                                                                                                  P0
                                                                                    uud .  I OF APPEALS
                                                                                          DIVISION 11

                                                                                   20I1 JUL - I   AM 8: 149

                                                                                   STATE OF WASHINGTON

                                                                                     Y.
                                                                                            DE UT¥




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                    DIVISION II


COLUMBIA STATE BANK,                                                               No. 44336 -8 -II
a Washington banking corporation,

                                        Respondent,


         v.




AMAS CANZONI and TANANA CANZONI,
individually, and the marital community
composed thereof,                                                            UNPUBLISHED OPINION


                                        Appellants.


         WORSWICK, J. —            Amas Canzoni appeals the superior court' s summary judgment order in

favor   of   Columbia Bank.'         Columbia was the beneficiary of a deed of trust to Canzoni' s

property, which was nonjudicially foreclosed after Canzoni' s nonpayment of the promissory note

secured by the deed of trust. The superior court' s summary judgment order granted Columbia' s

complaint for specific performance of the deed of trust (by authorizing Columbia' s entry on and

inspection     of   Canzoni'   s   property),   returned   Columbia'   s$   100 bond, and dismissed Canzoni' s


claims with prejudice.




 Tanana Canzoni, Amas Canzoni' s late wife, was also a party to this action. Tanana passed
away in April of 2012. For the purposes of clarity, we refer to only Amas Canzoni throughout,
despite Tanana' s initial involvement.
No. 44336 -8 -II



          On appeal, Canzoni argues that ( 1) Columbia' s counsel testified as a witness by stating

facts   not    in   evidence, (     2) the superior court' s consideration of the promissory note' s photocopy

as admissible         in the     original   note'   s place violated        the best    evidence rule, (   3) Columbia' s inability

to   produce        the   original note prevents           it from   being   the   note' s   holder, ( 4) Canzoni' s " EFT


instrument" discharged his loan debt to Columbia, ( 5) fraudulent or innocent misrepresentation


rendered       the   note      voidable, ( 6)   a   lack   of consideration rendered           the   note void, (7)   the superior


court had no personal jurisdiction over Canzoni because he is a living person rather than a

corporation, and ( 8) Eisenhower had an actual conflict of interest by serving concurrently as the

deed of trust' s trustee and as a representative of that deed of trust' s beneficiary, Columbia.

Because Canzoni' s arguments have no merit, we affirm.

                                                                     FACTS


A.        Factual History

          1.        Canzoni' s Equity Loan, Promissory Note, and Deed of Trust

          In 2002, Canzoni applied for and received a $ 200, 000 equity loan from Community

Mortgage Company. Canzoni signed a promissory note secured by a deed of trust. The note
stated in part:


                          In   return for a   loan    that   I have   received,     I   promise   to pay [] $   200, 000. 00
             plus interest, to the order of the Lender. The Lender is Community Mortgage
          Company.
                          I    understand     that the Lender may transfer this Note.                       The Lender or

          anyone who takes this Note by transfer and who is entitled to receive payments
          under this Note is called the " Note Holder."


 Clerk' s Papers ( CP) at 32 ( emphasis added).




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No. 44336 -8 -II



        The deed of trust named Community Mortgage Company as the beneficiary and Chicago

Title Insurance Company as the Trustee. The deed of trust stated in part:

                 Lender or its agent may make reasonable entries upon and inspections of
        the   Property. If it has reasonable cause, Lender may inspect the interior of the
        improvements on the Property.

CP at 17. In open court, Canzoni admitted to signing the note and the deed of trust.

        2.    Columbia' s Acquisition of the Note and the Deed of Trust

        In 2003, Community Mortgage Company assigned the deed of trust to American Marine

Bank. Chicago Title Insurance Company remained the trustee. Community Mortgage Company

endorsed the note to American Marine Bank with an allonge. Columbia became the note' s

holder on January 30, 2010 after acquiring American Marine Bank' s assets, including the note
                           2
and   deed   of   trust.       Columbia could not find the original note, but had the note' s photocopy,

which Columbia presented to the superior court.


        3.    Canzoni' s Default and " EFT Instrument"


        Canzoni had             withdrawn     the   entire $ 200, 000   loan   principal   by   March 10, 2003.   Canzoni


made payments on               the loan   from October 1, 2002,       until    May   4, 2011.    But then Canzoni stopped


making payments on the loan, which placed him in default.

         In 2012, following Canzoni' s default, Canzoni attempted to discharge the remainder of

his loan debt      by   sending Columbia            a check   for $ 185, 656. 41. This check was drawn on a closed


bank   account with            Anchor Savings Bank. On the            check' s   front, Canzoni    wrote, "   EFT Only" and

  For Discharge         of     Debt."   CP   at   302. On the   check' s   back, he   wrote, " Not   for Deposit EFT




 2 Columbia acquired American Marine Bank' s assets as the successor in interest to the Federal
 Deposit Insurance Corporation, which was a receiver for American Marine Bank.



                                                                  3
No. 44336 -8 -I1



Only"   and "   For Discharge       of   Debt."   CP   at   303.   Canzoni also signed the check' s back as an


 Authorized Representative," and wrote " Without Recourse" under his signature. CP at 303.


        Columbia informed Canzoni that it could not accept his check because, according to

Anchor Savings Bank, the check was not associated with any open account. Columbia offered to

accept payment        by " cash,   cashier' s check,    money          order[,]   or wire   transfer."   CP at 301.


        4. Eisenhower &            Carlson, PLLC' s Nonjudicial Foreclosure of Canzoni' s Property

        Due to Canzoni' s default and pursuant to the deed of trust, Columbia initiated nonjudicial

foreclosure proceedings against Canzoni' s property. Columbia' s legal representative,

Eisenhower & Carlson, PLLC ( Eisenhower), was appointed as the deed of trust' s trustee.


Eisenhower began a trustee' s sale of the property.

B.       Procedural History

         1.   Columbia' s Complaint and Motion for Preliminary Injunction

         While the nonjudicial foreclosure was pending, Columbia filed a complaint for specific

performance of the deed of trust provision that authorized the lender' s entry on and inspection of

the property. Columbia' s complaint requested

         a    court     immediately requiring [ Canzoni] to grant Columbia Bank or its
                      order

         agents reasonable access to the Property for the purposes of conducting an
         appraisal and environmental inspection of the Property.

CP at 9. Columbia' s complaint limited its request to an order requiring Canzoni to allow

Columbia to      enter and    inspect the property, stating that "[ t] hrough this action, Columbia Bank is


not   seeking   satisfaction of [Canzoni' s        loan]."     CP at 8. After filing its complaint, Columbia

moved the superior court to enter a preliminary injunction seeking reasonable access to the

property for the purposes of conducting an appraisal and environmental inspection.



                                                                   4
No. 44336 -8 -II



            2.   Canzoni' s " Bill in Equity"

            In response to Columbia' s complaint and motion for a preliminary injunction, Canzoni

filed   a   document      entitled "   Bill in   Equity." Canzoni' s " Bill in Equity" requested many forms of

relief, including that

            all alleged accounts, principal and interest, public and private side are paid in full
            and that there is no obligation whatsoever by the complainants to either make
            additional substitution or suffer any attempts of being deprived of land and
            property owned free and clear.
            That a ` FULL RECONVEYANCE DEED' and consequently the original Trust
            Res with wet ink signatures is released to the Complainants as paid in full without
            further ado.


CPat58.


            3.   Canzoni' s Motion To Vacate the Superior Court' s Preliminary Injunction

            After receiving Canzoni'             s"   Bill in   Equity," the superior court granted Columbia' s request

for a preliminary injunction, allowing Columbia to enter and inspect the property. The

preliminary injunction required Columbia to execute and file a $ 100 bond. Canzoni then moved

to vacate this preliminary injunction.

            During Canzoni' s argument to vacate the preliminary injunction, he made the following

statements to the superior court:


            But nevertheless, before we stopped payments on the loans, or the alleged loans,
            Columbia Bank officially is a servicer of the loan and not necessarily an issuer of
            a loan.
                   So we did basically sign, let' s say, the promissory note and the deed of
            trust    being aware what' s — of what' s really going on, and that led to the
                    not

            understanding that we are actually not having been loaned any money.

Verbatim Report           of   Proceedings ( VRP)           at   35.   Later during that same hearing, Columbia' s

 attorney made the following statements to the superior court, which Canzoni claims constituted

 witness testimony:


                                                                        5
No. 44336 -8 -II



        Your Honor, if I may              The points that Mr. Canzoni raised during his
                                       continue.

        initial argument was I believe, if I heard correctly, acknowledged that at some
        point   in time he did   sign a note and      deed   of   trust. Although —and       made payments

        towards that note and deed of trust, at a later date decided that he was not subject
        to the note and deed of trust and stopped making payments.

         B] ecause there' s no basis in law or fact for them under 12( b)( 6) or otherwise.
        This is not a case where there is a bona fide dispute, for instance, that a loan was
        made.      This is not a case where, for instance, a national bank using robo signers
        has apparently       started   a wrongful    foreclosure.       This is a case where the record
        reflects   abundantly there       was   a   loan.    It   was   made.    It' s an obligation of the
        defendants,    and   it' s been in default for      some period of      time.   At the core factually
        we submit this is a very simple case, and as a result, we' d ask the court to deny
        the defendant' s motions thereby enabling this case to remain pending and
        allowing the bank to proceed with a nonjudicial foreclosure sale.

VRP at 49, 88. After the hearing, the superior court entered an order reaffirming its preliminary

injunction.


        4. Canzoni' s Motions To Dismiss, Stay Trustee' s Sale, and Challenge Jurisdiction

        After the superior court reaffirmed its preliminary injunction, Canzoni filed three motions

with the superior court. First, Canzoni moved under CR 12( b)( 6) to dismiss Columbia' s

complaint for failure to state a claim upon which relief can be granted. Second, Canzoni moved


to stay the trustee' s sale until the superior court ruled on his CR 12( b)( 6) motion. Third, Canzoni
moved to challenge the superior court' s jurisdiction to hear this matter on grounds that he is a


living person, rather than a corporate entity. The superior court denied Canzoni' s three motions

in their entirety.

5.   Canzoni' s Motion To Stay the Nonjudicial Foreclosure Proceedings

         After the superior court denied Canzoni' s three motions, Eisenhower successfully sold

the property through its trustee' s sale. Following this sale, Canzoni moved the superior court to




                                                             6
No. 44336 -8 -II



stay the nonjudicial foreclosure proceedings until the conclusion of the litigation between

Canzoni and Columbia. The superior court denied Canzoni' s motion.


        6.      Columbia' s Summary Judgment Motion

        Following the superior court' s order denying Canzoni' s motion to stay the nonjudicial

foreclosure proceedings, Columbia moved for summary judgment, requesting

           1)    the entry of summary judgment against [ Canzoni] on [ Columbia' s] claim for
         specific performance ( access      to property), ( 2)   release of   its $ 100. 00 cash bond,
        and ( 3) dismissal of [Canzoni' s] claims with prejudice.


CP at 526. Columbia' s summary judgment motion explained that because the property' s

nonjudicial foreclosure was complete, it had no further need to enter the property.

         The superior court granted Columbia' s motion for summary judgment. The superior

court' s summary judgment order granted Columbia' s complaint for specific performance of the

deed of trust (by authorizing Columbia' s entry on and inspection of Canzoni' s property),

returned     Columbia' s $ 100 bond, and dismissed Canzoni' s claims with prejudice. Canzoni


appeals the superior court' s summary judgment order.

                                                 ANALYSIS


         We review summary judgment orders de novo. Ranger Ins. Co. v. Pierce County, 164

Wn.2d 545, 552, 192 P. 3d 886 ( 2008).        Summary judgment is appropriate if, when viewing the

facts in the light most favorable to the nonmoving party, no genuine issues of material fact exist

and   the moving party is    entitled   to judgment   as a matter of   law. CR 56( c); Ranger Ins., 164


Wn.2d at 552. Mere allegations or conclusory statements of facts unsupported by evidence do

not sufficiently establish the existence of a genuine issue of material fact. Baldwin v. Sisters of

Providence in Wash., Inc., 112 Wn.2d 127, 132, 769 P. 2d 298 ( 1989); Discover Bank v. Bridges,




                                                         7
No. 44336 -8 -II



154 Wn.       App.       722, 727, 226 P. 3d 191 ( 2010).            The nonmoving party may not rely on

speculation, argumentative assertions that unresolved issues remain, or its affidavits being

considered at        face      value.    Seven Gables     Corp.      v.   MGM/UA Entm' t Co., 106 Wn.2d 1, 13, 721


P. 2d 1 ( 1986).         After the moving party has submitted adequate affidavits, the burden shifts to the

nonmoving party to set forth specific facts that sufficiently rebut the moving party' s contentions

and    disclose the        existence of a material        issue    of     fact. Seven Gables          Corp.,   106 Wn.2d    at   13. We


consider only admissible facts and affidavits in determining whether summary judgment is

proper.    CR 56( e);          King County, Fire        Prot. Dist. No. 16            v.   Hous. Auth. of King      County.,     123


Wn.2d 819, 826, 872 P. 2d 516 ( 1994).


          Under the Deed of Trust Act,3 a deed of trust is a three -party transaction. Bain v. Metro.

Mortg. Grp., Inc.,             175 Wn.2d 83, 92 -93, 285 P. 3d 34 ( 2012).                       Land is conveyed by a borrower

 the   grantor),     to    a   third party ( the trustee),   who holds title in trust for a lender (the beneficiary),

as   security for        credit or a     loan. 175 Wn.2d      at   93.        The deed of trust protects the lender by giving

it the power to nominate a trustee, who then has the power to sell the property if the borrower

defaults. 175 Wn.2d                at   88. If the borrower defaults, the trustee can conduct a nonjudicial


foreclosure,        and sell      the property   at a   trustee' s   sale.      Rucker      v.   Novastar   Mortg., Inc.,   177 Wn.


App. 1, 10 -11, 311 P. 3d 31 ( 2013).

          On appeal, Canzoni argues that ( 1) Columbia' s counsel testified as a witness by stating

facts   not   in   evidence, (      2) the superior court' s consideration of the promissory note' s photocopy

as admissible        in the      original note' s place violated              the best     evidence rule, (    3) Columbia' s inability

to   produce       the   original note prevents         it from   being        the   note' s   holder, ( 4) Canzoni' s EFT


3 Former Chapter 61. 24 RCW (2012).



                                                                          8
No. 44336 -8 -II


instrument discharged his loan debt to Columbia, ( 5) fraudulent or innocent misrepresentation


rendered   the   note voidable, ( 6)   A lack   of consideration rendered        the   note void, ( 7)   the superior


court has no personal jurisdiction over Canzoni because he is a living person rather than a

corporation, and ( 8) Eisenhower had an actual conflict of interest by serving concurrently as the

deed of trust' s trustee and as a representative of that deed of trust' s beneficiary Columbia.

Canzoni' s arguments have no merit.


                        I. COLUMBIA' S COUNSEL DID NOT TESTIFY AS A WITNESS


        Canzoni argues that Columbia' s counsel testified as a witness during its arguments before

the superior court by stating facts not in evidence, thereby violating Canzoni' s due process rights

and the hearsay rule. We disagree because counsel' s comments did not constitute testimony.

        Canzoni' s challenge addresses two specific excerpts from the arguments before the

superior court. Every factual assertion presented by Columbia' s counsel in these two excerpts

was based on either Canzoni' s statements to the superior court or evidence properly before the

superior court (the note and deed of trust supported the loan' s existence and a loan payment

schedule supported      the length     of   Canzoni'   s   default).   Thus, Columbia' s counsel did not testify as

a witness in the challenged excerpts.


      II. CONSIDERING PHOTOCOPY As ADMISSIBLE DID NOT VIOLATE BEST EVIDENCE RULE

        Canzoni argues that the superior court' s consideration of the note' s photocopy as

admissible in the original note' s place violated the best evidence rule because Canzoni cannot

know whether the photocopy was altered from the original unless Columbia produces the

 original. We disagree.




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No. 44336 -8 -II



       We review evidence rulings in conjunction with summary judgment motions de novo.

Parks v. Fink, 173 Wn. App. 366, 375, 293 P. 3d 1275, review denied, 177 Wn.2d 1025 ( 2013).

ER 1002     states   that "[ t] o    prove   the   content of a   writing . . .     the   original   writing . . .   is


required,   except    as   otherwise provided         in these    rules."   ER 1003 states that a duplicate of a


written instrument is admissible to the same extent as the original document unless a genuine


question is raised as to the original' s authenticity, or it would be unfair to admit the duplicate in

the original' s place. Under ER 1001( d):


                             is a counterpart produced by the same impression as the
                 A " duplicate"
        original,     or       same matrix, or by means of photography, including
                           from the
        enlargements and miniatures, or by mechanical or electronic recording, or by
        chemical reproduction,  or by other equivalent techniques which accurately
        reproduce the original.


        Here, Columbia presented the note' s photocopy, which qualifies as a duplicate of the

original note.   See Braut      v.   Tarabochia, 104 Wn.         App.   728, 732, 17 P. 3d 1248 ( 2001).      Canzoni


does not dispute the original 's authenticity, but argues that it was unfair to consider the note' s

photocopy as admissible in the original note' s place. Canzoni provided no evidence that the

duplicate was altered from the original in any way, but instead speculates that it is possible that

the duplicate was altered, and that Columbia must produce the original to ensure that the


duplicate was not altered.


        Canzoni' s argument constitutes speculation without evidence that the note was altered.


Because Canzoni may not rely on this speculation, we hold that it was not unfair to consider the

note' s photocopy as admissible in the original note' s place.




                                                             10
No. 44336 -8 -II



                                           III. COLUMBIA IS THE NOTE' S HOLDER


            Canzoni argues that because Columbia cannot produce the original note, it cannot be the


note' s holder, which prevents Columbia from being the deed of trust' s beneficiary. We disagree.

            Traditionally, a deed of trust' s beneficiary is the lender who loaned money to the

borrower. Bain, 175 Wn.2d at 88. But lenders are free to sell the secured debt, typically by

selling the       note signed       by the   borrower. 175 Wn.2d at 88. The Deed of Trust Act recognizes


that the deed of trust' s           beneficiary    at   any   one   time    might not   be the   original   lender. 175 Wn.2d


at   88.   The Act therefore gives the debt' s subsequent holders " 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. "'   175 Wn.2d at 88 ( quoting RCW 61. 24. 005( 2)).

            Proof that the beneficiary holds the note secured by a deed of trust is a statutory requisite

to   a   trustee' s   sale.   RCW 61. 24. 030( 7)(        a). "[    O] nly 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.


             But there is no requirement that a beneficiary or trustee produce the original note as long

as the beneficiary or trustee has " 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 ...   shall




be   sufficient proof."         RCW 61. 24. 030( 7)( a).




                                                                       11
No. 44336 -8 -II



          Here, Columbia produced a photocopy of the original note, and Columbia' s assistant vice

president declared under penalty of perjury that Columbia is the note' s holder because it acquired

American Marine Bank' s assets, and because no other party has an interest in the note. Canzoni

does not assert any facts or evidence that contradicts Columbia' s status as the note' s holder.

Canzoni instead argues that Columbia cannot be the note' s holder unless it produces the original

note. This is not an accurate statement of the law. The declaration of Columbia' s assistant vice

president stating that Columbia is the note' s holder is sufficient proof of Columbia' s status as the

note' s   holder. RCW 61. 24. 030( 7)(         a).   Thus, no genuine issues of material fact exist as to

whether Columbia is the note' s holder.


              IV. THE " EFT INSTRUMENT" DID NOT DISCHARGE CANZONI' S LOAN DEBT

           Canzoni   argues   that   his " EFT instrument," a check written on a closed account, has


discharged his loan debt to Columbia. We disagree.


           Canzoni' s " EFT instrument" is a check drawn on a closed account with Anchor Savings

Bank. Canzoni argues that this instrument was some form of legal tender, but he cites no law

establishing that checks drawn on a closed or non -existent bank account can discharge a debt

simply because the      check' s     drafter   characterized   it   as an "   EFT instrument." No such law exists.


Thus, we hold that Canzoni' s " EFT instrument did not discharge his loan debt.

                        V. THE NOTE IS NOT VOIDABLE FOR MISREPRESENTATION


           Canzoni argues that the note is voidable for containing a fraudulent or innocent

misrepresentation because while the note referred to " a loan that I have received" in the past

tense, Canzoni did not receive the loan money until after signing the note. We disagree.




                                                              12
No. 44336 -8 -II



           A fraudulent misrepresentation or, under the right circumstances, even a material


innocent   misrepresentation can render a contract voidable."               Yakima County ( W. Valley) Fire

Prot. Dist. No. 12        v.   City   of Yakima, 122 Wn.2d 371, 390, 858 P. 2d 245 ( 1993).     Fraudulent and


innocent misrepresentation both require the claimant to demonstrate a misrepresentation of a


material   fact. Hoffman          v.   Connall, 108 Wn.2d 69, 72, 736 P. 2d 242 ( 1987);    Stiley v. Block, 130

Wn.2d 486, 505, 925 P. 2d 194 ( 1996). A fact is material if a reasonable person would attach


importance to the representation' s existence in connection with his decision to enter into the

transaction. Martin v. Miller, 24 Wn. App. 306, 309, 600 P. 2d 698 ( 1979).

       Here, Canzoni argues that the note' s statement defining the loan as a loan that Canzoni

had received, as opposed to a loan that he would receive after signing the note, misrepresented a

material fact. A reasonable person would not attach importance to the existence of this

difference in tense in connection with his or her decision to enter into the loan agreement by

signing the note. Thus, because Canzoni failed to allege that the note contained a

misrepresentation of a material fact, the note is not voidable for containing a fraudulent or
                                        4
innocent    misrepresentation.




                           VI. THE NOTE IS NOT VOID FOR LACKING CONSIDERATION


        Canzoni argues that consideration did not support the note because while the note


referred   to "   a   loan that I have      received,"   Canzoni did not receive the loan money until after

signing the note. CP at 32. We disagree.

4 Canzoni asserts that the use of the term " money" in the note and deed of trust constituted a
misrepresentation because " money" is an ambiguous term in the age of modern finance. But
Canzoni provides no explanation as to how this alleged ambiguity caused a misrepresentation in
the meaning of the documents that he signed. Thus, Canzoni' s argument suffers from a lack of
reasoned argument, making it insufficient to warrant judicial consideration. Postema v.
Pollution Control Hearings Bd., 142 Wn.2d 68, 123 -24, 11 P. 3d 726 ( 2000).


                                                                13
No. 44336 -8 -II



       Determining whether consideration supports a contract is a question of law reviewed de

novo. Hanks v. Grace, 167 Wn. App. 542, 548, 273 P. 3d 1029, review denied, 175 Wn.2d 1017

 2012). " Consideration is    a             for
                                  bargained -     exchange of promises."           Labriola v. Pollard Grp.,

Inc., 152 Wn.2d 828, 833, 100 P. 3d 791 ( 2004).


       Here, Canzoni signed the note and the deed of trust, which promised to give him a loan of

 200, 000 in exchange for repayment with interest. This is a bargained -for exchange of promises.

That one line of the note used the past tense in referring to " the loan I have received" when

Canzoni had not received the loan money until after signing the note, does not change that there

was a bargained -
                for exchange of promises. Thus, consideration supported the note.

                     VII. CANZONI WAIVED HIS PERSONAL JURISDICTION DEFENSE


        Canzoni argues that because he is a living person, rather than a corporate entity, the

superior court has no personal jurisdiction over him. We hold that Canzoni has waived his lack

of personal jurisdiction defense.


        A party waives the defense of lack of personal jurisdiction by seeking affirmative relief in

the courts, thereby invoking the court' s jurisdiction. In re Marriage ofParks, 48 Wn. App. 166,

170, 737 P. 2d 1316 ( 1987). " Affirmative        relief   is defined   as `[   rjelief for which defendant might


maintain an action independently of plaintiff' s claim and on which he might proceed to recovery,

although plaintiff abandoned       his   cause of action or     failed to   establish   it. "' Negash v. Sawyer,


 131 Wn.   App.    822, 827, 129 P. 3d 824 ( 2006) ( quoting        Grange Ins. Ass 'n v. State, 110 Wn.2d

752, 765 -66, 757 P. 2d 933 ( 1988)) ( alteration in original).




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No. 44336 -8 -II



       Here, Columbia' s complaint was limited to requesting entry onto the property for the

purposes of conducting an appraisal and environmental inspection. Columbia' s complaint did

not request the loan' s repayment. The nonjudicial foreclosure was not part of Columbia' s

complaint because it was nonjudicial.


        Canzoni responded to Columbia' s complaint and motion for a preliminary injunction by

filing a " Bill in Equity" that requested an order ruling that Canzoni' s loan was paid in full and

requiring Columbia to provide Canzoni a reconveyance deed. This relief requested in Canzoni' s

 Bill in Equity" is relief for which Canzoni might maintain an action independently of

Columbia' s claim for entry on and inspection of Canzoni' s property, and on which Canzoni

might proceed to recovery, although Columbia abandoned its cause of action or failed to

establish it. Thus, Canzoni waived his challenge to personal jurisdiction by filing his " Bill in

Equity."

              VIII. EISENHOWER DID NOT HAVE AN ACTUAL CONFLICT OF INTEREST

        Canzoni argues that Eisenhower' s concurrent service as the deed of trust' s trustee and as


the representative of that deed of trust' s beneficiary caused an actual conflict of interest. We

disagree because Canzoni supports his argument with only speculation.

        An attorney has been allowed to serve concurrently as the deed of trust' s trustee and as

the representative of that deed of trust' s beneficiary since the legislature " specifically amended

 RCW 61. 24. 020] in 1975 to allow an employee, agent or subsidiary of a beneficiary to also be a




                                                  15
No. 44336 -8 - II


                                         5
trustee" of the     deed   of   trust.       Cox   v.   Helenius, 103 Wn.2d 383, 390, 693 P. 2d 683 ( 1985);                   see




Meyers Way Dev. Ltd. P 'ship v. Univ. Say. Bank, 80 Wn. App. 655, 666 n.8, 910 P. 2d 1308

 1996).   But if an actual conflict of interest with the debtor results from the creditor' s attorney

serving as trustee, the attorney cannot continue serving as the trustee. Meyers, 80 Wn. App. at

666.


          Here, Canzoni speculates without evidence that Eisenhower' s concurrent service as the


deed of trust' s trustee and as the representative of that deed of trust' s beneficiary, Columbia,

means that Eisenhower is likely to have a conflict of interest because it is " likely" to have a

vested interest in seeing Canzoni' s home foreclosed. Canzoni may not rely on his mere

speculation as to Eisenhower' s motives to establish an actual conflict of interest. Thus, no

                                                                                                                                        6
genuine    issues   of material     fact     exist as     to   whether     Eisenhower had          an actual conflict of    interest.


                                                          ATTORNEY FEES


          Canzoni requests attorney fees and costs on appeal. RAP 18. 1 requires a party to submit

argument and citation           to authority entitling it to attorney fees              and costs on appeal.            Wachovia


SBA    Lending, Inc.    v.   Kraft, 165 Wn.2d 481, 493, 200 P. 3d 683 ( 2009). Canzoni submits no


authority or argument as to why he should receive attorney fees and costs, and thus, we deny

5
    The legislature did this       by deleting " that           portion of [RCW]        61. 24. 020    which read, `     nor may the
trustee   be   an employee, agent, or              subsidiary     of a    beneficiary   of   the   same   deed   of   trust. "' Meyers

 Way Dev. Ltd. P' ship v. Univ. Say. Bank, 80 Wn. App. 655, 666 n. 8, 910 P. 2d 1308 ( 1996)
    quoting LAWS OF 1975, 1st Ex. Sess.,                  ch.   129, § 2).


6 Without citation to authority, Canzoni also asserts that the superior court had no subject matter
jurisdiction    over                              It is well settled that a party' s failure to assign
                       the claims at issue in this. case.             "

error to or provide argument and citation to authority in support of an assignment of error, as
required under RAP 10. 3, precludes appellate consideration of an alleged error." Escude v. King


County. Pub. Hosp. Dist. No. 2, 117 Wn. App. 183, 190 11. 4, 69 P. 3d 895 ( 2003). Thus, we do
not consider Canzoni' s challenge to subject matter jurisdiction.



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No. 44336 -8 -I1


Canzoni'   s request.   See Elcon Constr., Inc.   v.   E. Wash. Univ., 174 Wn.2d 157, 171, 273 P. 3d 965


 2012).


          We affirm.


          A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW


2. 06. 040, it is so ordered.




We concur:




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