IN THE MATTER OF THE APPLICATION OF FRANK WARREN: SCHNARRS & CHERI LYNN SCHNARRS, TOGETHER AS HUSBAND AND WIFE TO REGISTER TITLE TO LAND HEREINAFTER DESCRIBED, Appellants,
WILMINGTON SAVINGS FUND SOCIETY, FSB, D/B/A CHRISTIANA TRUST, NOT INDIVIDUALLY BUT AS TRUSTEE FOR PRETIUM MORTGAGE ACQUISITION TRUST, ITS SUCCESSORS AND/OR ASSIGNS; JOHN DOE; JANE DOE; ALL OTHER PERSONS OR PARTIES UNKNOWN CLAIMING ANY RIGHT, TITLE, ESTATE, LIEN OR INTEREST INTO, OR UPON THE REAL PROPERTY DESCRIBED HEREIN, Respondents.
and Cheri Schnarrs owned real property in Olympia,
Washington. They borrowed money using the property as
collateral and later defaulted on the loan. The trustee
instituted a nonjudicial foreclosure and sold the property at
auction to Wilmington Savings Fund Society as trustee for
Pretium Mortgage Acquisition Trust. Wilmington recorded the
later, the Schnarrses filed a petition under the Torrens Act,
chapter 65.12 RCW, seeking to register under that statute as
owners of the property. The superior court dismissed the
Schnarrses' petition with prejudice in part because the
Torrens Act requires petitioners to be owners of the property
and the Schnarrses no longer owned the property when they
filed the petition. The Schnarrses appeal. We affirm.
legislature enacted the Torrens Act in 1907 as an alternative
to Washington's recording statute. Laws of 1907, ch. 250.
The adoption of the Torrens Act created an independent system
of recording land titles separate from the recording act.
McMullen & Co. v. Croft, 96 Wash. 275, 276, 164
P. 930 (1917). Under the Torrens Act, proper registration
with the office of the registrar of titles provides
conclusive evidence that the person recorded on the register
is the owner of the registered property. See RCW
65.12.480. But the Torrens Act registration system has
apparently fallen into disuse as a result of modern title
recording systems, including the use of title companies and
private electronic registration systems such as the Mortgage
Electronic Registration System, Inc. See, e.g.,
Bain v. Metro. Mortg. Grp., Inc., 175 Wn.2d 83, 88,
285 P.3d 34 (2012).
Schnarrses borrowed $187, 500 against their property in
Olympia. Years later, they defaulted on their loan. The
trustee, Clear Recon Corp provided them with a notice of
default, which the Schnarrses failed to cure. The trustee
then provided the Schnarrses with notice of nonjudicial
foreclosure. It also executed and recorded a notice of
trustee's sale in the county auditor's office. The
Schnarrses again took no action to cure the default. Clear
Recon Corp sold the property at public auction to Wilmington
Savings Fund Society, not individually but as trustee for
Pretium Mortgage Acquisition Trust. Wilmington then recorded
its trustee's deed.
months after Wilmington recorded its deed, Micah James
Anderson, on behalf of the Schnarrses, signed and filed in
superior court a Torrens Act petition and application seeking
to register the Schnarrses' title to the land under the
Act. Anderson signed the Torrens petition and other
documents, but Anderson is not an attorney. Anderson and the
Schnarrses then attempted to bring a series of default
motions, all of which were ultimately denied for various
reasons, most importantly because the pleadings had not been
signed by a party or a licensed attorney.
Schnarrs eventually signed and filed an amended Torrens Act
petition and application for registration of land titles
almost eight months after Wilmington had recorded its
trustee's deed. This amended petition is the one at issue
in this appeal. The amended petition named Cheri Schnarrs as
a party and applicant.
filed a CR 12(b)(6) motion to dismiss with prejudice.
Wilmington also requested that the superior court take
judicial notice of the promissory note, the deed of trust,
the trustee's deed, and the order granting
Wilmington's motion to dismiss the Schnarrses'
complaint in a separate case. Wilmington also asked for
court took judicial notice of the documents Wilmington
submitted and granted Wilmington's motion to dismiss with
prejudice, but denied Wilmington's request for attorney
fees. The court concluded that the foreclosure action
precluded the Schnarrses' claim. The court clarified that
it was dismissing the case under CR 12(b)(6), but its ruling
would be the same if it had converted the motion to dismiss
to a motion for summary judgment.
January 22, 2018, Frank Schnarrs filed a notice of appeal,
but Cheri Schnarrs was not mentioned in the notice. Frank
Schnarrs passed away while the appeal was pending. Cheri
Schnarrs filed a motion for substitution of parties under RAP
3.2, requesting that she be substituted for her husband in
the appeal. Wilmington opposes this motion.
Schnarrs filed a motion to substitute her as a party to this
appeal, alleging that she was a party to the lawsuit below,
she is the successor in interest of Frank Schnarrs, and she
desires to move forward with the appeal. RAP 3.2(a) requires
substitution of parties on appeal "when it appears that
a party is deceased." See also, State v. Webb,
167 Wn.2d 470, 478, 219 P.3d 695 (2009). Cheri Schnarrs
submitted a declaration explaining that she and her husband
owned the property at issue as community property and with
right of survivorship. This declaration is sufficient to
warrant the substitution of Cheri Schnarrs as a successor in
interest. In addition, RAP 5.3(i) allows this court ...