Keith Pelzel v. Nationstar Mrtg. Llc ( 2015 )

FILED
COURT OF APPEALS
DIVISION 11
26115 MAR 24 AM 8: 33
INGTON
IN THE COURT OF APPEALS OF THE STATE OF
WASHINGS
DIVISION II
KEITH PELZEL, No. 43294 -3 -II
Appellant,
v.
NATIONSTAR MORTGAGE, LLC; UNPUBLISHED OPINION
QUALITY LOAN SERVICE
CORPORATION OF WASHINGTON;
HOMECOMINGS FINANCIAL NETWORK,
INC., MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC., ALL
PERSONS UNKNOWN, CLAIMING ANY
VALID SUBSISTING INTEREST, AND
RIGHT TO THE POSSESSION IN THE
PROPERTY DESCRIBED IN THE
COMPLAINT ADVERSE TO PLAINTIFF' S
TITLE, OR ANY CLOUD ON PLAINTIFF' S
TITLE THERETO; and DOES I -X,
INCLUSIVE,
Respondents.
WORSWICK, P. J. — Keith Pelzel sued Nationstar Mortgage, LLC, Quality Loan Services
Corporation of Washington, Homecomings Financial Network, Inc., and Mortgage Electronic
Registration Systems, Inc. ( MERS) to prevent Quality' s nonjudicial foreclosure of a deed of trust
secured by Pelzel' s property. Pelzel also sought damages under the Consumer Protection Act'
CPA). The superior court granted summary judgment in favor of defendants. Pelzel appeals,
1
Chapter 19. 86 RCW.
No. 43294 -3 -II
arguing summary judgment inappropriate because the deed DTA) ( 1)
act2 (
was under of trust
Nationstar was not a beneficiary, ( 2) Nationstar had no authority to appoint a successor trustee,
3) Quality lacked authority to initiate a nonjudicial foreclosure of Pelzel' s property on
Nationstar' s behalf, (4) MERS' s assignment of the deed of trust and note to Nationstar was
invalid, and ( 5) Nationstar failed to prove it was a servicer or agent for the note' s owner. Pelzel
also argues summary judgment was inappropriate because under the CPA, ( 6) the defendants
deceived Pelzel by misrepresenting Quality' s authority to initiate a nonjudicial foreclosure of
Pelzel' s property on.Nationstar' s behalf, (7) Quality deceived Pelzel by falsely identifying
Nationstar as the note' s owner in the " notice of default" sent to Pelzel, and ( 8) MERS deceived
Pelzel by assigning the deed of trust and note as the nominee of Homecomings, the lender and
original beneficiary. We reject Pelzel' s arguments and affirm.
FACTS
A. The Promissory Note and Deed of Trust
In 2003, Keith Pelzel borrowed $ 104, 000 from the lender Homecomings Financial
Network, Inc. Pelzel signed a promissory note promising to repay the loan, and secured the note
with a deed of trust against his property. The deed of trust listed Pelzel as the borrower,
Homecomings as the lender, and Fidelity National Title as the trustee. The deed of trust then
said the following about MERS:
MERS is a separate corporation that is acting solely as a nominee for
Homecomings] and [ Homecomings'] successors and assigns. MERS is the
beneficiary under this Security Instrument.
2 Chapter 61. 24 RCW.
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Clerk' s Papers ( CP) at 37.
Homecomings possessed the deed of trust and the note. Then, at some time prior to
January 23, 2009, Homecomings indorsed the note to GMAC Mortgage Company, who in turn
indorsed the note in blank. After the note was indorsed in blank, on January 23, 2009, Nationstar
took physical possession of the note. Nationstar had physical possession of the note at the time
of the motion for summary judgment.
At some point, the Federal National Mortgage Association (Fannie Mae) purchased the
loan represented by the note, making Fannie Mae the note' s owner. See Trujillo v. Nw. Tr.
Servs., Inc., 181 Wn. App. 484, 487 -89, 326 P. 3d 768 ( 2014). But Fannie Mae did not take
physical possession of the note.
On November 13, 2009, Nationstar appointed Quality as the deed of trust' s successor
trustee. From then onward, Quality served as the deed of trust' s successor trustee.
On November 19, 2009, MERS, as nominee for Homecomings, executed a document
purporting to assign both the deed of trust and the note to Nationstar. MERS executed this
document even though Homecomings had already indorsed the note to GMAC and even though
Nationstar had already obtained physical possession of the note.3
B. Notice ofDefault, Declaration of Ownership, and Trustee' s Sale
In November of 2009, Quality, as successor trustee, sent Pelzel a notice of default, which
stated in part:
The current owner /beneficiary of the Note secured by the Deed of Trust is:
Nationstar Mortgage LLC
3 From the record it appears MERS may have been attempting to assign the deed of trust to
Nationstar, but failed to remove language assigning the note.
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No. 43294 -3 - I1
The Loan Servicer managing your loan, and whom you should contact about your
loan is:
Nationstar Mortgage LLC
CP at 17 ( emphasis added).
In January of 2010, Nationstar' s authorized agent signed a " Declaration of Ownership,"
which stated under penalty of perjury that Nationstar was " actual holder of" the note. CP at 176.
In September of 2010, relying on this declaration of Nationstar' s agent, Quality initiated a
nonjudicial foreclosure of Pelzel' s property by scheduling a trustee' s sale of Pelzel' s property.
C. Pelzel' s Complaint and Summary Judgment
Prior to the trustee' s sale, Pelzel filed a complaint against Nationstar, Quality,
Homecomings, and MERS, making claims for, among other things, ( 1) defect in trustee' s sale
under the DTA, (2) defective initiation of foreclosure under the DTA, and ( 3) violation of the
CPA. Pelzel requested many forms of relief, including ( 1) declaratory relief, (2) an order
vacating the foreclosure sale, and ( 3) damages under the CPA. In response to Pelzel' s complaint,
Quality stopped the trustee' s sale.
The defendants moved for summary judgment, and the superior court granted summary
judgment against Pelzel on all claims. The superior court ruled that no cause of action for
wrongful initiation of foreclosure existed, and that the lack of a completed foreclosure sale
rendered Pelzel unable to prove damages on his other claims. Pelzel appeals.
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
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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. 164 Wn.2d at 552.
Interpretation of a statute is a question of law we also review de novo. Dep' t ofEcology
v. Campbell & Gwinn, L.L. C., 146 Wn.2d 1, 9, 43 P. 3d 4 ( 2002). Our objective in interpreting a
statute is to carry out the legislature' s intent. Arborwood Idaho, L.L.C. v. City ofKennewick, 151
Wn.2d 359, 367, 89 P. 3d 217 ( 2004). " The `plain meaning' of a statutory provision is to be
discerned from the ordinary meaning of the language at issue, as well as from the context of the
statute in which that provision is found, the related provisions, and the statutory scheme as a
whole." City of Spokane v. Rothwell, 166 Wn.2d 872, 876 -77, 215 P. 3d 162 ( 2009). " In general,
words are given their ordinary meaning, but when technical terms and terms of art are used, we
give these terms their technical meaning." Swinomish Indian Tribal Cmty. v. Dep' t ofEcology,
178 Wn.2d 571, 581, 311 P. 3d 6 ( 2013).
Turning to Pelzel' s arguments, we examine and reject his claims for relief under the DTA
as well as his claims for monetary damages under the CPA.4
I. DECLARATORY RELIEF UNDER THE DTA
At the superior court, Pelzel requested " a declaration of the rights and duties of the
parties, specifically Defendants Quality Loan and Nationstar initiated a defective foreclosure of
the Property." CP at 12. Washington courts may issue declaratory judgments under the Uniform
4 Defendants argue that Pelzel waived his CPA claims by failing to include an assignment of
error challenging the superior court' s denial of his CPA claims. See Ryder v. Port ofSeattle, 50
Wn. App. 144, 155, 748 P. 2d 243 ( 1987). Because Pelzel argues the CPA throughout his brief,
we use our
discretionary authority to consider Pelzel' s claim. See RAP 2. 5( a); Roberson v.
Perez, 156 Wn.2d 33, 39, 123 P. 3d 844 ( 2005).
No. 43294 -3 - II
Declaratory Judgments Acts to declare the rights of the parties if the plaintiff shows that a
justiciable controversy exists. To —
Ro Trade Shows v. Collins, 144 Wn.2d 403, 410 -11, 27 P. 3d
1149 ( 2001). Because Pelzel has made such a showing, we consider his arguments regarding
declaratory relief for alleged DTA violations. 6
Under the DTA, 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 the lender ( the beneficiary), as security for
credit or a loan. 175 Wn.2d at 93. The deed of trust protects the beneficiary by giving it the
power to nominate a trustee, who then has the power to sell the property at a trustee' s sale on the
beneficiary' s behalf if the borrower defaults. 175 Wn.2d at 88; Rucker v. Novastar Mortg., Inc.,
177 Wn. App. 1, 10 -11, 311 P. 3d 31 ( 2013).
MERS maintains a private electronic registration system for tracking ownership of
mortgage related debt. Bain, 175 Wn.2d at 95. In many states, including Washington, MERS is
also often listed as the beneficiary of a deed of trust. 175 Wn.2d at 88. In Bain, our Supreme
Court held " MERS is an ineligible `beneficiary within the terms of the Washington Deed of
Trust Act,' if it never held the promissory note or other debt instrument secured by the deed of
trust." 175 Wn.2d at 110 ( internal quotation marks omitted).
s Chapter 7. 24 RCW.
6 At the superior court, Pelzel requested an injunction to vacate the trustee sale. We do not
consider Pelzel' s claim for injunctive relief because Quality already stopped the trustee' s sale
and the record does not show that a new trustee' s sale was initiated. Thus, there was no trustee
sale for an injunction to stop.
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No. 43294 -3 -II
Pelzel argues that when Quality initiated the nonjudicial foreclosure ( 1) Nationstar was
not the lawful beneficiary under the DTA, (2) Nationstar had no authority to appoint a successor
trustee, ( 3) Quality' s initiation of a nonjudicial foreclosure of Pelzel' s property on Nationstar' s
behalf was improper, (4) Nationstar' s foreclosure was improper, and ( 5) Quality lacked authority
to initiate a nonjudicial foreclosure against Pelzel' s property on Nationstar' s behalf. We reject
Pelzel' s arguments and hold that Nationstar was the deed of trust' s beneficiary with authority to
appoint Quality as successor trustee, which gave Quality authority to initiate a nonjudicial
foreclosure of Pelzel' s property on Nationstar' s behalf under RCW 61. 24. 030( 7). We further
hold that neither any defect in MERS' s assignment of the note and deed of trust nor Nationstar' s
relationship to the deed of trust' s owner Fannie Mae affected Quality' s authority to initiate a
nonjudicial foreclosure of Pelzel' s property on Nationstar' s behalf.
A. Nationstar 's Status as Beneficiary Under the DTA
Pelzel argues Nationstar was not the lawful beneficiary under the DTA. We disagree.
1. Definition ofBeneficiary
The deed of trust' s beneficiary is traditionally the lender who loaned money to the
homeowner. Bain, 175 Wn.2d at 88. But lenders are free to sell the secured debt, typically by
selling the note. 175 Wn.2d at 88. The DTA recognizes that the deed of trust' s beneficiary at
any one time might not be the original lender. 175 Wn.2d at 88. Therefore, RCW 61. 24. 005( 2)
of the DTA defines " beneficiary" broadly as the " holder of the instrument or document
evidencing the obligations secured by the deed of trust." 175 Wn.2d at 88.
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No. 43294 -3 - II
Here, the note was the instrument or document evidencing the obligations secured by the
deed of trust. Thus, the note' s holder was the beneficiary under the DTA. Accordingly, we must
determine whether Nationstar was the note' s holder.
2. Definition of "Holder"
The Uniform Commercial Code (UCC) guides our interpretation of the DTA' s terms. 8
Bain, 175 Wn. 2d at 104. The UCC defines " holder" as "[ t] he person in possession of a
negotiable instrument that is payable either to bearer or to an identified person that is the person
in possession." RCW 62A. 1- 201( 21)( A). A note indorsed in blank is payable to bearer. RCW
62A.3- 205( b).
Here, the undisputed evidence establishes that Nationstar was the note' s holder. Pelzel
does not challenge that the note was indorsed in blank or that Nationstar had actual physical
possession of it after it was indorsed in blank. Once the note was indorsed in blank, it became
payable to bearer. Because Nationstar had physical possession of the note and the note was
payable to bearer, Nationstar was the note' s holder. Thus, Nationstar was the holder of the
instrument evidencing the obligations secured by the deed of trust, which made Nationstar the
deed of trust' s beneficiary under the DTA.
B. Nationstar' s Authority To Appoint a Successor Trustee
Pelzel argues Nationstar had no authority to appoint a successor trustee. We disagree.
7 Title 62A RCW.
8 Pelzel argues that we should not use the UCC to guide its interpretation of the DTA' s terms.
But our Supreme Court has established that the UCC guides our interpretation of the DTA' s
terms. Bain, 175 Wn.2d at 104.
No. 43294 -3 - II
Only a lawful beneficiary has the power to appoint a successor to the original trustee
named in the deed of trust. Bavand v. OneWest Bank, F.S.B., 176 Wn. App. 475, 486, 309 P. 3d
636 ( 2013). Only a properly appointed trustee may proceed with a nonjudicial foreclosure of
real property. 176 Wn. App. at 486 -87.
As discussed above, Nationstar was a lawful beneficiary because it held the note. Thus,
Nationstar had authority to appoint a successor trustee.
C. Quality' s Authority To Initiate a Nonjudicial Foreclosure Under RCW 61. 24. 030( 7)
Pelzel argues that under RCW 61. 24. 030( 7), Quality lacked authority to initiate a
nonjudicial foreclosure against Pelzel' s property on Nationstar' s behalf. Again, we disagree.
RCW 61. 24. 030 provides that "[ i] t shall be requisite to a trustee' s sale ":
7)( a) That, for residential real property, before the notice of trustee' s sale
is recorded, transmitted, or served, the trustee shall have proof that the beneficiary
is the owner ofany promissory note or other obligation secured by the deed of trust.
A declaration by the beneficiary made under the penalty of perjury stating that the
beneficiary is the actual holder of the promissory note or other obligation secured
by the deed of trust shall be sufficient proof as required under this subsection.
b) Unless the trustee has violated his or her duty [ of good faith] under RCW
61. 24. 010( 4),the trustee is entitled to rely on the beneficiary' s declaration as
evidence of proof required under this subsection.
The note' s holder is the person or entity entitled to enforce the note. Trujillo, 181 Wn.
App. at 500. Conversely, the note' s owner is the person or entity entitled to the note' s economic
benefits. 181 Wn. App. at 497. Here, Nationstar was the note' s holder, but Fannie Mae was the
note' s owner.
Under RCW 61. 24. 030( 7)( a), a successor trustee needs proof that the beneficiary is the
note' s holder, not that the beneficiary is the note' s owner, to initiate a nonjudicial foreclosure.
Trujillo, 181 Wn. App. at 502. Accordingly, under RCW 61. 24. 030( 7)( b), the declaration from
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No. 43294 -3 - II
Nationstar' s authorized agent was sufficient proof of Nationstar' s status as the note' s holder for
Quality to initiate a nonjudicial foreclosure against Pelzel' s property.
1. RCW 61. 24. 030( 7)( a): ProofRequired To Initiate a Nonjudicial Foreclosure
Pelzel argues RCW 61. 24. 030( 7)( a) requires a successor trustee to have proof the
beneficiary is the note' s owner prior to initiating a nonjudicial foreclosure. We disagree.
The first sentence of RCW 61. 24. 030( 7)( a) suggests that the trustee must have proof that
the beneficiary is the owner of the note. But the second sentence of RCW 61. 24. 030( 7)( a)
suggests that a declaration establishing the beneficiary is the actual note' s holder meets the
requirements of the statute.
A note is a negotiable instrument governed by article 3 of the UCC. RCW 62A.3 - 102.
RCW 62A.3 -301 of the UCC governs who is entitled to enforce the note. RCW 62A.3 - 301
provides:
Person entitled to enforce" an instrument means ( i) the holder of the instrument,
ii) a nonholder in possession of the instrument who has the rights of a holder, or
iii) a person not in possession of the instrument who is entitled to enforce the
instrument pursuant to RCW 62A. 3 - 309 or 62A. 3- 418( d). A person may be a
person entitled to enforce the instrument even though the person is not the owner
of the instrument or is in wrongful possession of the instrument.
Emphasis added.)
In Trujillo, consistent with Bain' s statement that courts should use the UCC to interpret
the DTA' s terms, Division One applied RCW 62A.3 - 301 to interpret RCW 61. 24. 030( 7)( a).
Division One concluded that despite ambiguity in RCW 61. 24.030( 7)( a)' s language, it requires a
beneficiary' s declaration to establish only that the beneficiary is the note' s holder, regardless of
whether the beneficiary is the note' s owner:
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No. 43294 -3 - II
RCW 62A. 3- 301( i)] makes clear ... the " holder" of a note is entitled to enforce
the note. It also makes clear that a " holder" may enforce the note " even though the
holder] is not the owner" of the note.
We have no reason to conclude that the legislature intended to depart from either
the common law ...
or the UCC, as articulated in RCW 62A.3 - 301, in enacting
RCW 61. 24. 030( 7)( a) regarding proof of who is entitled to enforce a note that is
secured by a deed of trust. The language of the first sentence of RCW
61. 24. 030( 7)( a) could have more clearly stated that a beneficiary who is the owner
of a note is not always the holder of the note. The holder is entitled to enforce it.
Better still, the legislature could have eliminated any reference to " owner" of the
note in this provision because it is the " holder" of the note who is entitled to enforce
it, regardless of ownership.
Nevertheless, when we consider the second sentence of this statute, which specifies
that the beneficiary must be the holder of the note for purposes of proof, together
with the case authority and other related statutes we have discussed, we must
conclude that the required proof is that the beneficiary must be the holder of the
note. It need not show that it is the owner of the note.
181 Wn. App. at 500 -01 ( alteration in original).
We adopt Division One' s reasoning and hold that proof that the beneficiary is the note' s
holder is sufficient for a successor trustee to initiate a nonjudicial foreclosure, regardless of
whether the beneficiary is the note' s owner. Looking to related provisions, this interpretation
makes RCW 61. 24. 030( 7)( a) consistent with RCW 61. 24. 005( 2)' s language that defines the
beneficiary" as the " holder." Thus, we hold that under RCW 61. 24. 030( 7)( a), proof that the
beneficiary is the note' s holder is sufficient for a successor trustee to initiate a nonjudicial
foreclosure.
2. RCW 61. 24. 030( 7)( b): Adequate Proof ofHolder Status
Pelzel argues that under RCW 61. 24. 030( 7)( b), Quality cannot accept a declaration of
Nationstar' s authorized agent as proof that Nationstar was the note' s holder. We disagree.
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No. 43294 -3 - II
RCW 61. 24. 030( 7)( b) states that the beneficiary' s declaration is sufficient, but not
necessary, to establish proof that the beneficiary is the note' s holder, unless the trustee has
violated its duty of good faith in some other way. An authorized agent can make declarations on
its principal' s behalf:
T] he fact of the agency being once established by proper evidence, then the acts
and declarations of the agent done or made within the scope of his agency, and
while employed in or about the business of his principal, are binding upon the
principal, for the reason that the acts and declarations of the agent are then deemed
to be the acts and declarations of the principal himself.
Ennis v. Smith, 171 Wash. 126, 130, 18 P. 2d 1 ( 1933); see also State v. Austin, 65 Wn.2d 916,
920 -21, 400 P. 2d 603 ( 1965). Accordingly, we hold that under RCW 61. 24. 030( 7)( b), the
declaration of a beneficiary' s agent stating the beneficiary is the note' s holder is sufficient proof
that the beneficiary is the note' s holder, unless the trustee has violated its duty of good faith in
some other way.
Here, Pelzel does not allege any other way in which Quality violated its duty of good
faith as successor trustee. Thus, we reject Pelzel' s argument.
D. MERS' s Assignment of the Deed of Trust
Pelzel argues Quality' s initiation of a nonjudicial foreclosure of Pelzel' s property on
Nationstar' s behalf was improper because MERS' s assignment of the deed of trust and note to
Nationstar was invalid. We reject this argument.
As we discussed above, because Nationstar held the note,. Quality was authorized to
initiate a nonjudicial foreclose of Pelzel' s property on Nationstar' s behalf. Under the DTA " a
security interest follows the obligation it secures." In re Butler, 512 B. R. 643, 656 ( Bankr. W.D.
Wash. 2014). Thus, the deed of trust (the security interest) followed the note (the obligation the
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No. 43294 -3 - II
deed of trust secures) to Nationstar. This is true regardless of whether the deed of trust was
assigned properly or at all. See 512 B. R. at 656.
Likewise, Nationstar was the note' s holder because the note was payable to bearer and
Nationstar had physical possession of it, regardless of whether the note was assigned properly or
at all. Thus, the validity of MERS' s deed of trust or note assignments to Nationstar had no effect
on Quality' s authority to initiate a nonjudicial foreclosure of Pelzel' s property on Nationstar' s
behalf, and Pelzel' s argument fails. 512 B. R. at 656.
E. Servicer or Agent for Fannie Mae
Pelzel argues that Nationstar' s foreclosure was improper because Nationstar did not
prove that it was a servicer or agent for the note' s owner, Fannie Mae. We disagree.
As the note' s holder, Nationstar was the beneficiary entitled to appoint a successor
trustee, and Quality had authority to initiate a nonjudicial foreclosure of Pelzel' s property on
Nationstar' s behalf, regardless of whether Nationstar owned the note. Accordingly, whether
Nationstar was the servicer or agent of the note' s owner had no effect on Quality' s authority to
initiate a nonjudicial foreclosure of Pelzel' s property on Nationstar' s behalf. Pelzel' s claims for
declaratory relief under the DTA fail.
II. CPA
Pelzel raises arguments under the DTA and CPA on appeal. In the superior court, Pelzel
requested damages and attorney fees against the defendants. After the briefing was filed in this
case, our Supreme Court held that absent a completed foreclosure sale, a plaintiff could bring a
cause of action for monetary damages for alleged DTA violations under the CPA, but not under
the DTA. Frias v. Asset Foreclosure Servs., Inc., 181 Wn.2d 412, 433, 334 P. 3d 529 ( 2014).
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No. 43294 -3 - II
Because no completed foreclosure sale occurred in Pelzel' s case, we consider Pelzel' s claims for
damages under only the CPA, not the DTA.
Under Washington' s CPA, "[ u] nfair methods of competition and unfair or deceptive acts
or practices in the conduct of any trade or commerce are ... unlawful." RCW 19. 86. 020. To
prevail on a CPA claim, a plaintiff must prove that ( 1) the defendant engaged in an unfair or
deceptive act or practice, ( 2) the act occurred in trade or commerce, ( 3) the act affects the public
interest, ( 4) the plaintiff suffered injury to his business or property, and ( 5) the injury was
causally related to the act. Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105
Wn.2d 778, 780, 719 P. 2d 531 ( 1986). Failure to establish even one of these elements is fatal to
the claim. Indoor Billboard /Wash., Inc. v. Integra Telecom of Wash., Inc., 162 Wn.2d 59, 74,
170 P. 3d 10 ( 2007).
The CPA does not define the term " deceptive," but implicit in that term is " the
understanding that the actor misrepresented something of material importance." Hiner v.
Bridgestone /Firestone, Inc., 91 Wn. App. 722, 730, 959 P. 2d 1158 ( 1998), rev' d on other
grounds, 138 Wn.2d 248 ( 1999). For an unfair or deceptive act, "[ a] plaintiff need not show that
the act in question was intended to deceive, but that the alleged act had the capacity to deceive a
substantial portion of the public." Hangman Ridge Training Stables Inc., 105 Wn.2d at 785.
Pelzel argues that when Quality initiated the nonjudicial foreclosure ( 1) the defendants
violated the CPA by misrepresenting that Quality had authority to initiate a nonjudicial
foreclosure of Pelzel' s property on Nationstar' s behalf, (2) Quality violated the CPA by giving
Pelzel a notice of default identifying Nationstar as the note' s owner, and ( 3) MERS violated the
CPA by assigning the deed of trust and note to Nationstar as the nominee of Homecomings. We
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No. 43294 -3 - I1
hold that the defendants did not misrepresent Quality' s authority to initiate a nonjudicial
foreclosure of Pelzel' s property on Nationstar' s behalf, and we further hold that Pelzel failed to
demonstrate how either the Notice of Default' s misstatement that Nationstar owned the note or
MERS' s assignment of the deed of trust on Homecoming' s behalf caused him injury.
A. Quality' s Authority To Initiate a Nonjudicial Foreclosure ofPelzel' s Property on
Nationstar' s Behalf
Pelzel argues the defendants violated the CPA by misrepresenting that Quality had
authority to initiate a nonjudicial foreclosure of Pelzel' s property on Nationstar' s behalf. We
disagree.
As we discussed above, Quality had authority to initiate a nonjudicial foreclosure of
Pelzel' s property on Nationstar' s behalf because Nationstar was the note' s holder and the deed of
trust' s beneficiary. Thus, any representation that Quality had authority to initiate a nonjudicial
foreclosure of Pelzel' s property on Nationstar' s behalf was a true representation, and thus, not a
deceptive act. Pelzel' s claim fails.
B. Notice ofDefault
Pelzel argues that Quality violated the CPA by giving Pelzel a notice of default that
identified Nationstar as the note' s owner, when Nationstar was not the owner. We disagree.
The notice of default properly informed Pelzel that he was in default and that Nationstar
was the entity Pelzel should contact. Pelzel provided no evidence or argument as to how the
statement that Nationstar was the owner /beneficiary injured him. Because Pelzel provided no
evidence that any injury was causally related to the notice of default' s misstatement that
Nationstar owned the note, he has failed to prove all the necessary elements of a CPA claim, and
his CPA claim fails.
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No. 43294 -3 - II
C. Assignment of the Deed of Trust
Pelzel argues MERS violated the CPA by assigning the deed of trust and note to
Nationstar as the nominee of Homecomings because Nationstar already held the note, meaning
that MERS no longer had physical possession of the note and Homecomings was no longer the
note' s beneficiary. Again, we disagree.
As we discussed above, because Nationstar was the beneficiary who held the note,
Quality was entitled to initiate a nonjudicial foreclosure of Pelzel' s property on Nationstar' s
behalf, regardless of whether MERS' s assignment of the note and deed of trust was valid.
Butler, 512 B. R. at 656. MERS' s assignment of the note and deed of trust directed those who
read it to Nationstar, the very entity authorized to enforce the note. Pelzel has provided no
evidence or argument how MERS' s assignment, even if deceptive, caused Pelzel any injury.
Because Pelzel provided no evidence that any injury was causally related to MERS' s assignment,
he has failed to prove all the necessary elements of a CPA claim, and his CPA claim fails.
ATTORNEY FEES
Pelzel requests attorney fees and costs on appeal under the CPA. Only a prevailing party
may recover attorney fees under the CPA. RCW 19. 86. 090; Swain v. Colton, 44 Wn. App. 204,
206 -07, 721 P. 2d 990 ( 1986). Here, because Pelzel is not a prevailing party, he is not entitled to
attorney fees on appeal. 44 Wn. App. at 206 -07.
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No. 43294 -3 - II
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:
Worswick, P. J.
CF
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