IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 4518 S. 256th, LLC, a Nevada Limited LiabilityCompany, Appellant,

v. KAREN L. GIBBON, P.S., Trustee; RECONTRUST, NA, Trustee, Defendants, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. ("MERS") acting as nominee for COUNTRYWIDE HOME LOANS, INC., Beneficiary; THE BANK OF NEW YORK MELLON f/k/a THE BANK OF NEW YORK, as Trustee for the certificateholders ofCWABS, Inc. Asset-backed Certificates, Series 2006-7, Respondents. No. 73834-8-I DIVISION ONE PUBLISHED OPINION

FILED: 

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Trickey, J. — We consider whether a lender may initiate nonjudicial foreclosure of a deed of trust without accelerating the maturity date for the entire obligation secured bythe deed oftrust. We hold that it may, because acceleration and foreclosure are separate options that a lender is entitled to pursue after default. We also hold that acceleration of the maturity of a debt does not occur automatically upon invocation ofthe power of sale. Rather, if a lender exercises its option to accelerate the loan, "acceleration [ofthe maturity ofthe debt] must be made in a clearand unequivocal mannerwhich effectively apprises the makerthatNo. 73834-8-1 / 2 the holderhas exercised his right to accelerate the paymentdate." Glassmakerv. Ricard, 23 Wn. App. 35, 38, 593 P.2d 179 (1979). In this case, there is no evidence that the lender gave notice to the borrowers that itclearly and unequivocally elected to accelerate the maturity date of the promissory note when it initiated nonjudicial foreclosure proceedings in 

### 2008. Accordingly, the trial court properly concluded that the six-year statute of limitations did not accrue in 2008 on the entire unpaid balance of the loan. The
statute does not bar enforcement ofthe loan in 2015. We affirm. FACTS Appellant 4518 S. 256th LLC (hereinafter "the LLC") is a Nevada limited 

### liability company and the ownerof real property located at4518 S. 256th Place in Kent,Washington. The previous owners ofthe propertywereTeodoro Puebia and Elizabeth Villalovos, husband and wife. Puebia and Villalovos obtained a residential loan inthe amountof$256,000. The loan was documented by a promissory note dated May 25, 2006. The 

### promissory note providedthat Puebia and Villalovos would paythe debtin monthly installment payments and would pay the debt in full not later than June 1, 2036, the maturity date. 

### A deed oftrust, dated May 25, 2006, secured the promissory note. The deed of trust was recorded on May 31, 2006, in the auditor's records of King County, Washington.No. 73834-8-1 / 3 A notice ofdefaultdated July 9, 2008 was sentto Puebia and Villalovos, the 

### then owners ofthe property subjecttothedeed oftrust.1 The notice declaredthem
to be in default under the note and deed oftrust. The notice itemized the defaults


### as failure to pay the past due monthly installment payments. As ofthe date ofthe 

### notice, the monthly installment arrearages totaled $13,427.12 plus expenses.2 The noticefurther stated that an additional monthly paymentplus an additional late charge would become due before a notice ofsalewas recorded. Thus, the amount 

### required to cure all defaults before recording of the notice ofsalewas $15,255.56.3 Italso stated thatthe failure to cure all alleged defaults within 30 days may lead to 

### the sale of the property at public auction.4 Atthe time of this notice, the unpaid principal balance of the loan was $255,932.00.5 Nothing in this notice ofdefaultto the borrowers stated thatthe lenderchose to declare the unpaid balance ofthe loan due and payable. 

### On August 15, 2008, the original successortrustee underthe deed oftrust recorded a notice oftrustee's sale.6 This notice itemized the defaults as failure to 

### pay the past due monthly installment payments.7 As of the date of this notice of trustee's sale, the monthly installment arrearages totaled $15,155.43 plus expenses. Itstated that the sale ofthe property would be held on November 14, 2008. The notice also stated that payment in the amount of $16,297.38 must be

1Clerk's Papers (CP) at 140-43. 2CP at 14, 140-43. 3 CP at 141. 4 CP at 142. 5 CP at 142. 6 CP at 12-16. 7CPat13.No. 73834-8-1 / 4 made before the close of business on November 3, 2008, which was 11 days before the sale date, to cause a discontinuance of the sale.8 After that date, discontinuance of the sale required payment of the entire unpaid balance of 

### principal and interest secured by the deed of trust.9 Nothing inthis notice oftrustee's saleto the borrowers stated thatthe lender chose to declare the unpaid balance ofthe loan due and payable. This scheduled foreclosure sale never occurred. On November 28, 2011, the original successortrustee recorded a notice ofdiscontinuance oftrustee's sale. On October 21, 2014, a second notice of default was sent to Puebia and Villalovos, who were still the owners ofthe property. On February 2, 2015, a new successor trustee recorded a new notice of trustee's sale.10 This notice itemized the defaults as failure to pay the past due 

### monthly installment payments. As ofthe date of this notice oftrustee's sale, the 

### arrearages totaled $166,568.72 in past monthly installment payments plus expenses. Itannounced that the sale ofthe property would be held on June 12, 2015. Atthe time of this notice, the unpaid principal balance ofthe loan was then $255,932.00. On February 17, 2015, Puebia and Villalovos quitclaimed their property to the LLC. There is no evidence inthis record thatthe LLCeitherassumed or agreed to pay the loan to Puebia and Villalovos.

8 CP at 14. 9CPat14. 10CP at 20-22.No. 73834-8-1 / 5 On March 6, 2015, the LLCcommenced this action against both successor 

### trustees, the Bank of New York Mellon ("Bank of NewYork"), and others. The LLC 

### sought (1) to quiet title to the property in its favor, (2) a declaratoryjudgmentthat the Bank of New York's rights, title, and interest in the property are forever barred by the running of the statute of limitations, and (3) an injunction restraining the foreclosure sale. On June 5, 2015, a trial court commissioner entered a stipulated order 

### restraining the trustee's sale untilfurther orderofthe court. 

### Both parties moved for summaryjudgment. The primaryissue before the trial courtwas whetherthe six-year statute of limitationsbarred enforcementof the 

### loan. The LLC argued that the deed of trust was unenforceable because acceleration of the maturitydate of the promissory note occurred in 2008, more 

### than six years priorto the commencement of the 2015foreclosure. The Bank of NewYork argued that the deed of trust remained enforceable because it never accelerated the maturity ofthe promissory note. 

### After a hearing on July 31, 2015, the trial courtconcluded that acceleration had not occurred and thus, the statute oflimitations did not barenforcementofthe 

### loan. Accordingly, the trial court granted summary judgmentin favor of the Bank of New York and dismissed the LLC's lawsuit with prejudice. The trial court also 

### ordered that the preliminary injunction previously entered "shall remain in effect 

### until [August 31,2015], atwhich point it shall automatically dissolve."11

11 CPat185.No. 73834-8-1 / 6 Thereafter, the Bank of New York moved for an award ofattorney fees and costs. The trial court granted this motion. Itappears to have done so on the basis of a fee provision in the deed oftrust. The LLC appeals the summaryjudgment order. ANALYSIS Waiver As an initial matter, the Bank of New York argues that the LLC waived its right to appeal the dismissal of its quiet title action. We disagree. To supportthis assertion, the Bankof New York relies on Frizzell v. Murray, 179 Wn.2d 301, 307, 313 P.3d 1171 (2013). There, the Supreme Court held that 

### "a waiver of a postsale contestoccurs when 'a party (1) received notice of the right 

### to enjoin the sale, (2) had actual or constructive knowledge of a defense to foreclosure prior to the sale, and (3) failed to bring an action to obtain a court order 

### enjoining the sale.'" 179Wn.2d at 306-07 (quoting Pleinv. Lackey, 149 Wn.2d 214, 229, 67P.3d 1061 (2003)). The BankofNewYork also relies on RCW61.24.127(2). Underthatstatute,


### a postsale claim formonetary damages "may not operate in any way to encumber or cloud the title to the propertythat was subjectto the foreclosure sale, exceptto the extent that a judgment on the claim in favor of the borrower or grantor may, consistent with RCW 4.56.190, become a judgment lien on real property then owned by thejudgment debtor." RCW61.24.127(2)(e).No. 73834-8-1 / 7 These authorities do not supportthe Bankof New York's assertion that "this 

### appeal is barred by waiver."12 This is not a postsale action contesting the foreclosure, nor is it a postsale action for monetary damages. Rather, this is an appeal of a presale action contesting the foreclosure. The LLC commenced this action prior to the foreclosure and obtained an order restraining the sale. That order dissolved 30 days afterthe entry ofthe summaryjudgment order. The Bank of New York does not cite any relevant authority that the LLC's failure to take further action to restrain the foreclosure sale pending appeal results in waiver of its right to appeal. Forthis reason, we reject this argument. Mootness The Bank of New York also argues that this appeal is moot because the 

### property at issue has been sold to a third party. To support this argument, the Bank of New York relies on evidence that the property was sold at a foreclosure 

### sale on September4, 2015 to a nonparty.13 We again disagree. "A case is technically moot ifthe court can no longer provide effective relief.'" State v. Beaver, 184 Wn.2d 321, 330, 358 P.3d 385 (2015) (quoting State

v. Hunley, 175Wn.2d 901, 907, 287 P.3d 584 (2012)). As a general rule, appellate courts "do not consider cases that are moot or present only abstract questions." Beaver, 184 Wn.2d at 330. However, "[e]ven if a case becomes moot, the court has the discretion to decide an appeal ifthe question is one of continuing and substantial public interest." Beaver, 184 Wn.2d at 330.

12 Resp'ts MERS and [Bank of New York (BONY)]'sAnswering Br. at 10 (boldface and capitalization omitted). 13 The Bank of New York has filed a motion to supplement the appellate record with evidence ofthis sale. We grant the motion.No. 73834-8-1 / 8 Here, this court can provide effective relief. The LLC's complaint sought 

### declaratory reliefthat the Bank of New York's claims under the deed oftrust and promissory note were barred bythe statute of limitations. Ifthis court agrees, then 

### the LLC may have a valid cause of action for monetary damages based on the trustee's material violation ofthe deeds oftrust act (DTA). RCW 61.24.127(1); see also Frias v. Asset Foreclosure Servs.. Inc., 181 Wn.2d 412, 429, 334 P.3d 529 

### (2014) (holding that there is no actionable, independent cause of action for monetary damages under the DTA, based on DTA violations,absent a completed foreclosure sale). 

### In short, this appeal is not moot. Moreover, this case presents an issue of 

### continuing and substantial public interest. Forthese reasons, we reach the merits ofthe appeal. Statute of Limitations 

### The LLC argues that the trial court erred by granting summary judgmentin favor ofthe Bankof New York. Itcontendsthatthe maturity date ofthe promissory 

### note was accelerated during the 2008 foreclosure proceedings and thus, the six

### year statute of limitations for the collection of debt had expired. It relies on language from thedeed oftrust, the DTA, andcase lawfromWashington and other jurisdictions, to assert that the invocation of the power of sale presumes an acceleration. The Bank of New York counters that acceleration and foreclosure are 

### separateand distinctoptions that a lender mayexercise inthe caseof a borrower's default. Accordingly, itcontends that summaryjudgment in its favor was proper

8No. 73834-8-1 / 9 because the lenderneveraccelerated the maturity date ofthe loan and the statute oflimitations forthe unpaid balance ofthe loan had not expired in2015. We agree with the Bank of New York. "As an agreement in writing, the deed oftrustforeclosure remedy is subject to a six-year statute of limitations." Edmundson v. Bank ofAmerica, N.A., et. al., No. 74016-4-1, 2016 WL 3853751, at *3 (Wash. Ct. App. July 11, 2016); RCW 4.16.040. In Herzoq v. Herzog, our Supreme Court addressed when the six-year 

### statute of limitations on a written agreement accrues. 23 Wn.2d 382, 387-88, 161 P.2d 142 (1945). In doing so, itdistinguished a demand note from an installment
note. 23 Wn.2d at 387-88. The statute of limitations accrues on a demand note 

### when it is executed. Bycontrast, when recovery is sought on an installment note, "the statute of limitations runs against each installment from the time itbecomes 

### due; thatis, fromthetimewhen an action might be broughtto recoverit." 23 Wn.2d at 388; accord 25 David K. DeWolf, Keller W. Allen, & Darlene Barrier 

### Caruso, Washington Practice: Contract Law &Practice § 16:21, at 511 (3rd 

### ed. 2014) ("Where a contract calls for payment of an obligation by installments, the statute of limitationsbegins to run foreach installment at the time such paymentis due."). 

### But ifan obligation thatis to be paid ininstallments isaccelerated, the entire 

### remaining balance becomes due and the statute oflimitations is triggered for all installments that had not previously become due. 31 RichardA. Lord, Williston


### on Contracts § 79:17, at 338; § 79:18, at 347-50; accord 12Am.Jur.2d, Bills &No. 73834-8-1/10 Notes § 581. The statute of limitations commences upon maturity of a note. AA.C. Corp. v. Reed. 73 Wn.2d 612, 615, 440 P.2d 465 (1968). To accelerate the maturity date of a promissory note, "'[s]ome affirmative action is required, some action by which the holder of the note makes known to the payors that he intends to declare the whole debt due.'" Glassmaker. 23 Wn. App. at 37 (emphasis omitted) (quoting Weinberg v. Naher, 51 Wash. 591, 594, 99 P. 736 (1909)). "[M]ere default alone will not accelerate the note." AA.C. Corp.. 73 Wn.2d at 615. "[Acceleration [ofthe maturity ofthe debt] must be made in a 

### clearand unequivocal mannerwhich effectively apprises the makerthatthe holder has exercised his right to acceleratethe paymentdate." Glassmaker, 23 Wn. App.

at 38. We review de novo whether a statute oflimitations bars an action. Bennett
v. ComputerTask Grp.. Inc.. 112Wn. App. 102, 106, 47 P.3d 594 (2002). We also 

### review de novo questions ofcontract interpretation thatdo not depend on the use ofextrinsic evidence as well as questions ofstatutory interpretation. Wash. State Major League Baseball Stadium Pub. Facilities Dist. v. Huber. Hunt. & NicholsKiewitConst. Co., 176Wn.2d 502, 517, 296 P.3d 821 (2013); Statev. Armendariz. 160Wn.2d 106, 110, 156P.3d201 (2007). 

### Summaryjudgment is appropriate ifthere is no genuine issue of material fact and the moving party is entitled tojudgment as a matter oflaw. Wash. Fed.

v. Harvey. 182 Wn.2d 335, 340, 340 P.3d 846 (2015). This court reviews de novo 

### the grant ofsummaryjudgment. Harvey, 182 Wn.2d at 339.

10No. 73834-8-1 /11 Here, the parties agree that the 2006 promissory note is an installment 

### note.14 This is confirmed by the deed of trust, which states that the borrower "promised to pay this debt in regular [p]eriodic [p]ayments."15 The crux of the parties' dispute is whether the lender accelerated the June 1, 2036 maturity date in 2008 when the lender initiated foreclosure proceedings. Ifso, the statute of limitations for the entire debt accrued at that time. Ifnot, the statute oflimitations did not bar enforcement of the deed of trust for each of the monthly installment 

### payments that became due within six years prior to the 2015 nonjudicial foreclosure. Edmundson. 2016 WL 3853751 at *5. We conclude that acceleration did not occur. In Weinberg, the Supreme Court stated the controlling principle of law 

### defining when acceleration of the maturity of a debt occurs: "Some affirmative action is required, some action by which the holder ofthe note makes known to 

### the payors that he intends to declare the whole debt due." 51 Wash, at 594. In this case, the holderofthe note never made it known to the payors that itintended
to declare the whole debt due. The 2008 notice of default sent to Puebia and Villalovos stated defaults under the deed oftrust for failure to make back monthly installment payments in 

### the total amount of $13,427.12 plus expenses. The notice of default required 

### paymentin the amountof$15,255.56 inorderto cure thedefaults before recording ofthe notice oftrustee's sale.

14 See Br. of Appellant at 8, Resp'ts MERS and BONY's Answering Br. at 3. 15 CP at 108. 11No. 73834-8-1/12 Nowhere inthe notice ofdefault isthere any statementthatthe Bankof New York declared due the entire unpaid balance of the loan. On the contrary, the statementofthe amounts due are limitedto pastdue monthly installmentpayments plus expenses, not the entire unpaid principal balance ofthe loan. The notice expressly threatened foreclosure. It did not threaten acceleration. In pertinent part, itstated: G) Effect ofFailure to cure: Failure to cure all alleged defaults within 30 days of mailing/personal service ofthis notice may lead to recordation, transmittal and publication of a notice of sale and the 

### property described above may be sold at public auction no less than 

### 120 days fromthe date of this notice.[16] Likewise, the 2008 notice of trustee's sale did not contain any language 

### indicating that the Bank of New York gave notice to the borrower that it was 

### exercising its option to declare the entire unpaid balance of the debt due and payable. On the contrary, the statement of the amounts due are limited to past 

### due monthly installment payments plusexpenses, not the entire unpaid balance of
the loan. Nor did the notice oftrustee's sale contain any language that acceleration would be automatic. The notice stated defaults under the deed of trust for the 

### failure to pay monthlypayments totaling $15,155.43 plus expenses. Itstated that the sale of the property would be held on November 14, 2008. Additionally, it stated the borrower's rights to discontinue the sale and the methods by which the borrower could do so. In pertinent part, itstated: The above-described real propertywill be sold to satisfythe expense of the sale and the obligation secured by the Deed of Trust as

16CP at 142. 12No. 73834-8-1/13 provided by statute. The sale will be made withoutwarranty, express or implied regarding title, possession, or encumbrances on 11/14/2008. The default(s) referred to inparagraph III, togetherwith any subsequent payments, late charges, advances costs and fees thereafterdue, mustbecured by 11/03/2008 (11 days beforethe sale date), to cause a discontinuance of the sale. The sale will be discontinued and terminated ifat any time before the close of the Trustee's business on 11/03/2008 (11 days beforethe sale date), the default(s) as setforth in paragraph III, together with any subsequent payments, late charges, advances, costs and fees thereafter due, is/are cured and the Trustee's fees and costs are paid. The sale may be terminated any time after 11/03/2008 (11 days before the sale date), and before the sale by the Borrower, Grantor, and Guarantor or the holder of any recordedjunior lien or encumbrance paying the entire balance ofprincipal and interest secured by the Deed ofTrust, plus costs, fees, and advances, ifany made pursuantto the terms of 

### the obligation and/or Deed ofTrust.[17] The LLC overlooks both the law on acceleration, as expressed inWeinberg and Glassmaker, and the provisions of the various notices that we discussed earlier. Moreover, it does not provide any evidence that the Bank of New York 

### gave any other notice to the borrowers that itwas accelerating the maturity of the
loan. 

### Despite this lack ofevidence, the LLC relies on the last sentence in the above provision to argue that the lender accelerated the debt. That reliance is
incorrect. 

### That sentence incorporates into this deed oftrust statutory language from RCW 61.24.040(1 )(f), which addresses the contents ofthe notice offoreclosure. 

### This argument confuses a lender's option to accelerate the maturity of a debt by giving notice to a borrowerwiththe legislature's statement of a method by which a 

### borrower may cure a default within the period of 11 days before a trustee's sale.

17 CP at 14. 13No. 73834-8-1/14 

### These are not the same. Thus, this sentence inthe deed oftrust does not require that we conclude that acceleration ofthe maturity of a debt is a prerequisite to a nonjudicial foreclosure proceeding underthe DTA. Our conclusion is supported by the plain language of RCW 61.24.030, another provision of the DTA. This provision states what "shall be requisite to a trustee's sale." RCW 61.24.030. This provision sets forth detailed requirements in nine numbered paragraphs. RCW 61.24.030(8) includes a requirementthat at least 30 days prior 

### to a recording of a notice oftrustee's sale a notice ofdefault must be sent to the borrowers. The minimum requirements for the content of such a notice are set forth in numerous subparagraphs. Nowhere in these detailed requirements is 

### there any statement about acceleration ofthe maturity of a debt. 

### Surely, if acceleration of the maturity of a debt was a prerequisite to 

### nonjudicialforeclosure, therewould be some referencetothatrequirementin RCW 61.24.030. There is none. We conclude from our comparison of these statutes 

### that acceleration ofthe maturity of a debt remains an option of a lender. And this 

### option must be exercised by clear and unequivocal notice to the borrowers. It is not self-executing. 

### Significantly, there is no evidencefromthe borrowers in this case thatthey

ever received notice from the lenderofthe latter's acceleration ofthe maturity date ofthe loan. Moreover, additional documentation also establishes that the lenderdid not 

### acceleratethe maturity ofthe debt in2008. In a declaration, the original successor

14No. 73834-8-1/15

trustee under the deed of trust stated that it had "no record that the loan secured 

### by the [d]eed of [t]rust was ever accelerated."18 Further, and more significantly, the internal records of the loan servicer dated May 18, 2015, show that the total 

### amount due at thattime was $181,734.02.19 That amount was comprised ofpast due monthly installment payments of $2,124.59 per month over a period ofyears plus expenses. Significantly, this is approximately $70,000 less than the then outstanding principal balance of the loan. In short, this evidence shows that the lender never gave clear and unequivocal notice to the borrowers that the entire unpaid balance ofthe loan was due. Rather, it only required payment ofpast due installment payments plus expenses. 

### The LLC argues that acceleration occurred "when or before" the trustee 

### invoked the power of sale in 2008.20 It relies on several authorities for the 

### proposition that"[t]he invocation ofthepowerofsale presumes anacceleration."21 We disagree. 

### The LLC first relies on the deed oftrustto argue that acceleration occurred in2008. The LLC asserts that, under Paragraph 22 ofthe deed of trust, the lender does not have the option to invoke the power of sale without acceleration. This argument is not persuasive. Paragraph 22 provides: Acceleration: Remedies. Lendershall give noticeto Borrowerprior to acceleration following Borrower's breach of any covenant or 

### agreement in this Security Instrument (but not prior to acceleration under Section 18 unless Applicable Law provides otherwise). The
18CP at 137. 19 CP at 149. 20 Br. ofAppellant at 11. 21 Br. ofAppellant at 12. 15No. 73834-8-1/16 notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified inthe notice may result in acceleration of the sums secured by this Security Instrument and sale of the Property at public auction at a date not less than 120 days in the future. The notice shall further inform Borrower ofthe right to reinstate after acceleration, the right to bring a court action to assert the non-existence of a default or any other defense of Borrowerto acceleration and sale, and any other matters required to be included inthe notice byApplicable Law. Ifthe default is not cured on or before the date specified in the notice, Lenderat its option, may require immediate payment in full ofall sums securedbythis SecurityInstrumentwithoutfurtherdemandand may invoke the power of sale and/or any other remedies permittedbyApplicable Law. Lender shall be entitled to collect all expenses incurred inpursuing the remedies provided in this Section 22, including, but not limited to, reasonable attorneys' fees and costs oftitle evidence. IfLender invokes the power of sale, Lender shall give written notice to Trustee of the occurrence of an event of default and of Lender's election to cause the Property to be sold. Trustee and 

### Lender shall take such action regarding notice ofsale and shall give such notices to Borrower and to other persons as Applicable Law 

### may require. After the time required by Applicable Law and after publication of the notice of sale, Trustee, without demand on Borrower, shall sell the Property at public auction to the highest bidder at the time and place and under the terms designated inthe notice of sale in one or more parcels and in any order Trustee 

### determines. Trustee may postpone sale ofthe Property for a period or periods permitted by Applicable Law by public announcement at the time and place fixed inthe notice ofsale. Lenderor its designee may purchase the Property at any sale. Trustee shall deliver to the purchaser Trustee's deed 

### conveying the Propertywithout any covenantorwarranty, expressed 

### or implied. The recitals in the Trustee's deed shall be prima facie evidence ofthe truth of the statements made herein. Trustee shall 

### apply the proceeds of the sale in the following order: (a) to all expenses of the sale, including, but not limited to, reasonable Trustee's and attorneys' fees; (b) to allsums secured by this Security Instrument; and (c) any excess to the person or persons legally entitled to it or to the clerk ofthe superiorcourtofthe county inwhich 

### the sale took place.[22]

22 CP at 116 (second emphasis added). 16No. 73834-8-1/17 The plain language of Paragraph 22 indicates that acceleration ofthe loan is permissive: "Lender at its option, may require immediate payment in fullofall
sums securedbythis Security Instrument without furtherdemand and may invoke 

### the power of sale and/or any other remedies permitted by Applicable Law."23 Paragraph 22 does not say that the lender cannot foreclose without accelerating the loan. The LLC argues that the use of the word "and" in the previously quoted sentence indicates that the deed of trust "does not contemplate any scenario where the Lender can invoke the power of sale without acceleration" because 

### courts presume that "and" functions conjunctively.24 But"[i]n certain circumstances, the conjunctive 'and' and the disjunctive 'or' may be substituted foreach otherifit isclearfromthe plain language ofthe statute 

### that it is appropriate to do so." Bullseve Distrib. LLC v. State GamblingComm'n. 127 Wn. App. 231,239, 110 P.3d 1162 (2005); Kozey, 183 Wn. App. at 698. The
same istrue ofcontractinterpretation. See Noellv. Am. Design. Inc.. ProfitSharing 

### Plan. 764 F.2d 827, 833 (11th Cir.1985) ("It is an established principle that '[t]he word "or" is frequently construed to mean "and," and vice versa, inorder to carry out the evident intent of the parties.'" (alteration in original) (quoting Dumont v. 

### United States. 98 U.S. (8 Otto) 142, 143, 25 L. Ed 65 (1878)). Accordingly, we 

### interpret the word "and" according to context. See Black v. Nat'l Merit Ins. Co., 154 Wn. App. 674, 688, 226 P.3d 175 (2010).

23 CP at 116 (emphasis added). 24 Br. of Appellant at 10-11 (emphasis omitted) (citing State v. Kozev. 183 Wn. App. 692, 698, 334 P.3d 1170 (2014), review denied. 182 Wn.2d 1007, 342 P.3d 327 (2015)). 17No. 73834-8-1/18 When read incontext, it is clearthatthe "and" is notconjunctive. Paragraph 22 of the deed of trust indicates that acceleration and foreclosure are separate options for the lender. The second paragraph of Paragraph 22 reinforces this conclusion. It states certain requirements of the lender ifthe lender invokes the powerofsale. These include issuing a noticeto the trustee ofthe lender's election to cause the propertyto be sold and issuing a notice to the borrower regarding the sale. Nowhere does this paragraph require the lender to accelerate the loan in order to foreclose. 

### The LLC next relies on the DTAto arguethatacceleration occurred in2008. 

### Specifically, it relies on RCW 61.24.090, the statute for curing defaults before a deed oftrust foreclosure sale. In particular, the LLC relies on subsections (1)(a) and (3), which provide as follows: 

### (1) At any time prior to the eleventh day before the date set by the trustee for the sale in the recorded notice ofsale, or in the event the trustee continues the sale pursuant to RCW 61.24.040(6), at any 

### time prior to the eleventh day before the actual sale, the borrower, 

### grantor, any guarantor, any beneficiary under a subordinate deed of trust, or any person having a subordinate lien or encumbrance of record on the trust property or any part thereof, shall be entitled to cause a discontinuance ofthe sale proceedings by curing the default ordefaults setforth inthe notice, which in case of a default by failure to pay, shall be paying to the trustee: 

### (a) The entire amount then due under the terms of the deed oftrust and the obligation secured thereby, other than such portion 

### of the principalas would not then be due had no default occurred[.] (3) Upon receipt of such payment the proceedings shall be discontinued, the deed oftrust shall be reinstated and the obligation shall remain as though no acceleration had taken place.

18No. 73834-8-1/19 But these provisions do not address whether a lender may initiate nonjudicial foreclosure of a deed oftrustwithout accelerating the maturity date for the entire obligation. We previously examined subsection (1)(a) in Meyers Way Dev. Ltd. P'ship. v. Univ. Sav. Bank. 80 Wn. App. 655, 669, 910 P.2d 1308 (1996). There, we considered whethersubsection (1)(a) prohibited a creditorforeclosing nonjudicially from accelerating a defaulted loan. 80 Wn. App. at 669. We concluded that it did not. We held that "[n]othing in this provision prohibits acceleration of a loan in 

### orderto chargedefaultintereston the amountowing." 80 Wn. App. at 669. Rather, the subsection "simply precludes the creditor from enforcing the election prior to the eleventh day before the date of the trustee's sale, and allows the debtor to reinstate the loan prior to that time by paying the amount which would have been due under the terms ofthe deed of trust if no default had occurred." 80 Wn. App.

at 669-70. We are now confronted with an argument that this subsection requires a 

### creditorforeclosing nonjudcially to accelerate a defaulted loan. We again answer 

### in the negative. As we stated in Meyers Way, this subsection merely precludes a creditor from enforcing the election prior to the eleventh day before the sale and allows the debtor to reinstate the loan prior to that time. Just as there is no 

### language in this subsection prohibiting acceleration of the loan, we see no 

### language in this subsection mandating acceleration of the loan. It is entirely the decision ofthe lender.

19No. 73834-8-1/20 Subsection (3) is also silent about whether a lender may initiate nonjudicial foreclosure of a deed oftrust without accelerating the loan. Subsection (3) merely provides that ifthe lenderdid exercise its option to accelerate, the act ofcuring the default will result in the deed of trust being reinstated as though no acceleration had taken place. Itdoes not, by its terms, indicate that acceleration necessarily takes place before or upon invocation ofthe power of sale. Lastly, the LLC relies on several out of state cases to argue that "[t]he election of the creditor to accelerate in the case of a nonjudicial foreclosure is sufficiently indicated by the fact that the creditor claims the whole debt to be due 

### by itsadvertisement ofthe property forsale, or bythe commencementof a suit for foreclosure ofthe entire mortgage."25 Butthese cases have no application to the Washington statutory scheme pertaining to nonjudicial foreclosures. Further, to the extent that these courts held that the notice ofthe foreclosure was sufficient to constitute notice of acceleration, we disagree that this meets Washington's 

### standard, which requires a "clear and unequivocal" statement of acceleration. Glassmaker. 23 Wn. App. at 38. In sum, we hold that a lender has several options after default. A lender 

### may accelerate the maturitydate of a loan. A lender may pursue a nonjudicial foreclosure. Alender may accelerate the loan and pursue a nonjudicialforeclose. But a lender is not required to accelerate the loan inorderto pursue a nonjudicial foreclose.
25 Br. of Appellant at 13-15 (citing Heist v. Dunlap&Co.. 193 Ga. 462, 466, 18 S.E.2d 837 (1942); Redwine v. Frizzell. 184 Ga. 230, 190 S.E. 789 (1937); McLemore v. Pac. Sw. Bank. 872 S.W.2d 286, 292 (Tex. App. 1994); Meadowbrook Gardens. Ltd. v. WMFMT Real Estate Ltd. P'ship, 980 S.W.2d 916, 918-19 (Tex. App.-FortWorth 1993)). 20No. 73834-8-1/21 We further hold that acceleration does not occur automatically by invoking 

### the power ofsale. InWashington, "acceleration [of the maturity of the debt] must be made in a clear and unequivocal mannerwhich effectively apprises the maker 

### that the holder has exercised his right to accelerate the payment date." Glassmaker. 23 Wn. App. at 38. Inthis case, there is no evidence thatthe lenderever notified the borrowers 

### that itclearlyand unequivocallyexercised itsoption toacceleratethe maturitydate ofthe loan. For these reasons, the trial court properly concluded that acceleration had not occurred and that the statute of limitations did not bar enforcement of the loan. Given our resolution ofthis issue, we need notaddress the other arguments of the Bank of New York because it is unnecessary to do so. Attorney Fees The LLC seeks reversal ofthe trial court's decision not to grant itattorney 

### fees below. The LLC does not challenge on appeal the award offees to the Bank 

### ofNewYork below. Both parties request attorneyfees onappeal.26 We hold that the trial court properlydecided not to grant attorney fees to the 

### LLC below, although we do so on a different basis than the trial court. Because 

### neitherparty is entitled to attorney fees on appeal, we decline to award fees to either party.



### 26 Br. ofAppellant at 19-21; Resp'ts MERS and BONY's Answering Br. at25-26. 21No. 73834-8-1/22 In Washington, a prevailing party may recover attorney fees only if authorized by private agreement, by statute, or by a recognized ground in equity. State v. Keenev. 112Wn.2d 140, 142, 769 P.2d 295 (1989). RCW 4.84.330 authorizes attorney fees to the prevailing party in an action

on a contract containing an attorney fee provision. This statute may apply if"the contract containing the attorney fee provision is central to the controversy." Hemenwav v. Miller. 116 Wn.2d 725, 742, 807 P.2d 863 (1991). One must be a 

### party to the contract, however, to potentially be entitled to an award. G.W. Equip. Leasing. Inc. v. Mt. McKinlev Fence Co.. Inc.. 97 Wn. App. 191, 200, 982 P.2d 114 (1999).

### Here, the LLC relies on the attorneyfee provision in the deed oftrust27 and RCW 4.84.330 to argue that the trial court erred by not awarding itattorney fees below. This argument is unpersuasive. 

### First, the LLC was not a party to the deed oftrust because it did not sign 

### this loan document. Rather, the original owners of the property—Puebia and Villalovos—were the individuals who executed the deed oftrust. Second, it is well

### established under case law inWashington that a grantee ofproperty subject to a 

### mortgage or deed oftrust28 becomes personally liable on the note and deed of trust if it assumes and agrees to pay them. Citizens' Sav. & Loan Soc. v.

27 The provision states: "26. Attorneys' Fees. Lender shall be entitled to recover its reasonable attorneys' fees and costs in any action or proceeding to construe or enforce any term of this Security Instrument. The term "attorneys' fees," whenever used in this Security Agreement, shall includewithout limitation attorneys' fees incurred by Lender in any bankruptcy proceeding or on appeal." CP at 116. 28 a deed of trust is a species ofmortgage. Rustad Heating & Plumbing Co. v. Waldt, 91 Wn.2d 372, 376, 588 P.2d 1153 (1979). 22No. 73834-8-1 / 23 Chapman. 173 Wash. 539, 545, 24 P.2d 63 (1933). Here, the LLC is such a grantee from the borrowers. But there is no evidence that itassumed and agreed to pay the loan. Accordingly, there is no basis for an argument that the LLC is entitled to benefitfrom the fee provision in the deed oftrust. In sum, there was no basis forthe trial courtto award fees to the LLC below. The LLC provides no relevant authority to the contrary. Because the LLC did not challenge on appeal the award offees to the Bank of New York below, we need not address that question. 

### The LLC also argues thatit isentitledto an award ofattorneyfees on appeal because the deed of trust is central to this controversy and it provides a proper basis for an award to the prevailing party under RCW 4.84.330. We disagree. 

### Although the deed of trust is central to this controversy, the parties fail to recognize that the LLC was not a party to the deed of trust. Additionally, as we 

### justdiscussed, the LLC did notassume oragree to pay the loan on acquisition of
title. InWatkins v. Restorative Care Center. Inc.. this court held that a contractual 

### attorney fee provision cannot authorize the recovery offees from a nonparty. 66 Wn. App. 178, 194, 831 P.2d 1085 (1992). Itreasoned that it"would be both unfair and contrary to law" to enforce the provision against the nonparty who was a "stranger[]" to that agreement. 66 Wn. App. at 195. The same reasoning applies in this case. Because the LLCwas not a party to the deed oftrust, it would be contraryto law to enforcethe attorneyfee provision 

### in that document against it. Similarly, because a contractdoes not confer benefits

23No. 73834-8-1 / 24



### on nonparties, it would also be contrary to law to award attorney fees to the LLC based on the deed of trust. See Touchet Valley Grain Growers. Inc. v. Opp & Seibold Gen. Const.. Inc.. 119 Wn.2d 334, 342-43, 831 P.2d 724 (1992). CONCLUSION 

### We affirm the summaryjudgment order and the denial offees to the LLC below. We deny both parties' requestfor attorney fees on appeal. 

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WE CONCUR: 

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