      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                                                 •<s»



MARISA BAVAND,                                         No. 68217-2-1


                     Appellant,                        DIVISION ONE
                                                                                        5.
              v.



ONEWEST BANK, F.S.B., a federally                      PUBLISHED
chartered Savings Bank; REGIONAL
TRUSTEE SERVICES                                       FILED: September 9, 2013
CORPORATION, a Washington
corporation; MORTGAGE
ELECTRONIC REGISTRATION
SYSTEMS, INC., a Delaware
corporation,

                     Respondents,

DOE DEFENDANTS 1-10,

                     Defendants.




       Cox, J. — Primarily at issue in this appeal of a CR 12(b)(6) dismissal is

whether OneWest Bank, FSB and the Mortgage Electronic Registration Systems,

Inc. (MERS) met their burden to show that Marisa Bavand failed to show any set

offacts that would justify granting relief.1 Also at issue is whether the trial court


       1 See Postema v. Pollution Control Hearings Bd., 142 Wn.2d 68, 122, 11
P.3d 726 (2000) (noting that a motion to dismiss pursuant to CR 12(b)(6) should
be granted only if the plaintiff cannot prove any set of facts that would justify
recovery).
No. 68217-2-1/2


properly granted the motion to validate the trustee's sale of Bavand's property by

Regional Trustee Services Corporation (RTS).

      We hold that the motion to dismiss was, for the most part, erroneously

granted. The order validating the trustee's sale was also erroneously granted.

We affirm in part, reverse in part, and remand for further proceedings.

       In 2007, Marisa Bavand obtained a loan for $722,950 from IndyMac Bank,

FSB. The loan was evidenced by a promissory note that was secured by a deed

of trust encumbering her property. The deed of trust named "IndyMac Bank,

F.S.B." as the "Lender" and Ticor Title Insurance Co. as the "Trustee." It also

named MERS as "the beneficiary under this Security Instrument" and "as a

nominee for Lender and Lender's successors and assigns."

       On December 15, 2010, "OneWest Bank, FSB," claiming to be the

"present beneficiary" of Bavand's deed of trust, executed an Appointment of

Successor Trustee.2 This document purported to appoint RTS "as Successor

Trustee" under Bavand's deed oftrust.3 It appears that OneWest executed this
assignment anticipating the commencement of a nonjudicial foreclosure of the

deed of trust by RTS.

       On December 16, 2010, one day after this purported appointment of RTS

as successor trustee, MERS executed an Assignment of Deed ofTrust.4 This
document stated, among other things, that:



       2 Clerk's Papers at 27-28.


       4
           Id. at 24-25.
No. 68217-2-1/3



              FOR VALUE RECEIVED, the undersigned, MORTGAGE
       ELECTRONIC REGISTRATION SYSTEMS, INC. AS NOMINEE
       FOR INDYMAC BANK, F.S.B., A FEDERALLY CHARTERED
       SAVINGS BANK, by these presents, grants, bargains, sells,
       assigns, transfers and sets over unto OneWest Bank, FSB, all
       beneficial interest under that certain Deed of Trust dated 8/7/2007,
       and executed by Marisa Bavand ....

       Together with the Note or Notes therein described . . . .[5]
       On January 6, 2011, RTS commenced a nonjudicial foreclosure

proceeding of the deed of trust encumbering Bavand's property by mailing a

"Notice of Foreclosure" to her for allegedly defaulting in payments under the

promissory note. The trustee's sale was scheduled for May 13, 2011.

       Eight days before the then scheduled trustee's sale, Bavand commenced

this action against OneWest, MERS, RTS, and others, seeking declaratory and

other relief. RTS postponed the scheduled trustee's sale to a later date upon

learning of this action.

       Over a month after filing this action, Bavand moved for a TRO to enjoin

the rescheduled trustee's sale of her property. On June 10, the trial court denied

her motion because of her failure to provide proof of service and proper notice of

the motion. But the court granted Bavand's renewed motion for a TRO, and an

order restraining the trustee's sale was entered on June 17, 2011. The order

was expressly conditioned on Bavand providing a "[bjond ... in [the] amount of

$5,041.08 payable 6/17/11 and on the 17th of every month thereafter unless




       5 Id. at 24.
No. 68217-2-1/4


amended by court order."6 At oral argument in this appeal, Bavand conceded
that she did not make any of these payments.

       RTS conducted the trustee's sale of the Bavand property sometime on

June 17, the same date the TRO was entered. At oral argument in this appeal,

the parties confirmed to this court that, following this sale, RTS recorded with the

county auditor a trustee's deed that conveyed the property to "OWB REO, Inc,"

the successful bidder at this trustee's sale.

       By its consolidated order entered on November 29, 2011, the trial court

ruled on several motions made by Bavand, two by OneWest and MERS, and

others by RTS. Specifically, this order denied most of Bavand's motions and

granted all of the defendants' motions. Among the latter motions, the court

granted the joint CR 12(b)(6) motion to dismiss of OneWest and MERS as well

as RTS's motion to validate its June 17, 2011 trustee's sale. On December 20,

2011, the trial court denied Bavand's motion for reconsideration of the order to

vacate the trustee's sale.

       This appeal followed.

                             FAILURE TO STATE A CLAIM

       Bavand first argues that the trial court erred when it granted MERS and

OneWest's joint CR 12(b)(6) motion to dismiss for failure to state a claim upon

which relief can be granted. Specifically, she argues that a material procedural

defect in the appointment of RTS as successor trustee under the deed of trust

made the trustee's sale invalid. We agree that Bavand has stated sufficient facts


       6 Id. at 97.
No. 68217-2-1/5


to demonstrate a material procedural defect in RTS's appointment as successor

trustee. Thus, she has made out a claim for relief.

       Under CR 12(b)(6), a motion to dismiss for failure to state a claim "should

be granted only if the plaintiff cannot prove any set of facts which would justify

recovery."7 "'[A]ny hypothetical situation conceivably raised by the complaint

defeats a CR 12(b)(6) motion if it is legally sufficient to support plaintiff's claim.'"8
Such motions "should be granted only 'sparingly and with care.'"9
       Either party may submit documents not contained in the original complaint

for consideration by the court in assessing a CR 12(b)(6) motion.10 Such
submissions generally convert a CR 12(b)(6) motion into a motion for summary

judgment.11
       Summary judgment is appropriate only when there is no genuine issue as

to any material fact and the moving party is entitled to judgment as a matter of




       7 Postema, 142 Wn.2d at 122.

       8 Bravo v. Dolsen Co., 125 Wn.2d 745, 750, 888 P.2d 147 (1995) (quoting
Halvorson v. Dahl, 89 Wn.2d 673, 674, 574 P.2d 1190 (1978)).

       9jdL (quoting Haberman v. Wash. Public Power Supply Svs., 109 Wn.2d
107, 120, 744 P.2d 1032 (1987)).

       10 Rodriguez v. Loudeve Corp., 144 Wn. App. 709, 726, 189 P.3d 168
(2008).

       11 Hansen v. Friend, 59 Wn. App. 236, 239, 797 P.2d 521 (1990).
No. 68217-2-1/6


law.12 This court reviews de novo a trial court's order granting summary
judgment.13

                               The Deeds of Trust Act

       Chapter RCW 61.24, the Deeds of Trust Act, governs deeds of trust in

Washington.

              When [a promissory note is] secured by a deed of trust that
       grants the trustee the power of sale [and] if the borrower defaults
       on repaying the underlying obligation, the trustee may usually
       foreclose the deed of trust and sell the property without judicial
       supervision.[14]

The supreme court has repeatedly stated that the Deeds of Trust Act "'must be

construed in favor of borrowers because of the relative ease with which lenders

can forfeit borrowers' interests and the lack of judicial oversight in conducting

nonjudicial foreclosure sales.'"15
       Under the Deeds of Trust Act, only a properly appointed trustee may

conduct a nonjudicial foreclosure. Moreover, only a proper beneficiary has the

power to appoint a successor to the original trustee named in the deed of trust.

       Former RCW 61.24.010(2) (2009) states:




       12 CR 54(c).
       13 Michael v. Mosouera-Lacv. 165 Wn.2d 595, 601, 200 P.3d 695 (2009).

       14 Bain v. Metro. Mortg. Group, Inc., 175 Wn.2d 83, 93, 285 P.3d 34
(2012).

       15 Schroeder v. Excelsior Mgmt. Group, LLC, 177 Wn.2d 94, 105, 297
P.3d 677 (2013) (quoting Udall v. T.D. Escrow Servs., Inc., 159 Wn.2d 903, 915-
16, 154 P.3d 882 (2007); Bain, 175 Wn.2d at 93 (quoting Udall, 159 Wn.2d at
915-16)).
No. 68217-2-1/7


                 The trustee may resign at its own election or be replaced by
        the beneficiary.... If a trustee is not appointed in the deed of
        trust, or upon the resignation, incapacity, disability, absence, or
        death of the trustee, or the election of the beneficiary to replace
        the trustee, the beneficiary shall appoint a trustee or a successor
        trustee. Only upon recording the appointment of a successor
        trustee in each county in which the deed of trust is recorded,
        the successor trustee shall be vested with all powers of an
        original trustee.[16]
        The plain words of this statute establish that the beneficiary of a deed of

trust is the sole entity entitled to appoint a successor trustee ifthe beneficiary

elects to replace the original trustee named in that deed of trust. This statute

makes equally clear that only upon the recording of the appointment of a

successor trustee with the auditor in the relevant county is a successor trustee

"vested with all the powers of an original trustee."17 Among these powers is, of
course, the power to conduct a nonjudicial foreclosure culminating in a trustee's

sale.

        The only reasonable reading of this statute is that the successor trustee

must be properly appointed to have the powers of the original trustee.18 Thus, a
dispositive question in this appeal is whether RTS was properly appointed as a

successor trustee by the beneficiary of Bavand's deed of trust. We conclude that

this record shows that RTS was not properly appointed as a successor trustee.

        Here, the CR 12(b)(6) motion was supported by numerous documents.

Among these documents is the Appointment of Successor Trustee, dated


        16 (Emphasis added.)
        17 Former RCW 61.24.010(2) (2009).

        18 Id.
No. 68217-2-1/8


December 15, 2010, that "OneWest Bank, FSB" executed.19 In that document,

OneWest states that it is "the present beneficiary" of the deed of trust that

Bavand executed in 2007.20 The jurat indicates the document was signed in
Texas on the same date as the date of the document: December 15, 2010.21

       Notwithstanding OneWest's representation in this appointment that it was

"the present beneficiary" of Bavand's deed of trust, this record shows that was

not true. Rather, on December 15, 2010, MERS was the named beneficiary in

that instrument.22

       We note that a thorough review of this record shows that OneWest is not

named either in the deed of trust or the promissory note that Bavand executed in

favor of IndyMac Bank.23 Thus, this record fails to establish that OneWest
correctly claimed on December 15, 2010 that it was then the "present

beneficiary" under the deed of trust.

       Because OneWest was not the beneficiary of the deed of trust at the time

it attempted to appoint a successor trustee, it had no authority under former

RCW 61.24.010(2) (2009) to appoint RTS as successor trustee. Absent that

authority, RTS was not vested with any of the powers of the original trustee




       19 Clerk's Papers at 27.

       20 Id,
       21 \± at 28.

       22 Id, at 24-25.

       23 Id. at 136-160.


                                              8
No. 68217-2-1/9


under the 2011 deed of trust. Specifically, RTS had no authority to conduct a

foreclosure and trustee's sale of Bavand's property.

      As we noted earlier in this opinion, MERS was the named beneficiary of

the deed of trust as of the date of OneWest's purported appointment of RTS as

successor trustee. Whether MERS, the named beneficiary at the time of the

purported appointment of RTS, was authorized to cure the defect in the

appointment of the successor trustee is a related question. We conclude MERS

was not so authorized. That is because MERS is not a proper beneficiary under

the Deeds of Trust Act. The reason for this is that a proper beneficiary under the

Act must be a "holder" of the note or other secured obligation.24 MERS is not a
holder of the note in this case.

       MERS, a consortium of mortgage investment companies, altered this

state's traditional three-party structure ofa deed oftrust.25 As our supreme court
explained in Bain v. Metropolitan Mortgage Group, Inc., the system MERS

established changed "'a traditional three party deed of trust [into] a four party

deed of trust, wherein MERS would act as the contractually agreed upon

beneficiary for the lender and its successors and assigns.'"26 Thus,
       "the MERS business plan ... is based in large part on amending
       this traditional model.... MERS is, in fact, neither a borrower nor
       a lender, but rather purports to be both 'mortgagee of record' and a
       'nominee' for the mortgagee."[27]

       24 Bain, 175 Wn.2d at 102-04; former RCW 62A.1-201(20) (2001).

       25 IdL at 94, 96.

       26 Id at 96.

       27 Id at 97 (quoting In re Agard, 444 B.R. 231, 247 (Bank. E.D. NY 2011)).
                                              9
No. 68217-2-1/10



       In Bain, the supreme court decided the effect of this change on the

traditional structure ofthe parties to a deed of trust.28 Specifically, it held that
MERS cannot be a lawful beneficiary under our state's statutes.29 The plain
language of RCW 61.24.005(2) defines a "beneficiary" as "the holder of the

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

. . ."30 As the supreme court concluded in Bain, "if MERS never 'held the

promissory note' then it is not a 'lawful beneficiary.'"31
       We note that the Bain court declined to answer what legal effect arose

from MERS acting as an unlawful beneficiary under our state statutes.32 It
declined to do so based on both an insufficient record in that case and the

briefing then before it.33 In this case, neither ofthese obstacles to the resolution
of the legal issue before us is present.

       Here, OneWest and MERS both conceded at oral argument in this appeal

that MERS never had possession of the promissory note that Bavand executed

in favor of IndyMac Bank in 2007. A legal consequence of this failure to establish

possession of the promissory note is that MERS was never a "holder" of this




       28 ]d at 91.

       29 |d at 108.
       30 (Emphasis added.)
       31 Bain, 175 Wn.2d at 99 (quoting RCW 61.24.005(2)).

       32 Id at 114.

       33 Id at 110.


                                               10
No. 68217-2-1/11



instrument.34 Consequently, as the Bain court expressly held, MERS is not a
proper beneficiary of this deed of trust securing Bavand's promissory note to

IndyMac Bank because it is not a "holder" ofthe secured note.35 Accordingly,
MERS also lacked any authority under former RCW 61.24.010(2) (2009) to

appoint RTS as the successor trustee.

      This is a material procedural defect and not a mere technicality. The

purported appointment of RTS as successor trustee by OneWest on December

15, 2010 was invalid because this institution was not then a beneficiary of the

deed of trust. Rather, MERS was then the purported beneficiary under the deed

of trust. Further, MERS itself had no authority to appoint RTS because it was not

the "holder" of the note. Consequently, MERS was not a proper beneficiary.

      Without a proper appointment, RTS did not succeed to any of the original

trustee's powers under the deed of trust. Specifically, it had no power to conduct

a nonjudicial foreclosure and trustee's sale of Bavand's property.36 This is a
material failure to comply with the provisions of the Deeds of Trust Act.

       OneWest and MERS make a number of arguments in an attempt to defeat

the application of the plain words of the statute to this case. None do so.




        34 See RCW 62A.3-301 ("'Person entitled to enforce' an instrument means
(i) the holder of the instrument. . . .").

       35 Bain, 175 Wn.2d at 104.

       36SeeRCW62A.3-301.


                                            11
No. 68217-2-1/12



       First, OneWest and MERS argue that Bavand has waived any claims by

failing to properly pursue remedies under the terms of RCW 61.24.130 and RCW

61.24.127.37 We disagree.

       Waiver is an intentional relinquishment ofa known right.38 In the
context of the Deeds of Trust Act, the supreme court recently said in Klem

v. Washington Mutual Bank that waiver is an equitable doctrine.39 "[W]e
apply waiver only where it is equitable under the circumstances and where

it serves the goals ofthe act.[40]
       RCW 61.24.040, which specifically governs foreclosure and trustee's

sales, provides:

                Anyone having any objection to the sale on any grounds
       whatsoever will be afforded an opportunity to be heard as to those
       objections ifthey bring a lawsuit to restrain the sale pursuant to
       RCW 61.24.130. Failure to bring such a lawsuit may result in a
       waiver of any proper grounds for invalidating the Trustee's sale.[41]
       RCW 61.24.130(1) of the Act further provides that a trustee's sale may be

enjoined by "the borrower, grantor, any guarantor, or any person who has an

interest in, lien or claim of lien against the property or some part thereof. . .." To

enjoin the sale, RCW 61.24.130 requires that "as a condition of granting the

       37
            Appellant's Opening Brief at 11-15.

       38 Schroeder, 177 Wn.2d at 106 (quoting Bowman v. Webster, 44 Wn.2d
667, 669, 269 P.2d 960 (1954)).

       39 176 Wn.2d 771, 783 n.7, 295 P.3d 1179 (2013).

       40 |d (quoting Albice v. Premier Mortg. Servs. of Wash., Inc., 174 Wn.2d
560, 570, 276 P.3d 1277 (2012)).

       41 RCW 61.24.040(1 )(f)(IX) (emphasis added).

                                              12
No. 68217-2-1/13



restraining order or injunction," the interested party "pay to the clerk of the court

the sums that would be due on the obligation secured by the deed of trust if the

deed of trust was not being foreclosed .. . ." The person seeking a TRO must

also give "five days notice to the trustee of the time when, place where, and the

judge before whom the application for the restraining order or injunction is to be

made."42

       RCW 61.24.127 contains similar language to that in RCW 61.24.040. This

statute states:


              (1) The failure of the borrower or grantor to bring a civil action to
       enjoin a foreclosure sale under this chapter may not be deemed a waiver
       of a claim for damages asserting:

              (a) Common law fraud or misrepresentation;

              (b) A violation of Title 19 RCW;

              (c) Failure of the trustee to materially comply with the provisions of
       this chapter; or

              (d) Aviolation of RCW 61.24.026.[43]
       Here, OneWest and MERS do not and cannot argue that Bavand failed to

seek injunctive relief prior to the trustee's sale. She did. Rather, they contend

that she failed to strictly conform to the provisions of relevant statutes when

doing so. According to them, these failures constitute a waiver of her right to

seek any relief. This claim is without merit.




       42 RCW 61.24.130(2).

       43 (Emphasis added.)

                                                13
No. 68217-2-1/14



       Most recently, the supreme court, in Schroeder v. Excelsior Management

Group, LLC, reinforced the principal that waiver does not occur where the

trustee's actions in a nonjudicial foreclosure are unlawful.44 There, the grantor
commenced an action to enjoin the trustee's sale and alleged that the land

encumbered by the deed oftrust was agricultural.45 Under RCW 61.24.030, the
deed of trust must contain a statement that the real property "is not used

principally for agricultural purposes." The supreme court concluded that the trial

court had improperly rejected a timely challenge to the trustee's sale of

Schroeder's land.46 "[T]he simple fact is that if Schroeder's property was
primarily agricultural, then the trustee lacked the statutory power to foreclose

nonjudicially"47
       In so holding, the supreme court reinforced a basic statement of law that it

originally had made in Cox v. Helenius: Even where a party fails to timely enjoin

a trustee sale under RCW 61.24.130, if a trustee's actions are unlawful, the sale

is void.48 In such cases, there is no waiver of the right to seek and obtain relief.

       Additionally, in another recent opinion, Albice v. Premier Mortgage

Services of Washington, Inc., the supreme court noted that the plain language of

RCW 61.24.040 indicates that waiver under the Deeds of Trust Act is not to be


       44 177 Wn.2d 94, 111-12, 297 P.3d 677 (2013).

       45 Id at 100-01.

       46 Id. at 112.

       47 Id.

       48 103 Wn.2d 383, 388-89, 693 P.2d 683 (1985).

                                             14
No. 68217-2-1/15



rigidly applied.49 In Albice, the supreme court concluded that "[w]aiver. . . cannot
apply to all circumstances or types of postsale challenges."50 It then pointed to
the language of RCW 61.24.040(1 )(f)(IX), which states that "'[fjailure to bring .. .

a lawsuit may result in waiver of any proper grounds for invalidating the Trustee's

sale.'"51

        In Frizzell v. Murray, Division Two echoed the supreme court's opinion in

Albice.52 There, the court addressed a challenge to a grantor's ability to

challenge a trustee's sale.53 Frizzell defaulted on her loan.54 She received
notification of this default and of the scheduled trustee's sale.55 Before the

trustee's sale, Frizzell filed a civil action against the Murrays. Her complaint

alleged a number of legal and equitable grounds for relief that would provide a

basis for restraining the trustee's sale . . . .56 Frizzell also sought a TRO.57 But
she failed to pay the bond to secure the TRO, as required under RCW


        49 174 Wn.2d 560, 570, 276 P.3d 1277 (2012).

        50 id
        51 ]d (emphasis added) (alterations in original) (quoting RCW
61.24.040(i)(f)(IX).

        52170 Wn. App. 420, 422, 283 P.3d 1139 (2012). review granted, 176
Wn.2d 1011 (2013).

        53 id at 422.

        54 id at 422, 424.

        55 id at 424.

        56 id
        57 id

                                              15
No. 68217-2-1/16



61.24.130.58 The trial court granted Murray summary judgment, concluding that
Frizzell had waived any claims challenging the sale ofthe property.59
       Division Two reversed, rejecting the trial court's analysis, holding that the

under RCW 61.24.040(1 )(f)(IX), "we apply waiver only where it is equitable under

the circumstances and where it serves the [Deeds of Trust Act goals]."60 Echoing
Albice, the Frizzell court concluded "[t]he legislature's use of 'may' in this statute

neither requires nor intends us to strictly apply waiver rules; so under this statute,

we apply waiver only where it is equitable under the circumstance and serves the

[Deed ofTrust Act's] goals."61
       Here, Bavand obtained a TRO on June 17, 2010, the date of the trustee's

sale. But she failed to provide the security that both the order and the statute

require. Further, it appears that she failed to provide the five day notice to RTS

prior to seeking to enjoin the sale.

       But under our case law—including Schroeder, Albice, and Frizzell—these

failures cannot, by themselves, constitute a waiver of her right to relief.62 This is
particularly true in this case, where the record illustrates the invalidity of the




       58 Id.

       59 id at 424-25.
       60 Jd at 427.
       61
            id,

       62 See Frizzell, 170 Wn. App. at 422; Albice, 174 Wn.2d at 570;
Schroeder, 177 Wn.2d at 112.


                                               16
No. 68217-2-1/17


appointment of RTS as the successor trustee. This invalid appointment, in turn,

made RTS's subsequent foreclosure and the trustee's sale invalid.

       MERS and OneWest rely on Plein v. Lackey63 and Brown v. Household
Realty Corp.,64 in arguing that Bavand waived any right to challenge the Deeds of

Trust Act violation. These cases are distinguishable.

       In Schroeder, the supreme court recently explicitly distinguished Plein and

implicitly distinguished this court's opinion in Brown.65 In Schroeder, the
supreme court noted that the respondents' reliance on Plein was "misplaced."66
"It is well settled that the trustee in foreclosure must strictly comply with the

statutory requirements. A trustee in a nonjudicial foreclosure may not exceed the

authority vested by that statute."67 As the supreme court went on to recognize,
Plein did not address any deficiencies either in the deeds of trusts or in failing to

comply with the express provisions of the Deeds of Trust Act.68
       Nor did this court address any such deficiencies in Brown.69 There, it
does not appear that MERS was involved in the deed of trust, nor were there any




       63 149 Wn.2d 214, 227, 67 P.3d 1061, 1066 (2003).

       64 146 Wn. App. 157, 189 P.3d 233 (2008).

       65 Schroeder, 177 Wn.2d at 111.

       66 id
       67 id at 111-12 (citing Albice, 174 Wn.2d at 568).

       68idat112.
       69 Brown, 146 Wn. App. at 164-65.

                                               17
No. 68217-2-1/18


other inconsistencies that violated the Deeds of Trust Act.70 And, this court relied

on Brown's failure to bring his action claiming a violation of the Deeds of Trust

Act until two years afterthe trustee's sale.71 In Albice, the supreme court
acknowledged that it had previously "recognized that allowing the borrower to

delay asserting a defense until after the sale would have defeated the spirit and

intent ofthe [Deeds ofTrust Act.]"72 But it then limited this recognition, noting
that "[w]aiver. . . cannot apply to all circumstances or types of postsale

challenges."73 Such is the case here, where Bavand sought relief prior to the
trustee's sale.


       OneWest and MERS next argue that the Deeds of Trust Act has no

provision that permits a cause of action for wrongful institution of foreclosure

proceedings.74 As we recently held in Walker v. Quality Loan Service
Corporation ofWashington, this argument is unsound.75
       Here, as in Walker, OneWest and MERS primarily rely on Vawter v.

Quality Loan Services Corp. ofWashington76 to support this assertion. In Walker




       70 id
       71 id at 166-67.

       72 Albice, 174 Wn.2d at 570.

       73 id

       74 Appellants' Opening Brief at 16.
       75 No. 65975-8-I, slip op. at 8-9 (Wash. Ct. App. Aug. 5, 2013).

       76 707 F. Supp. 2d 1115 (W.D. Wash. 2010).
                                             18
No. 68217-2-1/19


we explained why we reject the analysis and conclusion of that federal case.77

         First, we pointed out that Vawter was decided before the supreme court's

Bain decision.78 Second, we noted that the Vawter court relied on two other

federal cases decided before the legislature enacted RCW 61.24.127 and that

the Vawter court failed to take into account the plain language of this section of

the Deeds ofTrust Act.79 By amending RCW 61.24.127 in 2009, the legislature
explicitly recognized a cause of action for damages for failure to comply with the

Act.80

         Third, we noted that the availability of causes of action under the Deeds of

Trust Act could actually address some of the concerns expressed by the Vawter

court regarding a rash of litigation under the Act, given the complication that the

emergence of MERS has spawned.81
         Finally, we held that, in contrast to the Vawter opinion, prejudice could be

shown given the respondent's violations of the Deeds of Trust Act and the

consequent effect on the appellant.82
         Here, in addition to these reasons stated in Walker, there is another

reason to reject the analysis in Vawter. Our supreme court has repeatedly


         77 Walker, No. 65975-8-I, slip op. at 12-15.

         78 jd at 12.
         79 id at 12-13.

         80 \± at 13.

         81 id at 14.

         82 id at 14-15.

                                              19
No. 68217-2-1/20



stressed that our courts must be mindful that the Deeds of Trust Act should be

construed to further three basic objectives.83 They are: "(1) that the nonjudicial
foreclosure process should be efficient and inexpensive; (2) that the process

should result in interested parties having an adequate opportunity to prevent

wrongful foreclosure; and (3) that the process should promote stability of land

titles."84

        The legislature could not have intended that the first of these three

goals—an "efficient and inexpensive process" —could be accomplished at the

expense of the other two. For example, OneWest, and RTS disregarded the

plain words of former RCW 61.24.010(2) (2009) governing appointment of

successor trustees. Without a valid appointment of a successor trustee in this

case, the foreclosure and sale that followed were wrongful because they were

without statutory authority. Thus, our conclusions in this case are consistent with

a proper balancing of the objectives of this legislation, particularly the first two.

        OneWest and MERS next contend that where a borrower has "clearly

defaulted," she may not bring a claim under the Deeds of Trust Act complaining

about "wrongful foreclosure." We again disagree.

         In Frizzell, Frizzell also defaulted on her loan payments.85 But, relying on
the supreme court's opinion in Albice, Division Two of this court held that the

plain language of the Deeds of TrustAct gave Frizzell the right to restrain the

         83 See Plein, 149 Wn.2d at 225 (citing Cox, 103 Wn.2d at 387).

         84 id

         85 Frizzell, 170 Wn. App. at 422.

                                               20
No. 68217-2-1/21


nonjudicial sale of her home.86 Under the Deeds ofTrust Act, the court noted,
"'Anyone having any objection to the sale on any grounds whatsoever will be

afforded an opportunity to be heard as to those objections ifthey bring a lawsuit

to restrain the sale pursuant to RCW 61.24.130.",87 As in Frizzell, here, the
Deeds of Trust Act provided Bavand with the right to restrain the sale, despite

her default.

       Further, the cases upon which OneWest and MERS rely do not require a

different result in this case. They do not address this state's Deeds of Trust

Act.88 Thus, this argument is not persuasive.
       In an attempt to avoid the effect of failing to comply with RCW 64.24.130,

OneWest and MERS next argue that the trial court in this case was shown

documentation that OneWest is the note holder, citing Clerk's Papers at 3 and

136-140. This appears to be an attempt to show OneWest was a beneficiary at

the time of its purported appointment of RTS as successor trustee. These

citations to this record do not support this argument.

       The citation to Clerk's Papers 136-140 is to a document that bears a

stamp near the top of the first page, stating that the document is "certified to be a



       86 id at 427.
       87 id (quoting RCW 61.24.040(1 )(f)).
       88 See Cervantes v. Countrywide Home Loan. Inc., 656 F.3d 1034, 1038
(9th Cir. 2011) (dismissing the plaintiff class's "wrongful foreclosure" claims as
interpreted under Arizona state law): see also Marks v. Green Tree Servicing and
Default Resolution Network, 461 Fed. Appx. 534, 2011 WL 5316758, at *1 (9th
Cir. 2011) (stating only that "Marks failed to showthat she was not in default on
her mortgage loan.").

                                             21
No. 68217-2-1/22


true and correct copy of the original" note.89 This document is attached to a
legal memorandum, not any declaration or affidavit explaining more. Possession

of a "true and correct copy of the original" note does not, of course, establish

possession of the original note itself. Without possession of the note, on which

OneWest relies in this case, it is not the holder of that instrument either under the

Uniform Commercial Code or the Deeds of Trust Act.

       We also note that nowhere in this document on which OneWest relies is

there any mention of OneWest, by way of endorsement or otherwise. This

further undercuts its claim that it is a holder of the instrument on which it relies to

establish its status as a beneficiary for the purpose of appointing RTS as

successor trustee under Bavand's deed of trust.

          In rejecting this particular argument, we are aware that others have

claimed that lenders must "show-me-the-note" in orderto pursue foreclosure.90
We express no opinion on the validity of such an argument. We merely point out

that the representation made to the trial court in this case is not supported by this

record.

          Similarly, the citation to Clerk's Papers at 3 fares no better. There,

Bavand admits signing a note and deed of trust in favor of IndyMac Bank. How

that shows that OneWest is the holder of these instruments is left unexplained.




          89
               Clerk's Papers at 136 (emphasis added).

          90 See Elene-Arp v. Fed. Home Fin. Agency, No. C12-2154 RAJ, 2013 WL
1898218, at *4 (W.D. Wash. May 2013) (noting that "federal courts in
Washington" have rejected "show-me-the-note" arguments).

                                                22
No. 68217-2-1/23


       For these reasons, this record fails to substantiate OneWest's claim that it

was the holder of Bavand's note in favor of IndyMac Bank. Without such a

showing, it cannot establish its beneficiary status for purposes of appointment of

RTS as successor trustee.

      Without squarely addressing in their briefing the failure to comply with

former RCW 61.24.010(2) (2009), OneWest and MERS attempt to avoid the

impact of Bain on this case. They argue that MERS neither sought to foreclose

this deed of trust in its own name nor appointed RTS as successor trustee.91

This argument fails to deal with the basic problem: the invalid appointment of

RTS as successor trustee by OneWest. Whether MERS participated in the

foreclosure in the ways identified does not address this problem.

       For the first time at oral argument in this appeal, OneWest and MERS

made a new argument that is not in their brief. They appear to argue that MERS

was acting solely as a nominee for the lender when it executed the assignment to

OneWest. The chief problem with this new argument is that it makes no

difference to the outcome that we reach. Even if we assume that the terms of the

December 16, 2010 assignment show that MERS was then acting solely as a

nominee, the fact remains that the purported appointment of RTS by OneWest

was done one day earlier. Thus, whether MERS was acting as a nominee when

it executed the assignment is analytically irrelevant.




       91 Opening Brief of Respondents OneWest Bank, FSB and Mortgage
Electronic Registration Systems, Inc. at 24.


                                               23
No. 68217-2-1/24


        Another problem is that OneWest and MERS fail to establish the scope

and nature of the authority of MERS to act as nominee when it executed the

December 16, 2010 assignment. MERS failed to overcome a similar agency

problem in Bain.92 Specifically, as the Bain court stated, MERS failed to offer any
authority that, as the lender's nominee, it had an agency relationship with

successor noteholders.93 And here, despite MERS and OneWest's contentions

at oral argument in this appeal, they provided no authority or support for their

position that MERS had an agency relationship with successive noteholders. For

these reasons, this new argument is no more persuasive than the one argued in

Bain.

        OneWest and MERS contend that, because Bavand knew that OneWest

was purporting to be the legal beneficiary, she possesses no justifiable claim

against it or MERS now. We disagree.

        Nothing in the language of the Deeds of Trust Act supports the argument

that the legislature intended that a borrower's knowledge of who a beneficiary is

relieves compliance with the provisions of the statute. We will not read such a

provision into the plain words of this statute.

        To summarize, MERS and OneWest, with one exception that we shall

address momentarily, are unable to show that Bavand has failed to state a claim

upon which relief could be granted. Reversal and remand for further proceedings

is the proper remedy.


        92 Bain, 175 Wn.2d at 106-07.

        93 Id.


                                              24
No. 68217-2-1/25


                             Validity of Trustee's Sale

       One of the rulings that the trial court made in its consolidated order of

November 29, 2011 was that the June 17, 2011 trustee sale is valid. For the

reasons we have just discussed in this opinion, we disagree.

       The appointment of RTS as successor trustee was fatally flawed because

it failed to comply with the express provisions of former RCW 61.24.010 (2009).

Without a proper beneficiary making the appointment, RTS was not vested with

any of the powers of the original trustee under this deed of trust.94 There was no
authority for RTS to conduct the nonjudicial foreclosure and June 17, 2011
trustee's sale. Accordingly, we reverse that part of the consolidated order

validating that sale.

                                  Quiet Title Claim

       Bavand also argues that the trial court improperly dismissed her claim to

quiet title. At oral argument in this appeal, Bavand confirmed that the primary
focus of this claim is to extinguish the lien of the deed of trust given to secure her
obligation to IndyMac Bank. Her counsel acknowledged during oral argument
that extinguishing this lien would be subject to hersatisfying her debt to the true
owner of the note.

       This claim to quiet title is based on the argument that "the subject deed of
trust was irreparably severed from any underlying obligation. As a result any


        94 See RCW 61.24.010(2) ("The trustee may resign at its own election or
be replaced by the beneficiary. . . . Only upon recording the appointment of a
successor trustee in each county in which the deed of trust is recorded, the
successor trustee shall be vested with all powers of an original trustee.").

                                              25
No. 68217-2-1/26


security interest on the property arising from the deed of trust... is null and

void.").95 We need not address the validity of this theory for purposes of ruling

on this quiet title claim.

       In Walker, we recently dealt with a similar quiet title claim based on a

similar premise: that the note and deed of trust were severed by the actions of

the defendants.96 As we stated in that case, an action to quiet title is an

equitable proceeding that is "designed to resolve competing claims of ownership"

to property.97 It is a long-standing principle that "[t]he plaintiff in an action to quiet
title must succeed on the strength of his own title and not on the weakness of

his adversary."98 We held in Walker that, because Walker did not allege a quiet
title claim based on the strength of his own title, his quiet title claim failed.

        Here, Bavand's quiet title claim does not involve either title to or ownership

of the property. But the underlying principle that one must succeed on the

strength of one's own claim, not on the weakness of the adversary's claim, still


        95 Clerk's Papers at 9.

        96 Walker, No. 65975-8-1, slip op. at 26.

        97 id at 27 (quoting Kobza v. Tripp, 105 Wn. App. 90, 95, 18 P.3d 621
(2001)). Under RCW 7.28.120, "[t]he plaintiff in [a quiet title action] shall set forth
in his or her complaint the nature of his or her estate, claim, or title to the
property, and the defendant may set up a legal or equitable defense to plaintiff's
claims; and the superior title, whether legal or equitable, shall prevail."
        98 Desimone v. Spence, 51 Wn.2d 412, 415, 318 P.2d 959 (1957) (citing
City of Centralia v. Miller, 31 Wn.2d 417, 197 P.2d 244 (1948); Ecklev v. Bonded
Adjustment Co., 30 Wn.2d 96, 190 P.2d 718 (1948); Lewis v. City of Seattle, 174
Wash. 219, 24 P.2d 427 (1933); Rohrbach v. Sanstrom, 172 Wash. 405, 20 P.2d
28 (1933): Nvman v. Erickson, 100 Wash. 149, 170 P. 546 (1918): City of
Spokane v. Sec. Savs. Soc'v, 82 Wash. 91, 143 P. 435 (1914): Brown v.
Bremerton, 69 Wash. 474, 125 P. 785 (1912)).

                                                26
No. 68217-2-1/27


applies to this equitable proceeding. Specifically, Bavand's argument rests on

the alleged deficiencies in OneWest's, MERS's and RTS's handling the note and

deed of trust, not on her own claim. On this record, Bavand fails to meet the

controlling test we expressed in Walker. The trial court's dismissal of Bavand's

quiet title claim to extinguish the lien of the deed of trust was proper.

       In ruling on this specific claim, we express no opinion in whom title to this

property should vest for this litigation. That is a claim to ownership, and

ownership is not presently before us. This particular claim addresses only the

request to extinguish the lien of the deed of trust.

                         CONSUMER PROTECTION ACT

       Bavand also contends that the trial court improperly dismissed her

Washington CPA claim. We agree.

       Under Washington's CPA, "[u]nfair methods of competition and unfair or

deceptive acts or practices in the conduct of any trade or commerce are . ..

unlawful."99 Any person injured in his or her business or property by violation of

the CPA may bring a civil suit for injunctive relief, damages, attorney fees and

costs, and treble damages.100 To prevail on such a claim, the plaintiff must show
"'(1) [an] unfair or deceptive act or practice; (2) occurring in trade or commerce;

(3) public interest impact; (4) injury to plaintiff in his or her business or property;




       99 RCW 19.86.020.

       100 Panag v. Farmers Ins. Co. of Wash., 166 Wn.2d 27, 37, 204 P.3d 885
(2009) (quoting RCW 19.86.090).

                                               27
No. 68217-2-1/28


(5) causation.'"101 The failure to establish any one ofthese elements is fatal to a
plaintiff's CPA claim.102 Whether an action gives rise to a CPA violation is a
question of law that we review de novo.103 Below, OneWest and MERS argued

that the trial court should dismiss the CPA claim on two bases. First, they argued

that Bavand could not argue that she is entitled to damages for enforcement of a

security instrument to whose terms she assented.104 Second, they also argued
that she could not show a public interest impact by virtue of the nonjudicial

foreclosure.105 This record contains no further discussion by these moving

parties of any of the CPA claim's five elements other than public interest impact.

       On appeal, OneWest and MERS expand their arguments beyond what

they argued below. They argue that the only possible deceptive act or practice

impacting the public interest is the presence of MERS in the deed of trust.106
They also claim that MERS's presence did not injure Bavand.107 They are wrong
on both counts because this is too limited a view of this record.




       101 Bain, 175 Wn.2d at 115 (quoting Hangman Ridge Training Stables, Inc.
v. Safeco Title Ins. Co., 105 Wn.2d 778, 780, 719 P.2d 531 (1986)).

       102 Nguyen v. Doak Homes, Inc., 140 Wn. App. 726, 733, 167 P.3d 1162
(2007).

       103 Panag, 166 Wn.2d at 47 (citing Leingang v. Pierce County Med.
Bureau, Inc., 131 Wn.2d 133, 150, 930 P.2d 288 (1997)).

       104 Clerk's Papers at 133.

          105 id
          106 Opening Brief of Respondents OneWest Bank, FSB and Mortgage
Electronic Registration Systems, Inc. at 32.

          107 id at 34.
                                            28
No. 68217-2-1/29



                        Unfair or Deceptive Acts or Practices

       In Bain, the supreme court considered the effect of MERS's presence in

the deed of trust.108 The court stated:

       To prove that an act or practice is deceptive, neither intent nor
       actual deception is required. The question is whether the conduct
       has "the capacity to deceive a substantial portion of the public."
       Even accurate information may be deceptive "if there is a
       representation, omission or practice that is likely to mislead."
       Misrepresentation of the material terms of a transaction or the
       failure to disclose material terms violates the CPA. Whether
       particular actions are deceptive is a question of law that we review
       de novo.11091

       The court went on to discuss the fact that MERS appeared as the named

beneficiary in the deed of trust despite the fact that it is not a lawful beneficiary

under the statutes of this state.110 The court concluded that given its lack of legal

status presence in the deed oftrust had the capacity to deceive.111 Thus, the
court held, the first element of a CPA claim was presumptively met.112
       In addition to this deceptive practice identified by the Bain court, we note

that the case before us presents additional facts that may constitute an unfair or

deceptive practice on the part of OneWest. As we already discussed in this

opinion, OneWest falsely represented that it was the beneficiary under the deed

of trust when it purportedly appointed RTS as the successor trustee. The record

       108 Bain, 175 Wn.2d at 115-16.

       109 ]d (citations omitted) (quoting Hangman Ridge, 105 Wn.2d at 785;
Panag. 166 Wn.2d at 50).

       110]d at 116-17.
       111]dat117.

       112 id

                                              29
No. 68217-2-1/30


shows that it was not then the beneficiary of record; MERS was. Former RCW

61.24.010(2) (2009) expressly provides that only a beneficiary may appoint a

successor trustee to conduct a foreclosure. As this record shows, there was no

valid appointment of a successor trustee to conduct the foreclosure and trustee's

sale of Bavand's property.

      In Schroeder, the supreme court held that a failure to comply with express

provisions of the Deeds of Trust Act could satisfy the unfair or deceptive practice

element of a CPA claim.113 The provision of the act at issue in that case was the

requirement that only nonagricultural land may be the subject of a nonjudicial

foreclosure of a deed of trust.114 There, the trustee proceeded with a nonjudicial

foreclosure with knowledge that the property was used for agricultural

purposes.115
       For similar reasons, the failure to comply here with the provisions of

former RCWformer 61.24.010(2) (2009), which controls the appointment of

successor trustees, is also arguably an unfair or deceptive practice that serves to

fulfill the first element of a CPA claim. Thus, subject to pleading and proof of this

and the other CPA claim elements, liability could be established.




       113 Schroeder, 177 Wn.2d at 114.

       114jdat105, 114.

       115 Id.

                                             30
No. 68217-2-1/31


                                Public Interest Impact

       A plaintiff may show that a deceptive commercial act or practice has

affected the public interest by satisfying five different factors.116
       (1) Were the alleged acts committed in the course of defendant's
       business? (2) Are the acts part of a pattern or generalized course of
       conduct? (3) Were repeated acts committed prior to the act
       involving plaintiff? (4) Is there a real and substantial potential for
       repetition of defendant's conduct after the act involving plaintiff? (5)
       If the act complained of involved a single transaction, were many
       consumers affected or likely to be affected by it?[117]
       In the context of a similar CPA claim based on MERS's representation that

it was a beneficiary, the Bain court noted that "there is considerable evidence

that MERS is involved with an enormous number of mortgages in the country

(and ourstate). . . ."118 It then concluded that "[i]f in fact the language is unfair or
deceptive, it would have a broad impact. This element is also presumptively

met."119

       Here, MERS's status as the named beneficiary in this deed of trust

presumptively meets the public interest element of a CPA claim. As in Bain, the

alleged acts of MERS were done in the course of its business, and MERS listing

as a "beneficiary" was a generalized practice that was a course of conduct

repeated in hundreds of other deeds of trust.120 Further, as the Bain court held,

       116 Hangman Ridge, 105 Wn.2d at 789.

       117 id at 790.

       118 Bain, 175 Wn.2d at 118.

       119 id
       120 See id at 94-95.


                                               31
No. 68217-2-1/32


MERS's attempt to assign "all beneficial interest" in this deed of trust, where it

had no such interest to assign, also satisfies the public interest element. And,

OneWest also purported to appoint a successor trustee when it had no authority

to do so, both because its assignment occurred a day before MERS attempted to

"assign" its interest to OneWest and because, even if such an assignment had

occurred a day prior, MERS had no interest to assign. Given these three facts,

Bavand pled sufficient information for the public interest element of her CPA

claim to withstand summary judgment.

       MERS and OneWest argue that all of Bavand's arguments are predicated

on OneWest's actions, not those of MERS. Thus, they argue that the conclusion

in Bain regarding the public interest prong does not apply here. They are

mistaken.

       MERS purported to assign its beneficial interest to OneWest one day after

the latter purported to appoint RTS as successor trustee. But under the Deeds of

Trust Act, MERS was never a holder of the note or deed of trust, meaning it had

no beneficial interest in the note to assign.121 Thus, MERS's role in Bavand's
deed of trust is central to the alleged CPA violation.

                                Injury and Causation

       To make out a CPA claim, a plaintiff must also show that he or she was

injured in his or her "business or property."122 As the supreme court concluded in
Hangman Ridge Training Stables, Inc. v. Safeco Title Insurance Co., "[t]he injury


       121 RCW 61.24.005(2).

       122 Hangman Ridge, 105 Wn.2d at 792.


                                             32
No. 68217-2-1/33


involved need not be great, but it must be established."123 But, as the supreme
court noted in Panag v. Farmers Insurance Co. of Washington, "'Injury' is distinct

from 'damages.' Monetary damages need not be proved; unquantifiable

damages may suffice."124

       In Panag, the plaintiff was involved in a car accident and sued the other

drivers' insurance company and its collection agency for violation of the CPA.125

The defendants argued that Panag could not establish injury "because she did

not remand payment in response to the collection notices."126 The supreme court

rejected this argument.127 It held that "[t]o establish injury and causation in a
CPA claim, it is not necessary to prove one was actually deceived. It is sufficient

to establish the deceptive act or practice proximately caused injury to the

plaintiff's'business or property.'"128
       Here, Bavand's property was sold as a result of MERS's, OneWest's and

RTS's actions. Thus, Bavand can show an injury to her property sufficient to

withstand summary judgment as to her CPA claim.




       123 id

       124 Panag, 166 Wn.2d at 58 (citations omitted).

       125 id at 34-36.
       126 Jd at 58.

       127 id at 63-64.
       128 ]d (quoting Reiter v. Sonotone Corp., 442 U.S. 330, 340, 99 S. Ct.
2326, 60 L Ed. 2d 931 (1979)).


                                             33
No. 68217-2-1/34


       OneWest and MERS argue that Bavand was required to mitigate her

damages prior to bringing a CPA claim, and, because she did not, she cannot

now demonstrate injury. But OneWest and MERs do not explain how Bavand

failed to mitigate any of her damages. Nor do they explain how mitigation of

damages alters the initial injury to Bavand as a result of their actions. As Panag

noted, damages are distinct from whether an injury existed.129 Thus, their
argument fails.

       OneWest and MERS also contend that Bavand cannot demonstrate that

any of her alleged injuries were proximately caused by their commercial

practices. But, if reasonable minds could differ as is the case here, proximate

cause is a factual issue to be decided by the jury.130 Further, as we have
explained, MERS's failure to comply with the Deeds of Trust Act and the

consequent invalidity of the trustee's sale caused Bavand to lose her property

and incur expenses. This evidence of injury and causation is sufficient to

withstand a motion for summary judgment. MERS and OneWest's arguments to

the contrary are not persuasive.

       In sum, Bavand has pled sufficient facts that, if proved, could satisfy all

elements of a CPA claim. Dismissal of this cause of action against MERS and

OneWest was not warranted.131




       129 id at 58.

       130 Hertog v. City of Seattle. 138 Wn.2d 265, 275, 979 P.2d 400 (1999).

       131 Walker, No. 65975-8-I, slip op. at 26.

                                             34
No. 68217-2-1/35


       In her briefing on appeal, Bavand also asserts that RTS violated the

CPA.132 RTS does not respond to this claim in its briefing. Because of this lack
of briefing by RTS, we do not decide this question. Rather, we remand this claim

for further consideration by the trial court.

                                   OTHER CLAIMS

       The trial court's consolidated order makes a number of other rulings on

issues we need not decide. To assist the court and the parties on remand, we

identify what we do not decide and why.

       Bavand argues that the trial court erred when it refused to compel the

enforcement of an alleged CR 2A settlement agreement it claims to have made

with RTS to suspend the June 17, 2011 trustee's sale. Bavand also argues that

a valid TRO enjoined this same sale. Both of these issues are moot because this

court cannot give any relief for either claim.

       Generally, this court will not consider a moot issue unless it involves

"'matters of continuing and substantial public interest.'"133 "'A case is technically
moot if the court cannot provide the basic relief originally sought... or can no




       132
             Appellants' Opening Brief at 25, 28, 31.

       133 In re Cross, 99 Wn.2d 373, 377, 662 P.2d 828 (1983) (quoting
Sorenson v. City of Bellingham, 80 Wn.2d 547, 558, 496 P.2d 512 (1972)).


                                                 35
No. 68217-2-1/36



longer provide effective relief.'"134 Mootness is a question of law that this court
reviews de novo.135

       Here, the trustee's sale has already occurred. Further, as RTS confirmed

at oral argument, it issued a trustee's deed to the successful bidder at that sale.

While we have concluded that the trustee's sale did not lawfully comply with the

Deeds of Trust Act, any argument as to the TRO obtained by Bavand to halt the

sale is now moot as this court can no longer provide that relief. Thus, we need

not address Bavand's claims that the trial court erred when it refused to compel

what she characterizes as a settlement agreement between her counsel and

RTS regarding the trustee's sale. Nor need we address whether the TRO

Bavand obtained was valid and should have prevented the trustee's sale in the

first place. These matters are also moot.

       MERS and OneWest argue that assignments of deeds of trust are

recorded for notice purposes only. They also contend that the note and deed of

trust were not severed and thus MERS had the right to transfer its interest to

OneWest. We need not address these arguments because they are not relevant

to our primary decision in this appeal.




       134 Dioxin/ Organochlorine Ctr. v. Pollution Control Hearings Bd.. 131
Wn.2d 345, 350-51, 932 P.2d 158 (1997) (citations omitted) (quoting Snohomish
County v. State. 69 Wn. App. 655, 660, 850 P.2d 546 (1993)).

      135 Hilltop Terrace Homeowner's Ass'n v. Island County, 126 Wn.2d 22,
29,891 P.2d29(1995).


                                             36
No. 68217-2-1/37


                                ATTORNEY FEES


      Bavand and OneWest each seek an award of attorney fees based on the

provision for fees in the deed of trust. RTS does not seek an award of fees. We

note that Bavand may also seek an award of attorney fees against each

defendant against whom her CPA claim is successful. But an award of fees to

any party on any basis is premature, and we consequently deny all requests.

      There is, as yet, no prevailing party for any of the claims in this action.

Accordingly, it is premature to award fees to any party. The decision on this

question should abide the trial court's judgment after remand and further

proceedings.

      We affirm the dismissal of the quiet title claim. We reverse the remainder

of the trial court's order granting OneWest and MERS's CR 12(b)(6) motion to

dismiss. We also reverse the order validating the trustee's sale. We remand for

further proceedings.

                                                        &ft,J
WE CONCUR:




    /^^^^ C              4 .




                                             37
