Oral Argument April 24, 2014.
Appeal from King County Superior Court. Docket No: 13-2-06928-8. Date filed: 05/31/2013. Judge signing: Honorable Beth M Andrus.
Rocio Trujillo, pro se.
John M. Geyman (of Columbia Legal Services ), for appellant.
Joshua S. Schaer and Lance E. Olsen (of Routh Crabtree Olsen PS ), for respondent.
AUTHOR: Ronald Cox, J. WE CONCUR: Linda Lau, J., Ann Schindler, J.
[181 Wn.App. 487] ¶ 1 The question that we decide is whether the successor trustee under a deed of trust securing a delinquent note in this case breached its duty of good faith under the
Deeds of Trust Act, RCW 61.24.010(4). Specifically, we decide whether Northwest Trustee Services Inc. (NWTS), the successor trustee, was entitled to rely on the beneficiary declaration of Wells Fargo Bank NA for authority to schedule a trustee's sale of property owned by Rocio Trujillo. We hold that the declaration satisfies the requirements of RCW 61.24.030(7)(a). Under the circumstances of this case, NWTS was entitled to rely on that declaration as evidence of the proof required under this statute. NWTS did not violate its duty of good faith under the Deeds of Trust Act.
¶ 2 The trial court properly granted NWTS's CR 12(b)(6) motion to dismiss. We affirm.
¶ 3 The material facts are not disputed. In 2006, Trujillo obtained a loan for $185,900 from Arboretum Mortgage Corp. This loan was evidenced by a promissory note that was secured by a deed of trust dated March 29, 2006 [181 Wn.App. 488] encumbering her real property. The deed of trust was recorded in King County, Washington, on March 31, 2006.
¶ 4 Trujillo claims that Arboretum sold this loan to Wells Fargo in 2006. She further claims that Wells Fargo sold the loan to the Federal National Mortgage Association (" Fannie Mae" ) and retained the loan servicing rights.
¶ 5 This record reflects that the deed of trust was assigned to Wells Fargo from Arboretum by the Assignment of Deed of Trust dated February 2, 2012. The assignment was recorded in King County, Washington, on February 2, 2012.
¶ 6 Trujillo admits that she " defaulted on [her loan] on November 1, 2011." 
¶ 7 By its beneficiary declaration dated March 14, 2012, delivered to NWTS, Wells Fargo declared under penalty of perjury that Wells Fargo " is the actual holder of the promissory note ... evidencing the [delinquent Trujillo] loan or has requisite authority under RCW 62A.3-301 to enforce said [note]." 
¶ 8 The Notice of Default dated May 30, 2012, which NWTS transmitted to Trujillo, itemized the amounts in arrears for the delinquent loan. Moreover, the notice provided to Trujillo contained certain contact information for her delinquent loan. Specifically, this notice states, " The owner of the note is Federal National Mortgage Association [181 Wn.App. 489] (Fannie Mae)," and it further provides Fannie Mae's address. The same page of this notice states, " The loan servicer for this loan is Wells Fargo Bank, N.A.," and it further states Wells Fargo's address.
¶ 9 NWTS recorded the Notice of Trustee's Sale dated July 3, 2012. The notice was recorded on July 10, 2012, and it scheduled a sale date of November 9, 2012 for Trujillo's property. Although this record does not tell us, we assume that sale did not occur as originally scheduled. We reach this conclusion because this action followed that November 2012 scheduled sale date.
¶ 10 In February 2013, Trujillo, acting pro se, commenced this action against NWTS and Wells Fargo. She claimed that NWTS and Wells Fargo violated various provisions of the Deeds of Trust Act. She also claimed
violations of the Criminal Profiteering Act and the Consumer Protection Act. She sought damages for these alleged violations as well as for claimed intentional infliction of emotional distress. Moreover, she sought injunctive relief to restrain the successor trustee's sale of her property as well as an award of attorney fees.
¶ 11 NWTS moved to dismiss Trujillo's complaint pursuant to CR 12(b)(6). The trial court granted this motion and dismissed with prejudice her claims against NWTS. From this record, it appears that the trial court allowed separate claims against Wells Fargo to stand unaffected by the court's decision on this NWTS motion.
¶ 12 Trujillo appeals. Wells Fargo is not a party to this appeal.
[181 Wn.App. 490]STANDARD OF REVIEW
¶ 13 Trujillo argues that we should review the trial court's order as a summary judgment order under CR 56(c). NWTS argues that the trial court's order should be reviewed as a dismissal under CR 12(b)(6). We agree with NWTS.
¶ 14 In Cutler v. Phillips Petroleum Co., the supreme court explained that courts should " dismiss a claim under CR 12(b)(6) only if it appears beyond a reasonable doubt that no facts exist that would justify recovery."  " 'Under this rule, a plaintiff's allegations are presumed to be true', and 'a court may consider hypothetical facts not part of the formal record.'"  " CR 12(b)(6) motions should be granted 'sparingly and with care' and 'only in the unusual case in which plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief.'" 
¶ 15 CR 12(b)(6), in part, provides:
Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross claim, or third party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: ... (6) failure to state a claim upon which relief can be granted . ... A motion making any of these defenses shall be made before pleading if a further pleading is permitted. ... If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, he may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented [181 Wn.App. 491] to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by rule 56 .
¶ 16 A trial court's ruling on a motion to dismiss for failure to state a claim upon which relief can be granted under CR 12(b)(6) is a question of law and is reviewed de novo by an appellate court.
¶ 17 In contrast, under CR 56(c), a party may move for summary judgment if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. A trial court's grant of summary judgment is also reviewed de novo.
¶ 18 An appellate court treats a motion to dismiss as a motion for summary judgment " when matters outside the pleading are presented to and not excluded by the court."  But as the rule and case authority
plainly indicate " [d]ocuments whose contents are alleged in a complaint but which are not physically attached to the pleading may ... be considered in ruling on a CR 12(b)(6) motion to dismiss."  Correspondingly, where matters outside the pleadings are not considered by the court, the motion is not treated as one for summary judgment.
¶ 19 Additionally, where the " basic operative facts are undisputed and the core issue is one of law," the motion to [181 Wn.App. 492] dismiss need not be treated as a motion for summary judgment.
¶ 20 Here, the trial court entered an order granting NWTS's motion to dismiss under CR 12(b)(6). Because the supporting documents the trial court considered were alleged in the complaint and the " basic operative facts are undisputed and the core issue is one of law," we review the order under CR 12(b)(6), not as a summary judgment under CR 56(c).
¶ 21 In her briefing, Trujillo identifies the sole issue on appeal as: Whether NWTS breached its duty of good faith by " recording, transmitting and serving the [notice of trustee's sale] after receiving a declaration from Wells [Fargo] stating that [the bank] was the actual holder of the Note."  The essence of the claim that she asserts is that the beneficiary declaration that Wells Fargo signed under penalty of perjury and delivered to NWTS did not satisfy the requirements of RCW 61.24.030(7)(a). We hold that the declaration satisfied this statute.
¶ 22 " When construing a statute, our goal is to determine and effectuate legislative intent."  We first " give effect to the plain meaning of the language used as the embodiment of legislative intent" where possible. " We determine plain meaning 'from all that the Legislature has said in the statute and related statutes which disclose legislative intent [181 Wn.App. 493] about the provision in question.'"  " 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." 
¶ 23 This court reviews de novo questions involving the interpretation of statutes.
¶ 24 The Deeds of Trust Act, specifically RCW 61.24.030, states certain requisites for a trustee's sale for a nonjudicial foreclosure of a deed of trust. The version of this statute that was in effect at the time of commencement of the nonjudicial foreclosure proceeding involving Trujillo's real property in early 2012 stated, in relevant part:
It 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 of any promissory note or other obligation secured by the deed of trust. A declaration by the beneficiary made under the penalty of perjury stating that the beneficiary is the actual holder of the promissory note 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 under RCW 61.24.010(4), the trustee is entitled to rely on the beneficiary's
declaration as evidence of proof required under this ...