                                                               COURi OF APPEALS DI'-
                                                                 STATE OF WASHINGTON

                                                                2013 JUN -3 fin 10= 01


      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



THE BANK OF NEW YORK MELLON,                             No. 67370-0-
aka THE BANK OF NEW YORK, as
successor in interest to JP MORGAN                       DIVISION ONE
CHASE BANK, NA as Trustee for
STRUCTURED ASSET MORTGAGE
INVESTMENTS II, INC. BEAR STERNS
ALT-A TRUST 2005-9, MORTGAGE
PASS-THROUGH CERTIFICATES,
SERIES 2005-9,

                     Appellants,



SCOTTY'S GENERAL CONSTRUCTION,                           UNPUBLISHED
INC., a Washington corporation,
                                                         FILED: June 3. 2013
                       Respondent.



       Cox, J. — Bank of New York Mellon (BNY Mellon) appeals the grant of the

CR 12(b)(6) dismissal motion of Scotty's General Construction, Inc. It appears

beyond doubt that BNY Mellon did not prove below any set of facts that would

justify granting relief. Accordingly, we hold that dismissal was proper.

       Generally, an appellate court will not consider issues raised for the first

time on appeal.1 Even in the context of a CR 12(b)(6) motion, a litigant may not
raise a legal issue for the first time on appeal when it has failed to do so in the




       1 RAP 2.5(a).
No. 67370-0-1/2


lower court.2 We conclude from a fair reading of this record that BNY Mellon

failed to preserve below the arguments that it makes for the first time on appeal.

Accordingly, we do not reach those arguments.

       We affirm.

       The material facts are undisputed. In 2005, Gloria Pazooki obtained a

loan from Centralbanc Mortgage Corp. for $352,000. The loan was evidenced by

a promissory note that was secured by a deed of trust. The deed of trust was

recorded on June 7, 2005.

       In 2007, Gloria Pazooki and her husband contracted with Scotty's for

renovation and construction work on the property that was then subject to

Centralbanc's prior recorded deed of trust. Scotty's commenced work on this

property in May 2007. The Pazookis failed to pay the contract balance owed to

Scotty's.

       Based on the failure to pay, Scotty's timely recorded its mechanics and

materialmen's lien and timely commenced its lien foreclosure action against the

property. The complaint named Centralbanc, the then owner and holder of the


       2 Id.; see Karlbera v. Often. 167 Wn. App. 522, 531-32, 280 P.3d 1123
(2012) ("A failure to preserve a claim of error by presenting it first to the trial court
generally means the issue is waived. While an appellate court retains the
discretion to consider an issue raised for the first time on appeal, such discretion
is rarely exercised." (citing Bellevue Sch. Dist. No. 405 v. Lee. 70 Wn.2d 947,
950, 425 P.2d 902 (1967)): see also Smith v. Shannon, 100 Wn.2d 26, 38, 666
P.2d 351 (1983) ("Failure to make such a motion when it would enable the trial
court to correct its error precludes raising the error on appeal, unless the error
was pointed out at some other point during the proceedings."); see also Sofamor
Danek Group. Inc. v. Brown. 124 F.3d 1179, 1186 (9th Cir. 1997) ("Before an
argument will be considered on appeal, 'the argument must be raised sufficiently
for the trial court to rule on it   '" (quoting Broad v. Sealaska Corp., 85 F.3d
422, 430 (9th Cir. 1996))).
No. 67370-0-1/3


June 2005 note and deed of trust, and other defendants on the basis that they

claimed interests in the same property.

      An officer of Centralbanc executed a declaration dated July 19, 2010 that

Scotty's appears to have used in the foreclosure action. The declaration stated:



              3. I have reviewed the pleadings and understand that the
      only request which Scotty's General Construction, Inc. is making for
      leave against CentralBanc Mortgage Corporation is for adjudication
      of superiority of Scotty's General Construction, Inc.'s lien over
      CentralBanc Mortgage Corporation.

              4. Because CentralBanc Mortgage Corporation no longer
      has any interest in the property at issue, CentralBanc Mortgage
      Corporation does not intend to appear at trial and has no objection
      to Scotty's General Construction, Inc.'s request for leave.[3]
       In August 2010, the trial court entered judgment for Scotty's in the

foreclosure action. The judgment provided, in part:

             ORDERED, DECREED, and ADJUDGED that Scotty's
       General Construction, Inc. shall be entitled to foreclosure of its lien
       as against the subject property and as against the interest of
       each of the Defendants, and as against any right, title and interest
       acquired by and person subsequent to May 7, 2007, by sale and in
       the manner prescribed by law, and with application of the proceeds
       thereof to the payment of such lien, interest, attorney's fees and
       costs.[4]

       In February 2011, BNY Mellon, claiming a successor interest in

Centralbanc's original deed of trust, commenced this declaratory judgment

action. It sought a declaration that its claimed interest in the June 2005
Centralbanc deed of trust, was superior in priority to Scotty's' May 2007




       3Clerk's Papers at 344-45.
       4 Id. at 155 (emphasis added).
No. 67370-0-1/4


mechanics and materialmen's lien. Accordingly, it sought to quiet title in the

property on the basis of that claimed interest.

       Scotty's moved to dismiss based on CR 12(b)(6) for failure to state a

claim. The trial court granted the motion.

       BNY Mellon appeals.

                     BNY MELLON'S PRESERVED CLAIMS

       The proper starting point for our review of the trial court's decision is to

focus on the arguments that were before it. Accordingly, we focus first on the

arguments that BNY Mellon properly preserved.

       An appellate court reviews de novo both a summary judgment order and

the propriety of a trial court's dismissal of an action under CR 12(b)(6).5 In
reviewing a summary judgment order, this court views the facts and reasonable

inferences in the light most favorable to the nonmoving party.6 In reviewing the
propriety of a trial court's dismissal of an action under CR 12(b)(6), "dismissal is
appropriate only if 'it appears beyond doubt that the plaintiff cannot prove any set

of facts which would justify recovery.' In undertaking such an analysis, 'a

plaintiffs allegations are presumed to be true and a court may consider

hypothetical facts not included in the record.'"7



       5 Lam v. Global Med. Svs.. Inc.. 127 Wn. App. 657, 661 n.4, 111 P.3d
1258 (2005); Dave Robbins Constr. v. First American Title Co.. 158 Wn. App.
895, 899, 249 P.3d 625 (2010).
       6 Lam, 127 Wn. App. at 661 n.4.
      7 Burton v. Lehman. 153 Wn.2d 416, 422, 103 P.3d 1230 (2005) (quoting
Tenore v. AT &T Wireless Servs.. 136 Wn.2d 322, 329-30, 962 P.2d 104 (1998);
W. Telepaqe . Inc. v. Citv of Tacoma Dep't of Fin.. 140 Wn.2d 599, 607, 998 P.2d
884 (2000)).
                                               4
No. 67370-0-1/5


       The record on appeal shows that most of BNY Mellon's arguments below

in response to the motion to dismiss by Scotty's were based not on its own

status, but on the status of the Mortgage Electronic Recording System (MERS),

which was listed as the beneficiary in the original deed of trust. First, BNY

Mellon argued that MERS had a beneficial interest in the property and should

have been joined as a defendant in the foreclosure action.8 Second, BNY Mellon
argued that Centralbanc's disclaimer in its July 19, 2010 declaration in the

foreclosure action by Scotty's did not eliminate the "right [of MERS] to be joined"

to the foreclosure action.9

       BNY Mellon's final argument was that the Centralbanc deed of trust, which

was recorded in June 2005, had priority of record over Scotty's' mechanics and

materialmen's lien, which was first effective in May 2007.10 BNY Mellon cited
RCW 60.04.061 to support this argument.

       The first two of these legal arguments, which are based on the status of

MERS, do not help BNY Mellon. Before discussing why, we conclude that it is

necessary to clarify the proper applicable terms for this case, given BNY Mellon's

persistent use of the term "mortgage" in its briefing.

       The June 2005 real property security instrument utilized in this case to

secure payment of the $352,000 promissory note that Pazooki executed and

delivered to Centralbanc is a deed of trust. A deed of trust contains a power of

sale, which is utilized in the event of a default. The parties to a deed of trust

have traditionally included the grantor (borrower), the beneficiary (the lender),

       8 Clerk's Papers at 298-303.
       9]± at 303.
       10 Id, at 306.
                                              5
No. 67370-0-1/6


and the trustee (the entity to whom the grantor conveys the power of sale by

executing the deed of trust). Here, though MERS is not the lender, it was named

as the beneficiary in the deed of trust that Pazooki executed and delivered to

Centralbanc.

       In contrast to a deed of trust, the parties to a mortgage are the mortgagor

(borrower) and the mortgagee (lender). There is no power of sale in a mortgage.

Here, the Centralbanc deed of trust makes no mention of mortgages and the

parties to the instrument are not called either mortgagor or mortgagee.

      The law of mortgages generally applies to deeds of trust, but there are

exceptions.11 For purposes of this case, we need not discuss any more of these
exceptions other than those we have already discussed in this opinion. For

purposes of clarity and precision, however, we refer to the Centralbanc real

property security instrument in this case as a deed of trust, not a mortgage.

      As BNY Mellon correctly argues, Centralbanc was the original owner and

holder of the note and deed of trust, as the "Lender" for the loan to Pazooki, the

"Borrower."12 It is undisputed that Centralbanc was still the owner and holder of

the note and deed of trust at the time Scotty's commenced the foreclosure action

in 2009. Finally, it is undisputed that Scotty's joined Centralbanc, the then owner

and holder of the June 2005 deed of trust, as a defendant when commencing the

foreclosure action. Thus, to the extent that Scotty's sought to obtain an

adjudication of the priority of its May 2007 mechanics and materialmen's lien



      11 Boeing Employees' Credit Union v. Burns. 167 Wn. App. 265, 272, 272
P.3d 908 (2012).
       12 Clerk's Papers at 5-6.
                                             6
No. 67370-0-1/7


over the prior recorded lien of the Centralbanc deed of trust in that foreclosure

action, it joined the necessary party—Centralbanc.

       Whether the trial court's final adjudication of priorities between these two

interests in the realty, overturning the record priority of Centralbanc's deed of

trust over Scotty's lien, was correct is a separate question.

       Ignoring these obvious points, BNY Mellon argued below that MERS was

also a necessary party to the foreclosure action. This argument is unpersuasive.

       BNY Mellon's argument below was primarily premised on the assumption

that MERS is a proper beneficiary under the Centralbanc deed of trust. That is

not the law, as made clear in Bain v. Metropolitan Mortgage Group. Inc.13
       There, MERS appointed successor trustees to those originally designated

in deeds of trust to conduct foreclosure proceedings against property securing

allegedly delinquent debts.14 MERS maintains a private electronic registration
system for tracking ownership of debt secured by deeds of trust.15 The grantors
(borrowers) under the respective deeds of trust in foreclosure commenced an

action against MERS and others in the Federal District Court for the Western

District of Washington to obtain relief from the foreclosures.16 That court certified
three questions regarding Washington's Deeds of Trust Act to our state supreme

court.17

       In answering the first of these questions, the supreme court held that

MERS is not a lawful beneficiary under Washington's Deeds of Trust Act

       13 175 Wn.2d 83, 285 P.3d 34 (2012).
       14 jd, at 90.
       15 Id, at 88.
       16 Id, at 90.
       17 id, at 90-91.
                                              7
No. 67370-0-1/8


because it never holds the promissory notes that are secured by the deeds of

trust.18 Under the Deeds ofTrust Act, a beneficiary is defined as "the holder of
the instrument or document evidencing the obligations secured by the deed of

trust, excluding persons holding the same as security for a different obligation."19
Thus, the plain language of the act bars MERS from fulfilling the statutory

requirements ofa beneficiary.20 The supreme court concluded that none ofthe
arguments that MERS made altered the fact that it never held the note or other

security instrument that secured the deed of trust.21 Thus, MERS does not meet
the statutory definition of a beneficiary.22
       Here, the Bain holding undercuts the argument that BNY Mellon made

below. BNY Mellon's first argument below was legally incorrect: MERS is not a

proper beneficiary under the Centralbanc deed of trust. This is so,

notwithstanding the fact that the Centralbanc deed of trust in this case named

MERS as "Beneficiary."23
       BNY Mellon also argued below that joinder of MERS was required under

RCW 60.04.171. We disagree.

       RCW 60.04.171, the mechanics and materialmen's lien statute, provides

as follows:

       In any action brought to foreclose a lien, the owner shall be joined
       as a party. The interest in the real property of any person who,
       prior to the commencement of the action, has a recorded interest in


       18 id, at 110.
       19 RCW 61.24.005(2).
       20 Bain. 175 Wn.2d at 110.
       21 id,
       22 id,
       23 Clerk's Papers at 6.
                                               8
No. 67370-0-1/9


       the property, or any part thereof, shall not be foreclosed or
       affected unless they arejoined as a party.[24]
       The plain words of this statute show that joinder of any "person" with a

"recorded interest in the property" prior to commencement of a foreclosure action

is not required. But failure to join such a person to the foreclosure action leaves

their interest in the property unaffected by the foreclosure.

       Thus, "[i]f the unjoined person's interest has priority over that of a party in

the action, this interest is not extinguished or adversely affected, because it could

not have been if the person had actually been joined."25 This view is consistent
with MB Construction Company v. O'Brien Commerce Center Associates.26

There, this court held that the trial court's dismissal of a construction lien

foreclosure action for failure to join the mortgagee was improper.27 It noted that
"the mortgagee's interest cannot be affected by a lien foreclosure unless the
foreclosing party joins the mortgagee as a party to the foreclosure action."28
       Here, the failure to join MERS would not have affected any claimed

interest it could claim to have had in the real property. We note that there was no

argument below that MERS had some interest separate and apart from
Centralbanc, the then owner and holder of the note and deed of trust, that

required MERS to be separately named in the foreclosure. Thus, there is no
other reason that was presented to the trial court to support the claim that MERS
was a necessary party to the foreclosure action.

       24 RCW 60.04.171 (emphasis added).
      25 William B. Stoebuck & John W. Weaver, Washington Practice: Real
Estate: Transactions §11.8 (2d ed. 2004).
       26 63 Wn. App. 151, 816 P.2d 1274 (1991).
       27 Id, at 158-59.
       28 id, at 158.
                                               9
No. 67370-0-1/10


          In sum, joinder of MERS was not mandated by this statute, contrary to

BNY Mellon's argument.

          BNY Mellon's second argument below fares no better on appeal. It

contended that Centralbanc's July 19, 2010 disclaimer of an interest in the

foreclosure action did not eliminate the "right [of MERS] to be joined" to that

action.


          Again, this argument is primarily based on some claimed right of MERS,

not BNY Mellon. But, as we just discussed, MERS had no right to be joined in

the foreclosure action. Thus, the Centralbanc disclaimer is immaterial to any

"right" of MERS.

          BNY Mellon made a passing reference below to Centralbanc's declaration,

which was signed 20 days after its alleged assignment of the Centralbanc deed

of trust to BNY Mellon. But BNY Mellon did not develop in the briefing below

what significance, if any, this assertion had on its rights. We address later in this

opinion the significance of this omission.

          We next address BNY Mellon's final argument. It claimed that it is entitled

to priority based on the recording of the Centralbanc deed of trust almost two

years before Scotty's commenced work on the Pazooki property. The briefing

below says little about this. But the parties addressed this issue more fully during

oral argument of the motion to dismiss.

          At that time, Scotty's argued that there were three questions before the

court, anyone of which required dismissal of the complaint. One of those

questions was whether MERS had any interest in the promissory note signed by

Pazooki to assign to BNY Mellon. Scotty's argued that ifthe answer to that
                                              10
No. 67370-0-1/11


question was "no," the purported assignment of the Centralbanc deed of trust to

BNY Mellon was a nullity under Washington law.

       The essence of Scotty's argument was that the Deeds of Trust Act treats a

deed of trust as following the promissory note that it secures. Where, as here,

there was no evidence that MERS ever held the Pazooki note, MERS could not

have acquired and then assigned any interest in the deed of trust by MERS to

BNY Mellon. The court and counsel spent considerable time discussing these

points. And it appears from the court's questions during oral argument and its

later grant of the motion that it agreed with Scotty's' argument.

       Tracing the history of the terms in the Deeds of Trust Act, the supreme

court decided in Bain that the act "contemplates that the [deed of trust] will follow

the note, not the other way around. MERS is not a 'holder' [of the note] under

the plain language ofthe [act]."29 Thus, the question here is whether this record
shows that MERS was the holder of the Pazooki promissory note. If not, it could

not assign to BNY Mellon either the note or the deed of trust securing that note.

       The sole evidence in this record that has been brought to our attention

addressing this issue is the Assignment of Deed of Trust dated June 17, 2010.30
By its terms, MERS purports "as Beneficiary," to assign to BNY Mellon its

"beneficial interest" in the Centralbanc deed of trust.31 This document further

purports to assign the promissory note secured by that deed of trust.32




       29 Bain. 175 Wn.2d at 104.
       30 Clerk's Papers at 30.
       31 Id.
       32 Id.
                                             11
No. 67370-0-1/12


         During oral argument below, the court and counsel focused on this

document. BNY Mellon properly conceded then that it did not assert that MERS

ever held the Centralbanc promissory note. And, as the trial court correctly

pointed out, there was no evidence showing that Centralbanc ever assigned the

note to MERS. As Bain held, without such a showing, and without evidence that

MERS is an agent for the holder of the note, there is no evidence to show that

MERS had the authority to assign the deed of trust to BNY Mellon.33

         In sum, the record priority of the Centralbanc deed of trust, which was

recorded in June 2005, over the May 2007 mechanics and materialmen's lien

does not benefit BNY Mellon. That is because this record does not show any

assignment of the Centralbanc note to BNY Mellon. Without such a showing,

BNY Mellon fails to demonstrate it is a valid assignee of the Centralbanc deed of

trust.


         We reach this conclusion, notwithstanding the language of the Assignment

of Deed of Trust dated June 17, 2010, that incorrectly states otherwise. It would

be a triumph of form over substance to blindly accept this written representation

where this record fails to support that assertion.

         To summarize, all arguments that BNY Mellon made below fail. The trial

court properly rejected them in granting the motion to dismiss.

                         BNY MELLON'S WAIVED CLAIMS

         We next address the arguments BNY Mellon makes for the first time on

appeal. Scotty's asserts that they were not properly preserved below. We

agree.


         33 Bain. 175 Wn.2d at 110, 112.
                                             12
No. 67370-0-1/13


       Generally, an appellate court does not consider issues raised for the first

time on appeal unless they involve manifest erroraffecting a constitutional right.34
In the context of a CR 12(b)(6) motion, an appellate court may consider any

hypothetical factual scenario that supports the plaintiffs claim, even if asserted

for the first time on appeal.35 But even in the context of a CR 12(b)(6) motion, a
litigant may not raise a legal issue for the first time on appeal when it failed to do

so in the lower court.36

              MERS Arguments Raised for the First Time on Appeal

       BNY Mellon makes several arguments regarding MERS that are made for

the first time on appeal. They directly contradict its arguments below. One of

these arguments is that the "beneficiary status of MERS is a red herring."37 To
support this proposition, BNY Mellon argues that "MERS' function in this case

was merely as a mechanism to notify the holder of the loan/note/mortgage and

would have facilitated Scotty's to satisfy the due process of reasonable notice ...

,"38 This argument contradicts BNY Mellon's argument below, that MERS held a
beneficial interest in the note. We have already discussed this argument in a

prior portion of this opinion.

       Similarly, BNY Mellon's statement that "[w]hen MERS transferred its rights

through signing the assignment instrument, [it] divested any rights it had to




       34 RAP 2.5(a).
       35 Bravo v. Dolsen Cos.. 125 Wn.2d 745, 750, 888 P.2d 147 (1995).
       36 RAP 2.5(a); Sofamar Danek Group. Inc.. 124 F.3d at 1186 n.4 (9th Cir.
1997) (quoting Broad. 85 F.3d at 430 (9th Cir. 1996)).
       MBrief of Appellant at 34-35.
       38 id, at 35.
                                              13
No. 67370-0-1/14


enforce the mortgage" contradicts its arguments made below as to MERS's

rights. We need not address these arguments any further.39
       Finally, BNY Mellon argues for the first time in its reply brief on appeal that

it deserves a "day in court to prove that MERS was its agent."40 Because this
argument was first raised in reply, we need not address it.41
      At oral argument before this court, BNY Mellon claimed it did preserve

below arguments now made on appeal. BNY Mellon invited our attention to two

specific places in the record to support this claim: Clerk's Papers at 203-244 and

Clerk's Papers at 301-302.

       The first reference is to Testimony of R.K. Arnold, President and CEO of

MERSCORP, Inc. before the Subcommittee on Housing and Community

Opportunity of the House Financial Services Committee. The last is to pages in

BNY Mellon's response to Scotty's' motion to dismiss in the trial court.

       Neither reference establishes that BNY Mellon properly preserved below

arguments beyond the scope of the specific arguments that we discussed earlier

in this opinion. The Testimony ofArnold discusses how MERS functions, but it
does little to advance the preservation argument made in this case. Nor do the

references to this testimony in the legal arguments in response to Scotty's'

motion to dismiss demonstrate that the issues now argued on appeal were

squarely presented to the trial court.




      39 Cowiche Canvon Conservancy v. Boslev. 118 Wn.2d 801, 809, 828
P.2d 549 (1992).
        40 Supplemental Brief ofAppellant at 13; see also Reply Brief ofAppellant
at 4 ("[N]either BNY Mellon nor its agent (MERS) was joined in the prior suit.").
       41 See Cowiche Canyon. 118 Wn.2d at 809; see RAP 10.3(c).
                                              14
No. 67370-0-1/15


           Arguments Made as to Scotty's' Failure to Join BNY Mellon

       BNY Mellon also makes several arguments on appeal about the effect on

the foreclosure action of Scotty's' failure to join it. In its brief, BNY Mellon argues

that it has a priority lien on the property in question, and that Scotty's' judgment is

void due to lack of adequate notice, misrepresentation regarding joinder, and

mandatory pleadings. Finally, BNY Mellon argued in its brief that Scotty's' failure

to join it in the foreclosure action was a violation of its due process rights.

       None of these arguments were made below. And there is no persuasive

argument made on appeal that these arguments fall within the narrow exceptions

that permit us to reach arguments not properly preserved below. Thus, we do

not address these new arguments.42
                                    APPENDICES

       Scotty's argues that this court should disregard the appendices included in

BNY Mellon's opening brieffor failure to conform to RAP 10.3(a)(8). We

consider them to the extent they were before the trial court and otherwise

disregard them.

       The documents included in BNY Mellon's appendices are either part of the

record, as permitted by RAP 10.3(a)(8) or come within the exception in RAP

10.4(c) for statutes, regulations, instructions, exhibits, "or the like."
                          ATTORNEY FEES AND COSTS

       BNY Mellon argues that it is entitled to attorney fees. Scotty's does not
seek fees, but it asks for costs under RAP 14.2. We deny fees to BNY Mellon

      42 See RAP 2.5(a); see also State v. McFarland. 127 Wn.2d 322, 332-33,
899 P.2d 1251 (1995) ("As a general rule, appellate courts will not consider
issues raised for the first time on appeal.").
                                                 15
No. 67370-0-1/16


because it is not entitled to such an award. We grant Scotty's' request for costs,

subject to its compliance with RAP 14.2.

       RCW 4.84.330 permits a party to recover attorney fees in any action on a

contract where the contract provides for an award of fees to one of the parties.

BNY Mellon's claim to fees here is based on language in the Centralbanc deed of

trust. Scotty's did not sign that deed of trust. Because Scotty's is not a party to

the deed of trust, there is no basis for an award of fees with BNY Mellon based

on this deed of trust.

        Scotty's requests for costs on appeal is proper. RAP 14.2 stands as

authority for such an award. Because Scotty's substantially prevails in this

appeal, it is entitled to cost, subject to its compliance with the RAPs.

       We affirm the order of dismissal and award costs to Scotty's, subject to its

compliance with the governing RAPs. We deny BNY Mellon's request for an

award of fees.

                                                          ^CTCi^-

WE CONCUR:




                                             16
