                                                                                            Filed
                                                                                      Washington State
                                                                                      Court of Appeals
                                                                                       Division Two

                                                                                    September 17, 2019




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION II
 IN THE MATTER OF THE APPLICATION                                 No. 51392-7-II
 OF FRANK WARREN: SCHNARRS &
 CHERI LYNN SCHNARRS, TOGETHER AS
 HUSBAND AND WIFE TO REGISTER
 TITLE   TO   LAND    HEREINAFTER
 DESCRIBED,
                                                              PUBLISHED OPINION
                              Appellants,

        v.

 WILMINGTON SAVINGS FUND SOCIETY,
 FSB, D/B/A CHRISTIANA TRUST, NOT
 INDIVIDUALLY BUT AS TRUSTEE FOR
 PRETIUM MORTGAGE ACQUISITION
 TRUST, ITS SUCCESSORS AND/OR
 ASSIGNS; JOHN DOE; JANE DOE; ALL
 OTHER     PERSONS      OR    PARTIES
 UNKNOWN CLAIMING ANY RIGHT,
 TITLE, ESTATE, LIEN OR INTEREST INTO,
 OR UPON THE REAL PROPERTY
 DESCRIBED HEREIN,

                              Respondents.

       GLASGOW, J. — Frank and Cheri Schnarrs owned real property in Olympia, Washington.

They borrowed money using the property as collateral and later defaulted on the loan. The trustee

instituted a nonjudicial foreclosure and sold the property at auction to Wilmington Savings Fund
No. 51392-7-II


Society as trustee for Pretium Mortgage Acquisition Trust. Wilmington recorded the trustee’s

deed.

        Months later, the Schnarrses filed a petition under the Torrens Act, chapter 65.12 RCW,

seeking to register under that statute as owners of the property. The superior court dismissed the

Schnarrses’ petition with prejudice in part because the Torrens Act requires petitioners to be

owners of the property and the Schnarrses no longer owned the property when they filed the

petition. The Schnarrses appeal. We affirm.

                                              FACTS

        The legislature enacted the Torrens Act in 1907 as an alternative to Washington’s recording

statute. LAWS OF 1907, ch. 250. The adoption of the Torrens Act created an independent system

of recording land titles separate from the recording act. McMullen & Co. v. Croft, 96 Wash. 275,

276, 164 P. 930 (1917). Under the Torrens Act, proper registration with the office of the registrar

of titles provides conclusive evidence that the person recorded on the register is the owner of the

registered property. See RCW 65.12.480. But the Torrens Act registration system has apparently

fallen into disuse as a result of modern title recording systems, including the use of title companies

and private electronic registration systems such as the Mortgage Electronic Registration System,

Inc. See, e.g., Bain v. Metro. Mortg. Grp., Inc., 175 Wn.2d 83, 88, 285 P.3d 34 (2012).

        The Schnarrses borrowed $187,500 against their property in Olympia. Years later, they

defaulted on their loan. The trustee, Clear Recon Corp provided them with a notice of default,

which the Schnarrses failed to cure. The trustee then provided the Schnarrses with notice of

nonjudicial foreclosure. It also executed and recorded a notice of trustee’s sale in the county

auditor’s office. The Schnarrses again took no action to cure the default. Clear Recon Corp sold


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No. 51392-7-II


the property at public auction to Wilmington Savings Fund Society, not individually but as trustee

for Pretium Mortgage Acquisition Trust. Wilmington then recorded its trustee’s deed.

       Four months after Wilmington recorded its deed, Micah James Anderson, on behalf of the

Schnarrses, signed and filed in superior court a Torrens Act petition and application seeking to

register the Schnarrses’ title to the land under the Act. Anderson signed the Torrens petition and

other documents, but Anderson is not an attorney. Anderson and the Schnarrses then attempted to

bring a series of default motions, all of which were ultimately denied for various reasons, most

importantly because the pleadings had not been signed by a party or a licensed attorney.

       Frank Schnarrs eventually signed and filed an amended Torrens Act petition and

application for registration of land titles almost eight months after Wilmington had recorded its

trustee’s deed. This amended petition is the one at issue in this appeal. The amended petition

named Cheri Schnarrs as a party and applicant.

       Wilmington filed a CR 12(b)(6) motion to dismiss with prejudice. Wilmington also

requested that the superior court take judicial notice of the promissory note, the deed of trust, the

trustee’s deed, and the order granting Wilmington’s motion to dismiss the Schnarrses’ complaint

in a separate case. Wilmington also asked for attorney fees.

       The court took judicial notice of the documents Wilmington submitted and granted

Wilmington’s motion to dismiss with prejudice, but denied Wilmington’s request for attorney fees.

The court concluded that the foreclosure action precluded the Schnarrses’ claim. The court

clarified that it was dismissing the case under CR 12(b)(6), but its ruling would be the same if it

had converted the motion to dismiss to a motion for summary judgment.




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No. 51392-7-II


       On January 22, 2018, Frank Schnarrs filed a notice of appeal, but Cheri Schnarrs was not

mentioned in the notice. Frank Schnarrs passed away while the appeal was pending. Cheri

Schnarrs filed a motion for substitution of parties under RAP 3.2, requesting that she be substituted

for her husband in the appeal. Wilmington opposes this motion.

                                            ANALYSIS

                                         I. SUBSTITUTION

       Cheri Schnarrs filed a motion to substitute her as a party to this appeal, alleging that she

was a party to the lawsuit below, she is the successor in interest of Frank Schnarrs, and she desires

to move forward with the appeal. RAP 3.2(a) requires substitution of parties on appeal “when it

appears that a party is deceased.” See also, State v. Webb, 167 Wn.2d 470, 478, 219 P.3d 695

(2009). Cheri Schnarrs submitted a declaration explaining that she and her husband owned the

property at issue as community property and with right of survivorship. This declaration is

sufficient to warrant the substitution of Cheri Schnarrs as a successor in interest. In addition, RAP

5.3(i) allows this court to grant relief to a party who has not appealed if “demanded by the

necessities of the case.” Therefore, we grant the motion and address the merits of this appeal.1




1
  Wilmington moves to strike various portions of the materials submitted in support of the motion
for substitution. “[A] motion to strike is typically not necessary to point out evidence and issues
a litigant believes this court should not consider.” See Engstrom v. Goodman, 166 Wn. App. 905,
909 n.2, 271 P.3d 959 (2012). Argument in the brief is the appropriate vehicle for pointing out
reliance on allegedly improper materials. Id. We have considered Wilmington’s arguments and
we deny the motions to strike. See id.


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No. 51392-7-II


                                 II. DISMISSAL UNDER CR 12(b)(6)

       The Schnarrses argue the superior court should not have dismissed their Torrens Act

petition even though they no longer owned the property. Because the superior court could not

grant them relief under the Torrens Act, we disagree.

       We review CR 12(b)(6) dismissals de novo. Trujillo v. Nw. Tr. Servs., Inc., 183 Wn.2d

820, 830, 355 P.3d 1100 (2015). We also review issues of statutory interpretation de novo. Beal

Bank, SSB v. Sarich, 161 Wn.2d 544, 547, 167 P.3d 555 (2007).

A.     Judicial Notice

       The Schnarrses first argue that the superior court improperly took judicial notice of

documents attached to Wilmington’s motion to dismiss.

       “The scope of a given appeal is determined by the notice of appeal, the assignments of

error, and the substantive argumentation of the parties.” Clark County v. W. Wash. Growth Mgmt.

Hr’gs Review Bd., 177 Wn.2d 136, 144, 298 P.3d 704 (2013). The order attached to the

Schnarrses’ notice of appeal does not include the superior court’s ruling on judicial notice, nor did

the Schnarrses assign error to the court’s judicial notice of the relevant documents. See Clerk’s

Papers (CP) at 463-64 (notice of appeal and attached order); Br. of Appellant at 7-9 (assignments

of error). Moreover, the Schnarrses do not argue that the ruling on judicial notice “prejudicially

affect[ed] the decision designated in the notice.” RAP 2.4(b). As a result, we do not consider the

Schnarrses’ challenge to the trial court’s decision to take judicial notice of documents in this case.




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No. 51392-7-II


B.     Application of the Torrens Act

       The Schnarrses argue that the superior court erred when it dismissed their amended Torrens

petition, even though they no longer owned the property when they filed the amended petition.

We disagree.

       RCW 65.12.005 provides: “The owner of any estate or interest in land, whether legal or

equitable, . . . may apply . . . to have the title of said land registered.” (Emphasis added.) The

legislature also declared that “[t]his act shall be construed liberally, so far as may be necessary for

the purpose of carrying out its general intent, which is, that any owner of land may register his title

and bring his land under the provisions of this act, but no one is required so to do.” RCW

65.12.005 Official Notes: Construction—LAWS OF 1907, ch. 250, § 97 (emphasis added). The

Torrens Act does not define the term “owner.”

       “The court’s fundamental objective is to ascertain and carry out the Legislature’s intent,

and if the statute’s meaning is plain on its face, then the court must give effect to that plain meaning

as an expression of legislative intent.” Dep’t of Ecology v. Campbell & Gwinn, L.L.C., 146 Wn.2d

1, 9-10, 43 P.3d 4 (2002). “When a term has a well-accepted, ordinary meaning, a regular

dictionary may be consulted to ascertain the term’s definition.” Tingey v. Haisch, 159 Wn.2d 652,

658, 152 P.3d 1020 (2007). The term “owner” is defined as “one that has the legal or rightful title

whether the possessor or not.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1612 (2002).

       Wilmington acquired “the legal or rightful title” to the property upon the trustee’s sale and

then recorded the deed. CP at 342-44. Frank Schnarrs filed his claims under the Torrens Act four

months after Wilmington recorded its trustee’s deed. Because the Schnarrses no longer owned the




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No. 51392-7-II


property, they did not have any recourse under the Torrens Act. See RCW 65.12.005; LAWS OF

1907, ch. 250, § 97.

       The Schnarrses argue that they were still owners of the property when they filed their

Torrens Act petition because they still lived in the home and they had declared it their homestead.

But the homestead exemption that they rely on is not available “against an execution or forced sale

in satisfaction of judgments obtained . . . [o]n debts secured (a) by security agreements describing

as collateral the property that is claimed as a homestead or (b) by mortgages or deeds of trust on

the premises that have been executed and acknowledged by both spouses.” RCW 6.13.080(2);2

see also Washington Fed. v. Harvey, 182 Wn.2d 335, 337 n.1, 340 P.3d 846 (2015) (nonjudicial

foreclosure provides a trade-off in which a borrower surrenders his or her rights to redemption,

upset price and homestead in exchange for protection from deficiency judgments); In re Upton,

102 Wn. App. 220, 222-26, 6 P.3d 1231 (2000). The homestead exemption did not apply to allow

the Schnarrses to validly claim ownership of the property when they filed their petition.

       We conclude that the trial court correctly dismissed the Schnarrses’ petition under the

Torrens Act. We do not address any additional arguments raised by either party because our

analysis and application of the plain language of the Torrens Act is dispositive.




2
 The legislature amended RCW 6.13.080 in 2018 and 2019. Because the relevant language has
not changed, we cite to the current version of this statute.
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No. 51392-7-II


                                  III. ATTORNEY FEES ON APPEAL

       Wilmington requests reasonable attorney fees and costs under RAP 18.1 and cites

contractual provisions included in the promissory note and deed of trust. We decline to award

Wilmington attorney fees and costs.

       Under RAP 18.1, a party can recover reasonable attorney fees or expenses if applicable

law grants the party that right and the party devotes a section of its opening brief to request fees or

expenses. RAP 18.1(a), (b). Although the deed of trust and the promissory note provided for the

lender and the note holder to be able to recover attorney fees, neither provision applies because

this action stems from the Schnarrses’ pursuit of remedies under the Torrens Act, not a challenge

to terms of the deed of trust or enforcement of the promissory note.

       Thus, we decline to award Wilmington attorney fees and costs on appeal.

       We affirm.



                                                      Glasgow, J.
 We concur:



 Melnick, P.J.




 Sutton, J.




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