* Duncan K. Robertson, Appellant V. Residential Funding Company, Llc, Respondents

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
21st MORTGAGE CORPORATION,
a Delaware corporation,
Respondent,
v.
LINDA C. NICHOLLS,
Defendant,
DUNCAN K. ROBERTSON,
Appellant,
RESIDENTIAL FUNDING
COMPANY, LLC, a limited liability
company; NORTHWEST TRUSTEE
SERVICES, INC., a Washington
corporation; MARY A. MILLER, an
Iowa resident; TYRONE
THOROGOOD, a Pennsylvania
resident; DOES 1-10, Third-Party
Defendants, OCWEN LOAN
SERVICING, LLC, a limited liability
company,
Respondent.
No. 83347-2-I
DIVISION ONE
OPINION PUBLISHED IN PART
DÍAZ, J. — At oral argument, counsel for the appellant, Duncan Robertson,
stated, “This is a very, very simple case: whether or not 21 st Mortgage held the
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No. 83347-2-I/2
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original promissory note and the allonges at the time the complaint was filed.”
Wash. Court of Appeals oral argument, Duncan K. Robertson v. Residential
Funding Company, LLC., No. 833472 (Jan. 20, 2023), at 46 sec., through 1 min.,
video 	recording 	by 	TVW, 	Washington 	State’s 	Public 	Affairs 	Network,
https://tvw.org/video/division-1-court-of-appeals-2023011210/. 	Because there is
no authority in support of the claim that a holder of a note must possess the note
on (or affix supporting documents to the note by) the date of the filing of a complaint
for judicial foreclosure in order to enforce the note, the verdict question so requiring
was improper. 	Robertson’s remaining assignments of error and defense to the
foreclosure are unavailing. Thus, we remand this matter to the trial court to grant
the decree of foreclosure in favor of respondent/cross-appellant 21st Century
Mortgage Corp. (21st ), which the jury found possessed the original note and
allonges.
I. 	FACTS
A. 	Factual History1
Linda Nicholls inherited the property in question, which is located in South
King County (Property). 	In 1999, she obtained a loan from Old Kent Mortgage
Company 	(dba 	National 	Pacific 	Mortgage) 	for 	$100,000 	and 	executed 	and
delivered a promissory note secured by a deed of trust that encumbered the
1 For additional detail on the factual background of this long running case, see 21st
Mortgage Corp. v. Robertson et al., No. 75262-6-I, slip op. at 2-4 (Wash. Ct. App.
Oct. 30, 2017) (unpublished), https://www.courts.wa.gov/opinions/pdf/752626.pdf;
Ord. Den. Resp’t’s Mot. for Recons. & Appellant’s Mot. for Partial Recons. &
Amending Op., 21st Mortg. Corp. v. Robertson, No. 75262-6-I (Wash. Ct. App. Oct.
30, 	2017), 	https://www.courts.wa.gov/opinions/pdf/752626.pdf; 	Robertson 	v.
GMAC Mortg. LLC, 982 F. Supp. 2d 1202, 1205 (W.D. Wash. 2013).
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No. 83347-2-I/3
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property (Nicholls Loan).
In 2006, Nicholls borrowed $82,000 from Robertson (Robertson Loan). The
Robertson Loan was secured by a deed of trust that acknowledged the Nicholls
Loan and named Robertson as the beneficiary (Robertson Deed of Trust). id.
Shortly thereafter, Nicholls defaulted on the Robertson Loan and Robertson
foreclosed on his Deed of Trust. 	The resulting non-judicial foreclosure sale
subsequently occurred on September 26, 2008, where Robertson purchased the
property, with the Nicholls Loan still intact.
During this time, Residential Funding Company, LLC (RFC) acquired the
Nicholls Loan from Old Kent. 	Specifically, Old Kent endorsed the note to RFC.
RFC placed the Nicolls Loan in a securitized trust and endorsed the note to Bank
One as trustee for that trust. In an undated allonge attached to the note, Bank One
as trustee for RFC endorsed the note in blank. 	In another allonge, the Bank of
New York Mellon Trust Company, as trustee for RFC, endorsed the note to RFC.
In a third allonge, pursuant to the bankruptcy proceedings described immediately
below, RFC endorsed the note in blank and delivered it and its allonges to 21 st,
which it claims are the originals.
On May 14, 2012, RFC filed for bankruptcy. 	RFC liquidated the Nicholls
Loan and sold it to Berkshire Hathaway (Berkshire), free and clear of any claims
against the prior owners of the Nicholls Loan. Berkshire then deposited the Nichols
Loan into the Knoxville 2012 trust and appointed Wilmington Savings Fund Society
dba Christiana trust as trustee. 	Subsequently, Christiana elected 21st as the
master servicer of the trust. In 2014, respondent Ocwen Loan Servicing (Ocwen)
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No. 83347-2-I/4
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sent a notice to Nicholls that 21st would service her loan.
Nicholls had defaulted on the Nicholls Loan long before 21st had become
the master servicer. She had made her last payments on July 8, 2009 and August
11, 2009.
B. 	Procedural History
On July 24, 2014, 21st filed a complaint for judicial foreclosure against
Nicholls and Robertson as co-defendants in King County Superior Court. Nicholls
did not answer and was defaulted, while Robertson answered and asserted
originally 22 affirmative defenses and 13 counter- or cross-claims against 21 st and
against others.2 	In summary, Robertson claimed that 21st did not have standing
to bring a foreclosure action because it had obtained the note underlying the
foreclosure fraudulently, and also brought in Ocwen, which Robertson claimed
participated in the fraud.
In 2015, both Robertson and 21 st brought motions for summary judgment.
On March 14, 2016, the superior court judge denied Robertson’s motion and
granted 21 st ’s in part: (1) finding Robertson’s 2008 trustee sale was invalid, and
thus that Robertson was not the owner of the property and 21st was entitled to a
decree of foreclosure; (2) striking Robertson’s affirmative defenses; and (3)
continuing the stay of Robertson’s counterclaims and third-party damage claims,
still 	at 	issue 	in 	this 	appeal, 	in 	deference 	to 	a 	related 	federal 	proceeding.
Importantly, the court did not rule on 21 st ’s motion to strike the expert testimony
2 For the purposes of this opinion, any discussion of the related proceedings in the
U.S. District Court case and subsequent 9 th Circuit appeal are omitted. 	See
Robertson, 982 F. Supp. 2d 1202 (W.D. Wash. 2013).
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No. 83347-2-I/5
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still at issue in this appeal. Robertson appealed.
In 2017, this court issued an opinion affirming in part and reversing in part
the summary judgement orders. Robertson, No. 75262-6-I, slip op. at 2. This court
concluded that there were two genuine issues of material fact; namely, (a) as to
whether the note presented by 21st was the original adjustable rate note on the
Nicholls Loan or a copy thereof, and (b) as to whether the allonges were fraudulent,
both thereby raising the question of whether 21 st was the holder and was entitled
to enforce the note. Id. at 4-7. Specifically, the court held that a report and affidavit
by James Kelley (Kelley) provided evidence that the note and allonges were
copies, stating, “To the extent that that affidavit is an admissible expert opinion,
which is a question that is not before us, it creates a genuine issue of fact whether
21 st is the holder of the note” and Kelly’s testimony that “two of the allonges were
made with a printer” created a genuine issue of material fact as to whether they
were “fraudulent.” Id. at 6-7 & 7-8.
This court further declined to reach whether Robertson acquired title to the
property through the 2008 sale because his ownership status was immaterial to
whether 21st was entitled to a decree of foreclosure. Id. at 9.
Finally, this court affirmed the trial court’s decision to strike Robertson’s
twenty-two affirmative defenses, with the exception of standing, finding that, again
if Kelley’s affidavit was admissible, then it created “a genuine issue of material fact
whether 21st holds the note. If 21st does not hold the note, then it does not have
standing to enforce it.” 	Id. at 10 (citing RCW 62A.3-301). 	This court, thus,
remanded back to superior court for a new trial regarding “whether the note and
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No. 83347-2-I/6
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its allonges [in 21st ’s possession] are original, and thus whether 21st is the holder
entitled to enforce the note.” 	Id. at 8. 	There was no mention of remanding the
matter to determine whether 21st possessed the note on a particular date.
On remand, on July 30, 2020, the trial court granted summary judgment in
favor of 21 st on ten of the eleven counterclaims brought by Robertson, all but four
of which Robertson voluntarily withdrew or failed to defend. 	21 st moved for
reconsideration on Robertson’s final counterclaim of outrage, which the court
granted.
Before trial, 21st submitted a motion to exclude two of Robertson’s expert
witnesses and the trial court held a Frye hearing for one witness (Kelley), but not
the other (Marie McDonnell). Robertson offered these witnesses to testify that 21st
did not properly obtain an authentic version of the note and, thus Robertson would
argue, 21st did not have standing to enforce the note.
Following 	the 	Frye 	hearing 	for 	Kelley, 	the 	court, 	which 	admitted 	to
“struggl[ing] . . . quite a bit” with its decision, granted 21st ’s motion to exclude
Kelley, finding that, while Kelley’s testimony would be “helpful” and he had “10
years 	experience 	examining 	documents” 	and 	“has 	some 	particularized
knowledge,” Kelley’s “training and his experience do not rise to the level of the
Court finding him to be an expert in this area.” Further the court found, while “he
definitely employed some of the methodologies,” the “methodologies that were
employed by Dr. Kelley were not those generally accepted in the scientific
community.” 	The trial court clarified that, while Kelley employed the correct
methodologies (“Yes . . . he did this.”), Kelly did not employ “the methodologies in
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No. 83347-2-I/7
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a global sense such that [his] conclusions . . . are born out of a proper application
of the methodologies.”
As to McDonnell, the court denied 21st ’s motion to exclude, but did limit, her
testimony, in ways both parties now contest. 	In particular, the court excluded
McDonnell’s testimony as to the distant history of the various loans and, what 21st
claimed, were legal conclusions. Trial commenced in September 2021.
At the end of the trial, the court gave the jury its instructions and questions
on the verdict form, some of which 21st contested. Specifically, the court gave jury
instructions nos. 12-15, which related to how a note is transferred and whether a
person may enforce the note, including whether a person has standing to bring a
foreclosure action, and limiting instructions thereto. And verdict question 3 asked
the jury to determine whether the allonges were “affixed to the original Adjustable
Rate Note” at the time 21 st filed its foreclosure complaint against Robertson.
On October 5, 2021, the case was submitted to the jury and, the same day,
the jury returned—what can only be called a mixed verdict—finding that 21st was
in possession of the original note (verdict question 1) and the original allonges
(verdict question 2), but that the original allonges were not affixed to the original
Note on July 24, 2014, i.e., the date the Complaint was filed (verdict question 3).
After the trial court issued its final judgment, 21 st filed a CR 50 motion for a
judgment as a matter of law (JMOL) to strike verdict question 3 and, in the
alternative, for a new trial pursuant to CR 59. The court denied 21st ’s motions. In
the interim, Robertson was declared the prevailing party and filed additional
motions to recover fees and costs, and to vacate the trial court’s prior orders, all of
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No. 83347-2-I/8
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which the court denied, with the exception of granting Robertson a cost bill of
$464.69.
Robertson and 21 st appealed. 	Robertson requests a new trial because of
(a) the total exclusion of Kelley; (b) the limitations the trial court imposed on the
testimony of McDonnell, both of whom Robertson claimed would have testified as
to how respondents 21 st and Ocwen “fabricated a chain of title”; and (c) the pre-
trial dismissal of myriad counterclaims against the respondents, as well as other
claimed irregularities during and after trial.3
In its cross-appeal, 21st seeks reversal of the orders denying its motion for
a JMOL and motion for a new trial because verdict question 3 (and its related jury
instructions) had no factual or legal basis for its inclusion. 	Alternatively, 21 st
requested a new trial to remedy the partial inclusion of Robertson’s second expert
witness, and because of other claimed irregularities. We begin our analysis with
21 st ’s assignments of error.
II. 	ANALYSIS
A. 	Verdict Question 3 and Standing to Foreclose
1. 	Judgment as a Matter of Law and Motion for New Trial
CR 50 motions for JMOL are reviewed in the same manner as the trial court.
Johnson v. Liquor & Cannabis Bd., 197 Wn.2d 605, 611, 486 P.3d 125 (2021)
(citing Guijosa v. Wal-Mart Stores, Inc., 144 Wn.2d 907, 32 P.3d 250 (2001)).
3 Despite the fact that Robertson appealed the jury verdict and requested a new
trial, counsel for Robertson asked this court at oral argument, surprisingly, to
simply affirm the jury verdict. Wash. Court of Appeals oral argument, supra, at 43
sec. through 45 sec. We will disregard that contradictory statement and address
the arguments as briefed.
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No. 83347-2-I/9
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“Granting a motion for [JMOL] is appropriate when, viewing the evidence most
favorable to the nonmoving party, the court can say, as a matter of law, there is no
substantial evidence or reasonable inference to sustain a verdict for the nonmoving
party.” Guijosa, 144 Wn.2d at 915 (quoting Sing v. John L. Scott, Inc., 134 Wn.2d
24, 29, 948 P.2d 816 (1997)). “Substantial evidence is said to exist if it is sufficient
to persuade a fair-minded, rational person of the truth of the declared premise.’”
Id. (quoting Brown v. Superior Underwriters, 30 Wn. App. 303, 306, 632 P.2d 887
(1980)). 	A court “may affirm a trial court’s disposition of a motion for summary
judgment or judgment as a matter of law on any ground supported by the record.”
Johnson, 197 Wn.2d at 611 (quoting Washburn v. City of Federal Way, 178 Wn.2d
732, 753 n.9, 310 P.3d 1275) (2013).
“The grounds for granting a new trial are set forth at CR 59(a),” which states
that a new trial can be granted for any or all parties on any or all issues. Aluminum
Co. of Am. v. Aetna Cas. & Sur. Co., 140 Wn.2d 517, 537, 998 P.2d 856 (2000)
(citing CR 59(a)). The appeals court will grant a new trial if the trial court abused
its discretion. Aluminum Co., 140 Wn.2d at 537. An abuse of discretion is shown
when “such a feeling of prejudice been engendered or located in the minds of the
jury as to prevent a litigant from having a fair trial.” Id. (citing Moore v. Smith, 89
Wn.2d 932, 942, 578 P.2d 26 (1978)).
“A clear misstatement of the law [in a jury instruction] is presumed to be
prejudicial.” Keller v. City of Spokane, 146 Wn.2d 237, 249-50, 44 P.3d 845 (2002)
(citing State v. Wanrow, 88 Wn.2d 221, 239, 559 P.2d 548 (1977)). The party who
submits the presumptively prejudicial instruction must rebut this presumption.
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No. 83347-2-I/10
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Anfinson v. FedEx Ground Package Sys., Inc., 174 Wn.2d 851, 873, 281 P.3d 289
(2012).
2. 	Relevant Background on the Uniform Commercial Code
Article 3 of the Uniform Commercial Code (UCC), incorporated into state
law at Title 62A RCW, governs who is entitled to enforce a negotiable instrument,
which includes a promissory note. Bucci v. Nw. Tr. Servs., Inc., 197 Wn. App. 318,
326, 387 P.3d 1139 (2016) (considering a promissory note as the instrument in
question). A negotiable instrument is “‘an unconditional promise or order to pay a
fixed amount of money, with or without interest . . . .’” Bucci, 197 Wn. App. at 329
(quoting RCW 62A.3-104(a)). 	Negotiability exists and is “determined from the
face, the four corners, of the instrument at the time it is issued without reference
to extrinsic facts.” 	Id. (citing 5A Ronald A. Anderson, Anderson on the Uniform
Commercial Code § 3-104:13, at 115 (3d ed. 1994)).
“‘Negotiation’ 	means 	a 	transfer 	of 	possession, 	whether 	voluntary 	or
involuntary, of an instrument by a person other than the issuer to a person who
thereby becomes its holder.” RCW 62A.3-201. “An instrument is transferred when
it is delivered by a person other than its issuer for the purpose of giving to the
person receiving delivery the right to enforce the instrument.” RCW 62A.3-203(a).
“‘Indorsement’ means a signature . . . that . . . is made on an instrument for
the purpose of . . . 	negotiating the instrument . . .” 	RCW 62A.3-204. 	An
indorsement can be a special indorsement (i.e., one which identifies a person to
whom it makes the instrument payable) or a “blank indorsement” (i.e., one which
does not identify such an individual). RCW 62A.3-205(a)-(b). “When indorsed in
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blank, an instrument becomes payable to the bearer and may be negotiated by
transfer of possession alone until specially indorsed.” RCW 62A.3-205(b).
A person or entity entitled to enforce an instrument includes the “holder” of
the instrument. 	RCW 62A.3-301(i); RCW 62A.1-201(b)(21)(A); Bucci, 197 Wn.
App. at 326-27. A “holder” of a negotiable instrument is “the person in possession
if the instrument is payable to the bearer or . . . to an identified person . . . [that is]
the person in possession.” Bain v. Metro. Mortgage Grp., Inc., 175 Wn.2d 83, 104,
285 P.3d 34 (2012); RCW 62A.1-201(b)(21)(B).
3. 	Application of Law to Facts
a. Verdict Question 3 Was Improperly Given on the Law
i. 	Robertson’s first argument pursuant to RCW 62A.1-201
In his briefing and during oral argument, Robertson argued that 21 st did not
have legal standing to enforce the note, making four arguments. We address each
argument in turn.
First, Robertson argues that 21st did not have standing to enforce the note
when it filed its foreclosure complaint in 2014 because the allonges were allegedly
not affixed to the note at that time. 	In support of this claim, at oral argument,
counsel for Robertson directed us to Page 44 of their brief, which cites to RCW
62A.1-201(b)(21)(A). Wash. Court of Appeals oral argument, supra, at 17 min., 50
sec. through 18 min., 32 sec.
That 	statute 	is 	merely 	the 	definition 	of 	a 	“holder.” 	RCW 	62A.1-
201(b)(21)(A). 	Robertson cites no statute or other authority holding that a party
seeking to enforce a note must have physically or digitally affixed the allonges to
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the note at the time of foreclosure. More broadly, Robertson cites no statute or
other authority that stands for the proposition that a holder of a note must possess
the note on the date the holder of the note happens to file their complaint for judicial
foreclosure to enforce the note. Indeed, the statutes enumerated above are silent
as to when someone attempting to enforce a note must affix or possess a
supporting allonge. 	Where a party fails to provide citation to support a legal
argument, we assume counsel, like the court, has found none. State v. Loos, 14
Wn. App. 2d 748, 758, 473 P.3d 1229 (2020) (citing State v. Arredondo, 188 Wn.2d
244, 262, 394 P.3d 348 (2017)). For this reason alone, Robertson’s first argument
fails.
Proceeding nonetheless on the merits, as an initial thought experiment, one
could possess the note on the days and years before the filing of the complaint
(indeed, when the complaint was drafted), accidentally transfer it on the date of
filing, and retrieve the note the next date and maintain it throughout the litigation,
including on the date the note is offered and admitted into evidence at trial. Under
Robertson’s logic, the holder of this note could not enforce the note because it
happened not to possess the note on the date a legal document happened to be
filed. There is no authority for this proposition. On the contrary, and as discussed
more below, the more salient question is whether one possesses the note (and,
thus, may enforce the note) at the time of summary adjudication or trial.
Even reviewing the scant authority that does exist, in the few cases that
have considered remotely similar arguments related to when a lender who is
attempting to enforce a note must possess or affixed allonges, courts still have
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No. 83347-2-I/13
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focused its attention on who holds the note itself, not when they possessed or
affixed the allonges.
In Marts v. U.S. Bank Nat’l Ass’n, our local U.S. district court held that a
plaintiff’s allegation that allonges were not affixed to a note were unavailing
because the bank was still the unquestioned holder of the note. Marts v. U.S. Bank
Nat’l Ass’n, 166 F. Supp. 3d 1204, 1210 (W.D. Wash. 2016), aff’d sub nom. Marts
v. U.S. Bank, 714 Fed. Appx. 775 (9th Cir. 2018). 	There, plaintiff-homeowners
brought a Consumer Protection Act claim against a bank attempting to foreclose
on a note, alleging it engaged in an unfair and deceptive act by initiating foreclosure
before 	perfecting 	an 	interest 	in 	the 	note, 	“because 	of 	some 	unidentified
discrepancy in staple holes,” raising the doubt that an allonge was ever affixed to
the note. Id. at 1209. As in this matter, plaintiffs did not cite to any authority which
“would invalidate the defendants’ security interest on that basis.” Id. at 1210. The
court held that “evidence of intent to affix the allonge to the note is sufficient to
establish a valid endorsement.” Id. As here, the court found no issues of disputed
material fact about the holder’s “intent to affix the Allonge, but rather offer mere
conjecture regarding staple holes.” 	Id. 	In other words, pursuant to RCW 62A.3-
301(i), the court focused on the undisputed fact that the bank still held the note
and its allonges, plain and simple, and made no inquiry into when the allonges
were affixed, where there was no evidence of any intent otherwise.
In his briefing, Robertson references two cases purporting to discuss, not
specifically the timing of affixation or possession, but generally standing in
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foreclosures, which are distinguishable and actually unhelpful to Robertson.
In Bavand v. OneWest Bank, this court concluded that borrowers in a
nonjudicial foreclosure have standing to challenge the appointment of their
mortgage’s successor trustee. Bavand v. OneWest Bank, 196 Wn. App. 813, 835,
385 P.3d 233 (2016). This court in that matter did not confront the issue at hand,
which is when a holder has standing to enforce a note based on the affixing of an
allonge. 	Unhelpfully for Robertson, this court moreover merely reiterated the
holding the holder (OneWest) had standing to enforce a promissory note because
it possessed the original note, indorsed in blank. Id. at 843.
In his trial brief, Robertson also cites to an unpublished opinion of this court,
Beverick v. Landmark Building & Development Inc. Beverick v. Landmark Building
& Development Inc., No. 74210-8-I (Wash. Ct. App. Jul. 3, 2017) (unpublished),
https://www.courts.wa.gov/opinions/pdf/742108.pdf. 	In 	that 	case, 	the 	court
concluded that Nationstar Mortgage (a transferee) was the proper holder of the
note because it maintained its possession throughout the foreclosure action, and
presented the original note at a summary judgment hearing to prove its status.
Beverick, No. 74210-8-1, slip op. at 16. The case stands for the proposition that
the holder of the instrument may be entitled to enforce an instrument in a judicial
foreclosure even if they are not the owner. 	Id. at 15-16. 	Further, the court held
that, under the UCC, the holder of the note can commence a judicial foreclosure if
they possess a negotiable instrument indorsed to the original payee, and maintain
possession of the instrument throughout a judicial foreclosure action. 	Id. at 16
(citing Deutsche Bank Nat’l Tr. Co. v. Slotke, 192 Wn. App. 166, 175, 367 P.3d
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600 (2016)).
There, the foreclosing party had an original note indorsed in blank that was
transferred to another lender, and the transferee bank presented it at a summary
judgment hearing. 	Id. With that, the transferee, Nationstar, showed it was the
holder of the instrument, leaving no genuine issue of material fact as to whether
they held the note. 	Id. 	Far from supporting Robertson’s claim, Beverick again
reasserts the point that possession at the time of adjudication establishes standing,
without any need to determine when allonges were affixed to a note.
On this point, in Deutsche Bank Nat. Tr. Co. v. Slotke, this court similarly
concluded that, procedurally, one way to enforce a note is to present it for
inspection at a summary judgment hearing. Slotke, 192 Wn. App. 166, 175-176,
367 P.3d 600 (2016). 	This court noted that it would express no opinion that
presenting an original promissory note at a summary judgment hearing was the
only way for a holder to prove its right to enforce a note. Id. The other way for a
holder to prove its right to enforce a note is, of course, by presentation of the note
at trial. Bucci, 197 Wn. App. at 328 (“The “[m]ere production of a note establishes
prima facie authenticity and is sufficient to make a promissory note admissible.”)
(citing United States v. Varner, 13 F.3d 1503, 1509 (11th Cir. 1994)).
In short, none of the authority Robertson adduced, or this court can locate,
concludes that a fact finder must determine when allonges were possessed or
affixed to a note to establish standing to enforce the note. We will not create such
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No. 83347-2-I/16
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authority on the facts presented here.
ii. 	Robertson’s second argument pursuant to RCW 62A.3-204
In his second somewhat similar argument, again from his trial brief,
Robertson argues that pursuant to RCW 62A.3-204(a), 21st must show that the
allonges were “permanently” affixed to the note at the time of the indorsement in
blank (here, by Bank One to RFC), otherwise the transfer was invalid and 21 st
lacked standing to enforce the note.
Robertson is attempting to get blood out of a turnip. Properly read, the last
line of RCW 62A.3-204(a) simply states that a paper (such as an allonge) that is
“affixed to the instrument is part of the instrument,” importantly, “[f]or the purpose
of determining whether a signature is made on an instrument.” 	RCW 62A.3-
204(a). 	In other words, if you want to know whether a signature (which could or
could not constitute an “indorsement”) is on an instrument, the UCC states you
may consider any documents affixed to an instrument as part of the instrument.
Two errors follow from his argument. First, simply because something is a
signature does not make it an indorsement. 	As stated in RCW 62A.3-204(a), a
signature is an indorsement if it is made on the instrument “for the purpose of (i)
negotiating the instrument . . .” 	Id. (emphasis added). So the inquiry to which
affixation is relevant is, not standing to enforce, but whether the signature is
evidence 	of 	negotiability 	or, 	more 	accurately, 	whether 	it 	“unambiguously”
somehow shows that negotiability was not the purpose of the signature. 	Id.
Affixation is not required for standing, where that is meant as the right to enforce.
Second, the right to enforce an instrument, at issue here, is discussed at
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No. 83347-2-I/17
17
RCW 62A.3-203, which defines the transfer of an instrument creating a right to
enforce. In other words, RCW 62A.3-203 is relevant, RCW 62A.3-204 is not, and
there is no reference to affixing in RCW 62A.3-203. 	Further, RCW 62A.3-205(b)
makes clear that, “When indorsed in blank, an instrument becomes payable to
bearer and may be negotiated by transfer of possession alone until specially
indorsed.” 	RCW 62A.3-205(b). 	21st held an indorsement in blank and a note
indorsed in blank can be enforced and transferred by the bearer, i.e., the person
who possesses it, without reference to affixations. Id.
Thus, the stray language of affixation at RCW 62A.3-204(a) is irrelevant to
issues presented here: the enforceability of a note with an indorsement in blank in
the possession of 21st.
iii. 	Robertson’s last arguments pursuant to RCW 62A.3-308 and
“public policy”
Third, at oral argument, Robertson’s counsel cited to RCW 62A.3-308,
which relates to proof of authenticity, validity or authority to make signatures, in
support again of Robertson’s claim that 21st was required to possess the note at
the time of the filing of its complaint. Wash. Court of Appeals oral argument, supra,
at 17 min. 	54 sec. through 18 min., 22 sec. 	However, here, we have an
indorsement in blank, which is expressly covered by RCW 62A.3-205 as stated
above. Further, RCW 62A.3-308 simply does not state that the holder must hold
the note and allonges at time of filing of the complaint. 	If anything, RCW 62A.3-
308’s emphasis on proof “at the time of trial” suggests that the proper time to verify
the validity of signatures (again, not at issue here) to foreclose is when “proof” is
required, which is the date the court considers the merits of the proposed decree
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No. 83347-2-I/18
18
of foreclosure.4 So Robertson’s third argument also is insufficient as a matter of
law.
Fourth, and finally, at oral argument, Robertson’s counsel contended that
“public policy” requires a showing of possession of the note and allonges at the
time of the complaint. Wash. Court of Appeals oral argument, supra, at 3 min., 30
sec. through 3 min. 54 sec. Because this was the first time that counsel raised this
argument, we will not consider Robertson’s final argument. 	State v. Elliott, 114
Wn.2d 6, 15, 785 P.2d 440 (1990) (“This court will not consider claims insufficiently
argued by the parties.”) (citing State v. Wethered, 110 Wn.2d 466, 472, 755 P.2d
797 (1988)).
Thus, we conclude that there is no authority in support of the affirmative
proposition that one must possess the note and allonges, or affix the allonges to
the note, at the time of lawsuit happened to be filed, as Robertson urges.
Moreover, because a misstatement of law is presumptively prejudicial, the
party 	who 	offered 	the 	improper 	instruction 	or 	verdict 	form 	must 	rebut 	the
presumption that prejudice resulted. 	Anfinson,174 Wn.2d 851 at 874. 	Tellingly,
Robertson does not address this question as to whether this is an error of law,
rather he attempts to recharacterize 21st ’s argument as a “factual argument, not
[sic.] legal one.” 	That response is nearly non-responsive and we conclude that
Robertson has not met his burden to show that 21 st was not prejudiced by the
4 Although it may be necessary to prove standing to foreclose at the time of filing
a complaint in a non-judicial foreclosure, it is not for a judicial foreclosure (like
here). 	See, e.g., Bavand, 196 Wn. App. at 824 (plaintiff’s “show me the note”
argument is simply untenable). 	Further, unlike in federal court, in state court,
standing generally is not pled at the time a complaint is filed. CR 8(a).
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No. 83347-2-I/19
19
inclusion of verdict question 3 and its related jury instructions.
b. 	Verdict Question 3 Was Improperly Given on the Facts
Even if Robertson’s views were the law, 21 st also argues that “the only
relevant and admissible testimony presented at trial shows that 21st was in
possession of the original Note and Allonges at the time the Complaint was filed,”
on that July date in 2014. 	21st is correct. 	Robertson’s witnesses confirmed that
they did not have any personal knowledge of whether and when 21st was in
possession of the note and allonges.
In response, Robertson baldly claims that “the jury found in favor of [him]
because it did not find [Warkins] credible.” 	He does not point to anything in the
record, whether testimony or evidentiary, to provide an evidentiary basis upon
which the jury could find Warkins not credible, other than one email in which a
lawyer asks another lawyer to provide a copy of the note. 	It is not a reasonable
inference to conclude that this email provides evidence 21 st did not possess the
note on a very specific day (of filing). 	Cf. Bucci, 197 Wn. App. at 328 (“USB
produced the original note, indorsed in blank, for inspection by the trial court. This
was sufficient to prove the status of USB as the holder of Bucci's note.”). 	Thus,
even considering the evidence in the light most favorable to the moving party, none
of Robertson’s witnesses provided any evidence to contradict Warkins’s testimony.
Therefore, based on the available facts and authority, verdict question 3
was improperly presented to the jury because there was no factual support for the
basis of that verdict. 	Stated otherwise, whether 21 st possessed the note and
allonges (affixed or not) at the time of the complaint or indorsement does not affect
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No. 83347-2-I/20
20
the outcome of the foreclosure as a question of law or fact. Because this verdict
question fails as a matter of law and fact, the trial court erred in denying 21 st ’s
motion for a JMOL. 	We reverse the denial of 21st ’s JMOL, and thus, do not
consider or examine 21 st ’s request, in the alternative, for a new trial.
A majority of the panel having determined that only the foregoing portion of
this opinion will be printed in the Washington Appellate Reports and that the
remainder shall be filed for public record pursuant to RCW 2.06.040, it is so
ordered.
B. 	Expert Witnesses
Setting aside his counter-claims, Robertson’s only remaining defenses to
the decree of foreclosure are whether, in fact, 21st did not possess the “original”
note and allonges, whether through fraud or otherwise, and whether 21st ’s case
was built on inadmissible evidence.
As to the former, Robertson claims the trial court erred in excluding Kelley’s
testimony and limiting McDonnell’s, both of who were offered to testify as to such
alleged fraud.5 	We conclude that the trial court did not err in excluding Kelley’s
testimony nor did it err in limiting McDonnell’s testimony. We discuss each in turn.
1. 	Law
A “trial court has a very wide discretion” in determining the admissibility of
expert testimony and “this discretion will not be reversed on appeal” “absent an
abuse thereof.” Myers v. Harter, 76 Wn.2d 772, 781, 459 P.2d 25 (1969) (quoting
5 Because we did not need to reach 21st ’s request for a new trial based on verdict
question 3, we will address 21 st ’s objections to the trial court’s only partial exclusion
of McDonnell’s testimony only in the context of Robertson’s assignment of error.
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No. 83347-2-I/21
21
Hill v. C.&E. Construction Co., Inc., 59 Wn.2d 743, 745-46, 370 P.2d 255 (1962)).
A trial court abuses its discretion by issuing “manifestly unreasonable” rulings or
rulings based on untenable grounds, such as a ruling contrary to law. Wash. State
Physicians Ins. Exch. & Ass’n v. Fisons Corp., 122 Wn.2d 299, 339, 858 P.2d 1054
(1993) (citing Holbrook v. Weyerhaeuser Co., 118 Wn.2d 306, 315, 822 P.2d 271
(1992)). 	A reviewing court may not hold that a trial court abused its discretion
“‘simply because it would have decided the case differently.’” Gilmore v. Jefferson
County Pub. Transp. Benefit Area, 190 Wn.2d 483, 494, 415 P.3d 212 (2018)
(quoting State v. Perez-Cervantes, 141 Wn.2d 468, 475, 6 P.3d 1160 (2000)).
To find abuse of discretion, a court “must be convinced that ‘no reasonable
person would take the view adopted by the trial court.’” 	Id. 	If the basis for
admission of the evidence is “fairly debatable,” we will not disturb the trial court’s
ruling. 	Grp. Health Coop. of Puget Sound, Inc. v. Dep’t of Revenue, 106 Wn.2d
391, 398, 722 P.2d 787 (1986) (quoting Walker v. Bangs, 92 Wn.2d 854, 858, 601
P.2d 1279 (1979)).
“An expert’s opinion is admissible if the witness is properly qualified, relies
on generally accepted theories, and the expert’s testimony is helpful to the trier of
fact.” Philippides v. Bernard, 151 Wn.2d 376, 393, 88 P.3d 939 (2004) (citing State
v. Allery, 101 Wn.2d 591, 596, 682 P.2d 312 (1984)); Johnston-Forbes v.
Matsunaga, 181 Wn.2d 346, 354, 333 P.3d 388 (2014).
If expert testimony concerns “novel scientific evidence”, “it first must satisfy
the Frye standard and then must meet the other criteria in ER 702.” Lake Chelan
Shores Homeowners Ass’n v. St. Paul Fire & Marine Ins. Co., 176 Wn. App. 168,
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No. 83347-2-I/22
22
175, 313 P.3d 408 (2013) (citing State v. Gregory, 158 Wn.2d 759, 829–30, 147
P.3d 1201 (2006)) (referring to Frye v. United States, 293 F. 1013, 34 A.L.R. 145
(D.C. Cir. 1923)); State v. Riker, 123 Wn.2d 351, 360 n. 1, 869 P.2d 43 (1994)
(“Nevertheless, in this state, we continue to adhere to the view that the Frye
analysis is a threshold inquiry to be considered in determining the admissibility of
evidence under ER 702.”).
Generally, “[u]nder Frye, the primary goal is to determine whether the
evidence offered is based on established scientific methodology.” 	State v.
DeJesus, 7 Wn. App. 2d 849, 859-60, 436 P.3d 834 (2019) (citing Anderson v.
Akzo Nobel Coatings, Inc., 172 Wn.2d 593, 603, 260 P.3d 857 (2011)). However,
“if the proffered evidence does not involve new methods of proof or new scientific
principles, then the Frye inquiry is not necessary.” 	State v. Sipin, 130 Wn. App.
403, 415, 123 P.3d 862 (2005) (citing State v. Ortiz, 119 Wn.2d 294, 311, 831 P.2d
1060 (1992)). 	“This is because full acceptance of a process in the relevant
scientific community obviates the need for a Frye hearing.” 	Id. (citing State v.
Russell, 125 Wn.2d 24, 41, 882 P.2d 747 (1994)).
2. 	Application of Law to Facts
a. Kelley
The trial court found, and 21 st conceded at the Frye hearing, that a properly
qualified expert, testifying to the subject matter Kelley intended to testify to, could
be helpful to the trier of fact, thereby satisfying the third of the three Frye factors.
RP 300 (trial court describing this testimony as “extra helpful”); RP 297 (21st ’s
concession). 	Because “[w]e construe helpfulness to the trier of fact broadly,”
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No. 83347-2-I/23
23
Philippides, 151 Wn.2d at 393 (citing Miller v. Likins, 109 Wn. App. 140, 148, 34
P.3d 835 (2001)), we find this first factor met.
In dispute are the first and second factors, namely, whether the court
properly found Kelley to be not qualified, and whether Kelley relied on generally
accepted theories, which was the primary subject of the Frye hearing. Philippides,
151 Wn.2d at 393.
“A witness may qualify as an expert ‘by knowledge, skill, experience,
training, or education.’” 	L.M. v. Hamilton, 193 Wn.2d 113, 135, 436 P.3d 803
(2019) (quoting ER 702). 	“Nothing in ER 702 requires an expert witness to be
licensed in his profession to give testimony. On the contrary, practical experience
alone may suffice to qualify a witness as an expert.” 	Johnston-Forbes, 177 Wn.
App. at 411 (citing State v. Yates, 161 Wn.2d 714, 765, 168 P.3d 359 (2007)).
Further, when determining whether a witness is an expert, courts may look beyond
“academic credentials,” as “[t]raining in a related field . . . alone may also be
sufficient.” 	Harris v. Robert C. Groth, MD, Inc., 99 Wn.2d 438, 449-50, 663 P.2d
113 (1983) (citing 5A K. Tegland, Wash.Prac., Evidence § 289 (1982)).
As to the content of an expert’s knowledge, “the line between chemistry,
biology, and medicine is too indefinite to admit of a practicable separation of topics
and witnesses.” 	Id. at 450 (quoting 2 J. Wigmore, Evidence § 569, at 790
(rev.1979)). 	Nonetheless, when making the determination, courts must consider
whether the expert has “sufficient expertise in the relevant specialty.” 	Frausto v.
Yakima HMA, LLC, 188 Wn.2d 227, 232, 393 P.3d 776 (2017) (quoting Young v.
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No. 83347-2-I/24
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Key Pharm., Inc., 112 Wn.2d 216, 228, 770 P.2d 182 (1989)).
Our Supreme Court has recognized that some “inconsistencies” courts
generate in qualifying witnesses (even the same witness in different cases) may
be “due to the abuse of discretion standard” we apply. 	L.M., 193 Wn.2d at 136
(citing Johnston-Forbes, 181 Wn.2d at 353). 	“The broad standard of abuse of
discretion means that courts can reasonably reach different conclusions about
whether, and to what extent, an expert’s testimony will be helpful to the jury in a
particular case.” 	Johnston-Forbes, 181 Wn.2d at 353-54 (quoting Stedman v.
Cooper, 172 Wn. App. 9, 18, 292 P.3d 764 (2012)). 	“The broad standard also
means that courts can reasonably reach different conclusions about whether an
expert is qualified.” 	L.M., 193 Wn.2d 136 (quoting Johnston-Forbes, 181 Wn.2d
at 353-54).
Here, the trial court acknowledged that Kelley had “10 years experience
examining 	documents,” 	“has 	some 	particularized 	knowledge,” 	has 	“some
education,” which “makes him maybe more familiar with this area . . . than a lay
person may be.” 	Kelley was also a member of some relevant professional
associations that do “almost the same thing” he does. 	Ultimately, however, the
court found that “his training and his experience do not rise to the level of the Court
finding him to be an expert in this area.”
The trial court’s conclusion is supported by the following evidence, all of
which Kelley provided himself:
• 	None 	of 	Kelley’s 	formal 	education 	and 	decades-long 	work
experience was in forensic document examination; instead, he was
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No. 83347-2-I/25
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educated in mathematics and worked in an extraordinarily wide
range of fields from computer engineering and nuclear and advance
weapons design to technical management, when he happened to be
asked to examine a document in 2013 for a private detective
because “they knew [Kelley] was a computer guy”;
• 	Since then, Kelley has not taken any formal forensic document
examination courses or training, including courses to distinguish
between different forms of ink, courses in writing instruments, or
courses in handwriting analysis;
• 	Likewise, Kelley did not receive supervised training under a forensic
document examiner or complete any apprenticeship in the area of
forensic document examination;
• 	In short, Kelley described himself as “an electrical and computer
engineer”; and
• 	Finally, Kelley had never been retained by a lender or mortgage
servicer (with the possible exception of one credit union) to provide
document 	examination. 	Indeed, 	Kelley 	acknowledged 	that
“generally” he does not review loan documentation, which is at issue
here.
Robertson provides no specific argument in response, other than repeating
the general standards of review listed above and asserting it was error for the court
to allow a rebuttal expert to “testify about Kelley’s qualifications” at the Frye
hearing. It is not responsive to the attack on his putative expert’s qualifications to
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No. 83347-2-I/26
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claim that 21 st ’s rebuttal expert’s testimony “[a]t most . . . suggests Kelley’s
conclusions 	may 	have 	been 	inaccurate 	or 	of 	limited 	utility” 	or 	are 	“more
appropriately addressed by cross-examination at trial, not by disqualification under
Frye.” 	And the court is not required to search the record to locate the portions
relevant to a litigant’s arguments, if any, about his expert’s qualifications. Cowiche
Canyon Conservancy v. Bosley,118 Wn.2d 801, 819, 828 P.2d 549 (1992) (citing
RAP 10.3(a)). For this reason alone, Roberton’s defense of his expert fails.
Moreover, we need not rely on 21 st ’s expert rebuttal testimony when Kelley’s
own testimony about the limitations of his qualifications go undeveloped. In turn,
we grant the trial court the significant deference due as its determination that this
expert did not have “sufficient expertise in the relevant specialty.” 	Frausto, 188
Wn.2d at 232. In other words, based on the record before it, we are not “convinced
that ‘no reasonable person would take the view adopted by the trial court.’”
Gilmore, 190 Wn.2d at 494 (quoting Perez-Cervantes, 141 Wn.2d at 475). Thus,
the trial court did not abuse its discretion in excluding Kelley. 	Because we
conclude 	that 	the 	trial 	court 	did not err 	in 	excluding Kelley based on 	his
qualifications, we need not and will not reach whether his testimony involved new
methods of proof or new scientific principle following the Frye hearing.
b. 	Marie McDonnell
Marie McDonnell was qualified to testify as an expert witness based on her
experience as a forensic mortgage examiner, including technical experience
evaluating mortgage titles through public record, and other types of documents.
Robertson offered her testimony in support of his claim that the note and the
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No. 83347-2-I/27
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allonges were not authentic.
21 st moved to exclude McDonnell multiple times under ER 402 and 403,
including at trial. 	In pertinent part, 21st argued initially that any testimony about
events 	prior 	to 	the 	RFC’s 	bankruptcy 	were 	irrelevant 	and 	included 	legal
conclusions. 21st further argued that McDonnell had no personal knowledge of the
underlying documents and her testimony was cumulative.
The trial court denied the motion to exclude the entirety of her testimony,
but, in granting in part 21 st ’s motion, limited McDonnell’s testimony to only events
that occurred after the date the Nicholls Loan was sold in bankruptcy (the Sale
Order), as 21st requested. 	As a result, the trial court did not allow McDonnell to
testify about securitization generally or the pooling of the Nicholls Loan specifically,
as well as not allowing McDonnell to testify as to legal conclusions.
However, to allow Robertson to argue his theory of the case, the court did
allow McDonnell to testify “about the allonges, when they were affixed, whether
they were permanently affixed, how they appeared, when they appeared, whether
this note is legitimate such that 21st can execute.” (emphasis added). 	And
Robertson confirmed that McDonnell, subject to the above limitations, would “be
talking about the history of the loan and how it came about and how 21st Mortgage
didn’t take possession of the original promissory note.” (emphasis added).
Indeed, McDonnell testified that, in her review of the mortgage file, she was
unable to find evidence of the allonges in the publicly available documents or in
the service log between the time RFC sold its assets and the time 21st filed its
complaint. 	From this, McDonnell concluded that these facts create “a real, of
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No. 83347-2-I/28
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course, outstanding question about who created them and when,” while opining
they were created “sometime after 2014.”
In other words, even if error occurred in admitting her testimony (as 21st
claims) 	or 	error 	occurred 	by 	limiting 	her 	testimony 	(as 	Robertson 	claims),
McDonnell testified as to her ultimate opinion in support of Robertson’s claim that
21 st did not possess the original note or allonges before July 2014. 	Cf. State v.
Jennings, 199 Wn.2d 53, 66, 502 P.3d 1255 (2022) (where “the defendant had the
opportunity to present his version of the incident, even if some evidence was
excluded,” a defendant’s heightened right to present a defense is not disturbed).
Thus, no prejudice can be established.
Further, Robertson does not explain how the trial court’s decision to prohibit
McDonnell from testifying about the history of the Nicholls Loan prior to the
bankruptcy (whose relevancy the trial court found to be marginal at best) or about
her own legal conclusions materially undermined the breadth of her testimony.
The jury was confronted with two versions of events, that of 21st ’s witness and
McDonnell, and simply did not, apparently, credit her testimony in returning verdict
questions 1 and 2, which found 21st possessed the original instruments.
For these reasons, as with Kelley, we do not find an abuse of discretion in
limiting or including her testimony, because we are far from “convinced that no
reasonable person would take the view adopted by the trial court” to allow
McDonnell to testify as to her ultimate opinion and reasons therefore, without
straying into facts of marginal relevance or legal conclusions. Gilmore, 190 Wn.2d
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No. 83347-2-I/29
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at 494 (quoting Perez-Cervantes, 141 Wn.2d at 475).
C. 	Hearsay
Robertson next argues that certain documents admitted at trial were
admitted in error because they were hearsay. We conclude that it was not error to
admit these documents because they were self-authenticating under ER 902, as
commercial paper.
The contested documents at issue in this case are the promissory note,
allonges, deed of trust (DOT), corporate assignments of DOT, and the asset
purchase agreement between some defendants and Berkshire.6
Pursuant to ER 902(i), commercial paper is self-authenticating because it
has an operative legal effect that is not subject to the hearsay rule. 	Kepner–
Tregoe, Inc. v. Leadership Software, Inc., 12 F.3d 527, 540 (5th Cir. 1994)
(“‘Signed instruments such as wills, contracts, and promissory notes are writings
that have independent legal significance and are not hearsay.’”) (quoting T HOMAS
A. MAUET, FUNDAMENTALS OF T RIAL T ECHNIQUES 180 (1988)). 	In other words,
documents, such as these, which have “operative” or “independent” legal effect
are not subject to the prohibition on hearsay. 	ROBERT H. A RONSON & MAUREEN A.
HOWARD, T HE L AW OF EVIDENCE IN W ASHINGTON § 10.05[2][f] (5th ed. 2016).
Apparently misunderstanding the nature of the documents, Robertson
claims these documents are not “business records” and cites to State v. White.
State v. White, 72 Wn.2d 524, 531, 433 P.2d 682 (1967). First, White is a criminal
6 It is worth noting that such documents are not actually in the record before this
court.
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No. 83347-2-I/30
30
case where hospital records included a hearsay statement which went to an
ultimate issue resulting in reversible error. White, 72 Wn.2d at 531. This is facially
distinguishable. Second, the “‘[m]ere production of a note establishes prima facie
authenticity and is sufficient to make a promissory note admissible.’” 	Bucci, 197
Wn. App. at 328 (citing United States v. Varner, 13 F.3d 1503, 1509 (11th Cir.
1994)). 	As there is no dispute that all the documents in question were operative
legal documents, the trial court did not err in admitting such documents.
D. 	Summary Judgment on Robertson’s Counterclaims
As a review of his counterclaims was stayed on appeal, we examine
whether they appropriately were dismissed for the first time. We conclude it was
not error for the superior court to grant 21 st ’s motion for summary judgment
dismissing each of Robertson’s four counterclaims, which we address in turn.
This court reviews motion for summary judgment orders from a trial court
de novo, performing the same inquiry as the trial court. 	Wilkinson v. Chiwawa
Cmtys. Ass’n, 180 Wn.2d 241, 249, 327 P.3d 614 (2014) (citing Davis v. Baugh
Indus. Contractors, Inc., 159 Wn.2d 413, 416, 150 P.3d 545 (2007)). 	We may
affirm the trial court order if there are no genuine issues of material fact and the
moving party is entitled to a judgment as a matter of law. 	Id. (citing Dowler v.
Clover Park Sch. Dist. No. 400, 172 Wn.2d 471, 484, 258 P.3d 676 (2011)). We
so affirm.
1. 	Consumer Protection Act
The Washington Consumer Protection Act (CPA) is violated if a defendant
engaged in: (1) an unfair or deceptive act or practice; (2) in trade or commerce; (3)
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No. 83347-2-I/31
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which affects the public interest; (4) causation between the act and the injury; and
(5) injury to the plaintiff's business or property. Hangman Ridge Training Stables,
Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 784-85, 719 P.2d 531 (1986). A CPA
claim can only proceed when each element is met. Id. at 793.
As to the first element, Robertson’s opening brief states that the unfair or
deceptive act or practice is 21 st ’s (alleged) act of falsifying or forging documents,
though there is also some suggestion that bringing a judicial foreclosure action is
also the unfair or deceptive act or practice. 	Robertson’s cites to Klem v. Wash.
Mut. Bank, 176 Wn.2d 771, 794-95, 295 P.3d 1179 (2013), for the proposition that
falsifying or forging documents is an unfair and deceptive practice that satisfies the
first three elements under the CPA.
First, the falsification in Klem (“robo-signing”) arose in the context of a
nonjudicial foreclosure sale. Klem, 176 Wn.2d at 794-795 & 797. This is a judicial
foreclosure matter and there is no authority offered that falsification of documents
is an unfair or deceptive act for purposes of the CPA. Indeed, “the act [governing
nonjudicial foreclosures] dispenses with many protections commonly enjoyed by
borrowers under judicial foreclosures [and] lenders must strictly comply with the
statutes and courts must strictly construe the statutes in the borrower’s favor.”
Albice v. Premier Mortgage Servs. of Wa., Inc., 174 Wn.2d 560, 567, 276 P.3d
1277 (2012) (citing Udall v. T.D. Escrow Servs., Inc., 159 Wn.2d 903, 915–16, 154
P.3d 882 (2007); Koegel v. Prudential Mut. Sav. Bank, 51 Wn. App. 108, 111–12,
752 P.2d 385 (1988)).
Second, Robertson cites nothing in the record to support the sweeping
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assertion that both 21 st and Ocwen engaged in intentional efforts to mislead the
public writ large. 	Robertson asks this court to make such an inference based on
alleged irregularities in the documents (such as suspect staple holes), without
adducing a material fact in support upon which such an inference could be drawn.
As in Marts, Robertson identifies “no material issues of disputed fact regarding the
parties’ intent . . . but rather offer mere conjecture regarding staple holes.” Marts,
166 F. Supp. 3d at 1210. 	In turn, again as in Marts, Robertson has “failed to
produce sufficient evidence to permit a jury to reasonably find in [his] favor and
summary judgment is appropriate.” Id.
Although 	we 	need 	not 	address 	any 	of 	the 	remaining 	elements 	of
Robertson’s CPA claim, we also hold that, as to the second element, there is no
authority that a judicial foreclosure is an act occurring in trade or commerce.
“‘Where no authorities are cited in support of a proposition, the court is not required
to search out authorities, but may assume that counsel, after diligent search, has
found none.’” City of Seattle v. Levesque, 12 Wn. App. 2d 687, 697, 460 P.3d 205
(2020) (quoting DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d
193 (1962)).
Without meeting the first, let alone the second element, Robertson’s CPA
claim cannot proceed as a matter of law. 	Therefore, we conclude that summary
judgment against Robertson’s CPA claim was proper.
2. 	Outrage
We 	conclude 	the 	trial 	court 	properly 	granted 	21st ’s 	motion 	for
reconsideration regarding Robertson’s counterclaim of outrage, and thus properly
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granted its motion for summary judgment regarding the same.
Denial of a motion for reconsideration is reviewed for an abuse of discretion.
“[a] trial court abuses its discretion when its order is manifestly unreasonable or
based on untenable grounds,” such as basing “its ruling on an erroneous view of
the law.” Wash. State Physicians Ins. Exch., 122 Wn.2d at 339.
“To prevail on a claim for outrage, a plaintiff must prove three elements: ‘(1)
extreme and outrageous conduct, (2) intentional or reckless infliction of emotional
distress, and (3) severe emotional distress on the part of the plaintiff.’ 	The first
element requires proof that the conduct was ‘so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized community.’” Robel v.
Roundup Corp., 148 Wn.2d 35, 51, 59 P.3d 611 (2002) (citing Dicomes v. State,
113 Wn.2d 612, 630, 782 P.2d 1002 (1989) (quoting Grimsby v. Samson, 85
Wn.2d 52, 59, 530 P.2d 291 (1975)). The “first element of the test goes to the jury
only after the court ‘determine[s] if reasonable minds could differ on whether the
conduct was sufficiently extreme to result in liability.’” Id.
Robertson does not point to a specific fact in the record that would purport
to show how 21 st or Ocwen engaged in extreme and outrageous conduct, stating
only that they “knew they did not have complete chain of title.” Without an example
of behavior that goes beyond the “possible bounds of decency,” we cannot reach
the other elements of this claim. Dicomes, 113 Wn.2d at 630. Although Robertson
alleges behavior that could raise an inference of extreme and outrageous acts by
21 st and Ocwen (such as intentionally hiding the allonges and note) if it were
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No. 83347-2-I/34
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grounded in fact, Robertson cites to no specific behavior or incident providing such
grounding. And the court is not required to search the record to locate the portions
relevant to a litigant’s arguments, if any. 	Cowiche Canyon Conservancy,118
Wn.2d at 819. 	Therefore, it was proper for the trial court to deny Robertson’s
counterclaim for outrage.
3. 	Civil Conspiracy
To establish a claim of civil conspiracy, a party must show “by clear, cogent
and convincing evidence that (1) two or more people contributed to accomplish an
unlawful purpose, or combined to accomplish a lawful purpose by unlawful means;
and (2) the conspirators entered into an agreement to accomplish the object of the
conspiracy.” Wilson v. State, 84 Wn. App. 332, 350-51, 929 P.2d 448 (1996).
Robertson alleges conspiracies between Ocwen and 21 st under criminal
statutes. 	However, because Robertson does not support these assertions with
citations to the record to show that there is clear and cogent evidence that Ocwen
and 21st entered into any agreement, let alone a coordinated attempt to falsify
records, we conclude that Robertson’s civil conspiracy claim fails as a matter of
law.
4. 	Quiet Title
We conclude 	that 	the 	trial 	court 	did not err 	in 	denying Robertson’s
counterclaim seeking quiet title.
Robertson is not the record owner of the property. 	The trial court voided
Robertson’s trustee deed in its summary judgment order, and the finding was not
reversed in this court’s 2017 decision. 	Robertson, No. 75262-6-I, slip op. at 2.
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Because Robertson is no longer the record owner under RCW 7.28.300, he does
not have standing to bring a quiet title action. RCW 7.28.300. Therefore, we affirm
the trial court order on this counterclaim.7
c. 	CONCLUSION
We affirm verdict question 1 and 2, reverse the trial court’s denial of 21 st ’s
motion for JMOL as to verdict question 3, and remand this matter to the trial court
to grant 21st a decree of foreclosure on the Property.
WE CONCUR:
7 Because of how we are resolving this matter, we need not reach whether the trial
court erred in denying Robertson’s motion to vacate under CR 60(b)(11) and his
motion to reinstate his trustee’s deed under CR 60(b)(6), or any other issues raised
by either party.
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