   IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
 JODI LYNN SCANLON,
                                                No. 76120-0-1
                       Appellant,
                                                DIVISION ONE
                V.

 GCAT 2014-4, LLC,                              UNPUBLISHED OPINION

                        Respondent,             FILED: March 12, 2018

               and

 MORTGAGE ELECTRONIC
 REGISTRATION SYSTEMS INC.,

                        Defendant.

       BECKER, J. — Jodi Lynn Scanlon filed this action against a deed of trust
beneficiary, alleging claims involving wrongful foreclosure, breach of contract,

conspiracy, tortious interference with a contractual relationship, slander of title, and

violations of the Consumer Protection Act(CPA), chapter 19.86 RCW. Because

Scanlon cannot prove any set of facts that would entitle her to relief, the trial court

properly dismissed her claims under CR 12(b)(6). We affirm.

       In 2006, Scanlon became the owner of real property located on Vashon

Island. On October 23, 2007, Scanlon executed a promissory note for $368,231 in
No. 76120-0-1/2


favor of Premium Capitol Funds LLC d/b/a Topdot Mortgage. To secure the

obligation, Scanlon executed a deed of trust encumbering the Vashon property.

       After Scanlon allegedly defaulted on payments, notices of a trustee's sale

were recorded in 2008 and 2010. Both notices were later discontinued. At the time

the trial court dismissed Scanlon's claims in this case on October 7, 2016, the record

contained no further trustee's sale notices or any indication that the property had

been sold.

       After Scanlon executed the deed of trust, the beneficial interest under the

deed of trust was assigned to a series of entities: BAG Home Loans Servicing LP

f/k/a Countrywide Home Loans Servicing LP (2010), Bank of America N.A.(2011),

and the Secretary of Housing and Urban Development(2015).

       On May 22, 2015, the beneficial interest was assigned to respondent GCAT

2014-4 LLC. On September 23, 2015, the beneficial interest was assigned to

Wilmington Savings Fund Society FSB, doing business as Christiana Trust, not in its

individual capacity but solely as trustee for BCAT 2014-4TT.I Consequently, GCAT




        'Wilmington Savings Fund Society, the current beneficiary, apparently
commenced nonjudicial foreclosure proceedings in June 2017. On September 28,
2017, Scanlon filed an emergency motion under the appeal cause number to stay or
cancel the trustee's sale scheduled for October 12, 2017. On October 5, 2017, a
commissioner denied the motion, noting that Wilmington was not a party to ScanIon's
appeal and that GCAT did not initiate the foreclosure proceedings or have any
interest under the deed of trust. Scanlon did not move to modify the commissioner's
ruling.

                                           -2-
No. 76120-0-1/3


was the beneficiary of record under Scanlon's deed of trust from May 22, 2015, to

September 23, 2015.

         On May 15, 2015, Scanlon sued Bank of America in King County Superior

Court, alleging breach of contract, conspiracy to defraud, breach of implied covenant

of good faith and fair dealing, tortious interference with contract, wrongful foreclosure,

and violations of the CPA. Bank of America removed the action to federal court,

which granted Bank of America's motion to dismiss on December 23, 2015.

         On December 29, 2015, Scanlon filed this action against GCAT, alleging

essentially the same claims that she raised against Bank of America. In her

complaint, Scanlon alleged that her claims rested on various wrongful acts of GCAT's

"purported predecessor in interest,"2 including acceleration of the debt and

commencement of nonjudical foreclosure "without providing sufficient notice and

opportunity to cure," failing to recognize in a timely manner Scanlon's payment of

$50,000 curing the loan default, making false statements about ownership interest

and standing to pursue the foreclosure, generating and filing documents in support of

foreclosure, including fraudulent appointments of successor trustees, sending

foreclosure documents to the wrong address, publishing the foreclosure notice in the

wrong town, and making false statements in court. Scanlon claimed that as a result




    2   Clerk's Papers at 5.
    3 Clerk's   Papers at 11.

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No. 76120-0-1/4


of these wrongful acts, she suffered severe emotional distress and trauma, pain and

suffering, and monetary damages.

       GCAT moved to dismiss Scanlon's claims under CR 12(b)( ). On October 7,

2016, after hearing the parties' arguments, the court granted the motion and

dismissed Scanlon's claims.

       Scanlon appeals.

CR 12(b)(6) Failure To State a Claim

       Dismissal under CR 12(b)(6)for failure to state a claim is appropriate only if it

"appears beyond doubt" that the plaintiff cannot prove any set of facts that would

justify recovery. Burton v. Lehman, 153 Wn.2d 416, 422, 103 P.3d 1230 (2005),

quoting Tenore v. AT&T Wireless Servs., 136 Wn.2d 322, 330, 962 P.2d 104 (1998).

We accept all facts alleged in the complaint as true and "may consider hypothetical

facts not included in the record." Burton, 153 Wn.2d at 422, quoting Tenore 136

Wn.2d at 330. But we need not accept the plaintiff's legal conclusions as correct.

See Haberman v. Wash. Pub. Power Supply Sys., 109 Wn.2d 107, 120, 744 P.2d

1032, 750 P.2d 254 (1987), appeal dismissed, 488 U.S. 805, 109 S. Ct. 35, 102 L.

Ed. 2d 15 (1988). "If a plaintiffs claim remains legally insufficient even under his or

her proffered hypothetical facts, dismissal pursuant to CR 12(b)(6) is appropriate."

Gorman v. Garlock, Inc., 155 Wn.2d 198, 215, 118 P.3d 311 (2005). We review CR

12(b)(6) dismissals de novo. FutureSelect Portfolio Mqmt., Inc. v. Tremont Grp.

Holdings, Inc., 180 Wn.2d 954, 962, 331 P.3d 29(2014).




                                            -4-
No. 76120-0-1/5


Failure To Register

         Relying on RCW 23.95.505, Scanlon repeatedly asserts that GCAT may not

commence foreclosure proceedings or collect any payments because it was not

registered to do business in Washington. See RCW 23.95.505(1)(foreign entity may

not do business in Washington until it registers with the secretary of state). Scanlon

maintains that as a result of its failure to register, GCAT "is barred from defending the

suit and must pay back taxes for the time in which this LLC did business within a

state without being foreign qualified here." Scanlon also maintains that the trial court

should have entered a default in her favor. These contentions fail for several

reasons.

         Scanlon makes no showing that GCAT's activities as a beneficiary under the

deed of trust constituted doing business within the meaning of RCW 23.95.505.

RCW 23.95.520 expressly excludes from the definition of "doing business" in the

state "creating or acquiring indebtedness, mortgages, or security interests in

property" and "securing or collecting debts or enforcing mortgages or security

interests in property securing the debts." RCW 23.95.520(1)(g),(h). Moreover,

although Scanlon quotes RCW 23.95.505 in its entirety, she fails to address all of the

relevant provisions. See RCW 23.95.505(6)(c)(failure of a foreign entity to register

does not "preclude the foreign entity from defending an action in this state"). Nor has

Scanlon cited any authority suggesting that GCAT's failure to register has any effect




    4   Br. of Appellant at 26.

                                            -5-
No. 76120-0-1/6


on the specific claims in this action. See Saunders v. Lloyd's of London, 113 Wn.2d

330, 345, 779 P.2d 249(1989)(appellate court will generally decline to consider

issues unsupported by cogent legal argument and citation to relevant authority).

Breach of Contract

         In order to maintain a claim for breach of contract, the plaintiff must establish

the existence of a valid and enforceable contract, the rights of the plaintiff and the

obligations of the defendant under the contract, breach, and damages. Citoli v. City

of Seattle 115 Wn. App. 459, 476, 61 P.3d 1165 (2002), review denied, 149 Wn.2d

1033(2003).

         In her complaint, Scanlon identified the actions constituting breach of contract

as wrongful acceleration of the debt, wrongful filing of a foreclosure action despite

payment that cured the default, false statements in support of foreclosure, creation

and filing of false documents in support of the foreclosure, wrongful denial of a loan

modification, sending foreclosure documents to the wrong address, publishing notice

of the trustee's sale in the wrong city, and making false statements in court.

         All of these actions, however, as Scanlon acknowledges, involved the alleged

wrongful foreclosure attempts by GCAT's "predecessor"5 and occurred before GOAT

became a beneficiary. Scanlon fails to identify how these actions constitute breach

of contract by subsequent beneficiaries. GOAT undertook no foreclosure actions

during the four months that it was the beneficiary. Scanlon's allegations of GCAT's




    5   Clerk's Papers at 14.

                                               -6-
No. 76120-0-1/7


fraudulent conduct are nothing more than legal conclusions that are insufficient to

defeat a CR 12(b)(6) motion. See Haberman, 109 Wn.2d at 120.

        Scanlon's complaint alleges no conceivable facts supporting a breach of

contract claim against GCAT.

Conspiracy To Defraud

        To establish a claim for civil conspiracy, Scanlon must prove "by clear, cogent,

and convincing evidence that(1)two or more people combined to accomplish an

unlawful purpose, or combined to accomplish a lawful purpose by unlawful means;

and (2) the conspirators entered into an agreement to accomplish the conspiracy."

All Star Gas, Inc. v. Bechard, 100 Wn. App. 732, 740, 998 P.2d 367(2000). A "mere

suspicion or commonality of interests is insufficient to prove a conspiracy." Wilson v.

State, 84 Wn. App. 332, 351, 929 P.2d 448(1996), review denied, 131 Wn.2d 1022

(1997), cert. denied, 522 U.S. 949(1997).

         Scanlon alleges that GCAT conspired with Wilmington Savings Fund Society,

the subsequent beneficiary, to commit "the wrongful and forcible sale of the Plaintiff's

home after collecting all arrearages."6 But the acts alleged to support the conspiracy

are the same as those supporting the breach of contract claim. Those acts all

occurred before GCAT or Wilmington Savings Fund Society had any involvement

with Scanlon. The complaint alleges no set of facts suggesting that GCAT was

involved in the alleged conspiracy.




    6   Br. of Appellant at 29.

                                            -7-
No. 76120-0-1/8


Breach of Implied Covenant of Good Faith and Fair Dealing

       Every contract contains an implied duty of good faith and fair dealing that

"obligates the parties to cooperate with each other so that each may obtain the full

benefit of performance." Badgett v. Sec. State Bank, 116 Wn.2d 563, 569, 807 P.2d

356 (1991). But this duty does not inject substantive terms into a contract; rather, "it

requires only that the parties perform in good faith the obligations imposed by their

agreement." Badqett, 116 Wn.2d at 569. There is no "free-floating duty of good faith

unattached to the underlying legal document." Badqett, 116 Wn.2d at 570.

Consequently, if no contractual duty exists, "there is nothing that must be performed

in good faith." Donald B. Murphy Contractors, Inc. v. King County, 112 Wn. App.

192, 197,49 P.3d 912(2002).

       In support of this claim, Scanlon once again relies on the acts of wrongful

foreclosure that occurred before any relationship with GCAT arose. Consequently,

the complaint fails to allege facts suggesting that GCAT breached any duty during the

period of its contractual relationship with Scanlon.

Tortious Interference With a Contractual Relationship

       The nature of this claim is unclear. In conjunction with the tortious interference

claim, the complaint alleges that "no contract existed." But Scanlon does not allege

GCAT interfered with a valid contractual relationship that she had with another. See

Pac. Nw. Shooting Park Ass'n v. City of Sequim, 158 Wn.2d 342, 351, 144 P.3d 276




    7 Clerk's   Papers at 17.

                                            -8-
No. 76120-0-1/9


(2006)(elements of tortious interference include intentional interference causing a

breach or termination of a valid contractual relationship). The trial court properly

dismissed the tortious interference claim under CR 12(b)(6).

Slander of Title

       To prevail on a slander of title claim, Scanlon must show: "(1)false words;(2)

maliciously published;(3) with reference to some pending sale or purchase of

property;(4) which go to defeat plaintiffs title; and (5) result in plaintiffs pecuniary

loss." Rorvig v. Douglas, 123 Wn.2d 854, 859, 873 P.2d 492(1994).

       Scanlon's claim rests primarily on allegations that Bank of America executed

and recorded various fraudulent documents in conjunction with its wrongful

foreclosure action. But GCAT had no involvement with those documents. Nor does

the complaint allege that GCAT published false and malicious statements referencing

a sale of the property in its recorded assignment of the deed of trust. Under these

circumstances, Scanlon cannot prove any set of facts, consistent with her complaint,

that would entitle her to relief on her slander of title claim.

Unfair and Deceptive Trade Practices

       To maintain a claim under the CPA, the plaintiff must prove (1) an unfair or

deceptive act or practice,(2) occurring in trade or commerce,(3) affecting the public

interest,(4) injury to a person's business or property, and (5) causation. Hangman

Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 784, 719 P.2d

531 (1986). A statutory violation may establish a per se CPA violation. Anderson v.

Valley Quality Homes, Inc., 84 Wn. App. 511, 515-16, 928 P.2d 1143, review denied,


                                              -9-
No. 76120-0-1/10


132 Wn.2d 1002(1997).

        Scanlon's complaint alleges that GCAT "engaged in various deceptive and

unfair trade practices,"8 but does not otherwise identify any specific unfair or

deceptive acts that GCAT committed. Rather, the complaint repeats yet again the

alleged wrongful foreclosure attempts occurring years before GCAT became the

beneficiary.

         Scanlon's discussion of the Mortgage Electronic Registration System Inc.

(MERS)in Bain v. Metro. Mortq. Grp, Inc., 175 Wn.2d 83, 285 P.3d 34(2012), is

misplaced. In Bain, our Supreme Court held 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." Bain, 175 Wn.2d at 89. Consequently, MERS is an ineligible beneficiary

within the terms of the Washington deeds of trust act, chapter 61.24 RCW,"if it never

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

Bain, 175 Wn.2d at 110. Although characterizing MERS as the beneficiary has the

"capacity to deceive" for purposes of a CPA action, it is not per se deceptive. Bain,

175 Wn.2d at 117.

         MERS is not a party on appeal. Nor did GCAT undertake any actions to

foreclose while it was the beneficiary. The trial court properly dismissed Scanlon's

CPA claim.




    8   Clerk's Papers at 22.

                                            -10-
No. 76120-0-1/11


Motion To Amend

         In her response to GCAT's motion to dismiss, Scanlon asked for leave to

amend her complaint "if the court finds any allegation to be missing in the

complaint."' Scanlon made what appears to be a similar request at the conclusion of

her oral argument on the motion to dismiss. The trial court did not respond or rule on

the request. On appeal, Scanlon contends the court erred in failing to permit her to

amend the complaint.

         Scanlon did not attempt to file an amended complaint. Nor did she present

any supporting legal argument or object to the trial court's failure to respond.

Moreover, Scanlon's vague requests were essentially an invitation to the court to

assist her in amending her pleadings. Scanlon fails to demonstrate that the court

committed any error or abused its discretion in failing to respond.

         Scanlon raises several new allegations and arguments in her reply brief. We

decline to consider them. See Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d

801, 809, 828 P.2d 549(1992)(appellate court will not consider issues and

arguments raised for the first time in a reply brief).




    9   Clerk's Papers at 238.

                                             -11-
                           FILED
                   COURT OF APPEALS OW I
                    STATE OF WASHINGTON
                   2018 MAR 12 AM 8: 20




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