* Sandra Shelley Jackson, App. V. Quality Loan Service Corp. Of Washington, Et Al., Res.

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
SANDRA SHELLEY JACKSON, a
single woman,
Appellant,
QUALITY LOAN SERVICE
CORPORATION OF WASHINGTON, a
Washington Corporation, MORTGAGE
ELECTRONIC REGISTRATION
SYSTEM INC., MCCARTHY &
HOLTHUS, LLP, a Washington
Limited Liability Partnership, U.S. BANK,
NATIONAL ASSOCIATION as trustee
forWAMU MORTGAGE PASS
THROUGH CERTIFICATE FOR
WMALT 2006-AR4 TRUST
INVESTORS IN WMALT 2006-AR4
TRUST c/o J.P. MORGAN BANK, NA,
Respondents.
Trickey, J. — Notification to the state attorney general is a mandatory
prerequisite to challenge a statute's constitutionality. 	Here, the plaintiff sought to
have Washington's deeds 	of trust act (DTA), 	chapter 61.24 	RCW, declared
unconstitutional but failed to notify the attorney general as required by statute.
Even ifthe plaintiff in this case were able to pass the procedural bar to her action,
we conclude that the DTA is constitutional.
Any remaining claims that the plaintiff might have under the DTA, have been
addressed and disposed of by recent Supreme Court decisions. 	Accordingly, we
affirm the trial court's CR 12(b)(6) dismissal.
No. 72016-3-1
DIVISION ONE
PUBLISHED OPINION
FILED: April 6, 2015
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No. 72016-3-1/2
FACTS
In March 2006, 	Sandra 	Shelley Jackson 	refinanced 	her home with a
$715,000 loan from Cameron Financial Group, Inc., dba 1st Choice Mortgage. The
loan was evidenced 	by a 	promissory note and 	secured 	by a deed 	of trust
encumbering Jackson's home located in Seattle. 	In the deed of trust, 1st Choice
Mortgage was identified 	as 	"lender," 	Fidelity 	National Title 	as 	"trustee," and
Mortgage Electronic Registration Systems, Inc. (MERS) as a "nominee for Lender
and Lender's successors and assigns," where MERS is the "beneficiary under this
Security Instrument."1 The deed of trust is recorded under King County Recorder's
No. 	20060331001860. 	The 	note and deed of trust provide for a 	nonjudicial
foreclosure ofthe property in the event of default, pursuant to the DTA.
The loan was subsequently sold to a securitized trust known as the "WAMU
Mortgage Pass Through Certificate For WMALT 2006-AR4."2 	In her complaint,
Jackson recognizes that under the terms of the note WMALT 2006-AR4 trust is a
"note holder." 	U.S. Bank, National Association is the trustee for WMALT 2006-
AR4 trust and possesses the note.
In January 2011, Jackson defaulted on her loan payments. 	On September
20, 2012, MERS, acting as the nominee for U.S. Bank as trustee for WMALT 2006-
AR4 trust, terminated its agency interest when it assigned its nominee interest in
the deed of trust back to its principal, U.S. Bank as trustee.
In November 2012, Jackson received a notice advising her that her loan
was in default. 	The notice disclosed that her loan had been sold to U.S. Bank as
1 Clerk's Papers (CP) at 88; Exhibit (Ex.) 3.
2 CP at 85-86.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 72016-3-1/3
trustee for the WMALT 2006-AR4 trust, J.P. Morgan Chase Bank, N.A. was her
loan servicer, and her arrears were approximately $127,000. 	The notice also
informed her that a foreclosure sale might be scheduled if she did not cure her
default, but "ha[d] recourse to the courts pursuant to RCW 61.24.130 to contest
the alleged default on any proper ground."3
On 	November 	13, 	2012, 	U.S. 	Bank, 	the 	note 	holder, 	recorded 	an
appointment of successor trustee appointing Quality Loan Service Corporation of
Washington as the new trustee under the deed of trust. 	On December 21, 2012,
when Jackson failed to cure her default, Quality Loan Service recorded a notice of
trustee's sale, scheduling the sale for April 26, 2013. 	The notice of trustee's sale
referenced the notice of default, identifying the original parties to the deed of trust,
in order to permit the recorder's office to link to the deed of trust. 	The notice
identified U.S. Bank as successor in interest to Jackson's loan.
Shortly 	before 	the 	scheduled 	foreclosure, 	Jackson 	filed 	a 	complaint
asserting claims against U.S. Bank, Chase Bank, MERS, Quality Loan Services,
and its legal counsel, McCarthy &Holthus, LLP. 	Jackson amended her complaint
to include claims asserting that the deed of trust is unenforceable, violates the
DTA, violates the Washington Constitution, violates the Consumer Protection Act
(CPA),4 and for breach of contract, unconscionability, negligence, and quiet title.
The trial court dismissed the complaint under CR 12(b)(6). 	Jackson appeals.
3 CP 55-57; Ex. 4.
4Ch. 19.86 RCW.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 72016-3-1/4
ANALYSIS
Standard of Review
This court reviews de novo an order granting a motion to dismiss under CR
12(b)(6). 	FutureSelect Portfolio Mqmt., Inc. v. Tremont Grp. Holdings. Inc., 180
Wn.2d 954, 962, 331 P.3d 29 (2014); Kinnev v. Cook, 159 Wn.2d 837, 842, 154
P.3d 206 (2007). Dismissal under CR 12(b)(6) is appropriate in those cases where
the plaintiff cannot prove any set offacts consistent with the complaint that would
entitled the plaintiff to relief. 	Bravo v. Dolsen Cos., 125 Wn.2d 745, 750, 888 P.2d
147 (1995). 	"[A]ny hypothetical situation conceivably raised by the complaint
defeatsa CR 12(b)(6) motion if it is legally sufficient to support the plaintiff's claim."
Bravo. 125 Wn.2d at 756 (alteration in original) (quoting Halvorson v. Dahl. 89
Wn.2d 673, 674, 574 P.2d 1190 (1978)). All facts alleged in the plaintiff's complaint
are presumed true. 	Tenore v. AT&T Wireless Servs., 136 Wn.2d 322, 330, 962
P.2d 104 (1998). 	However, the complaint's legal conclusions are not required to
be accepted on appeal. 	Haberman v. Washington Pub. Power Supply Svs.. 109
Wn.2d 107, 120, 744 P.2d 1032 (1987). 	"If a plaintiff's claim remains legally
insufficient even under his or her proffered hypothetical facts, dismissal pursuant
toCR 12(b)(6) is appropriate." Gorman v. Garlock. Inc., 155Wn.2d 198, 215,118
P.3d311 (2005).
Issues of statutory constitutionality are reviewed de novo. 	HomeStreet. Inc.
v. Deo't of Revenue. 166Wn.2d444, 451, 210 P.3d 297 (2009).
Judicial Notice
Jackson 	argues 	that the 	trial 	court 	improperly 	took judicial 	notice 	of
documents attached to defendants U.S. Bank, MERS, and Chase Bank's motion
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 72016-3-1/5
to dismiss. 	In general, when ruling on a CR 12(b)(6) motion to dismiss, the trial
court may only consider the allegations contained in the complaint and may not go
beyond the face of the pleadings. 	Brown v. MacPherson's. Inc.. 86 Wn.2d 293,
297, 545 P.2d 13 (1975). 	But the trial court may take judicial notice of public
documents if the authenticity of those documents cannot be reasonably disputed.
Berne v. Gorton. 88 Wn.2d 756, 763, 567 P.2d 	187 (1977). 	ER 201(b)(2)
authorizes the court to take judicial notice ofa fact that is "not subject to reasonable
dispute in that it is . . . capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned."
Additionally, where a plaintiff asserts allegations in a complaint on specific
documents, but does not physically attach those documents, the documents may
be considered in ruling on a CR 12(b)(6) motion for judgment on the pleadings.
Rodriguez v. Loudeve Corp.. 144 Wn. App. 709, 189 P.3d 168 (2008); see, e^,
In re Stac Elecs. Sec. Litig, 89 F.3d 1399, 1405 n.4 (9th Cir. 1996) (appropriate
for trial court to consider other portions of document referenced in complaint in a
motion to dismiss and doing so does not convert the motion into one for summary
judgment).
U.S. Bank sought to have the trial court take judicial notice of the adjustable
rate note, prepayment penalty addendum, and an allonge to the note for the loan,
which 	were 	repeatedly 	referenced 	in 	Jackson's 	complaint. 	The 	other two
documents that U.S. Bank sought to introduce were publicly recorded property
records easily accessed through the King County Recorder's Office—a recorded
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 72016-3-1/6
corporate assignment of the deed of trust and a 	recorded 	appointment of
successor trustee, Quality Loan Service Corporation.
Although the record does not indicate whetherthe trial court did in fact take
judicial notice ofthese documents, the court's consideration ofthe documentswas
appropriate in this CR 12(b)(6) motion. 	Jackson's complaint was based on the
alleged breach of the DTA, which was based in part on the documents presented
to the court. 	Because Jackson cannot challenge the authenticity of these readily
available public documents, the trial court did not err in taking judicial notice of
these documents.
Nonconstitutional Claims
Jackson failed to address her claims for violation of the CPA, breach of
contract, unconscionability, negligence, and quiet title in her opening appellate
brief. 	An 	appellant's 	brief must contain "argument in support of the 	issues
presented for review, together with citations to legal authority and references to
relevant parts of the record." RAP 10.3(a)(6).
An appellate court will not consider a claim of error that a party fails to
support with legal argument in her opening brief. 	Mellon v. Req'l Tr. Servs. Corp.,
182 Wn. App. 476, 486, 334 P.3d 1120 (2014) (citing Howell v. Spokane &Inland
Empire Blood Bank. 117 Wn.2d 619, 624, 818 P.2d 1056 (1991); Fosbre v. State,
70 Wn.2d 578, 583, 424 P.2d 901 (1967); RAP 10.3.(a)(6)). 	"While an appellate
court retains the discretion to consider an issue raised for the first time on appeal,
such discretion is rarely exercised." 	Karlbero v. Often, 167 Wn. App. 522, 531,
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 72016-3-1/7
280 P.3d 1123 (2012) (citing Smith v. Shannon. 100 Wn.2d 26, 38, 666 P.2d 351
(1983)).
Jackson's failure to assign error to and argue against the court's decision
for failure to state a claim on these issues, waives any argument as to those claims.
Constitutionality of the DTA
Jackson's 	complaint 	sought 	a 	declaratory 	judgment 	regarding 	the
constitutionality of the 	DTA. 	In her argument before the trial court, Jackson
specifically asserted that she was making arguments under the constitution and
not the DTA.5
RCW 7.24.110 requires notification to the state attorney general when there
is a constitutional challenge to state legislation. 	Jackson failed to notify the state
attorney 	general. 	Dismissal 	of 	constitutional 	claims 	challenging 	the facial
constitutionality of a state statute is appropriate where the state attorney general
has not been notified. 	See Kendall v. Douglas. Grant. Lincoln, and Okanogan
Counties Pub. Hosp. Dist. No. 6.118 Wn.2d 1,11 -12, 820 P.2d 497 (1991) (service
on the attorney general is mandatory and a prerequisite); Camp Fin.. LLC v.
Brazington. 133 Wn. App. 156, 160, 135 P.3d 946 (2006) (attorney general must
be served when a party challenges the constitutionality of a statute). 	Jackson's
attack on the constitutionality of the DTA is procedurally deficient, 	and thus,
dismissal on that ground alone was appropriate.
5 "We're not coming before you under the Deed of Trust Act. 	We're coming before you
directly under the Constitution. We're saying the statute is unconstitutional. And even if
it isn't unconstitutional, these folks can't bring an action because they haven't complied
with those acts that are a necessary condition predicate to bringing an action under the
DTA." Report of Proceedings (RP) (July 19, 2013) at 27-28.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 72016-3-1/8
Even if we were to consider the substance of Jackson's arguments, we
disagree that the DTA is unconstitutional. 	Jackson argues that the DTA violates
several Washington State constitutional 	provisions 	by "creating 	a trustee to
exercise exclusive judicial power reserved to the superior court."6 	In particular,
Jackson bases her arguments on article IV, section 6 and article II, section 1 of the
Washington State Constitution. Those articles set forth the legislative powers and
the jurisdiction of the superior courts.
Article IV, section 6 provides that "[t]he superior court shall have original
jurisdiction in all cases at law which involve the title or possession of real property."
Jackson relies on Klem v. Washington Mutual Bank. 176 Wn.2d 771, 295 P.3d
1179 (2013) as support for her theory that the nonjudicial foreclosure process
involves a judicial inquiry. 	But Klem merely addressed the duties of a trustee and
drew an analogy between judicial and nonjudicial foreclosure. 	Klem did not, as
Jackson contends, elevate the DTA's process into a judicial one. Klem recognized
the authority of a trustee when it noted that a "trustee in a nonjudicial foreclosure
action has been vested with incredible power. 	Concomitant with that power is an
obligation to both sides to do more than merely follow an unread statute and the
beneficiary's directions." 	Klem. 176 Wn.2d at 791.
Moreover, a nonjudicial foreclosure is not made pursuant to a judgment but
rather is one conducted under a power contained in a mortgage or a degree of
foreclosure.7 	As such, it is made through an agreement between the grantor and
6Appellant's Opening Br. at 11 (emphasis omitted).
7"In short a nonjudicial trustee sale is not a forced sale, because of its consensual nature.
The nonjudicial trustee sale is not an execution sale, because there is no judgment
involved. Thus, a homestead is not exempted from such a sale by RCW 6.12.090." Felton
8
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 72016-3-1/9
the beneficiary of the deed of trust. 	The DTA does not divest the superior court of
jurisdiction. 	Indeed, the superior court's constitutional grant of jurisdiction 	is
preserved in specific portions ofthe DTA.8 Until a party challenges the foreclosure,
there is no judicial involvement. 	It is at that point that the superior's court's
jurisdiction is invoked. 	See Felton. 101 Wn.2d at 422-23.
Jackson's argument that the legislature does nothave the power to legislate
regarding title and possession of real property is entwined with her argument that
the 	constitution 	granted exclusive 	jurisdiction 	to the courts for 	all 	property
concerns.9 The DTA creates a method of mortgaging real property involving three
parties: a grantor (borrower), a beneficiary (lender), and a trustee. 	See Bain v.
Metro Morto. 	Grp.. 	Inc.. 175 Wn.2d 83, 	92-93, 	285 	P.3d 	34 (2012); 	RCW
61.24.005.
The DTA was enacted by the legislature to further three objectives for the
nonjudicial foreclosure process. 	It requires that the process (1) be efficient and
inexpensive, (2) provide an adequate opportunity for interested parties to prevent
wrongful foreclosure, and (3) promote the stability of land titles. 	Cox v. Helenius,
103 Wn.2d 383, 387, 693 P.2d 683 (1985). 	In Morrell v. Arctic Trading Co.. Inc..
21 Wn. App. 302, 304, 584 P.2d 983 (1978), the court held that a trustee attempting
v. Citizens Fed. Sav. & Loan Ass'n of Seattle. 101 Wn.2d 416, 420, 424, 679 P.2d 928
(1984).
8 See, e^, RCW 61.24.130(1) (buyer has right to file action in superior court to restrain a
trustee's sale); RCW 61.24.130(8)(j) (granting borrower power to initiate court action);
RCW 61.24.040(2); RCW 61.24.090(2) (granting borrower right to request any court to
determine reasonableness of fees).
9 Several recent federal district courts have addressed and rejected Jackson's claims that
the DTA is unconstitutional. Knecht v. Fidelity Nat'l Title Ins. Co.. No. C12-1575RAJ, 2014
WL 4057148 (W.D. Wash. Aug. 14, 2014); Galvean v. Nw. Tr. Servs.. Inc., No. C13-1359
MJP, 2014 WL 3360241 (W.D. Wash. July 9, 2014).
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 72016-3-1/10
to notify an interested party of an impending foreclosure sale, was not obligated to
search for an address when no address was found in the deed of trust documents.
The purpose of strict notice requirements in a nonjudicial sale of property secured
by trust deed is to inform persons with an interest in the property of the pending
sale of the property, so that they may act to protect those interests. 	See also
Kennebec. Inc. v. Bank of the West. 88 Wn.2d 718, 726, 565 P.2d 812 (1977)
(holding that chapter 61.24 RCW as it existed prior to the 1975 amendments was
passive state involvement and did 	not violate the due process clause of the
Fourteenth 	Amendment 	or 	article 	I, 	section 	3 	of 	the 	Washington 	State
Constitution). 	Here, there is no dispute that Jackson received notice.
The legislature had authority to enact the DTA and its enactment did not
encroach upon the jurisdiction of the superior court.
Allegations of DTA Violations
Jackson asserts that the nonjudicial foreclosure violated the DTA. 	She
argues that the trustee failed to comply with RCW 61.24.030(7)(a) because there
was 	"[injsufficient 	proof 	identifying 	the 	beneficiary 	and 	note 	owner 	prior to
instigating this private sale."10
RCW 61.24.030(7)(a) provides that a "declaration by the beneficiary made
under the penalty of perjury stating the beneficiary is the actual holder of the
promissory note or other obligation secured by the deed of trust shall be sufficient
proof as required under this subsection."
10 CP at 94 (emphasis omitted).
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No. 72016-3-1/11
Jackson's complaint asserts that the investors are the note holders and
entitled to her payments. 	But see Cashmere Valley Bank v. 	State. Dep't of
Revenue. 181 Wn.2d 622, 634, 334 P.3d 1100, 1106 (2014) (investor has no
interest in underlying mortgagesand deeds oftrust and is nota beneficiary ofthose
instruments).
Furthermore, this court has 	recently addressed this particular issue in
Truiillo v. Trustee Services. Inc., 181 Wn. App. 484, 496, 326 P.3d 768 (2014).
There, we held that the beneficiary is the holder of the note and, further, a trustee
may rely on a beneficiary's declaration as proof of the 	beneficiary's right to
foreclose. In Lvons v. U.S. Bank National Ass'n. 181 Wn.2d 775, 789-90, 336 P.3d
1142 (2014), the Supreme Court held that the trustee was entitled to rely on the
beneficiary declaration unless it has violated its duty of good faith. 	Since there
was no allegation of bad faith here, the beneficiary declaration is sufficient.
Moreover, 	the Supreme Court recently 	held 	that in 	the 	absence of a
foreclosure, no viable DTA claims remain. 	Frias v. Asset Foreclosure Servs., Inc.
181 Wn.2d 412, 428-30, 334 P.3d 529 (2014). 	Because there has been no
foreclosure, Jackson has no claims for violations of the DTA. As discussed above,
no remaining claims have been preserved for appeal.
The trial court is affirmed.
WE CONCUR:
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