IN THE COURT OFAPPEALS FOR THE STATE OF WASHINGTON ERIK MOSEID, an individual, and DIANNA MOSEID, an individual, Appellants, U.S. BANK, N.A., a national banking association, as trustee for SERIES #2011-1 CERTIFICATES and successor in interest to CREDIT SUISSE FINANCIAL CORPORATION, a business entity, form unknown, LAW OFFICES OF KAREN L. GIBBON P.S., a business entity, form unknown, and DOES 1 through 15, inclusive, Respondents. No. 70823-6-1 DIVISION ONE UNPUBLISHED OPINION FILED: March 2, 2015

Leach, J. — Representing themselves, Erik and Dianna Moseid appeal the 

### trial court's summary dismissal of their complaint.1 After unsuccessfully attempting to restrain a nonjudicial trustee's sale oftheir home infederal district court, the Moseids filed this postsale action in King County Superior Court against lender U.S. Bank, its servicer, Selene Finance LP,2and trustee Karen L. 1 Pro se litigants are "bound by the same rules of procedure and substantive law as attorneys." Westberg v. All-Purpose Structures, Inc., 86 Wn. App. 405, 411, 936 P.2d 1175 (1997). We have "no obligation to grant special favors to ... a pro se litigant." In re Marriage of Olson, 69 Wn. App. 621, 626, 850 P.2d 527 (1993). 2 Selene Finance LP, which identifies itself as U.S. Bank's loan servicer and attorney-in-fact, is not listed in the case caption but is named extensively in the complaint.No. 70823-6-1 / 2 

### Gibbon PS. They contend that foreclosure was wrongful and the sale invalid because the lenderunfairlyrefused to modifytheir loan. On appeal, the Moseids claim that the trial court improperly denied them a chance to amend their complaint and erred bydismissing their complaint. Butthe Moseids neverasked the trial court for permission to amend their complaint, and the complaint they fileddoes not state any claim for which the lawprovides a remedy. We affirm. Background In November 2006, Erik Moseid and Dianna Moseid financed the purchase of a home by signing a promissory notefor$600,000, payableto Credit Suisse Financial Corporation, and a companion deed oftrust. Theyfellbehind in payments on the note due to economic hardships. In March 2011, the Moseids received a written notice ofdefault.3 

### InJune 2011, the loan servicer, Acqura Loan Services,4 sentthe Moseids

a letter inviting them to contact its offices to learn more about a "specialized program" to refinance their loan. In August 2012, a new loan servicer, Selene Finance LP, similarly offered in a letter to "discuss your situation and help determine the best course of action for you." By this time, the Moseids had

3 The second amended notice oftrustee's sale refers to the initial notice of default, which is not a part ofthe record before this court. The Moseids do not dispute thatthey received proper notice ofdefault or assert any other procedural irregularities inthe nonjudicial foreclosure process. 4 By this time, the original beneficiary, MERS (Mortgage Electronic Registration Systems Inc.), had assigned its beneficial interest in the deed of trust to U.S. Bank Trust, National Association, "whose address is c/o Acqura Loan Services."No. 70823-6-1 / 3


### missed more than two years of mortgage payments. The Moseids contacted Selene, which agreed to "perform research" inorderto review theirloan. On October 25, 2012, successor trustee Karen L. Gibbon PS recorded a second amended notice oftrustee's sale. This notice informed the Moseids that 

### they had 20 days to pursue mediation and advised them to contact a housing counselor or attorney immediately for assistance in keeping their house. The letter described the amount in arrears. This included 33 months of mortgage 

### payments, taxes, and fees and totaled $110,605.92. The notice also stated that the trustee's sale would occur on March 1, 2013, unless the Moseids cured the default on or before February 18, 2013. No evidence in the trial court record indicates that the Moseids pursued mediation or other foreclosure assistance. Nor does the record indicate that the Moseids attempted to cure their defaults
before the sale. On December 21, 2012, Selene sent the Moseids a letter requesting documents about income and hardship in order to "review [their] loan for a loan workout." The letter stated, "Please understand that there is no guarantee that your loan will be approved for a loan workout, but we will do everything we canto assistyou." On January 15, 2013, Selene sent the Moseids a letter denying their requestfor a loan modification due to insufficient income. On February 28, 2013, the Moseids filed a lawsuit against Selene in federal district court and an ex parte motion for a temporary restraining orderandNo. 70823-6-1 / 4 

### permanent injunction. The complaint alleged wrongful foreclosure, breach of contract, intentional infliction of emotional distress, slander of title, breach of 

### fiduciary duty, breach of quasi-fiduciary duty,violation of the Fair DebtCollection Practices Act,5 violation of the Fair Credit Reporting Act,6 and violations of RESPA.7 Findingthatthe Moseids were not likelyto succeed on the merits and that "[w]ith the information available, there is no reason to believe the nonjudicial foreclosure is improper," the court denied the motion for a temporary restraining order. The court noted in its orderthatthe Moseids gave no reason why they did 

### not file their action sooner, given thatthey received the notice offoreclosure sale four months earlier, and also noted that they "have not demonstrated that effort 

### was given to notify the Defendants of this TRO [temporary restraining order] motion."8 Selene asked the court to dismiss with prejudice under Fed. R. Civ. P. 12(b)(6). The Moseids did not respond to Selene's motion.

515U.S.C. §§1692-1692p. 6Ch. 19.182 RCW. 7 RESPA refers to the Real Estate Settlement Procedures Act of 1974, 12 U.S.C. § 2601. This information about the Moseids' federal court claims comes from the district court's orders denying the Moseid's request for a temporary 

### restraining order and granting Selene's motion to dismiss. The complaint the Moseids filed infederal district courtwas not among the materials considered by the superior court in the second lawsuit. Therefore, although Selene attaches 

### this complaintas an appendixto its brief ofrespondent, we decline to considerit. See RAP 10.3(a)(8). 8 The court observed that under Fed. R. Civ. P. 65(b), it may issue a 

### temporary restraining order without notice to the opposing party only if "(A) specific facts in an affidavit or verified complaint clearly show immediate and 

### irreparable injury and (B) the movant's attorney certifies in writing any efforts madeto give notice and the reason why itshould notbe required."No. 70823-6-1 / 5 On March 15, 2013, U.S. Bank purchased the property at the trustee's 

### sale. On April 23, 2013, the district court dismissed the Moseids' complaint without prejudice. 

### On May 13, 2013, the Moseids filed this lawsuit against U.S. Bank and Law Offices of Karen L. Gibbon PS in King County Superior Court. They asked the courtto set aside the trustee's sale and cancel the trustee's deed delivered to U.S. Bank. The Moseids also alleged damages from wrongful foreclosure and that U.S. Bank and Selene were estopped from denying reformation. Selene filed a motion to dismiss underCR 12(b)(6). 

### On July 19, 2013, the superiorcourt heard oral argumenton the motion to dismiss. On July 30, 2013, the court dismissed the Moseids' claims with prejudice. 

### The Moseids appeal.9 Analysis We review a trial court's ruling on a motion to dismiss under CR 12(b)(6) 

### de novo, as a question of law.10 A CR 12(b)(6) motion challenges the legal 

### sufficiency of the allegations in a complaint.11 Atrial court properly dismisses
9The correspondence file for this court contains communications related 

### to the appealability ofthe superior court's July 30, 2013, order. On December 11, 2013, a commissioner of this court entered a notation ruling stating that the trial court's orderofdismissal is "an appealable orderunder RAP 2.2(a)(1) and/or (a)(3)."10 FutureSelect Portfolio Mqmt., Inc. v. Tremont Grp. Holdings, Inc.. 180 Wn.2d 954, 962, 331 P.3d 29 (2014). 11 Contreras v. Crown Zellerbach Corp.. 88 Wn.2d 735, 742, 565 P.2d 1173(1977).

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### under CR 12(b)(6) only when it appears beyond doubt that the claimant can 

### prove no set of facts, consistent with the complaint, which would justify recovery.12 We accept all facts alleged in the complaint as true, and we "'may 

### consider hypothetical facts not included in the record.'"13 But "[i]f a plaintiffs claim remains legally insufficient even under his or her proffered hypothetical 

### facts," atrialcourtproperlydismisses under CR 12(b)(6).14 Ifthe trial court considers material outside the challenged pleading, it 

### treats the CR 12(b)(6) motion as a summary judgment motion under CR 56.15 Wewill affirm an ordergranting summaryjudgmentifthere is nogenuine issue of 

### materialfact and themoving party isentitledto judgment as a matter oflaw.16 Here, Selene supported its motion to dismiss with a "request for judicial 

### notice in support of motion to dismiss plaintiffs' complaint." Itattached to this request the federal district court's order denying the Moseids' request for a 

### temporary restraining order, the districtcourt's ordergranting Selene's motion to dismiss, several assignments of the deed of trust, the second amended notice of trustee's sale, and the trustee's deed upon sale. The hearing record shows that the trial court considered these materials but does not indicate ifthe court took judicial notice ofany ofthem.

12 Tenore v. AT&T Wireless Servs., 136 Wn.2d 322, 329, 962 P.2d 104 (1998).13 Burton v. Lehman, 153 Wn.2d 416, 422, 103 P.3d 1230 (2005) (quoting Tenore. 136Wn.2d at 330). 14 Gorman v. Garlock. Inc., 155Wn.2d 198, 215,118 P.3d 311 (2005). 15 CR 12(b)(6). 16 CR 56(c).No. 70823-6-1 / 7 

### The Washington deeds of trust act, chapter 61.24 RCW (DTA or Act), 

### regulates transactions in which a borrower secures a promissory note or other debt instrument with a deed of trust.17 The Act provides the requirements for 

### nonjudicial foreclosure in the event ofborrower default.18 Courts construe the Act to further three basic objectives: an efficient and inexpensive nonjudicial 

### foreclosure process, adequate opportunity to preventwrongful foreclosure, and promotion of the stability of landtitles.19 Because the Act "dispenses with many protectionscommonly enjoyed byborrowers underjudicial foreclosures, lenders must strictly comply with the statutes and courts must strictly construe the
statutes inthe borrower's favor."20 

### The DTA contains safeguards to ensure the fairness of nonjudicial 

### foreclosure proceedings; for example, a trustee may begin the foreclosure process only aftergiving a borrower statutorily adequate notice and opportunity tocure.21 A borrower who receives a notice of default maycontestthe default,22 restrain the sale,23 or contestthe sale.24 The DTA"sets forth the only means by

17Walkerv. Quality Loan Serv. Corp., 176Wn. App. 294, 305, 308 P.3d 716(2013). 18 RCW 61.24.030, .040, 090, .130. 19 Coxv. Helenius, 103 Wn.2d 383, 387, 693 P.2d 683 (1985). 20 Albice v. Premier Mortq. Servs. ofWash., Inc., 174Wn.2d 560, 567, 276 P.3d 1277 (2012). 21 RCW 61.24.030(8), .040(2). 22 RCW 61.24.030(8)(j), 61.24.040(2). 23 RCW 61.24.130. 24 RCW 61.24.040(2); Cox, 103Wn.2d at387.No. 70823-6-1 / 8


### which a [borrower] may preclude a sale once foreclosure has begun with receipt ofthe notice of sale and foreclosure."25 First, the Moseids claim that the trial court should have given them a 

### chance to amend their complaint. Under CR 15, a party may amend a pleading
once "as a matter of course" any time before service of a responsive pleading 

### and may amend later than that "by leave of court or by written consent of the 

### adverseparty; and leave shall befreely given whenjustice so requires."26 The ruleprovidesthe steps tofollow "[i]fapartymoves to amend apleading."27 Here, the Moseids nevermoved to amend their complaintbyeitherwritten 

### motion or a request at oral argument. Although they assert in their reply brief that "Mr. Moseid did indicate to the trial court that amendment was possible," 

### they do notsupportthis claimwith any citation to the record. This assertion may refer to paragraph 35 of their complaint, in which they state, "Plaintiffs will either seek leave to amend this Complaint to set forth the nature and amounts of 

### damages when ascertained or, in the alternative, will amend this Complaint to conform to proof at trial." But this boilerplate cannot be read as a motion to amend. And the cases they cite28to argue that the court abused its discretion by 

### "denying" leave to amend withoutgiving its reasons do notsupporttheir position because the claimants inthose cases moved to amend.29 The Moseids made no 25Cox, 103Wn.2dat388. 26 CR 15(a). 27 CR 15(a). 28 Wilson v. Horslev, 137 Wn.2d 500, 974 P.2d 316 (1999); Rodriguez v. LoudeveCorp., 144 Wn. App. 709, 189 P.3d 168 (2008). 29Wilson, 137 Wn.2d at502; Rodriguez. 144Wn. App. at729.

-8-No. 70823-6-1 / 9 

### request to amend. The trial court could not abuse discretion itneverwas asked
to exercise.30 This claim fails. The Moseids also contend that the court erred by granting Selene's 

### 12(b)(6) motion "based on the so-called 'waiver' rule in RCW 61.24.040." RCW 61.24.040 describes the requirements for notice of a trustee's sale. A proper noticetells the recipientthat an objectorto a salewho does not bring an action to restrain the sale risks waiving any grounds to invalidate it: Anyone having any objection to the sale on any grounds whatsoever will be afforded an opportunity to be heard as to those objections ifthey bring a lawsuit to restrain the sale pursuant to RCW 61.24.130. Failure to bring such a lawsuit may result in a 

### waiver of any proper grounds forinvalidatingtheTrustee's sale.[31] Courts have found waiver of a postsale action where a party (1) received notice of the right to enjoin the trustee's sale, (2) had actual or constructive 

### knowledge of a defense to foreclosure before the sale, and (3) failed to bring an 

### action to enjoin the sale.32 Our Supreme Court has noted that "waiver is an equitable doctrine, and 'we apply waiver only where it is equitable under the 

### circumstances and where itserves the goals of the act.'"33 RCW 61.24.130(1) and (2) allow a borrowerto move to restrain a trustee's sale "on any properlegal
or equitable ground," provided he or she complies with certain procedural
30 See also Wash. Coop. Chick Ass'n v. Jacobs, 42 Wn.2d 460, 466, 256 P.2d 294 (1953) (appellate court could not consider abuse of discretion claim because plaintiff did not asktrialcourtfor leaveto amend). 31 RCW 61.24.040(1)(f)(IX). 32 Plein v. Lackey. 149 Wn.2d 214, 227, 67 P.3d 1061 (2003); Steward v. Good, 51 Wn. App. 509, 515, 754 P.2d 150 (1988). 33 Klem v. Wash. Mut. Bank, 176 Wn.2d 771, 783 n.7, 295 P.3d 1179 (2013) (quoting Albice, 174Wn.2d at570).No. 70823-6-1/10 

### requirements. However, "bringing a suitobjecting to the alleged default or to the foreclosure proceedings but without obtaining a restraining order does not 

### prevent the sale from going forward."34 And while parties may properly raise challenges to the foreclosure procedure itself in a postsale action, allowing a 

### challenger to delay asserting a defense to default until after the sale would "'defeatthe spirit and intent of the trustdeed act.'"35 The Moseids contend that RCW 61.24.040 "doesn't apply because it 

### requires an action to stay the trustee's sale be filed before the sale, and that's exactly what Appellants did here." Butwhile the Moseids attempted to restrain the sale infederal district court, they did not "persuade the court ofthe merits of 

### [their] defense."36 Moreover, they did not comply with RCW 61.24.130(1) and 

### (2), which require the applicant for a restraining order to give the trustee five days' notice of the attemptto seekthe orderand pay to the court clerk the sums then due on the obligation secured by the deed of trust. The court denied their requestfor a restraining order, and the salewentforward. The Moseids did not, and do not now, contestthe amountofdefaultor the 

### procedural correctness of the foreclosure proceedings. They argue that waiver 

### does notapplybut do notassertany of thestatutoryexceptions towaiver.37 The 34 Plein. 149 Wn.2d at 227 (citing 27 Marjorie Dick Rombauer, Washington Practice: Creditors' Remedies—Debtors' Relief § 3.61, at 202- 04(1998)). 

### 35 Steward, 51 Wn. App. at 516-17 (quoting Peoples Nat'lBank of Wash. v. Ostrander, 6 Wn. App. 28, 32, 491 P.2d 1058 (1971)). 36 RCW 61.24.040(2). 37 RCW 61.24.127(1) makes exceptions to waiverfordamages claims that assertfraud, violation of Title 19 RCW, failure ofthe trustee to materially comply

-10-No. 70823-6-1 /11
Moseids cite Albice v. Premier Mortgage Services of Washington38 to argue that 

### the trial court unfairly applied waiver to their situation. Unlike the plaintiffs in Albice, however, they do not show that they lackedadequate opportunityto seek 

### presale remedies to prevent wrongful foreclosure.39 The trial court equitably applied the waiverdoctrine. 

### The Moseids also argue that the trial court erred "insofaras [itsjudgment 

### was] based on claim preclusiondoctrine." Claim preclusion, also known as res 

### judicata, prohibits relitigating claims that were, or could have been, raised and 

### litigated in an earlieraction.40 Thisdoctrine precludes a subsequentclaimwhere that action is identical with an earlier action in four respects: (1) persons and 

### parties, (2) subjectmatter, (3) cause ofaction, and (4) quality of the personsfor or against whom the claim is made.41 Causes of action are the same for purposes ofclaim preclusion when (1) prosecution of the second action would destroy or impair rights or interests established in a prior judgment, (2) substantially the same evidence is involved in both actions, (3) the two suits involve infringement of the same rights, and (4) the two suits arise out of the "'same transactional nucleus offacts.'"42 

### with the terms ofchapter61.24 RCW, orviolation ofRCW 61.24.026 (pertaining to notice to seniorbeneficiary ofsale). 38 174Wn.2d 560, 276 P.3d 1277 (2012). 39See Albice, 174Wn.2d at 570-71. 40 Loveridge v. Fred Mever. Inc.. 125 Wn.2d 759, 763, 887 P.2d 898 (1995).41 Schoeman v. New York Life Ins. Co., 106 Wn.2d 855, 858, 726 P.2d 1 (1986). 42 Rains v. State, 100 Wn.2d 660, 663-64, 674 P.2d 165 (1983) (quoting Constantini v. TransWorld Airlines, 681 F.2d 1199, 1201-02 (9th Cir. 1982).

•11-No. 70823-6-1/12 Here, the trial court could not properly dismiss on the basis of claim 

### preclusion. While the Moseids do not dispute that the parties are the same and the subject matter of both actions is the foreclosure of the loan secured by the deed of trust, the fact that the district court dismissed without prejudice means that the federal court action established no rights or interests that would be 

### destroyed or impaired byprosecution of the state court action. Thus, the causes ofaction are not identicalfor purposes of claim preclusion. Selene counters that the trial court could properly dismiss the Moseids' claims underthe doctrine ofcollateral estoppel or issue preclusion. We disagree. 

### Collateral estoppel prohibits parties from relitigating issues in a 

### subsequent proceeding, even when they assert different claims or causes of action.43 A party asserting collateral estoppel must show that (1) the issues in both actions are identical; (2) the earlier proceeding ended in ajudgment on the merits; (3)the party againstwhom collateral estoppel is asserted was a party to, 

### or in privity with a party to, the earlier proceeding; and (4) applying collateral estoppel does not work an injustice on the party precluded from bringing an action.44 The doctrine of collateral estoppel does not apply here. Washington courts followfederal law and treat a CR 12(b)(6) dismissal as a finaljudgmenton

43 Christensen v. Grant County Hosp. Dist. No. 1, 152 Wn.2d 299, 306, 96 P.3d 957 (2004) (quoting Rains, 100Wn.2d at665). 44World Wide Video ofWash.. Inc. v. City of Spokane, 125 Wn. App. 289, 305, 103 P.3d 1265 (2005) (quoting Christensen, 152 Wn.2d at 307).

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### the merits andwith prejudice, unlessotherwise specified.45 Buthere, thefederal court dismissed the Moseids' complaintwithout prejudice. Therefore, contrary to Selene's assertion, thefederal courtorderwas not a finaljudgmenton the merits. Selene's collateral estoppel argumentfails. Like the Moseids' waiver argument, however, the parties' arguments 

### about claim preclusion and issue preclusion do not answer the question of whether the superior court erred in dismissing the Moseids' complaint under CR 

### 12(b)(6). We conclude that even accepting the Moseids' allegations and additional hypothetical facts as true, they do not state a claim forwhich the law provides a remedy. The trial court properlydismissedthe complaint. The record does notsupportthe Moseids' allegations thatSelene "literally 

### misled [them] into believing they would be fairly evaluated for a loan modification," only to "strong-arm[ ] the trustee's sale of their home without 

### affording them any meaningful opportunity to mitigate loss and avoid foreclosure." Selene's letter specified that it offered no guarantee of a loan modification. And while the Moseids contend that the reason Selene gave for 

### denying their request formodification was "specious and false," they allege no facts that supporttheir bare assertion that their income was sufficient to support modified loan payments.

45 Inre Pers. Restraintof Metcalf, 92 Wn. App. 165, 175 n.6, 963 P.2d 911 (1998); see also McLean v. United States, 566 F.3d 391, 396 (4th Cir. 2009).

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### Buteven accepting the Moseids' assertion that Selene "failed and refused 

### to consider [theMoseids] for any loanmodification or defaultresolution program," chapter 61.24 RCWdoes not provide the remedy the Moseids requested—to set asidethetrustee's sale. The Moseids do notdisputethatthey executedthe deed 

### of trust to secure repayment of their loan. Nor do they dispute the default 

### amount alleged in the notice oftrustee's sale. And they expressly state in their complaint that they do notbase their suit on any failure ofSeleneto complywith the procedural requirements ofchapter61.24 RCW. The Moseids' second cause of action, to cancel the trustee's deed upon sale, asserts that the deed is "invalid, void, and of no force or effect." The Moseids' recitation offacts about their pursuit of a loan modification, however, 

### togetherwith their admission that they allege no procedural violations ofchapter 61.24 RCW,presents no setoffactsjustifyingrecoveryforsuch a claim. In their third cause of action, the Moseids allege "failures, refusals, and 

### neglect in conducting the purported foreclosure sale." Ifthese alleged failures refer to violations of the requirements of chapter 61.24 RCW, this contention contradicts the Moseids' statement that they do not allege procedural violations 

### in conducting the sale. If the Moseids refer instead to their pursuit of a loan modification,they have again failed to state a claim for whichthe DTA provides a remedy. 

### Finally, in their fourthcause of action, the Moseids contend that Selene's actions "establish an agreement... to revise the loan arrangement" by "disputing

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### the existence of the agreement to revise while not expressly disclaiming it" and that Selene is estopped from denying this agreement. To the extent that the 

### Moseids allege thatSelene improperlydenied them a loan modificationunderthe 

### federal Home Affordable Modification Program (HAMP),46 their claim fails as a matter of law because courts have consistently held that HAMPdoes not create 

### a private right of action.47 And the Moseids' pleadings do not show any agreement or guarantee by Selene or any breach of good faith or fair dealing under RCW 61.24.160. 

### "When trustees strictly comply with their legal obligations under the act, interested parties will have no claim for postsale relief,thereby promoting stable land titles overall."48 The Moseids do not dispute that the trustee here complied 

### with its legal obligations under the DTA. They do not state any other claim for which the law provides a remedy. The trial court did not err in dismissing their complaint under CR 12(b)(6). To the extent that the trial court considered materials outside the pleadings, our conclusion under a summary judgment standard is the same. The Moseids have not raised any genuine issue of

46 HAMP, which offers financial incentives to mortgage lenders to modify the home loans of borrowers in danger of foreclosure, was created under the Emergency Economic Stabilization Act of2008. 12 U.S.C. § 5201; Citimortgage. Inc. v. Bermudez. III. App. , 6 N.E.3d 268, 271 n.2, 379 III. Dec. 191 (2014). 47 See, e.g., Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 555 (7th Cir. 2012); Miller v. Chase Home Fin.. LLC, 677 F.3d 1113, 1116 (11th Cir. 2012); Brosius v. Wells Fargo Bank, N.A., 2014 WL 2199627, at *8 (E.D. Mich. 2014) (courtorder) (collecting cases). 48Albice. 174 Wn.2d at 572.
-15-No. 70823-6-1/16

material fact, and the trial court did noterr in granting Selene's motion to dismiss

as a matter oflaw. Conclusion Because the Moseids do not state a claim intheir complaintfor which the law provides a remedy or raise any genuine issue ofmaterial fact, the trial court did not err indismissing their complaint under either CR 12(b)(6) or CR 56. We affirm.

WE CONCUR:

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