          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


MICAH SCHNALL,                                    NO. 68516-3-1
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TRUST COMPANY, MORTGAGE                                                                           •5**
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SYSTEMS, and JOHN DOEs                            UNPUBLISHED OPINION                      Q

inclusive 1 through 20,
                                                  FILED: November 18, 2013
                     Respondents.



       Lau, J. — Micah Schnall appeals the CR 12(b)(6) dismissal of his complaint

against Deutsche Bank National Trust Company and Mortgage Electronic Registration

Systems (MERS), claiming violations of the Consumer Protection Act (CPA), chapter

19.86 RCW, and the deeds of trust act (DTA), chapter 61.24 RCW. Schnall also

appeals the denials of a preliminary injunction and a motion to amend his complaint.

Because Schnall's complaint alleged facts that, if proved at trial, would f ntitle him to

some relief, we reverse in part and remand for further proceedings.

                                          FACTS


       In October 2006, Micah Schnall executed a promissory note in the amount of

$460,000 to Quicken Loans. The loan was secured by a deed of trust encumbering
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Schnall's real property in Redmond, Washington. The deed of trust      identified Quicken

Loans as the lender, Stewart Title as the trustee, and MERS, "a separa e corporation

that is acting solely as a nominee for Lender and Lender's successors      ^ind assigns," as
the beneficiary. At some point, Schnall's loan was sold to a securitized    trust known as

"IndyMac INDX Mortgage Loan Trust 2006-AR39" (IndyMac Trust),          Deutsche Bank
serves as the trustee of the IndyMac Trust.

       Schnall defaulted on the note. On August 18, 2010, MERS, "as         nominee for


Quicken Loans," assigned all beneficial interest in the deed of trust to   Deutsche Bank in

its capacity as trustee of the IndyMac trust. The following day, Deutsch^     Bank


appointed Regional Trustee Services Corporation (RTSC) to succeed Stewart Title as

trustee under the deed of trust. On August 24, 2010, RTSC issued Schnall        a notice of

default. RTSC scheduled a trustee's sale for June 10, 2011.1

       On June 3, 2011, Schnall sued Deutsche Bank and MERS,         alleging violations of
the CPA, chapter 19.86 RCW and the DTA, chapter 61.24 RCW.2 Schriell sought

damages, declaratory relief, and a preliminary injunction restraining the   trustee's sale.


      On July 27, 2011, the trial court denied Schnall's motion for a pre nminary

injunction.3 On November 10, 2011, Deutsche Bank and MERS moved to dismiss the
suit under CR 12(b)(6). Schnall subsequently moved to amend the coniplaint to         add




      1 The trustee's sale was originally scheduled for February 11, 2011, but was
stayed when Schnall filed for bankruptcy.

      2 Schnall also alleged violations of the federal Truth in Lending Act and      Real
Estate Settlement Procedures Act, but he abandoned those claims on appeal.

      3 Schnall filed a second motion for a preliminary injunction, whicfi was denied on
November 17, 2011.

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RTSC as a defendant and to incorporate additional facts and claims. The superior court

dismissed Schnall's complaint without prejudice and denied Schnall's rrtotion to        amend


the complaint. The trial court subsequently denied Schnall's motion for

reconsideration.4 Schnall appeals.

                                        ANALYSIS


       As a preliminary issue, we note that a dismissal without prejudio       is not


appealable as a matter of right unless its effect is to determine the actic-n and prevent a

final judgment or to discontinue the action. RAP 2.2(a)(3); Munden v. Hazel rigg,       105

Wn.2d 39, 44, 711 P.2d 295 (1985). As Schnall's reply brief tacitly acknowledges, it is

clear that the dismissal is not appealable under the above rule. The statute      of


limitations had not run, and Schnall would have been entitled to refile hiis   complaint.5

       However, RAP 5.1(c) provides that a notice of appeal of a decision       that is not


appealable will be treated as a notice for discretionary review. Under RAP 2.3(b)(2),

discretionary review will be accepted if the superior court has committed probable error

and the decision substantially limits the freedom of a party to act. Although neither

party has addressed the factors in RAP 2.3(b)(2), for the reasons    discussed below, we


conclude that this appeal meets that standard and we accept discretionary review.




       4 Though Schnall appealed the denial of his motion for reconsideration, he did
not assign error to this order or otherwise challenge it on appeal. We therefore do not
address it. See RAP 10.3(a)(4), (6).

       5 See RCW 19.86.120 (limitations period for CPA claims is four years from the
accrual of the cause of action); RCW 61.24.127 (limitations period for c aims made
under the DTA is two years from the date of the foreclosure sale).
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       Standard of Review

       Under CR 12(b)(6), a complaint may be dismissed if it fails to    state    a claim upon

which relief can be granted. The superior court properly dismisses a ctaim pursuant to

CR 12(b)(6) only "'f it appears beyond a reasonable doubt that no facts     exist that would

justify recovery.'" Atchison v. Great W. Malting Co., 161 Wn.2d 372 37(6, 166P.3d662

(2007) (quoting Cutlery. Phillips Pet. Co.. 124 Wn.2d 749, 755, 881 P. 2d 219 (1994)).

For purposes of a CR 12(b)(6) motion, we presume the plaintiff's a Negations in the

complaint to be true. Cutler, 124 Wn.2d at 755. Moreover, in determin ing whether

dismissal is warranted, we may consider hypothetical facts outside of the        record,

Burton v. Lehman, 153 Wn.2d 416, 422, 103 P.3d 1230 (2005). We           review a CR


12(b)(6) dismissal de novo. Atchison, 161 Wn.2d at 376.

       Rulings on motions to amend the complaint and for an injunction          are within the


discretion of the trial court and may be reversed only for a manifest   abuse of discretion.


See Lincoln v. Transamerica Inv. Corp., 89 Wn.2d 571, 577, 573 P.2d             316(1978)

(addressing motions to amend); Resident Action Council v. Seattle       Hous Auth., 177


Wn.2d 417, 428, 300 P.3d 376 (2013) (grant or denial of an injunction). A superior court

abuses its discretion if its decision is manifestly unreasonable or based on untenable

grounds or untenable reasons. In re Marriage of Littlefield, 133 Wn.2d |39, 46-47, 940

P.2d 1362 (1997).

       Deeds of Trust Act


       Schnall alleges that the notice of default violated the DTA because it "did not
clearly specify a beneficiary or noteholder, depriving Plaintiff of the opportunity to
                                                                            j

scrutinize and defend against action by the anonymous initiator of foredlosure action."

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As we have done in recent cases raising similar issues, including Walker v. Quality
Loan Service Corp..       Wn. App.       , 308 P.3d 716 (2013), and Bavdnd v. OneWest

Bank, F.S.B..      Wn. App.       , 309 P.3d 636 (2013), we characterize      Schnall's claims

of "wrongful foreclosure" as claims of damages arising from violations    of the DTA.

       Under the DTA, "only a proper beneficiary has the power to apppint a successor

to the original trustee named in the deed of trust." Bavand, 309 P.3d at 720. Moreover,

"only a properly appointed trustee may conduct a nonjudicial foreclosur^ "       Bavand, 309

P.3d at 642. Accordingly, "when an unlawful beneficiary appoints a sudcessor trustee,

the putative trustee lacks the legal authority to record and serve a notic^ of trustee's
sale." Walker, 308 P.3d at 720-21.

       Approximately eight months after the dismissal of Schnall's complaint, the

Washington Supreme Court issued its decision in Bain v. Metropolitan Mortgage Group,

inc., 175 Wn.2d 83, 93, 285 P.3d 34 (2012). Bain held that MERS is " ineligible
                                                                   "ah

'beneficiary within the terms of the Washington Deed of Trust Act,' if it riever held the

promissory note or other debt instrument secured by the deed of trust." Bain, 175

Wn.2d at 110. Instead, "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 , 175Wn.2dat

89.

       Here, Schnall alleges that MERS never held his note and, therefore , lacked

authority to act as a beneficiary under the DTA. He further alleges that      if MERS was not


the holder, it lacked the authority to assign the deed of trust and note to   Deutsche Bank.


Finally, Schnall reasons, because the assignment to Deutsche Bank wgs ineffective,

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Deutsche Bank's designation of RTSC as successor trustee was also ineffective, and

RTSC lacked authority to initiate nonjudicial foreclosure proceedings. For the purpose

of this appeal, we accept Schnall's allegations as true. Thus, Schnall hps pleaded facts

sufficient to show a violation of the DTA.

       Deutsche Bank and MERS attempt to distinguish Bain, arguing tjnat the

assignment executed by MERS is valid because MERS acted solely as an agent for the

lender, Quicken Loans. But this same argument was raised and rejected in Bain

       MERS attempts to sidestep this portion of traditional agency law by pointing to
       the language in the deeds of trust that describe MERS as "acting solely as a
       nominee for Lender and Lender's successors and assigns." But MERS offers no
       authority for the implicit proposition that the lender's nomination of MERS as a
       nominee rises to an agency relationship with successor noteholders. MERS fails
       to identify the entities that control and are accountable for its actions. It has not
       established that it is an agent for a lawful principal.

Bain, 175 Wn.2d at 107 (citations and footnote omitted). Moreover, Schnall argues,

MERS could not have been acting as an agent for Quicken Loans in assigning the loan

to Deutsche Bank because, by the time of the assignment, Schnall's loein had been sold

to the IndyMac trust.

       Deutsche Bank and MERS also argue that Deutsche Bank proved it was the

lawful holder by demonstrating physical possession of the note. But this situation was

also addressed by Bain:

       The difficulty with MERS's argument is that if in fact MERS is not the beneficiary,
       then the equities of the situation would likely (though not necessarily in every
       case) require the court to deem that the real beneficiary is the lender whose
       interests were secured by the deed of trust or that lender's successors. If the
       original lender had sold the loan, that purchaser would need to establish
       ownership of that loan, either by demonstrating that it actually held the
       promissory note or by documenting the chain oftransactions. Having MERS
       convey its "interests" would not accomplish this.
68516-3-1/7



Bain, 175 Wn.2d at 111 (footnote omitted). At a hearing on Schnall's second motion for
a preliminary injunction on September 27, 2011, counsel for Deutsche EJank presented

Schnall's original note. But Schnall argues this was insufficient to show that Deutsche

Bank was the holder of the note on the date that it appointed RTSC as l:r
                                                                        rustee.


       Presuming the facts stated by Schnall to be true, Schnall's claim     under the DTA

is a claim upon which relief could be granted. Accordingly, the superior     court erred in


dismissing this claim pursuant to CR 12(b)(6).

      Schnall further argues that because the trustee's sale occurred outside the time

limits of RCW 61.24.040(6), RTSC lacked the statutory authority to conduct the sale.

Schnall concedes he did not raise this issue below. 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 lower court. RAP 2.5(a); Karlberg v. Often, 167 Wn. App. 522,

531, 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."). (Citation omitted.) Moreover, Schnall failed to name RTSC as a

party in his original complaint. We decline to address this issue.

       Consumer Protection Act

       Under Washington's CPA, "[ujnfair methods of competition and Unfair or
deceptive acts or practices in the conduct of any trade or commerce are . . . unlawful."
RCW 19.86.020. To prevail on a CPA claim, a plaintiff must prove (1) the defendant

engaged in an unfair or deceptive act or practice, (2) that the act occurred in trade or
commerce, (3) that the act affects the public interest, (4) that the plaintiff suffered injury
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68516-3-1/8



to his business or property, and (5) the injury was causally related to the act.     Hangman

Ridge Training Stables, Inc. v. Safeco Title Ins. Co.. 105 Wn.2d 778,     780 , 719P.2d531


(1986). The failure to establish even one of these elements is fatal to   the claim. Indoor

Billboard/Wash., Inc. v. Integra Telecom of Wash.. Inc.. 162 Wn.2d 59, 74, 170P.3d10

(2007).

       Schnall's opening brief devotes a mere two sentences to his     CPA claim. He cites

only to Bain, arguing that Bain "indicates there may be a Consumer Protection Act

violation, where the Deed of Trust seeks to label MERS as beneficiary." Appellant's Br.

at 18. But Bain held that only the first and third criteria are presumptively    met when

MERS is characterized as the beneficiary in a deed of trust; it did not   hold   that the injury

and causation elements were conclusively established. Schnall has no argued on

appeal that his complaint adequately pleaded all five criteria of a CPA     claim This court


will not consider arguments that an appellant has not developed in its opening brief and

for which the appellant has cited no authority. State v. Bello, 142 Wn. App. 930, 932

n.3, 176 P.3d 554 (2008); see also Saunders v. Lloyd's of London, 113 Wn.2d 330, 345,

779 P.2d 249 (1989) ("Absent adequate, cogent argument and briefing,         we decline to


wander through the complexities of the Consumer Protection Act."). W^ therefore           hold

that Schnall has abandoned his CPA claim on appeal.

       Motion to Amend Complaint

       Schnall assigns error to the superior court's denial of his motion    :o amend his


complaint to add RTSC as a party and to incorporate additional facts arid claims.6 Once



      6Schnall's amended complaint included claims for misrepresentation, breach of
contract, and deprivation of due process.
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a responsive pleading has been filed, a party may only amend its pleading by leave of

court or written consent of the opposing party. CR 15(a). Leave to amend a pleading

"shall be freely given when justice so requires." CR 15(a). However, in deciding

whether to grant a motion to amend, "the court may consider the probable merit or
futility of the amendments requested." Doyle v. Planned Parenthood of     Seattle-King

County, Inc., 31 Wn. App. 126, 131, 639 P.2d 240 (1982).

       Schnall contends that the superior court erred because it gave nb explanation for

its denial of leave to amend the complaint. The written order denying Schnall's motion

does not provide a basis for the superior court's ruling. But the superior court heard

argument on Schnall's motion and made an oral ruling that same day. Schnall does not

provide a transcript of the hearing.7 Schnall has the burden of perfecting the record so
that this court has before it all of the evidence relevant to the issue. RAp 9.2(b); State

v. Sisouvanh, 175Wn.2d 607, 619, 290 P.3d 942 (2012). He has not dbne so. Absent
an affirmative showing of error, we presume a superior court's decision    to be correct.


Resident Action Council v. Seattle Housing Auth., 177 Wn.2d 417, 446, 300 P.3d 376

(2013).

       Denial of Preliminary Injunction

       Finally, Schnall argues that the superior court erred in denying hils repeated

motions for a preliminary injunction. But an issue is "'technically moot if the court

cannot provide the basic relief originally sought, or can no longer provide effective

       7 It appears from the record that the hearing was not recorded, But the rules of
appellate procedure contain provisions for circumstances where relevarit transcripts of
the superior court proceedings are unavailable. Schnall has failed to prpvide either a
narrative report of proceedings authorized by RAP 9.3 or an agreed report of
proceedings as described in RAP 9.4.
68516-3-1/10



relief.'" IBF, LLC v. Heuft, 141 Wn. App. 624, 630-31, 174 P.3d 95 (20p7) (quoting

Josephinium Assocs. v. Kahli, 111 Wn. App., 617, 622,45 P.3d 627 (2002) 8 Here, the

trustee's sale has already occurred; the action sought to be enjoined   can   no longer be

prevented. While Schnall has alleged facts that could establish that th^ trustee's sale

did not lawfully comply with the DTA, the relief he seeks cannot be provided by this
court. Thus, we do not address whether the superior court erred in denying the

preliminary injunction.9
                                        CONCLUSION


       We reverse the superior court's CR 12(b)(6) dismissal of Schnall s     claim for

violation of the DTA. We affirm the dismissal of the CPA claim. We also affirm the

superior court's denial of Schnall's motion to amend his complaint and the denial of the

preliminary injunction. We remand for further proceedings.




WE CONCUR:




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       8There are exceptions that permit a court to reach a moot issue, but these
exceptions do not apply to this case.

       9 Schnall contends that the superior court erred in making findings of fact in its
order of dismissal pursuant to CR 12(b)(6). However, as Deutsche Bank and MERS
point out, the findings to which Schnall assigns error were made in support of the order
denying the preliminary injunction, not the order of dismissal. See San Juan County v.
No New Gas Tax, 160Wn.2d 141, 154, 157P.3d831 (2007) (superior c^ourt required to
make findings of fact when issuing a preliminary injunction).

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