IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON SANDRA SHELLEY JACKSON, a single woman, Appellant,

QUALITY LOAN SERVICE CORPORATION OF WASHINGTON, a Washington Corporation, MORTGAGE ELECTRONIC REGISTRATION SYSTEM INC., MCCARTHY & HOLTHUS, LLP, a Washington Limited Liability Partnership, U.S. BANK, NATIONAL ASSOCIATION as trustee forWAMU MORTGAGE PASS THROUGH CERTIFICATE FOR WMALT 2006-AR4 TRUST INVESTORS IN WMALT 2006-AR4 TRUST c/o J.P. MORGAN BANK, NA, Respondents. Trickey, J. — Notification to the state attorney general is a mandatory prerequisite to challenge a statute's constitutionality. Here, the plaintiffsought to have Washington's deeds of trust act (DTA), chapter 61.24 RCW, declared unconstitutional but failed to notify the attorney general as required by statute. Even ifthe plaintiffin this case were able to pass the procedural bar to her action,

we conclude that the DTA is constitutional. Any remaining claims that the plaintiffmight have underthe DTA, have been addressed and disposed of by recent Supreme Court decisions. Accordingly, we affirm the trial court's CR 12(b)(6) dismissal. No. 72016-3-1
DIVISION ONE
PUBLISHED OPINION

FILED: April 6, 2015 r*3 f,o c~-

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I

to O"No. 72016-3-1/2

FACTS In March 2006, Sandra Shelley Jackson refinanced her home with a $715,000 loan fromCameron Financial Group, Inc., dba 1st Choice Mortgage. The loan was evidenced by a promissory note and secured by a deed of trust encumbering Jackson's home located in Seattle. In the deed oftrust, 1st Choice 

### Mortgage was identified as "lender," Fidelity National Title as "trustee," and 

### Mortgage Electronic Registration Systems, Inc. (MERS) as a "nomineefor Lender and Lender'ssuccessors and assigns," whereMERS is the "beneficiary under this 

### Security Instrument."1 The deed oftrustis recorded underKing County Recorder's No. 20060331001860. The note and deed of trust provide for a nonjudicial foreclosure ofthe property in the event ofdefault, pursuant to the DTA. 

### Theloan wassubsequently sold to a securitized trust known as the"WAMU 

### Mortgage Pass Through Certificate For WMALT 2006-AR4."2 In her complaint, Jackson recognizes that underthe terms ofthe note WMALT 2006-AR4 trust is a "note holder." U.S. Bank, National Association is the trustee for WMALT 2006- AR4 trust and possesses the note. 

### In January 2011, Jackson defaulted on her loan payments. On September 20, 2012, MERS, acting asthe nomineefor U.S. BankastrusteeforWMALT2006- AR4 trust, terminated its agency interest when it assigned its nominee interest in the deed of trust back to its principal, U.S. Bank as trustee. In November 2012, Jackson received a notice advising her that her loan
was in default. The notice disclosed that herloan had been sold to U.S. Bank as
1Clerk's Papers (CP) at 88; Exhibit (Ex.) 3. 2 CP at 85-86.No. 72016-3-1/3
trustee for the WMALT 2006-AR4 trust, J.P. Morgan Chase Bank, N.A. was her loan servicer, and her arrears were approximately $127,000. The notice also informed her that a foreclosure sale might be scheduled if she did not cure her default, but "ha[d] recourse to the courts pursuant to RCW 61.24.130 to contest the alleged default on any properground."3 On November 13, 2012, U.S. Bank, the note holder, recorded an appointment of successor trustee appointing Quality Loan Service Corporation of Washington as the new trustee under the deed oftrust. On December 21, 2012, when Jackson failed to cure her default, Quality Loan Service recorded a notice of trustee's sale, scheduling the sale for April 26, 2013. The notice of trustee's sale referenced the notice ofdefault, identifying the original parties to the deed oftrust, 

### in order to permit the recorder's office to link to the deed of trust. The notice identified U.S. Bank as successor in interest to Jackson's loan. 

### Shortly before the scheduled foreclosure, Jackson filed a complaint asserting claims against U.S. Bank, Chase Bank, MERS, Quality Loan Services, 

### and its legal counsel, McCarthy &Holthus, LLP. Jackson amended hercomplaint to include claims asserting that the deed oftrust is unenforceable, violates the 

### DTA, violates theWashington Constitution, violates theConsumer Protection Act 

### (CPA),4 and for breach ofcontract, unconscionability, negligence, and quiet title. Thetrial court dismissed the complaint under CR 12(b)(6). Jackson appeals.

3 CP 55-57; Ex. 4. 4Ch. 19.86 RCW.No. 72016-3-1/4

ANALYSIS Standard of Review This court reviews de novo an order granting a motion to dismiss under CR 12(b)(6). FutureSelect Portfolio Mqmt., Inc. v. Tremont Grp. Holdings. Inc., 180 Wn.2d 954, 962, 331 P.3d 29 (2014); Kinnev v. Cook, 159 Wn.2d 837, 842, 154 P.3d 206 (2007). Dismissal under CR 12(b)(6) is appropriate in those cases where the plaintiffcannotprove any set offacts consistentwith the complaint thatwould entitled the plaintiffto relief. Bravo v. Dolsen Cos., 125Wn.2d 745, 750, 888 P.2d 147 (1995). "[A]ny hypothetical situation conceivably raised by the complaint 

### defeatsa CR 12(b)(6) motion ifitislegally sufficienttosupporttheplaintiff's claim." Bravo. 125 Wn.2d at 756 (alteration in original) (quoting Halvorson v. Dahl. 89 Wn.2d 673, 674, 574 P.2d 1190(1978)). Allfactsalleged in theplaintiff's complaint


### are presumed true. Tenore v. AT&T Wireless Servs., 136 Wn.2d 322, 330, 962 P.2d 104 (1998). However, thecomplaint's legal conclusions are not required to 

### beaccepted on appeal. Haberman v. Washington Pub. Power Supply Svs.. 109 Wn.2d 107, 120, 744 P.2d 1032 (1987). "If a plaintiff's claim remains legally insufficient even under his or her proffered hypothetical facts, dismissal pursuant 

### toCR 12(b)(6) is appropriate." Gorman v. Garlock. Inc., 155Wn.2d 198, 215,118 P.3d311 (2005). 

### Issues ofstatutory constitutionality arereviewed denovo. HomeStreet. Inc.

v. Deo't of Revenue. 166Wn.2d444, 451, 210 P.3d 297 (2009).
Judicial Notice 

### Jackson argues that the trial court improperly took judicial notice of documents attached to defendants U.S. Bank, MERS, and Chase Bank's motionNo. 72016-3-1/5 to dismiss. In general, when ruling on a CR 12(b)(6) motion to dismiss, the trial court mayonly consider the allegations contained in the complaint and may notgo 

### beyond theface ofthe pleadings. Brown v. MacPherson's. Inc.. 86 Wn.2d 293, 297, 545 P.2d 13 (1975). But the trial court may takejudicial notice ofpublic documentsifthe authenticity of those documents cannot be reasonably disputed. Berne v. Gorton. 88 Wn.2d 756, 763, 567 P.2d 187 (1977). ER 201(b)(2) 

### authorizes thecourttotakejudicial notice ofafactthat is"notsubjecttoreasonable 

### dispute in that it is

. . . capable ofaccurate and ready determination by resort to sources whose accuracy cannotreasonably be questioned." 

### Additionally, where aplaintiffasserts allegations in acomplaint on specific documents, butdoes not physically attach those documents, the documents may 

### beconsidered in ruling on a CR 12(b)(6) motion forjudgment on the pleadings. Rodriguez v. Loudeve Corp.. 144Wn. App. 709, 189 P.3d 168 (2008); see, e^, 

### In re Stac Elecs. Sec. Litig, 89 F.3d 1399, 1405 n.4 (9th Cir. 1996) (appropriate 

### for trial court toconsider other portions ofdocument referenced in complaint in a motion todismiss and doing so does not convertthemotion into onefor summary judgment). 

### U.S. Banksoughtto havethetrial courttakejudicial notice ofthe adjustable 

### rate note, prepaymentpenalty addendum, and an allonge to the note forthe loan, which were repeatedly referenced in Jackson's complaint. The other two documents that U.S. Bank sought to introduce were publicly recorded property 

### records easily accessed through the King County Recorder's Office—a recordedNo. 72016-3-1/6 corporate assignment of the deed of trust and a recorded appointment of

successor trustee, Quality Loan Service Corporation. Although the record does notindicate whetherthe trial courtdid in fact take judicial notice ofthese documents, the court'sconsideration ofthe documentswas 

### appropriate in this CR 12(b)(6) motion. Jackson's complaint was based on the 

### alleged breach ofthe DTA, which was based in part on the documents presented to the court. Because Jackson cannot challenge the authenticity ofthese readily 

### available public documents, thetrial court did not errin taking judicial notice of
these documents. Nonconstitutional Claims Jackson failed to address her claims for violation of the CPA, breach of 

### contract, unconscionability, negligence, and quiet title in her opening appellate 

### brief. An appellant's brief must contain "argument in support of the issues 

### presented for review, together with citations to legal authority and references to relevant parts of the record." RAP 10.3(a)(6). 

### An appellate court will not consider a claim of error that a party fails to 

### supportwith legal argumentin heropening brief. Mellon v. Req'l Tr. Servs. Corp., 182Wn. App. 476, 486, 334 P.3d 1120 (2014) (citing Howell v. Spokane & Inland Empire Blood Bank. 117Wn.2d 619, 624, 818 P.2d 1056 (1991); Fosbre v. State, 

### 70 Wn.2d 578, 583, 424 P.2d 901 (1967); RAP 10.3.(a)(6)). "While an appellate court retains thediscretion to consider anissue raised forthefirst time on appeal, 

### such discretion is rarely exercised." Karlbero v. Often, 167 Wn. App. 522, 531,No. 72016-3-1/7 280 P.3d 1123 (2012) (citing Smith v. Shannon. 100 Wn.2d 26, 38, 666 P.2d 351 (1983)). Jackson's failure to assign error to and argue against the court's decision for failure to state a claim on these issues, waives any argument as to those claims. Constitutionality of the DTA Jackson's complaint sought a declaratory judgment regarding the constitutionality of the DTA. In her argument before the trial court, Jackson specifically asserted that she was making arguments under the constitution and
not the DTA.5 RCW 7.24.110 requires notification to the state attorney general when there is a constitutional challenge to state legislation. Jackson failed to notify the state 

### attorney general. Dismissal of constitutional claims challenging the facial constitutionality of a state statute isappropriate where the state attorney general has not been notified. See Kendall v. Douglas. Grant. Lincoln, and Okanogan Counties Pub. Hosp. Dist. No. 6.118 Wn.2d 1,11 -12, 820 P.2d 497 (1991) (service


### on the attorney general is mandatory and a prerequisite); Camp Fin.. LLC v. Brazington. 133Wn. App. 156, 160, 135 P.3d 946 (2006) (attorney general must 

### be served when a party challenges the constitutionality of a statute). Jackson's attack on the constitutionality of the DTA is procedurally deficient, and thus, dismissal on that ground alone was appropriate.
5"We're not coming before you under theDeed ofTrust Act. We're coming before you 

### directly underthe Constitution. We're saying the statute is unconstitutional. And even if it isn't unconstitutional, these folks can'tbring an action because they haven't complied with those acts that are a necessary condition predicate to bringing an action under the DTA." Report of Proceedings (RP) (July 19, 2013) at 27-28.No. 72016-3-1/8
Even if we were to consider the substance of Jackson's arguments, we disagree that the DTA is unconstitutional. Jackson argues that the DTA violates several Washington State constitutional provisions by "creating a trustee to 

### exercise exclusive judicial power reserved to the superior court."6 In particular, Jackson bases herarguments on article IV, section 6 and article II, section 1 ofthe 

### Washington State Constitution. Those articles setforth the legislative powers and the jurisdiction of the superior courts. 

### Article IV, section 6 provides that "[t]he superior court shall have original 

### jurisdictionin all cases atlawwhich involvethetitleorpossession ofreal property." Jackson relies on Klem v. Washington Mutual Bank. 176Wn.2d 771, 295 P.3d 

### 1179 (2013) as support for her theory that the nonjudicial foreclosure process 

### involves ajudicial inquiry. But Klem merely addressed the duties ofatrustee and drew an analogy between judicial and nonjudicial foreclosure. Klem did not, as Jackson contends, elevatethe DTA's process into ajudicial one. Klem recognized 

### the authority ofatrustee when it noted that a"trustee in anonjudicial foreclosure action hasbeen vested with incredible power. Concomitant with that power is an 

### obligation to both sides to do more than merely follow an unread statute and the beneficiary's directions." Klem. 176Wn.2d at791. 

### Moreover, anonjudicial foreclosure is notmade pursuantto ajudgmentbut rather is one conducted under a power contained in a mortgage or a degree of foreclosure.7 As such, it is made through an agreement between thegrantor and
6Appellant's Opening Br. at 11 (emphasis omitted). 

### 7"In short anonjudicialtrustee saleis notaforced sale, because ofits consensual nature. 

### The nonjudicial trustee sale is not an execution sale, because there is no judgment involved. Thus, ahomesteadis notexemptedfrom suchasalebyRCW6.12.090." Felton

8No. 72016-3-1/9 the beneficiary ofthe deed oftrust. The DTA does notdivest the superiorcourtof jurisdiction. Indeed, the superior court's constitutional grant of jurisdiction is preserved in specific portions ofthe DTA.8 Until a party challengestheforeclosure, there is no judicial involvement. It is at that point that the superior's court's jurisdiction is invoked. See Felton. 101 Wn.2d at422-23. Jackson's argumentthatthelegislature does nothavethepowertolegislate 

### regarding title and possession ofreal property is entwined with herargumentthat the constitution granted exclusive jurisdiction to the courts for all property concerns.9 The DTA creates a method of mortgaging real propertyinvolving three 

### parties: a grantor (borrower), a beneficiary (lender), and a trustee. See Bain v. Metro Morto. Grp.. Inc.. 175 Wn.2d 83, 92-93, 285 P.3d 34 (2012); RCW
61.24.005. 

### The DTA was enacted by the legislature tofurther three objectives for the 

### nonjudicial foreclosure process. It requires that the process (1) be efficient and inexpensive, (2) provide an adequate opportunity for interested parties to prevent 

### wrongful foreclosure, and (3) promote the stability ofland titles. Cox v. Helenius, 103 Wn.2d 383, 387, 693 P.2d 683 (1985). In Morrell v. Arctic Trading Co.. Inc.. 

### 21 Wn. App. 302, 304, 584 P.2d983 (1978), thecourtheldthatatrustee attempting

v. Citizens Fed. Sav. &Loan Ass'n ofSeattle. 101 Wn.2d 416, 420, 424, 679 P.2d 928 (1984). 8See, e^, RCW 61.24.130(1) (buyerhas rightto file action in superior courtto restrain a 

### trustee's sale); RCW 61.24.130(8)(j) (granting borrower power to initiate court action); RCW 61.24.040(2); RCW 61.24.090(2) (granting borrower right to request any court to determine reasonableness of fees). 9Several recentfederal district courts have addressed andrejected Jackson's claims that the DTA is unconstitutional. Knechtv. Fidelity Nat'l Title Ins. Co.. No. C12-1575RAJ, 2014 

### WL4057148 (W.D. Wash. Aug. 14, 2014); Galvean v. Nw. Tr. Servs.. Inc., No. C13-1359 MJP, 2014WL 3360241 (W.D. Wash. July 9, 2014).No. 72016-3-1/10 to notify an interested party of an impending foreclosure sale, was not obligated to search for an address when no address was found in the deed oftrust documents. The purpose of strict notice requirements in a nonjudicial sale of property secured by trust deed is to inform persons with an interest in the property of the pending sale of the property, so that they may act to protect those interests. See also Kennebec. Inc. v. Bank of the West. 88 Wn.2d 718, 726, 565 P.2d 812 (1977) (holding that chapter 61.24 RCW as it existed prior to the 1975 amendments was passive state involvement and did not violate the due process clause of the Fourteenth Amendment or article I, section 3 of the Washington State Constitution). Here, there is no dispute that Jackson received notice. 

### The legislature had authority to enact the DTA and its enactment did not encroach upon the jurisdiction of the superior court. Allegations of DTA Violations Jackson asserts that the nonjudicial foreclosure violated the DTA. She 

### argues thatthe trustee failed to comply with RCW 61.24.030(7)(a) because there
was "[injsufficient proof identifying the beneficiary and note owner prior to instigating this private sale."10 

### RCW 61.24.030(7)(a) provides that a "declaration by thebeneficiary made 

### under the penalty of perjury stating the beneficiary is the actual holder of the 

### promissory note orotherobligation secured bythe deed oftrust shall be sufficient proofas required under this subsection."

10 CP at 94 (emphasis omitted).

10No. 72016-3-1/11 Jackson's complaint asserts that the investors are the note holders and entitled to her payments. But see Cashmere Valley Bank v. State. Dep't of Revenue. 181 Wn.2d 622, 634, 334 P.3d 1100, 1106 (2014) (investor has no interestin underlying mortgagesand deeds oftrustand is notabeneficiary ofthose instruments). Furthermore, this court has recently addressed this particular issue in Truiillo v. Trustee Services. Inc., 181 Wn. App. 484, 496, 326 P.3d 768 (2014). There, we held that the beneficiary is the holder ofthe note and, further, a trustee 

### may rely on a beneficiary's declaration as proof of the beneficiary's right to foreclose. In Lvons v. U.S. BankNational Ass'n. 181 Wn.2d 775, 789-90, 336 P.3d 

### 1142 (2014), the Supreme Court held that the trustee was entitled to rely on the 

### beneficiary declaration unless it has violated its duty of good faith. Since there
was no allegation ofbad faith here, the beneficiary declaration is sufficient. Moreover, the Supreme Court recently held that in the absence of a foreclosure, no viable DTA claims remain. Frias v. Asset Foreclosure Servs., Inc. 181 Wn.2d 412, 428-30, 334 P.3d 529 (2014). Because there has been no 

### foreclosure, Jackson has no claimsforviolations ofthe DTA. As discussed above,
noremaining claims have been preserved for appeal. The trial court is affirmed.

WE CONCUR:

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