           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

HENRY MILLER,                               )
                                            )   No. 78044-1-I
                         Respondent,        )
                                            )   DIVISION ONE
               v.
                                            )
U.S. BANK, N.A.; ASSET      )
FORECLOSURE SERVICES, INC.; )
PEAK FORECLOSURE SERVICES OF)
WASHINGTON, INC.,           )
                        Appellants,         ) UNPUBLISHED OPINION
                                            )
               and                          ) FILED: October 28, 2019
DOE DEFENDANTS 1-20,                        )
                         Defendants.


       SMITH, J.    —   U.S. Bank N.A., Asset Foreclosure Services Inc., and Peak

Foreclosure Services of Washington Inc. (collectively the Bank Parties) appeal

from the trial court’s denial of their motion to dismiss Henry Miller’s claim for

equitable relief to set aside a foreclosure sale. Because Miller failed to raise a

genuine issue of material fact as to whether he waived that claim,1 we reverse

and remand to the trial court with instructions to enter summary judgment in favor

of the Bank Parties on Miller’s claim for equitable relief.




       The trial court converted the Bank Parties’ motion to dismiss to a motion
       1

for summary judgment.
No. 78044-1-1/2

                                         FACTS

        In June 2008, Miller obtained a $393,820 home mortgage loan from U.S.

Bank. In connection with the loan, Miller signed a promissory note and a deed of

trust encumbering his home in Seattle. Shortly after obtaining the loan, Miller’s

business began to struggle, and Miller fell behind on his loan payments. In

August 2009, Chicago Title Company of Washington, LSI Division, as successor

trustee, recorded a notice of trustee’s sale for Miller’s home. That sale never

occurred and in September 2009, U.S. Bank offered Miller a forbearance. In

October 2010, the parties entered into a loan modification agreement.

       Miller’s business continued to struggle, and Miller again fell behind on his

loan payments. In May 2012, Asset, as “Agent for the Trustee and/or Agent for

the Beneficiary,” sent Miller a notice of default. Miller responded to the notice by

trying to get another loan modification. His efforts ultimately were unsuccessful.

       In August 2012, Miller received a notice of trustee’s sale from Peak, as

successor trustee. That sale also did not occur as scheduled, though the record

is not entirely clear as to why. It appears, however, that the reason may have

been that Miller made a complaint to the Washington State Attorney General’s

Office (AGO), which made an inquiry of U.S. Bank on Miller’s behalf. Although

the inquiry itself is not in the record, U.S. Bank’s response indicates that Miller

raised a concern that U.S. Bank’s foreclosing trustee was not a domestic

corporation with at least one Washington officer, as required under Washington’s

deeds of trust act (DTA), chapter 61.24 RCW. Specifically, U.S. Bank clarified in

its letter that although its legal counsel, Asset, did reside in California, the


                                           2
 No. 78044-1-1/3

trustee, Peak, resides in the State of Washington.

        In May 2013, Miller received another notice of trustee’s sale from Peak.

After receiving this notice, Miller contacted a housing counselor, who requested a

foreclosure mediation. In September 2013, while the mediation process was

pending, Miller also filed suit against U.S. Bank and Mortgage Electronic

Registration Systems Inc. (MERS) to enjoin the foreclosure sale. Ultimately, that

sale also did not occur, and Miller dismissed his lawsuit against U.S. Bank and

MERS under a confidential settlement agreement.

       In February 2014, Peak again issued a notice of trustee’s sale, setting a

sale date of June 27, 2014. The notice refers to a notice of default transmitted to

Miller on January 10, 2014. Miller asserts that he is “not sure” if he received the

January 2014 notice of default, and his declaration is silent as to whether he

received the notice of trustee’s sale. But he states that he was “unaware that the

foreclosure was going to actually happen because [he] had been in regular

communication with U.S. Bank about foreclosure avoidance options.” The

foreclosure nevertheless did occur on October 10, 2014. U.S. Bank was the

successful bidder, and a trustee’s deed was recorded on October 24, 2014. After

he was notified that the sale had occurred, Miller contacted attorney David Leen.

Leen sent a letter to U.S. Bank in November 2014, stating that he believed the

sale was void for a number of reasons and demanding “that the Trustee’s deed

be recalled and that no efforts be taken to evict [Miller].”

       In August 2015, U.S. Bank sent Miller a notice to vacate. Leen responded

on Miller’s behalf, again asserting that the foreclosure sale was defective.


                                           3
No. 78044-1-114

According to Miller, “[w]hat followed was silence by U.S. Bank until late in

December 2016 when [Miller] was served with a Summons and Complaint in an

eviction case.” On March 10, 2017, the court entered a writ of restitution against

Miller and his family, requiring them to be removed from the property.

       That same day, Miller filed the present lawsuit against the Bank Parties.

He alleged four causes of action: (1) equitable relief to set aside the sale (void

sale claim), (2) misrepresentation, (3) breach of the duty of good faith and other

DTA requirements, and (4) violation of the Washington Consumer Protection Act,

chapter 19.86 RCW. Miller also moved for a preliminary injunction “to prevent

the transfer of title to his home.” The motion was supported by declarations from

Miller and from his counsel. The record does not reflect the outcome of the

motion.

       In December 2017, Peak and Asset moved under CR 12(b)(6) to dismiss

Miller’s claims, arguing that they were time barred under RCW 61.24.127, which

lists certain claims that a borrower does not waive even if he fails to bring an

action to enjoin a nonjudicial foreclosure sale—but that nonetheless must be

brought within the time limits set forth in that statute. U.S. Bank joined the

motion and argued further that Miller’s claims were barred by res judicata and

collateral estoppel as a result of arguments that Miller made during the eviction

proceeding. Miller opposed the Bank Parties’ motion, arguing among other

things that RCW 61.24.127 does not apply because Asset and Peak never had

the authority to foreclose. Specifically, Miller argued that Asset (which is located

in California) was the entity actually acting as the foreclosing trustee, and “was


                                          4
 No. 78044-1 -115

 using the sham identification of.   .   .   Peak as the trustee to try to give the false

 impression” that Asset and Peak were in compliance with Washington law.

       The trial court treated the Bank Parties’ motion as a summary judgment

motion and granted it, in part. Specifically, except for the void-sale claim, the

court dismissed Miller’s claims as time barred by RCW 61.24.127. The court

concluded that the void-sale claim was not barred by RCW 61.24.127 because

that claim was “not included among the types of claims listed in

RCW 61.24.127(1).” It ruled that “[t]he void-sale claim should be allowed to

proceed to trial to determine whether, after considering all of the facts and

circumstances, [Miller] should be deemed to have waived his right to assert that

claim” and “whether [Miller] ‘promptly’ brought his claim, or ‘slept on his rights.”

We granted the Bank Parties’ motion for discretionary review of the court’s

decision not to dismiss the void-sale claim.

                                         ANALYSIS

                                  Void-Sale Claim

       The Bank Parties argue that the trial court erred by not dismissing Miller’s

void-sale claim. We agree.

      We review summary judgment orders de novo. Keck v. Collins, 184

Wn.2d 358, 370, 357 P.3d 1080 (2015). “[S]ummary judgment is appropriate

where there is ‘no genuine issue as to any material fact and          .   .   .   the moving party

is entitled to a judgment as a matter of law.” Elcon Constr., Inc. v. E. Wash.

Univ., 174 Wn.2d 157, 164, 273 P.3d 965 (2012) (second alteration in original)

(quoting CR 56(c)). “In a summary judgment motion, the moving party bears the


                                                5
 No. 78044-1-116

 initial burden of showing the absence of an issue of material fact.” Young v. Key

 Pharm., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989). To that end, in the DTA

context, the recitals in the trustee’s deed stating that the sale was conducted in

compliance with the DTA “shall be prima facie evidence of such compliance.”

FormerRCW6l.24.040(7) (2012);2 RCW61.24.040(11); Plein v. Lackey, 149

Wn.2d 214, 228, 67 P.3d 1061 (2003).

           If the moving party satisfies its initial burden, the burden shifts to the

nonmoving party to bring forth specific facts to rebut the moving party’s

contentions. Elcon Constr., 174 Wn.2d at 169. “The nonmoving party may not

rely on speculation, argumentative assertions, ‘or in having its affidavits

considered at face value; for after the moving party submits adequate affidavits,

the nonmoving party must set forth specific facts that sufficiently rebut the

moving party’s contentions and disclose that a genuine issue as to a material fact

exists.” Becker v. Wash. State Univ., 165 Wn. App. 235, 245-46, 266 P.3d 893

(2011) (quoting Seven Gables Corp. v. MGM/UA Entm’t Co., 106 Wn.2d 1, 13,

721 P.2d 1 (1986)). Although the evidence is viewed in the light most favorable

to the nonmoving party, if that party is the plaintiff and he fails to make a factual

showing sufficient to establish an element essential to his case, summary

judgment is warranted. Young, 112 Wn.2d at 225.

       Here, and as further discussed below, the Bank Parties met their initial

burden to establish the absence of any material fact as to whether Miller waived

his void-sale claim, and Miller failed to set forth specific facts to disclose the


       2   This language now appears in RCW 61.24.040(11).

                                              6
 No. 78044-1-117

 existence of a genuine issue of material fact as to waiver. Therefore, the trial

 court erred by not dismissing Miller’s void-sale claim.

                  The DTA “creates a three-party mortgage system allowing lenders, when

payment default occurs, to nonjudicially foreclose by trustee’s sale.” Albice v.

 Premier Mortci. Servs. of Wash., Inc., 174 Wn.2d 560, 567, 276 P.3d 1277

(2012). The DTA has three goals: an efficient and inexpensive process,

adequate opportunities for parties to prevent wrongful foreclosure, and stability of

land titles. Albice, 174 Wn.2d at 567. In furtherance of these goals, the DTA

specifies a procedure for stopping a trustee’s sale. Plein, 149 Wn.2d at 225.

That procedure is set forth in RCW 61 .24.130, and failure to follow the specified

procedure “may result in a waiver of any proper grounds for invalidating the

Trustee’s sale.” Former RCW61.24.040(1)(f)(lX) (2012) (emphasis added).3

              Here, it is undisputed that Miller did not follow the procedure set forth in

RCW 61 .24.130 to stop the trustee’s sale of his home. Therefore, the only

questions before us are (1) whether Miller waived his void-sale claim and (2) if

not, whether that claim is nonetheless time barred.

              Courts may apply waiver where it “is equitable under the circumstances

and   .   .   .   serves the goals of the [DTAj.” Albice, 174 Wn.2d at 570. To that end,

in Plein, our Supreme Court held that under the DTA, a borrower waives postsale

challenges to a foreclosure sale if he “(1) received notice of the right to enjoin the

sale, (2) had actual or constructive knowledge of a defense to foreclosure prior to

the sale, and (3) failed to bring an action to obtain a court order enjoining the

      ~ This language now appears in RCW 61 .24.040(2)(d)(lX). See LAWS OF
2018, ch. 306, § 2.
                                                 7
 No. 78044-1 -1/8

sale.” Plein, 149 Wn.2d at 227, 229. Nevertheless, under RCW 61.24.127(1),

which was enacted post Plein, “[t]he failure of the borrower or grantor to bring a

civil action to enjoin a foreclosure sale   .   .   .   may not be deemed a waiver” of

claims asserting: (a) common law fraud or misrepresentation, (b) a violation of

Title 19 RCW, (c) the trustee’s failure to materially comply with the DTA, or (d) a

violation of ROW 61.24.026 (pertaining to short sales). These claims must,

however, still satisfy certain requirements to be nonwaivable under

ROW 61.24.127. As relevant here, they must: (a) be asserted within the earlier

of two years from the date of the foreclosure sale or the expiration of the

applicable statute of limitations, (b) not seek any remedy other than monetary

damages, and (c) not affect the validity or finality of the foreclosure sale.

ROW 61 .24.127(2)(a)-(c).

       In short, to determine whether a claim is waived under the DTA, the court

first applies the Plein test and asks whether the borrower received notice of the

right to enjoin the sale, had presale knowledge of a defense, and failed to enjoin

the sale. If so, the claim is waived—unless it qualifies as a nonwaivable claim

under ROW 61.24.127. See Patrick v. Wells Fargo Bank, N.A., 196 Wn. App.

398, 407, 385 P.3d 165 (2016) (“The legislature’s decision to limit [ROW

61.24.1271’s safe harbor to four types of damage claims shows that the

legislature did not intend to protect other claims from waiver if the requirements

of notice, knowledge of a defense, and,failure to enjoin the sale are satisfied.”),

review denied, 187 Wn.2d 1022 (2017).

      To this end, we reject the Bank Parties’ argument that if a claim is one of


                                                8
 No. 78044-1 -119

 the types of claims described in RCW61.24.127(l), then it is categorically

 waived unless pursued within the time period specified in RCW 61 .24.127(2).

 Specifically, the Bank Parties assert that “[all c/aims—including equitable claims

 to void a sale—are waived if they are not brought prior to a foreclosure sale,

 unless they fall within one of the four articulated exceptions” set forth in

 RCW61.24.127(1). (Emphasis added.) In other words, the Bank Parties

contend that if a claim is not protected from waiver by RCW 61.24.127, then it is

waived regardless whether the Pie/n waiver requirements of notice, know/edge of

a defense, and failure to enjoin the sale are satisfied.

        But the cases on which the Bank Parties rely do not support their

argument. Specifically, in both Patrick and Manning v. Mortgage Electronic

Registration Systems, Inc. (an unpublished opinion), it was undisputed that the

Plein waiver requirements were satisfied. See Patrick, 196 Wn. App. at 407

(“Here, the Patricks concede that they did not use the DTA’s procedure to

restrain the trustee’s sale. And they do not contest that Wells Fargo established

the three waiver elements, as the Patricks had notice of the sale, knew of the

defenses they now assert, and did not try to enjoin the sale.”); Manning v. Mortg.

Elec. Registration Sys., Inc., No. 73908-5-I, slip op. at 8 (Wash. Ct. App. Oct. 31,

2016) (unpublished), https://www.courts.wa.gov/opjnions/pcjf/739085pdf (“The

Mannings do not contest that they received notice of their right to enjoin the sale,

knew of the defenses to foreclosure they now assert, and did not bring an action

to stop the sale as authorized by the DTA.”). Therefore, the only issue before us

in those cases was whether the borrower’s postsale claims were nonwaivable


                                          9
 No. 78044-1-1110

 under RCW 61.24.127. And in Frizzell v. Murray, the court applied Plein and

 concluded that the borrower’s claim was waived—but remanded to the trial court

to determine whether the claim was nonwaivable under RCW 61.24.127. 179

Wn.2d 301, 312-13, 313 P.3d 1171 (2013). These cases do not, as the Bank

 Parties contend, support the proposition that Plein no longer applies to claims

that are not protected from waiver by RCW 61.24.127. Furthermore, concluding

that a claim is not necessarily waived—even if it is not protected from waiver by

RCW 61.24.127—would not, as the Bank Parties suggest, “permit borrowers

bringing actions to void completed foreclosure sales in perpetuity.” Rather,

otherwise applicable statutes of limitations would still apply, as would equitable

doctrines such as laches.

       In short, RCW 61.24.127 merely sets forth the types of postsale claims

that cannot be waived even if the Plein waiver requirements are satisfied. But

the fact that a claim is not protected from waiver by RCW 61.24.127 does not

necessarily mean that it is waived if not brought prior to the foreclosure sale.

Rather, as discussed, waiver under the DTA involves a two-part analysis: The

court first applies Plein to determine whether the requirements of waiver have

been satisfied. If so, the court also considers whether the claim is nonetheless

nonwaivable under RCW6I.24.127. See Patrick, 196 Wn. App. at 407 (‘The

legislature’s decision to limit[RCW61.24.127}’s safe harbor to four types of

damage claims shows that the legislature did not intend to protect other claims

from waiver if the requirements of notice, knowledge of a defense, and failure to

enjoin the sale are satisfied.”) (emphasis added). Applying this two-part analysis


                                         10
 No. 78044-I-I/li

 here, we conclude that the trial court erred by not dismissing Miller’s void-sale

 claim.

          Specifically, turning to the first element of waiver: The recitals in the

 trustee’s deed, which are prima facie evidence of compliance with the DTA, state

that a notice of trustee’s sale was executed and recorded on February 14, 2014,

 under recording number 20140214000859, and was “transmitted by mail to all

persons entitled thereto.” That notice contained the required statutory notice of

the right to enjoin the sale, stating:

          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 same pursuant to
          RCW61.24.130. Failure to bring such a lawsuit may result in a
          waiver of any proper grounds for invalidating the Trustee’s Sale.

Miller does not dispute receiving this notice. At most, he claims that he did not

think the foreclosure sale “would actually happen” because he had been in

communication with U.S. Bank about foreclosure avoidance options. But

believing that an impending foreclosure sale will not “actually happen” is not the

same as not receiving notice of it in the first place. Therefore, Miller has not

raised a genuine issue of material fact as to the first element of waiver, i.e., that

he received notice of his right to enjoin the sale.

          Miller disagrees, contending that he “testified that he did not receive the

notices of the sale nor did he receive notices of continuance.” But this is not an

accurate characterization of Miller’s testimony. He testified that he was “not

sure” if he received a notice of default. He also testified that he did not receive a

“Notice of Pre-Foreclosure Options” or any continuance notices. But his


                                            11
 No. 78044-1-1/12

 testimony does not set forth specific facts to rebut that he received notice of his

 right to enjoin the sale. Therefore, his argument is unpersuasive.

        Turning next to whether Miller had actual or constructive knowledge of a

 defense to foreclosure prior to the sale: “[un applying the waiver doctrine, a

 person is not required to have knowledge of the legal basis for his claim, but

merely knowledge of the facts sufficient to establish the elements of a claim that

could serve as a defense to foreclosure.” Brown v. Household Realty Corp., 146

Wn. App. 157, 164-65, 189 P.3d 233 (2008). Here, Miller’s void-sale claim is

premised on his assertion that Peak and Asset lacked the authority to act as

trustees because neither is a domestic corporation with at least one Washington

resident officer. But Miller himself testified that when he talked to an AGO

investigator, ‘she also talked to me about Peak Foreclosure and whether it really

had an office in Washington.” ~former ROW 23B.05.010(1)(a) (2002)

(requiring domestic corporations to continuously maintain a registered office in

Washington). And Miller knew, as early as May 2013, that Asset resided in

California, as confirmed by U.S. Bank in its response to the inquiry made by the

AGO on Miller’s behalf. In other words, Miller had, no later than May 2013,

knowledge of facts sufficient to pursue his void-sale claim. Therefore, Miller has

not raised a genuine issue of material fact as to the second element of waiver,

i.e., that he had presale knowledge of a defense to foreclosure.

       Miller again disagrees, asserting that he “had no way to know that

Defendants Peak and Asset were not compliant with the requirements of the DTA

until after he consulted with Mr. Leen after the foreclosure sale had occurred.”


                                         12
 No. 78044-1-1/13

 But Miller’s assertion amounts to an argument that, notwithstanding any presale

 knowledge of the factual basis for his void-sale claim, he did not know he had a

 legal claim until he saw an attorney. Washington courts have roundly rejected

 that argument in the discovery rule context, and we do so here as well. See

 Reicheltv. Johns-Manville Corp., 107 Wn.2d 761, 772, 733 P.2d 530 (1987) (The

plaintiff “would have us adopt a rule that would in effect toll the statute of

limitations until a party walks into a lawyer’s office and is specifically advised that

he or she has a legal cause of action; that is not the law.”); see ?J~Q Adcox    V.


Children’s Orthopedic Hosp. & Med. Ctr., 123 Wn.2d 15, 35, 864 P.2d 921 (1993)

(“The key consideration under the discovery rule is the factual, as opposed to the

legal, basis of the cause of action.”).

       Finally, with regard to the third element of waiver, it is undisputed that

Miller “failed to bring an action to obtain a court order enjoining the sale.”

Patrick, 196 Wn. App. at 406 (quoting Plein, 149 Wn.2d at 227).

       In sum, because Miller failed to raise a genuine issue of material fact as to

any of the three elements of waiver, Miller’s void-sale claim is waived unless it

qualifies as nonwaivable under RCW 61.24.127. But because Miller asserted his

void-sale claim more than two years after the date of the foreclosure sale and

seeks not money damages—but rather to void the sale—it does not.

RCW 61.24.127(2). Miller waived his void-sale claim, and the trial court erred by

not dismissing it.

       Miller relies on Albice to defend the trial court’s decision not to dismiss his

void-sale claim. In Albice, the borrowers entered into a forbearance agreement


                                          13
 No. 78044-1-1/14

 with the bank after they received a notice of trustee’s sale. 174 Wn.2d at 564.

 The borrowers tendered all of the payments due under the forbearance

 agreement but were late making each payment. Albice, 174 Wn.2d at 564. The

 bank accepted each of the late payments except for the very last one, and it

continued the trustee’s sale with receipt of each late payment—except for the

very last one. Albice, 174 Wn.2d at 564. Additionally, although the forbearance

agreement provided that a 10-day written notice would be sent upon a breach,

the borrowers never received that notice. Albice, 174 Wn.2d at 564. Under

these facts, our Supreme Court concluded that the borrowers did not waive their

postsale challenges to the trustee’s sale. Albice, 174 Wn.2d at 571. In doing so,

it observed that the borrowers “had no knowledge of their alleged breach in time

to restrain the sale” and that they never received the 10-day breach notice

promised under the forbearance agreement. Albice, 174 Wn.2d at 57 1-72. Put

another way, Albice is consistent with Plein: The Albice court declined to apply

waiver because the borrowers did not have presale knowledge of a defense to

foreclosure. The court did suggest that courts may also decline to apply waiver

where doing so would not serve the goals of the DTA—for example, when a

borrower does not have an adequate opportunity to prevent wrongful foreclosure.

Albice, 174 Wn.2d at 570. But those are not the circumstances of this case,

where Miller knew he was in default on his loan as early as May 2012, had

presale knowledge of his defenses to foreclosure and even raised them to U.S.

Bank twice after the foreclosure sale was complete—yet did not seek equitable

relief until August 2017, more than two years after the foreclosure sale and only


                                        14
 No. 78044-1-1/15

 after a writ of restitution had been entered. Miller’s reliance on AIb ice is

 misplaced.

        Miller’s reliance on Schroeder v. Excelsior Management Group, LLC, 177

 Wn.2d 94, 297 P.3d 677 (2013), is similarly misplaced. In Schroeder, the

 question was whether a borrower could contractually waive a statutory

 requirement of the DTA. 177 Wn.2d at 106. Our Supreme Court held that

 borrowers cannot waive the DTA’s procedures by contract. Schroeder, 177

Wn.2d at 107. But the fact that a borrower cannot contractually waive the DTA’s

procedures does not mean that he cannot, by failing to try to enjoin the sale,

waive the right to challenge a completed sale based on an alleged violation of

those procedures. Indeed, unlike Miller, the borrower in Schroeder did try to stop

the sale before it occurred. 177 Wn.2d at 101. Schroeder does not control.

       Miller next argues that because the trial court did not conduct a full waiver

analysis, deciding only that RCW 61.24.127 does not require his void-sale claim

to be asserted within two years, a remand for further proceedings is appropriate

given Miller’s factual assertions related to the reasons that he did not enjoin the

sale. But because, as discussed, Miller’s factual assertions do not raise any

genuine issue of material fact regarding waiver, further proceedings are not

necessary.

       As a final matter, the Bank Parties argue that the trial court erred by

treating their motion to dismiss as a motion for summary judgment. But because

dismissal of Miller’s void-sale claim was warranted even under a summary

judgment standard, we do not decide whether the trial court erred by converting


                                          15
No. 78044-1 -1116

the Bank Parties’ motion to dismiss to a motion for summary judgment.

                                       Attorney Fees

       U.S. Bank argues that it is entitled to an award of attorney fees under

RAP 18.1. Weagree.

       Attorney fees may be awarded on appeal only when authorized by a

contract, a statute, or a recognized ground of equity. Labriola v. Pollard Grp.,

lnc~ 152 Wn.2d 828, 839, 100 P.3d 791 (2004). Here, the deed of trust provides:

“Lender shall be entitled to recover its reasonable attorneys’ fees and costs in

any action or proceeding to construe or enforce any term of this Security

Instrument.” It provides further that “[t]he term ‘attorneys’ fees,’ whenever used

in this Security Instrument, shall include without limitation attorneys’ fees incurred

by Lender.   .   .   on appeal.” Under the deed of trust, the term “Lender” means U.S.

Bank, and “Security Instrument” refers to the deed of trust. Thus, U.S. Bank is

entitled to a fee award because this appeal arises out of Miller’s attempts to

challenge U.S. Bank’s enforcement of the deed of trust, Indeed, Miller does not

argue otherwise. Therefore, we award U.S. Bank its reasonable attorney fees

subject to its compliance with RAP 18.1.

      We reverse and remand to the trial court with instructions to enter

summary judgment in favor of the Bank Parties on Miller’s void-sale claim.



                                                       ~Au~1Lt~94
WE CONCUR:




                                             16                   1
