INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON MATTHEW N. ORTEGA and JENNIFER C. ORTEGA, husband and wife and members of a marital community, Appellants,

v. NORTHWESTTRUSTEE SERVICES, INC., trustee; MORTGAGE ELECTRONIC REGISTRATION SERVICES INC.; HSBC BANK USA, national association as trusteeforWells FargoAssetSecurities Corp. mortgage asset-backed passthrough certificates, series 2008-1; WELLS FARGO HOME MORTGAGE COUNTRY TOWN APPRAISAL SERVICES, INC., a Washington corporation; Respondents, GOLF SAVINGS BANK, a Washington stocksavings bank; KEYNA WILLET, Individually, and as a memberof a marital community; MIKEWILLET,husband, and memberofmarital community, Defendants. No. 69652-1-1 DIVISION ONE UNPUBLISHED OPINION

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FILED: February 18,2014 

### Appelwick, J. —The Ortegas' action to enjoin foreclosure ofthe deed of trust on their residence was dismissed with prejudice when they failed to make court ordered 

### mortgage payments into the court registry. Wells Fargo has actual possession of the original note secured bythe deed oftrustencumbering the Ortegas' real property and is
a lawful beneficiary underthe deed oftrust act, chapter61.24 RCW. The trial court has
no discretion to restrain a nonjudicial foreclosure sale without requiring mortgage 

### payments into the court registry,pursuantto RCW61.24.130(1). We affirm.No. 69652-1-1/2

FACTS 

### On November 8, 2007, Matthew and Jennifer Ortega obtained an $805,000 home loan from GolfSavings Bank. They signed a fixed rate promissory note with a 120 month interest only period. To secure the note, the Ortegas signed a deed oftrust naming Golf as the lender, Chicago Title Insurance Company as the trustee, and 

### Mortgage Electronic Registration Systems, Inc. (MERS) as the beneficiary and "nominee for [the] Lender and [the] Lender's successors and assigns." The deed of trust encumbers the Ortegas' real property in Everett, Washington. The deed was recorded withthe Snohomish CountyAuditoron November 14, 2007. On November 15, 2007, Golf transferred the loan to Wells Fargo Home Mortgage, Inc. (Wells Fargo). Golf sentWells Fargo a funding transmittal, which Wells Fargo uses when it purchases a loan originated by a third party. Golf indorsed the Ortegas' promissory note over to Wells Fargo Bank, N.A. The note stated, "Without recourse, pay to the order of Wells Fargo Bank, N.A." and was signed by Golf's corporate officer. Wells Fargo received and signed the note. Wells Fargo stored the original note in its offices in Des Moines, Iowa. The Ortegas never made payments to Golf. Instead, theywere directed to make payments to Wells Fargo. 

### On May 17, 2009, Wells Fargo sent the Ortegas a letter notifyingthem thattheir loan was in default, because they had fallen $11,582 behind on payments. They needed to pay 17,251 to cure the default. Wells Fargo warned them that ifthey did not
curethe defaultbyJune 16, 2009, "aforeclosure action
.. . may be initiated." 

### In July 2009, Northwest Trustee Services, Inc. (NWTS) received a nonjudicial foreclosure referral from Wells Fargo. The referral directed NWTS to foreclose on theNo. 69652-1-1/3 

### Ortegas' propertyinthe name ofWells Fargo's agent,HSBC BankUSA, N.A. (HSBC).1 On July 21, 2009, NWTS executed a notice ofdefault as the duly authorized agent of HSBC. The notice informed the Ortegas that they needed to pay $32,168 to cure default, otherwise NWTS would record notice ofsale. On August 28, 2009, NWTS received a beneficiary declaration from HSBC. It
was signed byWells Fargo's attorney infact and declared, underpenalty of perjury, that "HSBC Bank as Trustee forWells Fargo Asset Securities Corporation, Mortgage AssetBacked Pass-Through Certificates Series 2008-1 is the actual holder ofthe promissory

note On September 16, 2009, MERS assigned the Ortegas' deed of trust to HSBC. This assignment ofdeed oftrust was recorded a day laterwith the Snohomish County Auditor. Around the sametime, Wells Fargo, as attorney infactfor HSBC, executed an appointment of successor trustee naming NWTS as the successor trustee under the deed oftrust. NWTS recorded notice ofthe trustee's sale on September 22, 2009, setting the date ofsale for December28, 2009. 

### 1HSBC is TrusteeforWells Fargo AssetSecurities Corporation, MortgageAsset Back Pass-Through Certificate Series 2008-1 (the Wells Fargo Trust). Mortgage pass

### through securities are a form ofmortgage-backed securities. CashmereValley Bank v. Dept. of Revenue, 175 Wn. App. 403, 411, 305 P.3d 1123 (2013), review granted on 

### other grounds, Wn.2d , P.3d (2014). They are represented by share certificates that grant the certificate holder a proportionate interest in a pool of 

### mortgages held in trust, id. The certificate holder receives cash flow from the underlying mortgages as borrowers make their principal and interest payments to the 

### holding trust. Id That is, the trust passes the proportionate interest inthe underlying payments to the certificate holder. Id The return an investor in this security receives thus mirrors the payments borrowers make on the mortgages inthe pool. Id. Wells 

### Fargo Home Mortgage is attorney in fact for HSBC. It is also the loan servicer for the Wells Fargo Trust, billing and processingthe mortgagepaymentsfor the Trust. Seeid.No. 69652-1-1/4
On December 17, 2009, the Ortegas filed a complaintto restrain or set aside the nonjudicial foreclosure proceedings. The Ortegas named NWTS, MERS, Golf, HSBC, 

### Wells Fargo, and Keyna and Mike Willet2 as defendants. On January 20, 2010, the Ortegas moved to quash the trustee's "invalid, unauthorized foreclosure proceedings." On January 29, 2010, the trial court stayed the trustee's sale until March 30, 2010. As a condition of the stay, the court ordered the Ortegas to deposit $5,669 monthly payments into the court registry—the monthly amount they owed under the loan. Ifthey failed to do so, the court explained, "the trustee sale may go forward with permission ofthe courtand only after notice is given to the" Ortegas. Ultimately, no sale of the Ortegas' home occurred within the statutory 120 day timeframe. RCW 61.24.040(6). Prior to oral argument, no other trustee's sale was scheduled. On February 15, 2010, the Ortegas served discovery requests on the defendants. On March 17, 2010, the parties agreed to a 60 day continuance of all deadlines, including discovery deadlines. On July 19, 2010, the Ortegas moved to continue the stay and postpone NWTS's summary judgment motion until the parties completed loan modification discussions and discovery. Two months later, NWTS, 

### Wells Fargo, HSBC, and MERS moved for summaryjudgment. On October 28, 2010, 

### the Ortegas agreed to wait until the trial court ruled on the pending summaryjudgment motions before requiring the defendants to respond to discovery requests. In a November 10, 2010 letter to the parties, the trial court granted another 90 

### day continuance perthe Ortegas' CR 56(f) motion. The court encouraged the partiesto The Ortegas alleged that Keyna Willetinduced them to apply forthe loan.No. 69652-1-1/5 

### completediscovery andfinalize aloan modification agreementduring theinterim.3 The court also noted that Wells Fargo had not yet produced the original promissory note at issue. 

### On January 25, 2011, thetrial courtgranted Wells Fargo's GR 20(a) motion4 to introduce the original "wet ink" note associated with the Ortegas' deed of trust, then withdraw itand replace it with a copy. The court ordered Wells Fargo to first make the note available for inspection by the Ortegas' expert before producing it for inspection by the court. Wells Fargo complied and a true and correct copy of the original note appears inthe record. The following month, all the defendants renewed their summary judgment 

### motions. Wells Fargo requested that, at a minimum, the court require the Ortegas to
resume their monthly mortgage payments into the court registry. By that time, the Ortegas had not made paymentsfor almosta year. 

### On March 14, 2011, the Ortegas moved to compel the defendants to supplement their answers to discovery. Alternatively, the Ortegas asked the courtto stay summary judgment until the Washington Supreme Court's decision in Bain v. Metropolitan Mortgage Group, Inc., 175Wn.2d 83, 285 P.3d 34 (2012). In a March 25, 2011 letter to the parties, the trial court granted the Ortegas' 

### motion to compel discovery. The court again stayed the case pending completion of discovery. The court also ordered the Ortegas to resume making their monthly


### 3Wells Fargoofferedthe Ortegastwo loan modificationsduringthestay, butthey refused both. 

### 4GR 20(a) allows a party to petition for admission of a negotiableinstrumentas an exhibitand then withdrawthe original by substituting it with a copy.No. 69652-1-1/6
mortgage payments into the court registry. The court setthe Ortegas' monthly payment 

### at $5,669, perits original January 29, 2010 order. Between March 25 and December 15, 2011, the Ortegas made only four payments intothe court registry: $2,432 on April 26; $5,669 on May 26; $3,237 on June 16; and $5,669 on June 28. They did not make any payments afterJune 28, 2011. On October 11, 2011, the defendants moved for the trial court to declare the Ortegas in contempt of its March 25, 2011 order. In response, the Ortegas moved to shorten time and countermoved for contemptand to compel discovery. The trial court held a hearing on November 16, 2011 to consider the parties' various motions. Wells Fargo confirmed thatthe Ortegas' expert inspected the wet ink note memorializing the loan. The Ortegas told that courtthatthey were unable to make the specified payments into the court registry. They requested that the court reduce their monthly payments. The court asked the Ortegas to provide legal support for its 

### authority to remake the contract and lower their payments. The Ortegas could cite

none. The trial courtfound the Ortegas in contempt for failure to pay. The court gave 

### them 60 days to purge their contempt by paying the amount owed. The trial court further warned the Ortegas that it would dismiss their case ifthey failed to purge their contempt. The court also denied the Ortegas' motion to shorten time, as wellas their
cross motions for contempt and discovery. On December20, 2011, the trial court issued its written orderfinding the Ortegas 

### incontemptof the March 25, 2011 order. The court explainedthatit previouslyordered 

### the Ortegas to resume making monthly payments into the court registry. The OrtegasNo. 69652-1-1/7


### made four payments, but had not made any payment since June 28, 2011. The court ordered: 

### On or before January 16, 2012, the Ortegas may purge their contempt by (a) paying intothe court registrythe current$22,676.72 arrearage; and (b) remaining current on their monthly $5,669.18 obligation. Failure to so purge their contempt shall result in the Court striking the Ortegas' pleadings and dismissing this lawsuit. 

### The Ortegas did not purge their contempt. On March 13, 2012, the defendants 

### moved to dismiss the Ortegas' claims on thatbasis. Aday later, the Ortegasfiled a CR 41(a)(1)(B) motion to voluntarily dismiss without prejudice. Inresponse, the defendants requested thatthe trial courtdismiss withprejudice: If successful, the Ortegas' attempt to dismiss this case without 

### prejudice will undermine the Court's December 15, 2011 Order declaring them in contempt. The Ortegas will no longer be required to make payments into the Court registry and will resume living in the subject property without making any payments whatsoever. IfDefendants electto resume the foreclosure ofthe property, the Ortegas will simply re-file this lawsuit without fear of the Court's previous orders requiring monthly payments ordeclaring them incontempt. (Footnote omitted.) Alternatively, the defendants requested that the court require the Ortegasto purgetheircontemptbefore re-filingthe lawsuit. On March 26, 2012, the parties appeared before the court on their cross motions to dismiss. Questions arose as to which party was the proper one to receive disbursementoffunds held inthe courtregistry. The Ortegas' position was thatthe only correct party to receive the funds would be the statutory holder of the note or that entity's proper designee. The Ortegas observed that ifthe trial court concluded that MERS was the holder, then it would be subject to the Washington Supreme Court's 

### pending decision in Bain. The defendants did not disagree. Because Bain possiblyNo. 69652-1-1/8 

### impacted the outcome of case, the trial court granted a stay of the proceedings on March 29, 2012. 

### The Washington Supreme Court decided Bain on August 16, 2012. 175 Wn.2d 

### 83. The Bain court held that onlythe actual holder of the promissory note may be a beneficiarywiththe powerto appoint a trustee to carry out a nonjudicialforeclosure. Id. at 89. Simply put, if MERS does not hold the note, it is not a lawful beneficiary, ]d. On October 26, 2012, the defendants renewed their motion to dismiss the 

### Ortegas' complaint with prejudice for contempt of a court order. The defendants also moved to disburse funds held inthe court registry to Wells Fargo. Also on October26, 2012, the Ortegas moved to vacate the contemptorder underCR 60(b)(11), allowthem to withdrawtheirpriorcountermotion to dismiss, and ordera refund of their money. On November 5, 2012, the trial court granted the defendants' motion to dismiss the Ortegas' complaintfor contempt. The courtdismissed the matter in its entirety with prejudice. The trial courtfurther granted the defendants' motion to disburse funds held in the court registry. The court directed the funds to be released to Wells Fargo and applied against the Ortegas' past due loan balance. Finally, the trial court denied the Ortegas' motions to vacate the contempt finding, allow withdrawal of their counter motion, and ordera return oftheirfunds. The Ortegas appeal from this November 5 order. From the time the Ortegas moved to stay the trustee's sale in December2009 to the trial court's dismissal in November 2012, the Ortegas paid only $28,346 into the court registry. They were $85,038 behind on court registry payments and had not paid into the registryfor overa year.

8No. 69652-1-1/9

DISCUSSION 

### The Ortegas assert that de novo review applies, because the trial court dismissed with prejudice. They rely on Vintage Construction Companv. Inc. v. City of 

### Bothell, 83 Wn. App. 605, 922 P.2d 828 (1996), affd, 135 Wn.2d 833, 959 P.2d 1090 (1998). However, that case is inapposite, because there the trial court dismissed with 

### prejudice based on granting summaryjudgment. ]d at 608-09. Dismissal here did not involvesummaryjudgment. Instead, the applicable standard of review for all issues here is abuse of 

### discretion. See, e.g., In re Pers. RestraintofKing. 110Wn.2d 793, 798, 756 P.2d 1303 

### (1988) (whethercontempt iswarranted); see alsoLindbladv. Boeing Co., 108Wn. App. 198, 207, 31 P.3d 1 (2001) (trialcourt's ruling on a discovery motion); Summers v.Dep't 

### of Revenue. 104 Wn. App. 87, 89, 14 P.3d 902 (2001) (denial ofmotion to vacate); Woodhead v. Discount Waterbeds. Inc.. 78 Wn. App. 125, 130-31, 133, 896 P.2d 66 

### (1995) (dismissal for noncompliancewith a court order);Wilson v. Henkle, 45 Wn. App. 162, 169, 724 P.2d 1069 (1986) (disbursing funds in the court registry). A trial court abuses its discretion when it is exercised on untenable grounds or for untenable
reasons. Morin v. Burris. 160 Wn.2d 745, 753, 161 P.3d 956 (2007). The Ortegas have been pro se for much of this lawsuit. The law does not 

### distinguish between those who elect to conduct their own legal affairs and those who seek assistance of counsel—both are subject to the same procedural and substantive laws. In re Marriage of Olson, 69 Wn. App. 621, 626, 850 P.2d 527 (1993). An appellant must provide "argument in support of the issues presented for review, together with citations to legal authority and references to relevant parts ofthe record."No. 69652-1-1/10
RAP 10.3(a)(6). We need not consider arguments unsupported by any citation to authority or reference to the record. Cowiche Canyon Conservancy v. Boslev, 118 Wn.2d 801, 809, 828 P.2d 549 (1992). I. Refusal to Vacate Contempt Order and Disbursal ofFunds to Wells Fargo The Ortegas challenge the trial court's order denying their motion to vacate the contempt order and granting the defendants' motion to disburse funds in the court registry. Theirargumentis essentiallythatthe defendants lacked legal authorityto bring the foreclosure action. They assertthat neither MERS norWells Fargo were holders of the promissory note and weretherefore not properbeneficiaries underthe deed of trust. 

### Ifimproperbeneficiaries, they could not appoint NWTS as a successortrustee to carry outthe nonjudicial foreclosure sale. Below, the Ortegas asked the trial court to vacate the finding of contempt and order a return of their funds under CR 60(b)(11). CR 60(b)(11) allows relieffor "[a]ny other reason justifying relief from the operation of the judgment." It is reserved for 

### extraordinary circumstances not covered by any other section of CR 60(b). In re Marriage of Flannagan, 42 Wn. App. 214, 221, 709 P.2d 1247 (1985). Such circumstances must relate to irregularities extraneous to the court's action or questions concerning the regularity ofthe court's proceedings, jd. 

### Under the Washington deed oftrust act, the term "beneficiary" is defined as the "holderofthe instrumentor documentevidencing the obligations secured bythe deed of 

### trust." RCW 61.24.005(2). Only a proper beneficiary has the power to appoint a
successorto the originaltrustee named inthe 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

10No. 69652-1-1/11

may proceed with a nonjudicial foreclosure of real property. kL Thus, when an unlawful 

### beneficiary appoints a successor trustee, that trustee lacks legal authority to carry out theforeclosure. Walkerv. Quality Loan Service Corp.. 176 Wn. App.294, 306, 308 P.3d 716(2013). 

### Traditionally, the beneficiary of a deed of trust is the lenderwho loaned money to 

### the homeowner. Bain, 175Wn.2d at 88. The deed of trustprotectsthe lender bygiving it the power to nominate a trustee, who then has the power to sell the home ifthe 

### homeownerdefaults. ]dL Lenders, however, are free to sell the secured debt, typically by selling the promissory note signed by the homeowner. Id. The deed of trust act recognizes that the beneficiary of a deed of trust at any one time might not be the original lender, jd. The acttherefore gives subsequent holders ofthe debt the benefit 

### ofthe actby defining "beneficiary" broadly, jd; RCW 61.24.005(2). In Bain, Kevin Selkowitz and Kristin Bain each bought homes in King County. 175 Wn.2d at 89. Both their deeds of trust named MERS as the beneficiary and nomineeforthe lender. Id. Selkowitz and Bain eventuallyfellbehind on theirmortgage payments. Id. at 89-90. MERS, in its role as beneficiary ofthe deeds oftrust, named
successor trustees in both cases. Id. at 90. When the trustees began foreclosure proceedings, both Selkowitz and Bain soughtinjunctions, jd. The Washington Supreme Court was asked to decide whether MERS is a lawful beneficiary with the power to appoint trustees if it does not hold the promissory note secured by the deed of trust. IdL at 91. MERS maintains a private electronic registration system fortracking ownership ofmortgage-related debt. IcL at 88. Inmany 

### states, includingWashington, MERS is also often listed as the beneficiary of a deed of

11No. 69652-1-1/12 

### trust.5 jd. The MERS system changed thetraditional three-party deed oftrust into a four-party deed of trust, in which MERS acts as the contractually agreed upon beneficiary for the lender and its successors and assigns, jd. at 96. One of the criticisms of MERS is that it makes it difficult, if not impossible, to identify the current holderof a particular loan, jd at 97. This has given rise to much litigation and concern aboutpossibleerrors inforeclosures, misrepresentations, and fraud, jd. 

### The Bain courtconcluded thatif MERS does not holdthe promissory note, then it is not a lawfulbeneficiary underthe plain language of RCW 61.24.005(2). jd at 98-99. In other words, only the actual holder ofthe note is a lawful beneficiary with power to appoint a successor trustee. See id at 101. The Bain court found support for this conclusion inthe legislative history ofthe 1998 amendments to the deed oftrust act, as well as certain provisions ofthe Uniform Commercial Code (UCC), title 62A RCW. jd at 101-04. For instance, the UCC specifies that the holder of a negotiable instrument "'means the person in possession ifthe instrument is payable to bearer.'" ki at 103-04 (quoting former RCW 62A. 1-201 (20) (2001)). Thus, the Bain court explained, ifthe 

### original lender sold the loan, the "purchaserwould need to establish ownership ofthat loan, either by demonstrating that it actually held the promissory note or by documenting the chain oftransactions." jd at 111 (emphasis added). MERS conveying its "interests" does not accomplish this. \±


### 5Theinitial MERS mortgage isrecorded in the county clerk's office with MERS named as the lender's nominee or mortgagee of record on the instrument. Bain. 175 

### Wn.2d at at 95. Duringthe lifetime ofthe mortgage, the beneficial ownership interestor 

### servicing rights may be transferred among MERS members (MERS assignments), but these assignments are not publicly recorded. \± Instead, they are tracked electronically in MERS's private system, jd

12No. 69652-1-1/13
The MERS issue is not present here. Wells Fargo demonstrated that itactually holds the Ortegas' original promissory note securing the deed oftrust. Days after the Ortegas' loan closed, Wells Fargo purchased the loan from Golf. Golfindorsed the note
over to Wells Fargo, making itpayable to the order ofWells Fargo Bank, N.A. Wells Fargo then signed the note. In a declaration, Wells Fargo warranted that the original, wet ink note was stored at its offices in Des Moines, Iowa. And, in its beneficiary declaration, Wells Fargo stated, under penalty of perjury, that itwas the actual holder 

### the promissory note.6 The trial court granted Wells Fargo's GR 20(a) motion to introduce the original wet ink note into the record, then withdraw and replace it with a copy. Wells Fargo complied with the rule and a true and correct copy of the original note appears inthe record. The Ortegas' expert also had an opportunity to inspectthe note.7 The Ortegas are correct that MERS is an improper beneficiary. However, MERS's designation as beneficiary does not void the entire deed oftrust. As the actual holder ofthe note, Wells Fargo has authority to enforce the note under Bain, regardless 

### 6The Ortegas take issuewith HSBC acting asWells Fargo's agentin holdingthe note and appointing NWTS as successor trustee. However, a holder can possess a 

### note "directly or through an agent." RCWA 62A.3-201 cmt. 1. The Bain court also acknowledgedthatthe deed oftrustactapproves the use ofagents. 175 Wn.2d at 106. MERS is not a properagent, because its principal is unidentifiable, jd at 107. Here, in 

### contrast, Well Fargo is clearly the principal in control of its agent, HSBC. HSBC's agency is permissible under Bain. 

### 7The Ortegascitedthiscourt's recentopinionin Bavandto argue that thesefacts do not establish possession of the note. There, OneWest Bank claimed to be the present beneficiary of the deed oftrust and appointed a successor trustee. Bavand, 

### 176 Wn. App. at 482. However, the record contained only a document certified to be a true and correct copy of the original note, jd at 498. No declaration or affidavit explained more, jd The court concluded that possession of a copy ofthe original note did notestablish possession ofthe original note. jd. The facts here are distinguishable, becauseWells Fargo established actual possession ofthe original note.

13No. 69652-1-1/14
of MERS's identification in the deed oftrust. Wells Fargo is the proper beneficiary to appoint a successortrustee to conduct a nonjudicial foreclosure sale. As Wells Fargo's appointed trustee, NWTS could properly carry outthe sale. This was the same factual scenario presented in Florez v. OneWest Bank, F.S.B., No. C11-2088-JCC, 2012 WL 1118179 (W.D. Wash. Apr. 3, 2012). There, the plaintiffs borrowed money to buy residential property pursuant to a promissory note secured by a deed oftrust, jd at *1. MERS was named as beneficiary and nomineefor the lender. IjL When the plaintiffs defaulted, NWTS issued and recorded a notice of trustee's sale, acting atthe direction ofthe holder ofthe note, OneWest Bank, jd The plaintiffs argued that any assignment made by MERS was invalid, because it is not a legitimate beneficiary. ]d The courtdistinguished these facts from Bain: 

### In Bain, the alleged authority to foreclose was based solely on MERS's assignment of the deed of trust, rather than on possession of the Note. Here, however, the undisputed facts establish that OneWest had authority to foreclose, independentof MERS, since OneWest held Plaintiffs' Note at the time offoreclosure. jd Therefore, the court dismissed the plaintiffs' claims for wrongful foreclosure, infliction ofemotional distress, violation ofthe Washington Consumer Protection Act (ch 19.86 RCW), and fraudulent misrepresentation, jd at *1, *2. 

### We hold thatWells Fargo is a lawful beneficiary ofthe deed of trust, because it held the Ortegas' original note at the time offoreclosure. Wells Fargo therefore had authority to appoint NWTS as a successor trustee, who then had authority to conduct the trustee's sale. Given the fact thatWells Fargo produced the original wet ink note, 

### allowing for a straightforward application of Bain, there are no extraordinary 

### circumstances justifying relief from the contempt order under CR 60(b)(11). The trial

14No. 69652-1-1/15

courtacted within its discretion indenying the motion to vacate contemptand disbursing 

### funds toWells Fargo as holderofthenote.8

II. Ortegas' PresentAbility to Pay The Ortegas argue that the trial court's contempt order must fail, because the courtdid not make a required finding thatthey had the present ability to pay. They also pointto RCW7.24.190, which states: The court, in its discretion and upon such conditions and with or without such bond or other security as itdeems necessary and proper, may stay any ruling, order, or any court proceedings prior to final judgment or decree and may restrain allparties involved inorderto secure the benefits and preserve and protectthe rights of all parties to the courtproceedings. The Ortegas argue that, because this provision gives the court authority to stay proceedings without a bond or other security, the court here did not need to require them to make payments into the courtregistry. 

### However, the Ortegas ignore the express language ofthe deed oftrust act. Our primary duty in construing a statute is to ascertain and carry outthe legislature's intent. Lake v. Woodcreek Homeowners Ass'n. 169 Wn.2d 516, 526, 243 P.3d 1283 (2010). 

### Statutoryinterpretation beginswiththe statute's plain meaning, jd RCW 61.24.130(1) provides: The court shall require as a condition of granting the restraining order or 

### injunctionthat the applicant pay to the clerk of the court the sums that would be due on the obligation secured bythe deed oftrust ifthe deed of trustwas notbeing foreclosed.



### 8 The Ortegas argue that the trial court needed to make a finding ofWells Fargo's holderstatus before disbursing funds. They cite no authority for this assertion. Regardless, overwhelming evidence in the record supports the conclusion that Wells Fargowas the actual holderofthe note.
15No. 69652-1-1/16 (Emphasis added.) This language is mandatory. In order to restrain a trustee's sale, the trial court must require the homeowner to pay the sums due under the loan. This language contrasts with permissive language later in the same provision: "In addition, the court may condition granting the restraining order or injunction upon the giving of security by the applicant, in such form and amount as the court deems proper, for the payment ofsuch costs and damages, including attorneys' fees." RCW 61.24.130(1)(b) (emphasis added). The trial court has discretion to require security for attorney fees under RCW 61.24.130(1)(b). Ithas no such discretion in requiring payments to restrain
a trustee's sale. RCW61.24.130(1). Moreover, RCW 61.24.130(1) neitherallows norrequires the trial courtto make a finding ofthe applicant's ability to pay. Given that a property indispute is inforeclosure by the time RCW 61.24.130 comes into play, an applicant often might not have the ability to pay. This was a choice made by the legislature in balancing the interests of the borrower and the lender. We will not substitute our judgment for that of the legislature by reading a new requirement into the statute. State v. Larkins, 79 Wn.2d 

### 392, 394, 486 P.2d 95 (1971). Furthermore, where two statutes apply, the specific statute supersedes the more general statute. Gen. Tel. Co. ofthe Nw., Inc. v. Utils. & Transp. Comm'n, 104 Wn.2d 460, 464, 706 P.2d 625 (1985). RCW 61.24.130(1) is


### more specific than RCW 7.24.190 in the context of nonjudicial foreclosures and therefore controls in this case. Here, the trial court followed RCW 61.24.130(1) to the letter by requiring the 

### Ortegas to make their monthly payments into the court registry as a condition of

16No. 69652-1-1/17 

## restrainingthetrustee's sale.9 Thecourtwarnedthemthatthesalewouldgoforward if they failed to pay. Nevertheless, the Ortegas made only two payments between 

### January 2009 and March 2011. OnMarch 25, 2011, the court ordered the Ortegas to
resumemaking monthly paymentsintothe courtregistry. Theydid notcomplywith this order. Instead, they made only four payments between March and June 2011, and no 

### payments after thattime. In November2011, the trial courtfound them in contempt of 

### its March 25 order to make payments. Thecourt gave them 60 days to purge their contempt or face dismissal of their case. For almost a year, the Ortegas againfailed to make any payments or purge their contempt. The trial court finally dismissed their action with prejudice on November 5, 2012—nearly three years after the trial court initially restrained the trustee's sale. 

### We hold that the trial court did not err infinding the Ortegas in contempt of its 

### order to makepayments into the court registry, as required by RCW 61.24.130(1).10 Even ifthe Ortegas had demonstrated that they lacked the ability to pay and contempt based on nonpayment should be vacated, the trial court did not err in dismissing the 

## 9The Ortegas argue thatthis stay orderwas conditional. They misunderstand the nature of the condition. The stay was conditional inthe sense that if they failed to make payments into the court registry as required under RCW 61.24.130(1), then the trustee's sale could resume. The stay was not conditional in the sense that the trial court did not need to require them to make monthly payments. And, the trial court did 

### not find the Ortegas in contempt of this stay order, as they claim. It found them in contemptof its laterMarch 25, 2011 orderto make payments. 

### 10 The Ortegas provide nopersuasive authority for their argument that thetrial court's contempt order became punitive and violated due process when they could not purge their contempt. Inthe case the Ortegas cite for this proposition, the defendants were imprisoned for failure to purge contempt. Britannia Holdings Ltd. v. Greer, 127 Wn. App. 926, 930, 113 P.3d 1041 (2005). The Ortegas' case is not comparable. Rather, dismissal here was a coercive sanction within the sound discretion ofthe trial court. Yamaha Motor Corp. v. Harris. 29 Wn. App. 859, 866, 631 P.2d 423 (1981); see alsoWoodhead. 78 Wn. App. at 129.

17No. 69652-1-1/18



### case. The statute requires payments as a condition of staying the sale. The Ortegas were not entitled to an injunction of the sale to assert their claims without compliance with the statute.

III. Motion to Compel Discovery 

### Inits December 15, 2011 order, the trial court granted the defendants' motion for 

### contempt and denied the Ortegas' counter motion to compel discovery. The Ortegas
nowcontendthat the trial court erred in denying discovery, becausetherewere no facts 

### in the record establishing the note's chain of custody. However, the trial court acted within its sound discretion in denying the discovery motion. Clarke v. Office of the AttorneyGen.. 133Wn. App. 767, 777, 138 P.3d 144 (2006). Wells Fargoproducedthe 

### original indorsed note in its possession. That note established that Wells Fargo was a statutory beneficiary for purposes of foreclosure on the deed of trust. Per Bain, the 

### Ortegas did not need chain of custody evidence once Wells Fargo did so. And, in considering the Ortegas' motion to compel, the trial court noted "that probably in this
case [the defendants] have had to produce more documentation than they had to anywhere else. So you have gotten what you asked for when you came here." Given thatthe defendants had already produced the original note, the trial courtdid not abuse itsdiscretion indenying the Ortegas' motion to compel. IV. Right to Trial The Ortegas assert that the trial court erred by depriving them oftheir right to a trial. They argue, without citation, that they "had a reasonable expectation that their legal issues would be thoughtfully considered by the Court." They then proceed to list

18No. 69652-1-1/19 

### 17 legal and factual issues raised in theircomplaint. They cite no other legalauthority for this argument. 

### Contrary to the Ortegas' assertion, there is no absolute right to a trial for civil

causes of action. State ex rel. Evergreen Freedom Found, v. Wash. Educ. Ass'n, 111 

### Wn. App. 586, 609, 49 P.3d 894 (2002). Moreover, trialcourts have authority to dismiss an action withprejudicefornoncompliance with a court order. Woodhead, 78 Wn. App. at 129-30. Here, thetrialcourtgavethe Ortegas an opportunityto purgetheircontempt. The courtwarnedthem thatfailure to purgewould resultindismissal oftheircase. After nearly a year of noncompliance of this express order, the trial court acted within its 

### discretion indismissing the case with prejudice. It did not violate the Ortegas' right to a trial under the circumstances. We affirm.

WE CONCUR: 

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