¶49 (concurring) — I concur in the majority’s determination that the jury’s award under the Consumer Protection Act (CPA), chapter 19.86 RCW, should be upheld. I write separately because there are many aspects of the majority opinion that I cannot join. I especially disagree with the majority’s own creation of confusion about how a plaintiff may establish a cognizable claim in a private action under the CPA and the majority’s attempt to resolve this so-called “confusion.”
¶50 The majority incorrectly states that Quality Loan Service Corporation of Washington “argues ... that only an act or practice the legislature has declared to be ‘unfair’ is unfair for purposes of the CPA.” Majority at 784. Quality does not make any such argument. Quality quite clearly recognizes that under the CPA, the first two elements of the cause of action can be established either by showing a “per se” violation or by showing an unfair or deceptive act or practice that has the capacity to deceive a substantial part of the public. Suppl. Br. at 3. Similarly, Quality’s response to amicus memorandum of Washington State attorney general, at 4-6, clearly shows Quality’s understanding of the correct analysis. Quality never makes the argument that the majority says that it does; its briefing indisputably shows that the majority is simply wrong.
*798¶51 Unfortunately the majority’s misstatement of Quality’s argument leads it to a discussion of whether there must be a legislative determination of the unfair or deceptive act or practice and to the conclusion that a court can also make such a determination. But it is well settled that both legislatively designated and court-determined unfair or deceptive acts or practices may support private CPA actions, as explained fully in Hangman Ridge Training Stables, Inc. v. Safeco Title Insurance Co., 105 Wn.2d 778, 785-86, 719 P.2d 531 (1986), and its progeny. If in fact Quality had actually made the argument that the majority says that it makes, all that the majority would need to do would be to cite Hangman Ridge and point out that it has been settled for over a quarter century that both the court and the legislature have this authority.
¶52 Regrettably, the majority itself creates the problem that it purports to resolve. As noted, the majority ascribes an argument to Quality that has not been made. Then the majority exacerbates the problem by attempting to show a split in the case law about whether a court can determine whether an act or practice is unfair or deceptive, but the cases relied on by the majority to show the supposed split are not in conflict.
¶53 The majority begins with this seemingly straightforward description of two ways in which a plaintiff can establish the first two elements of a CPA claim:
“The [first] two elements may be established by a showing that (1) an act or practice which has a capacity to deceive a substantial portion of the public (2) has occurred in the conduct of any trade or commerce. Alternatively, these two elements may be established by a showing that the alleged act constitutes a per se unfair trade practice. A per se unfair trade practice exists when a statute which has been declared by the Legislature to constitute an unfair or deceptive act in trade or commerce has been violated.”
Majority at 784-85 (alteration in original) (quoting Hangman Ridge, 105 Wn.2d at 785-86). Thus, the first of the two *799ways that a plaintiff can establish the first two elements is by producing evidence that shows the act or practice, whatever it is, has the capacity to deceive a substantial portion of the public and that this act or practice occurred in trade or commerce. This method does not require a legislatively declared unfair act or practice. Rather, a court considers the evidence produced and makes the determination whether the plaintiff has established the requisite unfair or deceptive act or practice occurring in trade or commerce.
¶54 The second method of proving the first two elements is to prove an act or practice that violates a statute, where the legislature has declared that violation of the statute is an unfair act or practice in trade or commerce. If the plaintiff establishes the statutory violation, the plaintiff establishes the first two elements of a private CPA claim per se.
¶55 The majority maintains that confusion exists about the meaning of the above quoted language from Hangman Ridge and cites two sets of cases in an attempt to show that courts have split on the issue whether only a legislative designation of an unfair act or practice can support a CPA claim. Majority at 785. But in the cases cited where the courts supposedly read Hangman Ridge to require a statutorily based violation, the courts in fact recognized that the first two elements can be established by evidence without any legislative declaration of an unfair or deceptive act or practice.
¶56 The first case is Henery v. Robinson, 67 Wn. App. 277, 834 P.2d 1091 (1992). The majority offers in the parenthetical attached to this case that the court “reject[ed] plaintiffs’ CPA action against the seller of a defective mobile home because they could not show legislatively declared unfair or deceptive practice.” Majority at 785.
¶57 However, in Henery, the court correctly stated that under Hangman Ridge, “[t]he plaintiff may establish the first two elements by showing either that the alleged act constitutes a per se unfair trade practice or that it occurred *800in the conduct of a trade or commerce and has a capacity to deceive a substantial portion of the public.” Henery, 67 Wn. App. at 289 (emphasis added). The court then correctly stated that “[a] defendant commits a per se unfair trade practice when his actions violate a statute describing an unfair or deceptive act in trade or business.” Id. The court concluded that the evidence did not show that the defendants committed a per se unfair trade practice under RCW 46.70.180, and thus no per se CPA violation occurred. The court then turned to the alternative method of proof and the question whether there was evidence that “the defendants engaged in an unfair act or practice which has a capacity to deceive a substantial portion of the public.” Id. at 290. The court examined the record and concluded that plaintiffs’ evidence was insufficient. Id. at 291. Therefore, because there was no basis for a per se claim based on violation of a statute and because the plaintiffs also failed to produce evidence otherwise satisfying the first two elements of a CPA claim, the court reversed an award of attorney fees based on a CPA claim. Id.
¶58 Obviously, the court in Henery did not read Hangman Ridge to say that only a legislatively based unfair or deceptive act or practice would suffice.
¶59 The next case the majority cites is Minnick v. Clearwire US, LLC, 683 F. Supp. 2d 1179, 1186 (W.D. Wash. 2010). Majority at 785. Here, the majority’s parenthetical explanation tells us that the court rejected the “CPA action against phone company for imposing an early termination fee on the ground that the legislature had not declared it ‘a per se unfair trade practice.’ ” Majority at 785 (internal quotation marks omitted) (quoting Minnick, 683 F. Supp. 2d at 1186 (quoting Saunders v. Lloyd’s of London, 113 Wn.2d 330, 334, 779 P.2d 249 (1989))).
¶60 However, this is not an accurate explanation of what occurred in Minnick, either. There, the plaintiffs urged a per se claim but did not base it on a legislative determination. Rather, relying on pre-Hangman Ridge case law, the plain*801tiffs argued a CPA claim based on violation of a common law principle, not violation of a statute. The court correctly recognized the ways the first two elements of a CPA claim can be satisfied, set out in Hangman Ridge and quoted above. Minnick, 683 F. Supp. 2d at 1186. Then, as to per se declarations of unfair acts or practices, the court observed that in Hangman Ridge the court held that a per se claim can be made out only with respect to practices that the legislature had declared unfair and rejected the premise that there can be court-determined per se unfair trade practices. Id. Because the plaintiffs did “not identif[y] a Legislatively recognized per se unfair practice that would state a claim,” and given that the plaintiffs had argued a per se violation, this disposed of plaintiffs’ CPA claim. Id.
¶61 To show the “conflict” between these cases and others, the majority then cites two cases that, the majority says, “properly, did not read Hangman Ridge as establishing the only ways the first two elements could be met.” Majority at 785 (emphasis added). The parenthetical explanations of these two cases are to the effect that in these cases the courts did not require a legislatively determined unfair or deceptive act or practice.
¶62 But cases that do not require a legislative determination do not show that any confusion exists. Such decisions would not conflict with the cases just discussed because the courts in those cases recognized that Hangman Ridge contains alternative methods of proof. Further, in accord with Hangman Ridge, when the plaintiff’s evidence establishes that particular acts or practices are unfair or deceptive acts or practices occurring in trade or commerce, a judicial determination may be made that the first two elements of the private cause of action are satisfied. Thus, not requiring a legislatively determined unfair or deceptive act or practice is entirely consistent with Hangman Ridge and not in conflict with the first set of cases the majority cites.
¶63 In any event, the second set of cases the majority cites are not particularly relevant. The first, State v. Kaiser, *802161 Wn. App. 705, 254 P.3d 850 (2011), majority at 785, does not address how a private plaintiff must prove a CPA claim at all. Instead, Kaiser was an action brought by the attorney general to enforce the CPA under RCW 19.86.080. The second case cited, Magney v. Lincoln Mutual Savings Bank, 34 Wn. App. 45, 57, 659 P.2d 537 (1983), majority at 786, was decided three years before Hangman Ridge was issued. Magney therefore cannot show any confusion supposedly engendered by Hangman Ridge.
¶64 The majority does not show any confusion about whether courts may determine whether an act or practice is unfair or deceptive.
¶65 Nonetheless, the majority attempts “[t]o resolve” the supposed “confusion” about what acts or practices can be actionable in an action under the CPA. Majority at 787. This “resolution” is itself confusing and unnecessary. The majority says:
[W]e hold that a claim under the Washington CPA may be predicated upon a per se violation of statute, an act or practice that has the capacity to deceive substantial portions of the public, or an unfair or deceptive act or practice not regulated by statute but in violation of public interest.
Majority at 787.
¶66 To recap, what precedent establishes is that to prove a private-action CPA claim the plaintiff must establish an “unfair or deceptive act or practice.” Sing v. John L. Scott, Inc., 134 Wn.2d 24, 30, 948 P.2d 816 (1997); Hangman Ridge, 105 Wn.2d at 785. A per se violation occurs when the legislature declares in a statute that certain acts or omissions constitute violations of the CPA. For example, RCW 19.190.030 makes it a per se violation of the CPA to violate our state’s commercial electronic mail act, chapter 19.190 RCW. See State v. Heckel, 143 Wn.2d 824, 828, 24 P.3d 404 (2001). If the plaintiff establishes a violation of this act, the first two elements of the CPA claim are established.
¶67 A violation can also be based upon unfair or deceptive acts in the absence of such a legislative declaration. *803Here, the plaintiff could base the action on conduct that did deceive the public, but is not required to do so. Instead, as Hangman Ridge says, showing that the conduct had or has the capacity to deceive a substantial portion of the public is sufficient. Thus, under Hangman Ridge there is no doubt that courts can determine that particular acts or practices violate the CPA.
¶68 But confusion may be the result of the majority’s statement that a CPA claim may be predicated on “unfair or deceptive act[s] or practice [s] not regulated by statute but in violation of public interest.” Majority at 787. The required public interest impact was addressed in Hangman Ridge, where this court noted that in State v. Reader’s Digest Ass’n, 81 Wn.2d 259, 501 P.2d 290 (1972), modified by Hangman Ridge, 105 Wn.2d 778, the court had concluded that lotteries were unfair under the CPA because lotteries were prohibited by state statute and the state constitution. The court had stated that “ ‘[w]hat is illegal and against public policy is per se an unfair trade practice.’ ” Hangman Ridge, 105 Wn.2d at 786 (quoting Reader’s Digest, 81 Wn.2d at 270).
¶69 The court concluded, however, that such judicial determinations of per se violations would no longer be recognized. First, the use of “ ‘public policy’ ” in the context of an “ ‘unfair trade practice’ ” was a reference to “ ‘public interest’ ” and the court replaced this aspect of a CPA claim by a separate element requiring impact on the public interest. Id. (quoting Reader’s Digest, 81 Wn.2d at 270). Second, in the more than 13 years between the time Reader’s Digest had been decided and Hangman Ridge, the legislature had declared violations of numerous consumer protection statutes to constitute unfair or deceptive acts or practices for purposes of the CPA. Id. at 786-87. These legislative designations defined the relation between conduct made illegal by statute and the CPA. Id. at 786.
¶70 The court directed that consideration of the public interest occurs as a third element of the private cause of *804action and requires that in every private CPA action the consumer must show that the unfair or deceptive acts or practices affect (or impact) the public interest. See id. at 787; accord Bain v. Metro. Mortg. Grp., Inc., 175 Wn.2d 83, 117-18, 285 P.3d 34 (2012). This element is required in part because RCW 19.86.920 states the legislature’s intent that the CPA not be construed to prohibit acts or practices not injurious to the public interest. Hangman Ridge, 105 Wn.2d at 788.
¶71 Basing a CPA violation on violation of public policy as the majority suggests is thus in tension with Hangman Ridge. It is also incompatible with the legislature’s enactment addressing the role of the public interest in the private CPA action. The legislature has recently codified the requirement that the unfair act or practice be injurious to the public interest and specifically set out how this element may be satisfied. RCW 19.86.093 provides that
a claimant may establish that the act or practice is injurious to the public interest because it:
(1) Violates a statute that incorporates this chapter;
(2) Violates a statute that contains a specific legislative • declaration of public interest impact; or
(3) (a) Injured other persons; (b) had the capacity to injure other persons; or (c) has the capacity to injure other persons.
The statute applies to all causes of action that accrue on or after its effective date of July 26, 2009. Laws of 2009, ch. 371, § 3.
¶72 The first two subsections of this statute reflect the court’s view in Hangman Ridge, 105 Wn.2d at 791, that the public interest element can be satisfied per se where the plaintiff shows violation of a statute that contains a specific legislative declaration of public interest impact. RCW 19-.86.093(1)-(2). Subsection (3) bases public interest impact on actual injury and capacity to injure. Significantly, capacity to injure is not the same thing as capacity to deceive. Capacity to injure can establish the public interest element *805under the statute. Capacity to deceive a substantial portion of the public may be relevant in establishing the first two elements of the claim in the absence of a legislative determination that the challenged acts or practices are per se unfair or deceptive trade practices.
¶73 Given the court’s rejection in Hangman Ridge of “public interest” or “public policy” as part of the first two elements of the private CPA claim, and the legislature’s express statutory directions for how public interest impact is to be established, the public policy aspect of the private CPA claim is already sufficiently addressed. Given that there is no confusion as identified by the majority, there is no need to alter Hangman Ridge’s explanation of how the first two elements of the private CPA claim may be established. There is no reason to suggest an amorphous “public interest” basis for the first two elements of the claim.
¶74 Given the majority’s identification of issues that are not truly raised here and that are in any event already resolved, its misreading of Hangman Ridge, and its puzzling attempt to resolve “confusion” that does not exist, the majority should not be read as altering the settled analysis in Hangman Ridge and its progeny.
¶75 Next, the majority appears to believe there is a question whether either an Unfair or a deceptive act or practice can be the basis for a CPA claim. As is apparent from the discussion above, I believe the statutory language clearly provides that either may be sufficient to describe the character of an act or practice that may be challenged under the CPA.
¶76 The majority repeatedly refers to the fiduciary duty of the trustee. In the present case, the trustee owed fiduciary duties because, among other things, the nonjudicial foreclosure sale occurred early in 2008. However, the judicially imposed “fiduciary” standard applies, at the latest, only in cases arising prior to the 2008 amendment of RCW 61.24.010. The 2008 amendment expressly rejected the “fiduciary” standard. See Laws of 2008, ch. 153, § 1, codified *806at RCW 61.24.010(3) (“[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”) (effective June 12, 2008). In 2009, the legislature amended the statute again, deleting language stating that the trustee had to act impartially and replacing it with: “The trustee or successor trustee has a duty of good faith to the borrower, beneficiary, and grantor.” Laws of 2009, ch. 292, § 7.17
¶77 The majority nevertheless seems to perpetuate a “fiduciary” standard that incongruously is merged with other standards. The majority states, “An independent trustee who owes a duty to act in good faith to exercise a fiduciary duty to act impartially to fairly respect the interests of both the lender and the debtor is a minimum to satisfy the statute, the constitution, and equity.” Majority at 790.1 cannot agree with this broad amalgam of standards that actually have appeared at different times in RCW 61.24.010. While the majority acknowledges at one point that the statute presently states a “good faith” standard, majority at 778 n.3, the majority then muddies the waters considerably.
¶78 I also cannot agree with the extensive dicta appearing in footnotes. As examples, the majority discusses whether failure to seek a presale injunction waives all claims even though Quality did not seek review of the Court of Appeals’ rejection of the waiver argument. Majority at 783 n.7. The majority also appears to question the nonjudicial foreclosure act on due process grounds, while assuming that an independent state constitutional due process analysis must be applied. Majority at 790 n.11. However, until issues such as these are squarely before the court the majority should not speculate about how this court might rule after we have *807engaged in the careful, considered decision-making process that results in holdings of this court.
¶79 Despite a number of disagreements with the majority, I concur in the result because I believe that Quality’s failure to exercise its own judgment on the matter of whether the sale should be postponed and its deferral to the beneficiary on this matter was an unfair or deceptive act or practice that supports Puget Sound Guardians’ private CPA action. I agree that the jury award under the CPA should be reinstated.
C. Johnson and J.M. Johnson, JJ., concur with Madsen, C.J.The majority mistakenly says that the “duty of good faith” was added to the statute in 2008. Majority at 778 n.3. This change was made in 2009.