           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

BRIAN J. WINTERS and REBECCA L.             )      No. 79662-3-I
WINTERS,                                    )
                                            )      DIVISION ONE
                           Respondents,
                                            )
                  v.

QUALITY LOAN SERVICE                        )
CORPORATION OF WASHINGTON,                  )
INC.,

                           Petitioner,      )      PUBLISHED OPINION

WELLS FARGO BANK, NA as Trustee )
on behalf of the registered holders of )
Morgan Stanley ABS Capital I Inc. Trust)
2007-HE4 Mortgage Pass-Through         )
Certificates, Series 2007-HE4; SELECT)
PORTFOLIO SERVICING, INC.; and         )
DOE DEFENDANTS 1-20, inclusive,        )
                                           )
                           Defendants.     )      FILED: December 30, 2019

       SCHINDLER, J.   —   Only the actual holder of a promissory note that is secured by a

deed of trust has the authority to replace the trustee named in the deed of trust and

appoint a successor trustee to proceed with a nonjudicial foreclosure. However, in Bain

v. Metropolitan Mortciaqe Group, Inc., 175 Wn.2d 83, 106, 285 P.3d 34 (2012), the

Washington Supreme Court makes clear that “Washington law, and the deed of trust act

itself, approves of the use of agents” to act on behalf of the holder to enforce the
No. 79662-3-1/2

promissory note or instrument evidencing the debt in a nonjudicial foreclosure

proceeding. Brian and Rebecca Winters (collectively, Winters) defaulted on the

promissory note secured by a deed of trust on their property. We granted discretionary

review of denial of summary judgment dismissal of the Consumer Protection Act,

chapter 19.86 RCW, claims against the successor trustee alleging the successor trustee

did not have the authority under the deed of trust act (DTA), chapter 61.24 RCW, to

foreclose on the property. The uncontroverted record establishes that the actual holder

of the note, “Wells Fargo Bank, National Association, as Trustee, on behalf of the

registered holders of Morgan Stanley ABS Capital I Inc., Trust 2007-HE4, Mortgage

Pass-Through Certificates, Series 2007-HE4” (Wells Fargo NA.), executed a limited

power of attorney appointing Select Portfolio Servicing Inc. (SPS) as its attorney-in-fact

with authority to execute documents in the nonjudicial foreclosure proceeding. As a

prerequisite to initiating the nonjudicial foreclosure, SPS as the attorney-in-fact for Wells

Fargo N.A. executed a declaration stating under penalty of perjury that Wells Fargo N.A.

was the actual holder of the note and appointed Quality Loan Service Corporation of

Washington (QLS) as the successor trustee. Because SPS had the authority to act as

the authorized agent of Wells Fargo N.A. and the uncontroverted record establishes

QLS complied with the statute that governs qualifications for a successor trustee, we

reverse denial of summary judgment. We remand to dismiss the claims against QLS.

On remand, the court shall also address the propriety of imposition of expenses under

RCW 61 .24.090(1)(b).

Promissory Note and Deed of Trust

       In October 2006, Brian and Rebecca Winters (collectively, Winters) borrowed

$1 14,400 from Decision One Mortgage Company LLC to purchase property located at

                                             2
No. 79662-3-113

306 South 6th Street, Satsop, Washington. Winters executed an adjustable rate note

on October 20, 2006. Winters promised to make monthly payments until November 1,

2036. The note was indorsed in blank. The note states, “I understand that Lender may

transfer this Note. Lender or anyone who takes this Note by transfer and who is entitled

to receive payments under this Note is called the ‘Note Holder.’    “   The note was secured

by a recorded deed of trust on the property. The deed of trust identifies Winters as the

borrower, Decision One as the lender, First American Title Insurance Company as

“Trustee,” and Mortgage Electronic Registration Systems Inc. (MERS) as the

beneficiary and “nominee for Lender and Lender’s successors and assigns.”

       Decision One sold the note to a securitized trust, “Wells Fargo Bank, National

Association, as Trustee, on behalf of the registered holders of Morgan Stanley ABS

Capital I Inc., Trust 2007-HE4, Mortgage Pass-Through Certificates, Series 2007-HE4”

(Wells Fargo N.A.). Select Portfolio Servicing Inc. (SPS) acted as the mortgage

servicer on the note. Winters stopped making payments on January 1, 2012.

Limited Power of Attorney

       On August 31, 2012, Wells Fargo N.A. Vice President Barry Silvermetz executed

a notarized “Limited Power of Attorney.” Wells Fargo N.A. appointed SPS “as its true

and lawful attorney-in-fact, acting by and through its authorized officers, with full

authority and power to execute and deliver on behalf of” Wells Fargo N.A.:

              (ii) [~]II documents and instruments necessary to conduct any (a)
      foreclosure, or (b) the taking of any deed in lieu of foreclosure, or (c) ~y
      judicial or non-judicial foreclosure or termination, cancellation, or
      rescission of any such foreclosure, or (d) any similar procedure
      (collectively, as applicable, a “Foreclosure”);

               (iv) ‘instruments appointing one or more substitute trustees or
       special purpose entities (“SPE5”) to act in place of the corresponding
       entity named in any deed of trust;

                                              3
No. 79662-3-1/4

                  (v) affidavits of debt, notice of default, declaration of default,
           notices of foreclosure, and all such contracts, agreements, deeds, and
           instruments as are appropriate to (a) maintain any real property acquired
           through Foreclosure, or (b) effect any sale, transfer, or disposition of real
           property acquired through Foreclosure;
                  (vi) all documents and instruments necessary to effect any
           assignment of mortgage or assignment of deed of trust; and
                  (vii) all other comparable instruments.~1~

SPS recorded the Limited Power of Attorney on October 8, 2012.

A~ointment of Successor Trustee

           On December 5, 2013, SPS as the attorney-in-fact for Wells Fargo N.A. executed

a notarized “Appointment of Successor Trustee.” SPS appointed Quality Loan Service

Corporation of Washington (QLS) as the successor to the trustee named in the October

20, 2006 deed of trust that secured the Winters’ note. The Appointment of Successor

Trustee states, in pertinent part:

       [W]hereas, Wells Fargo Bank, National Association, as Trustee, in trust for
       the registered holders of Morgan Stanley ABS Capital I Trust 2007-HE4,
       Mortgage Pass-Through Certificates, Series 2007- HE4 is the present
       Beneficiary under said Deed of Trust, and desires to appoint and hereby
       does appoint QUALITY LOAN SERVICE CORPORATION OF
       WASHINGTON as the new Trustee in place and stead of the present
       Trustee thereunder.



       NOW THEREFORE, the undersigned, Wells Fargo Bank, National
       Association, as Trustee, in trust for the registered holders of Morgan
       Stanley ABS Capital I Trust 2007-HE4, Mortgage Pass-Through
       Certificates, Series 2007- HE4, hereby substitutes QUALITY LOAN
       SERVICE CORPORATION OF WASHINGTON as Trustee under said
       Deed of Trust.

       The Appointment of Successor Trustee was recorded on December 17, 2013.




       1   Emphasis added.

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No. 79662-3-1/5

Beneficiary Declaration

          As a prerequisite to issuing a notice of trustee’s sale, the trustee must have proof

under penalty of perjury that the beneficiary is the actual holder of the note. RCW

61.24.030(7)(a). On November 25, 2013,        SPS as the attorney-in-fact for Wells Fargo
N.A. executed a declaration under penalty of perjury stating that Wells Fargo N.A. is the

beneficiary and actual holder of the Winters’ note. The “Declaration of Ownership”

states:

          Re:   Loan Number..     .;   BRIAN WINTERS

          Under penalty of perjury, the undersigned hereby represents and declares
          as follows:

          I am employed as Document Control Officer for Select Portfolio Servicing,
          Inc. I am duly authorized to make this declaration on behalf of:

                1) Wells Fargo Bank, National Association, as Trustee, on behalf
                   of the registered holders of Morgan Stanley ABS Capital I Trust
                   2007-HE4, Mortgage Pass-Through Certificates, Series 2007-
                   H E4

                    Hereby known as beneficiary.

                2) Wells Fargo Bank, National Association, as Trustee, on behalf
                   of the registered holders of Morgan Stanley ABS Capital I Trust
                   2007-HE4, Mortgage Pass-Through Certificates, Series 2007-
                   H E4

                    is the actual holder of the Promissory Note evidencing the
                    above-referenced loan.

                3) The Note has not been assigned or transferred to any other
                   person or entity.

                4) Beneficiary understands that the trustee foreclosing the deed of
                   trust securing the above-referenced loan will rely upon this
                   Declaration before issuing the notice of trustee’s sale.




                                               5
No. 79662-3-116

Notice of Default

       In March 2014, Winters filed for chapter 7 bankruptcy. Winters was discharged

from bankruptcy in August 2014.

       On August 4, 2014, QLS sent Winters a “Notice of Default.” The Notice of

Default was signed by QLS assistant secretary Gladys Limon. The Notice of Default

states Wells Fargo NA. is the “current owner of the Note secured by the Deed of Trust.”

The attached “Foreclosure Loss Mitigation” form is executed by SPS “as authorized

agent of Beneficiary.” The Foreclosure Loss Mitigation form states that the “authorized

agent for the beneficiary hereby represents and declares under the penalty of perjury”

that the “beneficiary’s authorized agent has contacted the borrower under, and has

complied with; RCW 61 .24.03 1 and the borrower did not request a meeting.”

       Winters did not cure the default.

Notice of Trustee’s Sale

       On September 5, 2014, QLS issued a “Notice of Trustee’s Sale” of the property

for January 9, 2015. The Notice of Trustee’s Sale was signed by QLS assistant

secretary Maria Montana. On April 9, 2015, QLS issued a “Notice of Discontinuance of

Trustee’s Sale.”

       On August 27, 2015, QLS issued a second “Notice of Trustee’s Sale” of the

property for January 8,2016. The Notice of Trustee’s Sale is signed by QLS assistant

secretary Lauren Esquivel and was recorded in Grays Harbor County.

      Winters did not cure the default before the trustee’s sale on January 8. QLS sold

the property to Wells Fargo N.A. as the highest bidder. On January 20, 2016, QLS

assistant secretary Janice Stavee recorded the “Trustee’s Deed upon Sale” issued to



                                           6
No. 79662-3-1/7

Wells Fargo N.A.

       The GRANTOR, QUALITY LOAN SERVICE CORPORATION OF
       WASHINGTON, as current Trustee, (whereas so designated in the Deed
       of Trust hereunder more particularly described or as duly appointed
       Successor Trustee) under that Deed of Trust in consideration of the
       premises and payment recited below, hereby grants and conveys, without
       representation or warranty, expressed or implied, all right title and interest
       to Wells Fargo Bank, National Association.

Lawsuit

       In September 2016, Winters filed a lawsuit against Wells Fargo N.A., SPS, and

QLS alleging violation of the Consumer Protection Act (CPA), chapter 19.86 RCW,

based on the failure to comply with the requirements of the deed of trust act (DTA),

chapter 61.24 RCW. Winters alleged SPS was not “lawfully authorized” to appoint QLS

as the successor trustee to initiate the nonjudicial foreclosure under the DTA “because it

was neither the note holder nor the loan owner.” Winters alleged Wells Fargo NA. was

liable for the actions of SPS and QLS “since they were apparently acting as its ‘agent.’

Winters alleged QLS violated the CPA by “initiating and completing a nonjudicial

foreclosure when it did not have the legal authority to do so.” Winters also alleged QLS

“did not have the legal authority to act as a foreclosing trustee under Washington law

because it did not have an officer that resides in the State of Washington.”

QLS Motion for Summary Judgment Dismissal

      QLS filed a motion for summary judgment dismissal of the claims. QLS asserted

the nonjudicial foreclosure complied with the requirements of the DTA. QLS argued the

undisputed evidence established Wells Fargo NA. was the beneficiary and holder of the

Winters’ note and as a matter of law, Wells Fargo N.A. had the authority to authorize

SPS to act on its behalf to execute documents in the nonjudicial foreclosure proceeding,

including the appointment of QLS as the successor trustee and the Declaration of

                                             7
No. 79662-3-1/8

Ownership. QLS asserted it met the statutory qualifications to act as the successor

trustee.

       QLS Vice President Sierra Herbert-West submitted a declaration in support of the

summary judgment motion. Herbert-West attached to her declaration “true and

accurate” copies of the Winters’ note and the deed of trust “contained within [QLS]’s

file,” the Limited Power of Attorney, the assignment of deed of trust, the Declaration of

Ownership, the Appointment of Successor Trustee, the Notices of Trustee’s Sale, and

the Trustee’s Deed upon Sale. Herbert-West states:

       In my capacity as a Trustee Sales Officer and corporate Vice President, I
       have custody and control of the files and records of the non-judicial
       foreclosure sales performed by [QLS]. These records are made in the
       ordinary course of business by people who have a business duty to make
       such records, and/or are received by [QLS] in the ordinary course of its
       business, which includes acting as a trustee in non-judicial foreclosures.
       [QLS]’s records are made at or near the time of the occurrence of the
       event or events that they record.

       Herbert-West also attached the QLS bylaws and the QLS “Action of Directors”-

designating assistant secretaries as QLS corporate officers with the authority to act on

behalf of QLS. Herbert-West states that throughout the foreclosure proceedings, QLS

“had at least one corporate officer who was a state resident”:

      When the Notice of Default was issued in August of 2014, [QLS] had at
      least three resident officers  —(1) the President, Philip Martin, (2) a Vice
      President, Robert McDonald, and (3) myself. Mr. McDonald and I have
      continued to be resident officers through present day. The Winters never
      raised any issues with [QLS] about the beneficiary’s compliance with the
      pre-foreclosure contact requirements.
          Attached hereto. is a true and correct copy of the first Notice of
                             .   .


      Sale issued by [QLS]. In September of 2014 when the first Notice of Sale
      was issued, and continuing to present day, [QLS] has had a physical office
      in Seattle. The Seattle office has at all times had telephone service and at
      least one employee. As of the date of this declaration, there are
      approximately seventeen employees working in the Seattle office.



                                            8
No. 79662-3-1/9

        In opposition, Winters argued that as a matter of law, SPS did not have the

authority to appoint QLS as the foreclosing trustee. Winters asserted the DTA allows

only a “beneficiary,” not an agent, to replace the trustee named in the deed of trust.

Winters also argued QLS was not authorized to act as the successor trustee because

no officer of QLS was a resident of Washington when SPS appointed QLS as the

successor trustee. The only evidence Winters submitted in opposition to summary

judgment was a copy of the findings of fact and conclusions of law a court entered in

another case, Hookerv. Bank of America, N.A., King County Superior Court No. 14-2-

11009-0 SEA.

       In Hooker, the court found that QLS did not present any evidence that an

assistant secretary was authorized to act as a corporate officer in 2013 and 2014:

               18.     During 2013 and into 2014, no corporate officer of [QLS]
       resided in the State of Washington. Sierra Herbert-West had the title of an
       “assistant secretary” in [QLS]’s Washington office. Ms. Herbert-West was
       not a corporate officer of [QLSJ.
               19.     In 2013, [QLS} reported to the Washington Secretary of
       State that Ms. Herbert-West was an “assistant secretary” with an address
       in Washington state.
               20.     [QLS] presented no evidence that, during any time relevant
       to this case, its corporate bylaws authorized its board of directors to
       appoint any person to serve as an “assistant secretary” of the corporation.

The court in Hooker concluded QLS “violated RCW61.24.010(1)(a)” because QLS “was

not legally qualified under Washington law to act as the successor trustee of the

Plaintiff’s Deed of Trust.”

       The court in Hooker also found there was no evidence of “a power of attorney or

any other documentation” that supported QLS’ “contention that Wells Fargo had the

authority to act as ‘attorney in fact’ or otherwise as an agent for Bank of America with




                                             9
No. 79662-3-1/10

respect to a nonjudicial deed-of-trust foreclosure of the Plaintiff’s deed of trust.” The

findings state:

              12.     No power of attorney was introduced into evidence at trial to
       support [QLSJ’s contention that Wells Fargo had the authority to act as
       “attorney in fact” or otherwise as an agent for Bank of America with
        respect to a nonjudicial deed-of-trust foreclosure of the Plaintiff’s deed of
       trust.
              13.     Bank of America did not execute a power of attorney
       appointing Wells Fargo to act as its attorney in fact to initiate and carry out
       a nonjudicial deed-of-trust foreclosure proceeding against the Plaintiff’s
       residence.
              14.     Bank of America lacked the control over Wells Fargo that is
       necessary in order to establish a principal-agent relationship.
              15.     Wells Fargo did not act as Bank of America’s attorney in fact
       or otherwise as Bank of America’s agent when Wells Fargo executed the
       Appointment of Successor Trustee purporting to appoint [QLSJ to serve as
       successor trustee of the Plaintiff’s deed of trust.
              16.     [QLS] did not reasonably rely on the Beneficiary Declaration
       that Wells Fargo signed as proof that Wells Fargo was acting as Bank of
       America’s attorney in fact or otherwise as Bank of America’s agent with
       respect to the nonjudicial foreclosure of the Plaintiff’s Deed of Trust.

       The conclusions of law in Hooker state, in pertinent part:

              8.    The relationship between Wells Fargo and Bank of America
      was an independent-contractor relationship, not a principal-agent
      relationship.
              9.    Wells Fargo was not the holder of the Note when it initiated
      the nonjudicial foreclosure proceeding with respect to the Plaintiff’s Deed
      of Trust.
              10.   Wells Fargo did not act as Bank of America’s attorney in fact
      or otherwise as Bank of America’s agent when Wells Fargo executed the
      Appointment of Successor Trustee with respect to the nonjudicial
      foreclosure of the Plaintiff’s deed of trust.

             12.      [QLS] violated RCW 61.24.010(2) because it was not a duly
      appointed Successor Trustee when it commenced the foreclosure sale of
      the Plaintiff’s Deed of Trust.

       In reply, QLS asserted that as a matter of law, the beneficiary and holder of the

promissory note has the power to act through an agent. QLS argued the superior court

findings of fact and conclusions of law in Hooker were not binding. QLS also pointed


                                             10
No. 79662-3-I/I I

out that unlike in Hooker, the unrebutted evidence established that Wells Fargo NA., as

the beneficiary and actual holder of the Winters’ note, executed a Limited Power of

Attorney authorizing SPS to execute documents on its behalf in the nonjudicial

foreclosure proceeding and appoint QLS as the successor trustee. QLS noted that

unlike in Hooker, it submitted the QLS bylaws and corporate documents that

established assistant secretaries are corporate officers and presented unrebutted

testimony that QLS had at least one resident corporate officer in the state of

Washington throughout the nonjudicial foreclosure on the Winters’ property.

       The trial court denied summary judgment dismissal of the claims against QLS.

QLS filed a motion for discretionary review. The commissioner granted discretionary

review under RAP 2.3(b)(l) (obvious error which would render further proceedings

useless).

Use of an Agent under the DTA

       QLS contends the court erred in denying the motion for summary judgment

dismissal of the claims against it. QLS asserts the uncontroverted record established

the nonjudicial foreclosure of the Winters’ property complied with the requirements of

the DTA.

      We review summary judgment de novo. Citizens All, for Pro~i Rigths Legal Fund

v. San Juan County, 184 Wn.2d 428, 435, 359 P.3d 753 (2015). Summary judgment is

appropriate when there is no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law. CR 56(c). The moving party bears the initial

burden to submit evidence and establish entitlement to judgment as a matter of law.

Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008). The

nonmoving party must then present “‘specific facts which sufficiently rebut the moving

                                           11
No. 79662-3-1/12

party’s contentions’ “and create a genuine issue of material fact. Ranger, 164 Wn.2d at

552 (quoting Meyerv. Univ. of Wash., 105 Wn.2d 847, 852, 719 P.2d 98(1986)).

       The nonmoving party cannot rely either on argumentative assertions that

unresolved factual issues remain or on speculation. Ranger, 164 Wn.2d at 552. Mere

allegations, denials, opinions, “or conclusory statements of facts unsupported by

evidence are not sufficient to establish a genuine issue” of material fact. Rucker v.

NovaStarMortg., Inc., 177Wn. App. 1,6,311 P.3d 31(2013).

       If the borrower defaults on an underlying obligation secured by a deed of trust

that grants the trustee the power of sale, the trustee may foreclose on “the deed of trust

and sell the property without judicial supervision.” Bain v. Metro. Mortg. Grp., Inc., 175

Wn.2d 83, 93, 285 P.3d 34(2012) (citing RCW 61 .24.020; RCW6I.12.090; RCW

7.28.230(1)). Accordingly, the DTA provisions must be strictly complied with and

“‘construed in favor of borrowers.’” Bain, 175 Wn.2d at 93 (quoting Udall v. T.D.

Escrow Servs., Inc., 159 Wn.2d 903, 915-16, 154 P.3d 882 (2007)). Violation of the

requirements of the DTA constitutes an actionable claim for damages under the CPA.

Lyons v. U.S. Bank Nat’l Ass’n, as Tr. for Stanwich Mortg. Loan Tr. Series 2012-3, by

Carrington Mortg. Servs., LLC, 181 Wn.2d 775, 789, 336 P.3d 1142 (2014).

      QLS contends Washington law allows the beneficiary and holder of the note to

use an authorized agent to execute documents in a nonjudicial foreclosure proceeding,

including the appointment of a successor trustee and the beneficiary declaration.

Winters argues the court did not err in denying summary judgment dismissal of the CPA

claims because SPS did not have the authority to appoint QLS as the successor trustee

or execute the beneficiary declaration. Winters claims only the beneficiary of the

promissory note has the authority to appoint a successor trustee and execute a

                                            12
No. 79662-3-1/13

beneficiary declaration. If a beneficiary does not have the authority to appoint a

successor trustee, “‘the putative trustee lacks the legal authority to record and serve a

notice of trustee’s sale.’   “   Rucker, 177 Wn. App. at 14 (quoting Walker v. Quality Loan

Serv. Corp., 176 Wn. App. 294, 306, 308 P.3d 716 (2013)).

       ‘Traditionally, the ‘beneficiary’ of a deed of trust is the lender who has loaned

money to the homeowner.” Bain, 175 Wn.2d at 88. The DTA “gives subsequent

holders of the debt the benefit of the act by defining ‘beneficiary’ broadly as ‘the holder

of the instrument or document evidencing the obligations secured by the deed of trust.’

Bain, 175 Wn.2d at 88 (quoting RCW 61 .24.005(2)). The deed of trust that secures the

promissory note protects the lender by giving the lender the power to nominate a trustee

to sell the home if the debt is not paid. Bain, 175 Wn.2d at 88. The court in Bain

explains:

       Lenders, of course, have long been free to sell that secured debt, typically
       by selling the promissory note signed by the homeowner. Our deed of
       trust act, chapter 61 .24 RCW, recognizes that the beneficiary of a deed of
       trust at any one time might not be the original lender.

Bain, 175 Wn.2d at 88.

       The note in this case is a negotiable instrument governed by the Uniform

Commercial Code (U CC), Title 62A RCW. Brown v. Dep’t of Commerce, 184 Wn.2d

509, 524, 359 P.3d 771 (2015). The UCC defines a “negotiable instrument” as “an

unconditional promise or order to pay a fixed amount of money” if three requirements

are met. RCW 62A.3-104(a). The instrument must (1) be “payable to bearer or to order

at the time it is issued or first comes into possession of a holder,” (2) be “payable on

demand or at a definite time,” and (3) concern only a promise to pay money rather than

“any other” performance (except for certain limited exceptions that allow nonmonetary


                                                13
No. 79662-3-1/14

performance, including that the instrument mayinclude “an undertaking or power to

give, maintain, or protect collateral to secure payment”). RCW 62A.3-1 04(a). Here, the

note is indorsed in blank and is therefore payable to the bearer. See RCW 62A.3-

205(b). The note is payable at a definite time every month until November 1, 2036 and

concerns only Winters’ obligation to pay. ~ RCW 62A.3-1 08(b).

       The UCC recognizes that “a holder of a note is entitled to enforce the note.”

Brown, 184 Wn.2d at 540. RCW 62A.3-301 provides:

       “Person entitled to enforce” an instrument means (i) the holder of the
       instrument, (ii) a nonholder in possession of the instrument who has the
       rights of a holder, or (iii) a person not in possession of the instrument who
       is entitled to enforce the instrument pursuant to RCW 62A.3-309 or 62A.3-
       4 18(d). A person may be a person entitled to enforce the instrument even
       though the person is not the owner of the instrument or is in wrongful
       possession of the instrument.

       The holder of the promissory note has the authority to enforce the deed of trust

because the deed of trust follows the note by operation of law. Bain, 175 Wn.2d at 104

(The DTA “contemplates that the security instrument will follow the note, not the other

way around.”). In Brown, the court held the beneficiary must be the holder but not the

“owner” of the note. Brown, 184 Wn.2d at 540.

      The DTA states the beneficiary “shall appoint a trustee or a successor trustee” to

replace the trustee named in the deed of trust. RCW 61.24.010(2). In Sam, the 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; see RCW

61 .24.010(2). However, the court expressly states, “[N]othing in this opinion should be

construed to suggest an agent cannot represent the holder of a note. Washinciton law,



                                            14
No. 79662-3-1/15

and the deed of trust act itself, approves of the use of agents.” Bain, 175 Wn.2d at 1062

(citing RCW 61 .24.031(1)(a) (‘A trustee, beneficiary, or authorized agent may not issue

a notice of default.   .   .   until   .   . . .“)~);   see also RCW 61 .24.040(8)~ (a nonjudicial

foreclosure sale of property shall be conducted by “the trustee or its authorized agent”).5

The court states that” ‘an agency relationship results from the manifestation of consent

by one person that another shall act on his behalf and subject to his control, with a

correlative manifestation of consent by the other party to act on his behalf and subject to

his control.’” Bain, 175 Wn.2d at 106 (quoting Moss v. Vadman, 77 Wn.2d 396, 402-

03, 463 P.2d 159 (1969)). “[A]gency requires a specific principal that is accountable for

the acts of its agent.” Bain, 175 Wn.2d at 107.

        Here, the undisputed record shows SPS had the authority to act as an agent on

behalf of Wells Fargo N.A. in the nonjudicial foreclosure. On August 31, 2012, Wells

Fargo N.A. as the actual holder of the Winters’ note executed a Limited Power of

Attorney appointing    SPS “as             its true and lawful attorney-in-fact” with the “full authority

and power” to execute “all documents and instruments necessary” to conduct a

nonjudicial foreclosure and to appoint “one or more substitute trustees” to replace the

trustee named in the deed of trust. On November 25, 2013, SPS as the attorney-in-fact

for Wells Fargo N.A. executed a Declaration of Ownership on behalf of Wells Fargo

N.A. verifying under penalty of perjury that Wells Fargo N.A. “is the actual holder of the

Promissory Note” for the Winters’ loan and that the “Beneficiary understands that the


       2 Emphasis added.
       ~ Emphasis added.
        ~ We note the legislature amended RCW 61.24.040 in 2012 and renumbered the subsections.
LAWS OF 2012, ch. 185, § 10. Because the language of RCW 61.24.040(8) did not change, we cite the
current statute.
        ~ Emphasis added.

                                                              15
 No. 79662-3-1/16

trustee foreclosing the deed of trust securing the [Winters’] loan will rely upon this

 Declaration before issuing the notice of trustee’s sale.” On December 5, 2013, SPS

executed the Appointment of Successor Trustee as the authorized attorney-in-fact for

Wells Fargo N.A. The unambiguous Appointment of Successor Trustee states that

Wells Fargo NA. is the “present Beneficiary” under the deed of trust and that Wells

Fargo N.A. “hereby does appoint QUALITY LOAN SERVICE CORPORATION OF

WASHINGTON as the new Trustee.”

        The DTA expressly allowed QLS as the successor trustee to rely on the

Declaration of Ownership executed by SPS on behalf of Wells Fargo N.A. RCW

61.24.030(7)(b) states the trustee “is entitled to rely on the beneficiary’s declaration as

evidence of proof required under this subsection” that the beneficiary is the actual

holder of the note. Former RCW6I.24.030(7)(a) (2012)6 provides:

        That, for residential real property, before the notice of trustee’s sale is
        recorded, transmitted, or served, the trustee shall have proof that the
        beneficiary is the owner of any promissory note or other obligation
        secured by the deed of trust. A declaration by the beneficiary made under
        the penalty of perjury stating that the beneficiary is the actual holder of the
        promissory note or other obligation secured by the deed of trust shall be
        sufficient proof as required under this subsection.

Because SPS had the authority to execute the beneficiary declaration under penalty of

perjury attesting that Wells Fargo N.A. is the holder of the note, QLS could rely on that

declaration. An unrebutted declaration satisfies the requirement under RCW

61.24.030(7) to provide proof of a beneficiary. Brown, 184 Wn.2d at 544; Bain, 175

Wn.2d at 88.




         6 We note the legislature amended RCW 61 .24.030(7)(a) in 2018 to replace the word “owner”

with “holder” and delete the word “actual.” LAWS OF 2018, ch. 306, § 1.

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       For the first time on appeal, Winters claims the beneficiary declaration is invalid

because there is no evidence that the SPS employee had personal knowledge about

the location of the note. Winters also claims there is no evidence about when QLS

received the Limited Power of Attorney. We only consider evidence and issues called

to the attention of the trial court on summary judgment. RAP 9.12; Kofmehl v. Baseline

Lake, LLC, 177 Wn.2d 584, 594, 305 P.3d 230 (2013). Nonetheless, we note RCW

61.24.030(7) does not require proof of the location of the note and QLS presented

unrebutted evidence that it had the Limited Power of Attorney before initiating the

nonjudicial foreclosure.

       In the alternative, Winters argues that even if Wells Fargo N.A. had the authority

to use an agent, there is an issue of material fact as to whether a principal-agent

relationship existed between Wells Fargo N.A. and SPS. We disagree.

      A power of attorney is a written instrument by which one person as principal

appoints another as agent and confers on the agent’s authority to act in the place and

stead of the principal for the purposes set forth in the instrument. Bryant v. Bryant, 125

Wn.2d 113, 118, 882 P.2d 169 (1994). The Uniform Power of Attorney Act, chapter

11.125 RCW, defines an “agent” as follows:

      [A] person granted authority to act for a principal under a power of
      attorney, whether denominated an agent, attorney-in-fact, or otherwise.
      The term includes an original agent, coagent, successor agent, and a
      person to which an agent’s authority is delegated.

ROW 11.125.020(1).

      The Limited Power of Attorney is a clear and unambiguous manifestation of

Wells Fargo N.A.’s consent and authorization for SPS to act on its behalf in executing

all required documentation to complete a nonjudicial foreclosure sale. The Limited


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Power of Attorney authorizes         SPS to act on behalf of Wells Fargo N.A. to execute
documentation for a nonjudicial foreclosure on property, including the power to appoint

a successor trustee and execute a beneficiary declaration.

          Winters cites Rucker to argue there is an issue of material fact as to whether a

principal-agent relationship existed between Wells Fargo N.A. and SPS. Rucker does

not support their argument. In Rucker, the court held that “where an entity fails to

identify a lawful principal who controls its actions, it has not established that it is an

agent for purposes of the DTA.” Rucker, 177 Wn. App. at 15. In Rucker, the agreement

explicitly stated that the relationship of the alleged agent NovaStar Mortgage Inc. to the

beneficiary of the deed of trust JPMorgan Chase Bank and J.P. Morgan Trust Company

was intended “‘to be that of an independent contractor and not that of a ioint venture,

partner or agent.’” Rucker, 177 Wn. App. at 15-16.~ Here, unlike In Rucker, the

unrebutted record shows Wells Fargo N.A. was the principal who expressly delegated

authority to SPS to act as its attorney-in-fact and authorized agent.

          RCW 61 .24.010

          QLS also contends the unrebutted record shows that assistant secretaries are

corporate officers and that it met the qualifications for a successor trustee. RCW

61.24.O10(1)(a) states that the trustee shall be “[amy domestic corporation or domestic

limited liability corporation incorporated under Title 23B, 25, *30 31, 32, or 33 RCW of

which at least one officer is a Washington resident.”8




          ~ Some emphasis in original.
          8 ~*Reviser~s note: (1) Title 30 RCW was recodified and/or repealed pursuant to” LAWS OF 2014,
ch. 37.

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No. 79662-3-1/19

        The undisputed record establishes QLS had at least one resident corporate

officer in the state of Washington throughout the nonjudicial foreclosure. Herbert-West

stated in her declaration in support of the motion for summary judgment dismissal that

she has ‘been a resident of Washington since 1989” and that she and QLS Vice

President Robert McDonald “have continued to be resident officers through present

day.”

        The undisputed record establishes that the “Bylaws of Quality Loan Service

Corporation of Washington” designate assistant secretaries as corporate officers with

the authority to execute documents in a nonjudicial foreclosure for QLS. Article IX,

section 1 states, in pertinent part:

                                        OFFICERS

                    The officers of the corporation shall be chosen by the board of
        directors and shall be a president, a vice-president, a secretary and a
        treasurer. The board of directors may also choose additional vice-
        presidents, and one or more assistant secretaries and assistant
        treasurers.

The unrebutted corporate records show QLS elected assistant secretaries as corporate

officers. The bylaws also state an assistant secretary “shall have authority to affix” the

seal of the corporation “to any instrument requiring it” and the corporate seal “may be

attested by [the secretary’s] signature or by the signature of such assistant secretary.”

        Because the uncontroverted record establishes that SPS had the authority to act

as the authorized agent for the actual holder of the note in the nonjudicial foreclosure, to

appoint QLS as the successor trustee, and to execute the beneficiary declaration, we

reverse denial of the motion for summary judgment and remand to dismiss the claims

against QLS. On remand, the court shall also address the propriety of imposition of



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expenses incurred by QLS as the successor trustee in the nonjudicial foreclosure under

RCW 61.24.090(1)(b).




WE CONCUR:




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