RCW 5.45.020. And the supreme court

did not state that testimony must be based on personal knowledge of the third

party's record custodian to satisfy RCW 5.45.020.

Bavand further argues that Boyle, Blake, and Flannigan did not provide

the trial court with facts that would establish the following:

(1) how the documents they refer to are maintained, whether in
hard copy or electronic; (2) if the records are maintained by
electronic means, whether the computer document retrieval
equipment used is standard; (3) the original source of the materials
maintained; (4) the identity of person who compiled the information
contained in the files or computer printouts; (5) when, aside from
the conclusory statements that they were made "at or near the time
of the happening or event," the records or the entries were made
and (6) and how the employer of each declarant relies on these
records.t451

But neither RCW 5.45.020 nor the two cases that Bavand cites to support

this argument address these factors. For example, State v. Kane involves the

admission of computer generated evidence.46 Here, admission of computer

generated evidence is not at issue. Similarly, State v. Smith does not mention

the six factors that Bavand argues are required.47

44 id

45 Appellant's Opening Brief at 19.

46 23 Wn. App. 107, 111-12, 594 P.2d 1357(1979).

47 16 Wn. App. 425, 432-33, 558 P.2d 265 (1976).

15
No. 74347-3-1/16

Lastly, Bavand cites a federal district court case involving a declaration

from Charles Boyle, one of the declarants in this case, to argue that the criticisms

mentioned there apply here. In McDonald v. OneWest Bank. FSB, the court

imposed sanctions against OneWest and others to offset costs caused by their

discovery violations.48 In a portion of that opinion, the federal court discussed

factual misstatements in Boyle's declaration.49

We have carefully compared the affidavit here with the discussion in

McDonald and conclude there is no similarity for purposes of our analysis. So

that case is not helpful.

In sum, the trial court properly considered the affidavits and declarations.

Bavand fails in her burden to show otherwise.

Bavand next argues that the state trial judge erred in striking her

declaration in opposition to summary judgment. We disagree.

"'When a party has given clear answers to unambiguous [deposition]

questions which negate the existence of any genuine issue of material fact, that

party cannot thereafter create such an issue with an affidavit that merely

contradicts, without explanation, previously given clear testimony.'"50

48 929 F. Supp. 2d 1079, 1093 (W.D. Wash. 2013) (court order).

49 Id at 1089-91.

50 Overton v. Consol. Ins. Co.. 145 Wn.2d 417, 430, 38 P.3d 322 (2002)
(alteration in original) (quoting Marshall v. AC&S. Inc.. 56 Wn. App. 181, 185, 782
P.2d 1107 (1989)).

16
No. 74347-3-1/17

Here, the trial judge properly struck portions of Bavand's declaration.

They directly contradicted her "'clear answers to unambiguous [deposition]

questions.'"51

During Bavand's deposition in 2013, OneWest's counsel asked Bavand

unambiguous questions about her interrogatory answers. This discovery

concerned renters of Bavand's property in this foreclosure. Bavand testified that

her husband manages the rental properties. She also testified that she "never

had any knowledge about what the rent is," had "no personal knowledge" of the

four month rental property vacancy, and had "no personal knowledge" of a rental

agreement for specific renters. These are unambiguous answers to the

questions at the deposition.

In August 2015, Bavand signed her declaration in opposition to the

summary judgment motions that are now before us for review. The declaration

explained the alleged injuries and damages she sustained due to the moving

parties' actions.

Bavand's testimony in this declaration essentially claims $17,442 in

damages. Of this total, $16,442 relates to rents or expenditures in connection

with renting the property subject to the deed of trust during the time to which she

previously testified at the deposition.

This declaration testimony relating to rentals contradicts her "'clear

answers to unambiguous [deposition] questions'" given earlier.52

51 id (alteration in original) (quoting Marshall. 56 Wn. App. at 185).

52 id at 430 (alteration in original) (quoting Marshall. 56 Wn. App. at 185).
17
No. 74347-3-1/18

Bavand earlier testified that she "never had any knowledge about what the

rent is." But her later declaration states that she suffered injuries and damages

totaling $16,442 related to rentals. She also testified at the deposition that her

husband handled the rentals. Thus, her declaration directly contradicts her prior

deposition testimony.

Bavand also testified in her deposition that she had "no personal

knowledge" of the four month rental property vacancy. But her later declaration

states that she was unable to obtain renters for four months. This also directly

contradicts her prior deposition testimony.

The trial court properly struck these portions of the declaration due to the

conflicts between Bavand's deposition testimony and her later declaration

opposing the summary judgment motions.

Bavand does not argue that either the deposition questions or her

answers were ambiguous. Rather, she argues that she did not know the

answers to the questions at the time of her deposition. She later spoke with her

husband, the manager of the property, to obtain the information. This points to

the second problem with her declaration: her testimony contains inadmissible

hearsay. This is an additional basis to affirm the trial court's decision to strike the

declaration.

Accordingly, the trial judge did not err in striking these portions of

Bavand's declaration.

We note that Bavand also claims in her declaration a $1,000 federal

statutory penalty as damages. But she has abandoned this claim by not arguing

18
No. 74347-3-1/19

it in this appeal. In view of her abandonment of this claim, the trial judge's

decision to strike this portion of Bavand's declaration is not properly before us for

review. Accordingly, we do not further address this damages claim.

We also note that Bavand cannot make a claim for damages under the

Deeds of Trust Act in the absence of a completed trustee's sale of her property.53

There has been no such sale. To the extent that Bavand's declaration purports

to support such a claim for violation of the Deeds of Trust Act, it is not proper to

consider any part of her declaration for this purpose.

On the other hand, Bavand may bring a CPA claim based on the

circumstances of this case.54 To that extent, her declaration could have potential

value but for the deficiencies we have already discussed. We address later in

this opinion what value, if any, her declaration has in connection with her CPA

claim.

Standing

NWTS argues that Bavand lacks standing under the Deeds of Trust Act to

challenge its appointment as successor trustee. Bavand does not directly

address this argument in her briefing. We hold that she does have standing

under state law.

53 See Truiillov. Nw. Tr. Servs.. Inc.. 183 Wn.2d 820, 834, 355 P.3d 1100
(2015) (citing Frias v. Asset Foreclosure Servs.. Inc., 181 Wn.2d 412, 428-30,
334 P.3d 529 (2014)).

54 See id.

19
No. 74347-3-1/20

To establish standing, Washington law requires that a claimant satisfy a

two prong test.55 First, that party "must show 'a personal injury fairly traceable to

the challenged conduct and likely to be redressed by the requested relief.'"56

Second, the party must show that his or her interest is within the "zone of

interests protected by the statute" at issue.57

We review de novo whether a party has standing.58

While none of the parties in this case discusses it, a prior case of this

court impliedly addressed standing to challenge the appointment of a successor

trustee. That was the 2013 decision of Bavand v. OneWest.59

There, Bavand, sued to challenge another nonjudicial foreclosure to

enforce the terms of her delinquent note evidencing a $722,950 loan for a

property she owned.60 Bavand challenged the appointment of a successor

trustee under the Deeds of Trust Act and the CPA. She did so on the basis that

a proper beneficiary did not appoint the successor trustee.61 We agreed.62 We

55 Branson v. Port of Seattle, 152 Wn.2d 862, 875, 101 P.3d 67 (2004).

56 State v. Johnson. 179 Wn.2d 534, 552, 315 P.3d 1090 (quoting High
Tide Seafoods v. State. 106 Wn.2d 695, 702, 725 P.2d 411 (1986)), cert, denied.
135 S. Ct. 139(2014).

57 Id

58 In re Estate of Becker, 177 Wn.2d 242, 246, 298 P.3d 720 (2013).

59 176 Wn. App. 475, 309 P.3d 636 (2013).

60 id at 482-83.

61 id at 484.

62 \&, at 487-90.
20
No. 74347-3-1/21

also held that Bavand could pursue her CPA claims against the bank and

MERS.63 Implicit in these holdings is that she had standing to sue for relief under

both of these acts.

We have no difficulty in expressly deciding that, under state law,

borrowers have standing under both statutes to challenge the appointment of a

successor trustee. We so hold.

Based on a series of federal cases, NWTS argues that Bavand does not

have standing. We disagree based on the state law we just discussed.

Additionally, none of the federal cases on which NWTS relies applies

Washington's test for standing that we just discussed.64 We see no reason why

standing, a question of state law in this state case, should be controlled by those

federal cases. Accordingly, we do not follow them.

63 id at 503-09.

64 Brophv v. JPMorgan Chase Bank. N.A.. No. 2:14-CV-0411-TOR, 2015
WL 1439346, at *5 (E.D. Wash. Mar. 27, 2015) (court order) (stating "Whatever
claim Plaintiffs have regarding the alleged fraudulent execution of the
appointment of successor trustee can only be pursued against Defendant
JPMorgan Chase, not Defendant NWTS."); Cagle v. Abacus Mortg.. Inc.. No.
2:13-CV-02157-RSM, 2014 WL 4402136 at *4-5 (W.D. Wash. Sept. 5, 2014)
(court order) (stating that the borrower lacked standing to challenge the
assignment of the deed of trust.); Brophv v. JPMorgan Chase Bank Nat'l Ass'n.
No. 13-CV-0293-TOR, 2013 WL 4048535 at *3 (E.D. Wash. Aug. 9, 2013) (court
order) (stating that the borrower lacked standing to challenge the appointment of
a successor trustee.); Brodie v. Nw. Tr. Servs.. Inc.. No. 12-CV-0469-TOR, 2012
WL 6192723 at *3 (E.D. Wash. Dec. 12, 2012) (court order) (stating that the
borrower lacked standing to challenge the appointment of a successor trustee or
the assignment of the deed of trust.), affd. 579 Fed. Appx. 592 (9th Cir. 2014).

21
No. 74347-3-1/22

Good Faith of Successor Trustee

Bavand claims NWTS violated its duty of good faith under RCW

61.24.030(7)(b) in three ways. First, she argues that the beneficiary declaration

provided by OneWest is ambiguous because the date on the document is

incomplete. Second, she argues that the declaration may have been signed by

someone who was not employed by OneWest when the declaration was

provided to NWTS in June 2011. Third, she contends that the declaration implies

that she signed only one promissory note but argues that there are two versions

of her note. None of these arguments is persuasive.

Bavand relies, in part, on Truiillo v. Northwest Trustee Services, Inc.65

There, the supreme court addressed the extent to which a successor trustee

under a deed of trust may rely on a beneficiary declaration that purports to satisfy

the requirements of RCW 61.24.030(7)(a). This statute states one of the

requisites to scheduling a trustee's sale.

The supreme court chose not to address the ambiguity of RCW

61.24.030(7)(a) in Trujillo. an ambiguity the court held existed in Brown v.

Department of Commerce,66 a case argued the same day. Instead, the Truiillo

court focused on whether the successor trustee violated its duty of good faith

under RCW 61.24.030(7)(b). The question was whether the successor trustee

had improperly relied on the beneficiary declaration in that case.

65 183 Wn.2d 820, 355 P.3d 1100 (2015).

66 184 Wn.2d 509, 534-35, 359 P.3d 771 (2015).

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No. 74347-3-1/23

There, the declaration stated, in relevant part, that the beneficiary "is the

actual holder of the promissory note ... or has requisite authority under RCW

62A.3-301 to enforce said obligation."67 The court stated that this declaration

was ambiguous because the declarant "could be the 'actual holder' 'or' it could

be something else."68 The question, according to the court, was whether reliance

on that ambiguous declaration was sufficient to fulfill the duty of good faith under

RCW 64.24.030(7)(b).

Trujillo alleged that the successor trustee deferred to that ambiguous

declaration to initiate foreclosure.69 The supreme court held that this allegation

was sufficient to claim a violation of the Deeds of Trust Act.70 Accordingly, there

was a genuine issue of material fact whether the successor trustee actually relied

on the ambiguous declaration as a basis for issuing the notice of trustee's sale.71

Here, Bavand does not and cannot make the same claim that was made

in Truiillo. The beneficiary declaration in this case is unambiguous on the status

of OneWest. It clearly states that OneWest "is the holder of the promissory note"

67 Truiillo. 183 Wn.2d at 832.

68 Jd at 833.

69 id

70 id at 834.

71 Id.

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No. 74347-3-1/24

of Bavand.72 Under Brown, this unambiguous declaration is sufficient to fulfill the

requirements of RCW 64.24.030(7)(a).73

Rather, the ambiguity that Bavand claims is based on the fact that the

beneficiary declaration is dated "this 8th day of June 20 ."74 She argues that

this incomplete statement of the year creates a genuine issue of material fact.

Specifically, she claims it is uncertain whether the declaration was signed when

the loan closed, after the foreclosure started, or during the litigation of this case.

She fails to point to any evidence in the record to substantiate any of the above

alternatives that she argues.

In response, NWTS cites to the record to establish that the declaration

was signed on June 8, 2011 and that NWTS received the declaration on June 15,

2011. These two dates predate the issuance of the notice of sale, which is the

material date. Moreover, NWTS cites other evidence in the record that

establishes that OneWest is the proper beneficiary to provide the required

declaration. Accordingly, Bavand fails to show any genuine issue of material fact

respecting when OneWest signed the beneficiary declaration.

Bavand next argues that the record shows that the person who signed the

beneficiary declaration for OneWest was not then employed by the bank. NWTS

does not respond to this argument in its briefing.

72 Clerk's Papers at 1829.

73See184Wn.2dat544.

74 Clerk's Papers at 1829.

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No. 74347-3-1/25

Assuming, without deciding, this is true, there is no evidence that Bavand

identifies in this record to show that NWTS either knew or should have known

that the person signing the declaration may not have been the bank's employee.

It is difficult to see how NWTS could breach its duty of good faith without Bavand

producing evidence of this necessary factual predicate. We conclude there is no

genuine issue of material fact that Bavand has shown for this claim.

Bavand's final "ambiguity" argument is that the beneficiary declaration

states that OneWest "is the holder of the promissory note, implying there to be

only one note."75 She further states that "there were two notes endorsed in blank

by two different individuals."76 This argument is without merit.

It is undisputed that Bavand signed one original promissory note, not two.

Thus, Bavand's statement that "there were two notes" is misleading. Her liability

for her delinquent loan obligation arises from one original note—the evidence of

her debt.

Bavand bases her argument on the fact that this record shows a copy of

her note stamped "Certified a True Copy" that bears an endorsement in blank by

IndyMac Bank Federal Bank, signed by its officer Kimberly Woody.77 This record

does not show when the stamped notation was affixed in relation to when

IndyMac Bank Federal Bank executed the endorsement in blank. Nevertheless,

75 Appellant's Opening Brief at 29.

76 id

77 Clerk's Papers at 430-34.

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No. 74347-3-1/26

based on this certified copy, Bavand urges that she "can potentially [be] liable to

pay sums in excess of the original promissory note that she signed at closing.78

She is wrong.

Bavand cannot be liable for any debt other than that evidenced by the one

original note that she signed. OneWest relies on only that original note,

endorsed in blank by IndyMac Federal Bank and signed by its officer Sam

Lindstrom.79 The bank does not assert that Bavand is liable based on the copy

of her note stamped "Certified a True Copy."

There is no genuine issue of material fact as to the obligation that

OneWest seeks to enforce by the trustee's sale scheduled by NWTS. That

obligation is evidenced only by the original promissory note that Bavand signed,

nothing else.

In sum, there are no genuine issues of material fact whether either

OneWest or NWTS violated the Deeds of Trust Act in any respect.

For these reasons, the trial court properly granted summary judgment to

the defendants on all claimed violations of the Deeds of Trust Act.

CONSUMER PROTECTION ACT

We turn our attention to the only remaining claim Bavand briefs on appeal.

She argues that the trial court improperly granted summary judgment on her CPA

claim. We disagree.

78 jd. at 396; see also Appellant's Opening Brief at 9.

79idat1631.

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No. 74347-3-1/27

As previously noted in this opinion, Bavand cannot bring a claim for

damages under the Deeds of Trust Act without a completed trustee's sale of her

property.80 There has been no such sale. So, her CPA claim based on wrongful

conduct during a nonjudicial foreclosure process remains for us to review.81

The CPA prohibits "unfair or deceptive acts or practices in the conduct of

any trade or commerce."82 To succeed on a CPA claim, a claimant must

establish "(1) an unfair or deceptive act (2) in trade or commerce (3) that affects

the public interest, (4) injury to the plaintiff in his or her business or property, and

(5) a causal link between the unfair or deceptive act complained of and the injury

suffered."83 A claimant must establish all five elements to prevail.84

Whether a particular action constitutes a CPA violation is reviewable as a

question of law.85

MERS

Bavand first argues that MERS committed an unfair or deceptive act by

executing and recording the Assignment of Deed of Trust dated June 7, 2011.

80 Truiillo, 183 Wn.2d at 834.

81 id

82 RCW 19.86.020.

83 Truiillo. 183 Wn.2d at 834-35.

84 Indoor Billboard/Wash.. Inc. v. Integra Telecom of Wash.. Inc.. 162
Wn.2d 59, 74, 170 P.3d 10 (2007).

85 Leingang v. Pierce County Med. Bureau. Inc.. 131 Wn.2d 133, 150, 930
P.2d 288 (1997).

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No. 74347-3-1/28

That recorded document purports to assign to OneWest the "beneficial interest"

of MERS under Bavand's deed of trust. We hold that this recorded assignment

that characterizes MERS as having a beneficial interest in the Bavand deed of

trust is presumptively deceptive.

In Bain v. Metropolitan Mortgage Group. Inc.. the supreme court stated

that "only the actual holder of the promissory note or other instrument evidencing

the obligation may be a beneficiary with the power to appoint a trustee to

proceed with a nonjudicial foreclosure on real property."86 The court held that

MERS "is an ineligible 'beneficiary'" within the Deeds of Trust Act "if it never held

the promissory note or other debt instrument secured by the deed of trust."87 The

court determined that MERS was not a "holder" under the Uniform Commercial

Code definition.88 Thus, the court concluded that "characterizing MERS as the

beneficiary [in the deed of trust] has the capacity to deceive."89 Accordingly, the

court held that the first element of the CPA claim was presumptively met.

Here, the recorded assignment of the deed of trust, not the deed of trust

itself, purports to assign to OneWest "all beneficial interest" of MERS under

Bavand's deed of trust. MERS is an ineligible beneficiary under the law. This

recorded document gives constructive notice of its contents. Characterizing

86 175 Wn.2d 83, 89, 285 P.3d 34 (2012).

87 id at 110 (internal quotation marks omitted).

88 id at 104.

89idat117.

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No. 74347-3-1/29

MERS as having a beneficial interest in the Bavand deed of trust in this

assignment has the capacity to deceive. Thus, it is presumptively deceptive

under Bain.

We reach these conclusions on the same basis as the supreme court in

Bain. We are bound by that decision and see no rational basis to avoid applying

the rule of that case to this recorded assignment of deed of trust.

MERS fails to show that this recorded assignment of deed of trust is not

presumptively deceptive. It argues that it did not commit an unfair or deceptive

act because it executed the assignment as OneWest's agent. It relies on Bain to

argue "that lenders and assigns are entitled to name MERS as their agent."

Agency is immaterial for this purpose. MERS executed the document that

is presumptively deceptive. The fact that it may have done so as OneWest's

agent does not relieve MERS of responsibility of making the representation and

recording the document.

MERS also argues that this assignment did not constitute a deceptive act

because it did not "mislead or misrepresent something of material importance."

The Bain court held that a similar characterization in a deed of trust had the

capacity to deceive and was presumptively deceptive. MERS does not

satisfactorily explain why the alleged lack of "material importance" of this

characterization distinguishes it from that in Bain.

But our conclusion that this characterization is presumptively deceptive

does not end our inquiry. A CPA claimant must also establish that he or she

29
No. 74347-3-1/30

would not have suffered an injury but for the other party's unfair or deceptive

practice.90

Here, the question is whether Bavand would not have suffered an injury

but for the presumptively deceptive act of MERS's characterization in the

recorded assignment of deed of trust. We conclude that there is no genuine

issue of material fact showing causation.

In Bain, the supreme court stated in its discussion regarding MERS that

the Deeds of Trust Act "contemplates that the security instrument will follow the

note, not the other way around."91 This statement is consistent with well settled

law.

Commentators have stated that the "transfer of the [note] alone will carry

the [deed of trust] along with it."92 Similarly, other commentators have

elaborated, stating:

[Bjetween the parties to a transfer,] the assignment or
negotiation of the note itself is all that must be done. It is
unnecessary to have any separate document purporting to transfer
or assign the mortgage on the real estate, for it will follow the
obligation automatically.'931

90 Indoor Billboard/Washington. Inc.. 162 Wn.2d at 84.

91 Bain. 175 Wn.2d at 104.

9218 William B. Stoebuck & John W. Weaver, Washington Practice:
Real Estate: Transactions § 18.18, at 334 (2d ed. 2004).

93 Grant S. Nelson & Dale A. Whitman, Practitioner Treatise Series:
Real Estate Finance Law, § 5.28, at 429 (4th ed. 2002).

30
No. 74347-3-1/31

This record shows that OneWest has had possession of the original

Bavand note, endorsed in blank, at all times material to this matter. By operation

of law, Bavand's deed of trust followed the negotiation of that note now held by

OneWest. Accordingly, OneWest had the ability to enforce the deed of trust due

to its possession of the note.

Thus, MERS's characterization in the assignment of deed of trust did not

cause any injury that Bavand has identified. OneWest's authority to enforce the

note and deed of trust arose by operation of law due to the bank's status as

holder of the delinquent note. The purported assignment of a nonexistent

beneficial interest in Bavand's deed of trust is immaterial. Therefore, Bavand

fails to satisfy the "but for" test to show causation.94

Bavand's failure to show any genuine issue of material fact for this

necessary element of causation makes any factual disputes over the other

necessary elements to establish a CPA claim against MERS immaterial for

summary judgment purposes.95 That is because those facts cannot affect the

outcome.

MERS is entitled to judgment as a matter of law. The trial court properly

dismissed this CPA claim against MERS.

94 Indoor Billboard/Washington. Inc.. 162 Wn.2d at 84.

95 id at 74.

31
No. 74347-3-1/32

OneWest Bank

Bavand next argues that the creation of "two separate versions of [her]

Note with endorsements from two different individuals that could be separately

negotiated is also a deceptive act and practice."96 We hold that Bavand fails in

her burden to show necessary elements of this CPA claim against the bank.

We previously discussed the factual underpinnings of this argument.

Bavand claims she is potentially liable to pay sums in excess of the original

promissory note based on a certified copy of her promissory note. This is so,

notwithstanding that OneWest seeks to enforce the obligations of her original

note—which is the evidence of her debt, not any copy.

First, in a private action, a claimant can establish the public interest

element of a CPA claim by "showing a likelihood that other plaintiffs have been or

will be injured in the same fashion."97 Here, Bavand utterly fails to show that the

facts underlying her "two notes" theory have been replicated elsewhere. Thus,

there is no showing that others have been or will be injured in the same fashion.

Bavand fails to show a public interest.

Second, Bavand contends that OneWest is not the actual holder of her

promissory note. Thus, she argues that OneWest committed an unfair and

deceptive act by appointing, without authority, a successor trustee.

96 Appellant's Opening Brief at 33.

97 Truiillo. 183 Wn.2d at 835.

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No. 74347-3-1/33

There is no legal basis for this argument in view of controlling case law.

The "holder" of a promissory note is the person with possession of it.98 The

holder of the note—the evidence of the debt—has the right to enforce it.99

Consistent with these principles, the holder of a note has the right to appoint a

successor trustee under the Deeds of Trust Act.

The undisputed facts in this record show that OneWest has had

possession of Bavand's original note since March 2009. Critically, it had

possession of the original note on the date it appointed NWTS as the successor

trustee in this case. The appointment was neither unfair nor deceptive.

Third, a question remains whether there are any genuine issues of

material fact as to injuries to Bavand's business or property.

"Compensable injuries under the CPA are limited to 'injury to [the] plaintiff

in his or her business or property.'"100 In Trujillo, the supreme court recently

discussed what injuries are within the scope of the CPA under these

circumstances. In that case, the court stated:

While emotional distress, embarrassment, and
inconvenience are not compensable injuries under the CPA, Trujillo
does not have to lose her property completely to prove injury.
Trujillo can satisfy the CPA's injury requirement with proof that her
property interest or money is diminished as a result of NWTS's
unlawful conduct, even if the expenses incurred by the statutory
violation are minimal. Trujillo's investigation expenses and other

98 RCW 62A. 1-201 (21).

"RCW62A.3-301.

100 Frias, 181 Wn.2d at 430 (alteration in original) (quoting Hangman
Ridoe Training Stables. Inc. v. Safeco Title Ins. Co.. 105 Wn.2d 778, 780, 719
P.2d531 (1986)).

33
No. 74347-3-1/34

costs associated with dispelling the uncertainty about who owns the
note that NWTS's allegedly deceptive conduct created are
therefore sufficient to constitute an injury under the CPA.[101]

We already discussed the content in Bavand's declaration and why the

trial court properly struck that declaration for purposes of Bavand's claim for

violation of the Deeds of Trust Act. Whether she provided evidence within the

scope of the CPA is now at issue.

Here, Bavand asserts that she incurred expenses to determine the

"owner" of her note. This appears to be based on the statement by the supreme

court in Truiillo that investigative expenses associated with dispelling uncertainty

"about who owns the note" are compensable.102

This statement is another example of the confusion that commentators

have observed regarding the failure of courts to distinguish between holding a

note and owning a note.103 This statement is also at odds with the supreme

court's more recent analysis and conclusion in Brown.

In Brown, the supreme court concluded that the status of "holder" is

dispositive for purposes of enforcing a promissory note.104 The status of "owner"

is not.

101 Truiillo. 183 Wn.2d at 837 (citations omitted) (first citing Frias. 181
Wn.2d at 430-31; then citing Panag v. Farmers Ins. Co. of Wash.. 166 Wn.2d 27,
57, 204 P.3d 885 (2009)).

102 Truiillo. 183 Wn.2d at 837 (emphasis added).

103 See Dale A. Whitman & Drew Milner, Foreclosing on Nothing: The
Curious Problem of the Deed of Trust Foreclosure without Entitlement to Enforce
the Note. 66 Ark. L. Rev. 21, 26 (2013).

104 Brown. 184 Wn.2d at 536-40; see also Truiillo. 181 Wn. App. at 497-
502.

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No. 74347-3-1/35

Based on our reading of Brown and other relevant authority, we conclude

that expenses incurred to determine the "owner" of a promissory note under the

circumstances of this case are not compensable under the CPA. Accordingly,

this expense does not create any genuine issue of material fact as to Bavand's

alleged injury under the CPA.

Bavand also claims to have experienced emotional distress in dealing with

the potential loss of her property. But these injuries are personal to Bavand and

are not compensable because "[c]ompensable injuries under the CPA are limited

to 'injury to [the] plaintiff in his or her business or property.'"105

Overall, Bavand's failure to establish the existence of any genuine issues

of material fact for these necessary elements of a CPA claim make all other

factual disputes for the remaining elements immaterial for summary judgment

purposes.106 OneWest is entitled to judgment as a matter of law and dismissal of

the CPA claim.

NWTS

Bavand follows the claim against OneWest with one against NWTS. She

specifically argues that this successor trustee violated its duty of good faith and

fair dealing by failing to comply with trustee sale requirements and failing to act

105 Frias. 181 Wn.2d at 430 (some alteration in original) (quoting Hangman
Ridge Training Stables. Inc.. 105 Wn.2d at 780).

106 Indoor Billboard/Washington. Inc.. 162 Wn.2d at 74.

35
No. 74347-3-1/36

impartially. Accordingly, Bavand argues that NWTS's actions constitute unfair or

deceptive acts.

We previously discussed in this opinion why there is no merit to Bavand's

claim that NWTS breached its duty of good faith under the Deeds of Trust Act.

Bavand expands on that claim here by making additional assertions. None has

merit.

She argues that there were serious doubts whether OneWest is the actual

holder of her original note. As previously explained, there is no such doubt

based on the evidence in this record. There is no genuine issue of material fact

of OneWest's status as holder of the note.

Bavand also argues that NWTS was not lawfully appointed. Again, the

record and the law show otherwise. This does not create a genuine issue of

material fact for trial.

Lastly, Bavand argues that NWTS breached its "fiduciary" good faith duty

by issuing the notice of default and the notice of foreclosure that

"misrepresented] the ownership" of Bavand's note and deed of trust.

There simply is no authority for the assertion that a successor trustee

under a deed of trust has a "fiduciary duty of good faith." Rather, RCW

61.24.010(3) states that "[t]he trustee or successor trustee shall have no

fiduciary duty or fiduciary obligation to the grantor or other persons having an

interest in the property subject to the deed of trust."107 Bavand's reference to a

"fiduciary duty" is without merit as a matter of law.

107 (Emphasis added.)
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No. 74347-3-1/37

More importantly, ownership of a note is irrelevant to enforcement of the

note.108 Issuance of the notice of default was properly based on proof that

OneWest is the holder of the delinquent note.

In sum, there is no genuine issue of material fact regarding NWTS's good

faith duty. It is entitled to judgment as a matter of law and dismissal of the CPA

claim.

We affirm the summary judgment order dismissing with prejudice all

claims of Bavand and denying her CR 56(f) motion for a continuance.

^bx.cn

WE CONCUR:

108 Brown. 184 Wn.2d at 536-40; Truiillo, 181 Wn. App. at 499-502.

37