IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
FRANK BUCCI, No. 73406-7- Appellant, DIVISION ONE C3
C3 p., CO TO —1

CD
CO NORTHWEST TRUSTEE SERVICES, INC., a Washington corporation, RCO LEGALP.S., Washington Professional Services Organization, JPMORGAN CHASE BANK, N.A., a national banking association, US BANK, NATIONAL ASSOCIATION, a national banking Association, SELECT PORTFOLIO SERVICING, INC., a Foreign Corporation registered in Washington, Respondents. PUBLISHED OPINION (IN PART)

FILED: December 27, 2016 Mann, J. — In 2009, Frank Bucci defaulted on a $1.53 millionpromissory note secured by a deed oftrust on his home. In 2013, U.S. Bank, N.A. as trustee (USB), the current beneficiary and holder of Bucci's promissory note, initiated nonjudicial foreclosure proceedings. Bucci responded by filing an action for declaratory and injunctive relief seeking to enjoin the nonjudicial foreclosure. Bucci's action includedNo. 73406-7-1/2
claims underthe Consumer Protection Act, chapter 19.86 RCW, and for negligence 

### against USB; Select Portfolio Servicing, Inc. (SPS), the current loan servicer; JPMorgan Chase Bank, N.A. (Chase), the previous beneficiary ofBucci's promissory note; 

### Northwest Trustee Services (NWTS),the trustee; and RCO Legal, P.S. (RCO), NWTS's law firm. The trial court dismissed Bucci's action on the respondents' motions for 

### summary judgment. In the publishedportion of this decision, we conclude that the note was negotiable and properly admitted; we therefore affirm the dismissal of claims 

### against USB and SPS. In the unpublished portion ofthisdecision, we affirm thetrial court's dismissal ofall other claims. FACTS I. 

### In May 2007, FrankBucci received a $1.53 million refinance loanfrom 

### Washington Mutual bank, F.A. (Washington Mutual) and signed an adjustable rate note 

### (note) as evidence of hisobligation to repay the loan. To secure repayment ofthedebt, Bucci grantedWashington Mutual a deed oftrust (deed) encumbering his personal home and property located on the Reserve at Newcastle golfcourse in Washington. The note and deed contain several key provisions relevantto this appeal. At the 

### outset, the note explained that changes in the interest rate may resultin an increase in the principal: THIS NOTE CONTAINS PROVISIONS ALLOWING FOR CHANGES IN MY INTEREST RATE AND MY MONTHLY PAYMENT. MY MONTHLY PAYMENT INCREASES WILL HAVE LIMITS WHICH COULD RESULT IN THE PRINCIPAL AMOUNT I MUST REPAY BEING LARGER THAN THE AMOUNT I ORIGINALLY BORROWED, BUT NOT MORE THAN 115% OF THE ORIGINAL AMOUNT (OR
-2-No. 73406-7-1/3 $1,759,500.00). MYINTEREST RATE CAN NEVER EXCEED THE LIMIT STATED IN THIS NOTE OR ANY RIDER TO THIS NOTE. A BALLOON PAYMENT MAY BE DUE AT MATURITY. Section 1 ofthe note contains Bucci's promise to pay $1.53 million "plus any amounts added in accordance with Section 4(G) below, (this amount is called 'Principal'), plus interest, to the order ofthe Lender." Section 4 ofthe note is titled "Interest Rate and Monthly Payment Changes." Sections 4(A) through (C) explain that the interest rate charged is subject to change on
a monthly basis and determined by adding 2.5 percentage points to the "index"-a twelve-month average ofthe annual yields of United States Treasury Securities. Section 4(D) caps the interest rate at 9.7 percent. Under the note, Bucci's payments are also subject to change. Section 4(E) explains that, unlike the interest rate that can change monthly, Bucci's monthly 

### payments are calculated once a year. Bucci pays the amount set on July 1steach month for twelve months untilthe monthly payments are recalculated on July 1st ofthe following year. Bucci's monthly payment is the "monthly payment that would be sufficient to repay the projected principal balance [Bucci is] expected to owe as of [July 1st] infull on the Maturity Date at the interest rate ineffect45 days prior to [July 1st] in substantially equal payments." Section 4(F) explains that the newly calculated monthly payment is capped at 7.5 percent more or less than the amount ofthe monthly payment during the year before. Section 4(G) ofthe note is titled "Changes in [the] Unpaid Principal Due to 

### Negative Amortization orAccelerated Amortization." Section 4(G) explains:No. 73406-7-1/4 Since my payment amount changes less frequently than the interest rate and since the monthly payment is subject to the payment limitations described in Section 4(F), my monthly payment could be less or 

### greaterthan the amount ofthe interest portion ofthe monthly payment that would be sufficientto repay the unpaid Principal Iowe at the monthly 

### payment date infull on the maturity date in substantially equal payments. Foreach month that the monthly payment is less than the interest portion, the Note Holder will subtractthe monthly payment from the amount ofthe interest portion and will ad[d] the difference to my unpaid Principal, and interest will accrue on the amount ofthis difference at the current interest rate. For each month thatthe monthly payment is greaterthan the interest 

### portion, the Note Holder will apply the excess toward a reduction ofthe Note. 

### Section 7(B) ofthe note states, "[i]fIdo not pay the full amount ofeach monthly payment on the date it is due, Iwill be in default." Section 22 ofthe deed provides, "Ifthe default is not cured
. .. Lender at its 

### option may require immediate payment infull of allsums secured by this Security Instrumentwithout further demand and may invoke the power ofsale and/or any other remedies permitted byApplicable Law."



### In June 2007, Washington Mutual indorsed in blank,1 sold, and deposited Bucci's loan into a loan trust titled WaMu Mortgage Pass-Through Certificates Series 2007-OA6 

### Trust (WaMu Trust).2 As a result of the sale, the WaMu Trust owned and was the 

### beneficiary of Bucci's note. Underthe terms of the sale, the original trustees of the Wamu Trustwas LaSalle Bank, N.A. Washington Mutual continued to service the note. 

### AfterWashington Mutual failed inSeptember2008, the Federal Deposit 

### Insurance Corporation (FDIC) placed the bank into receivership. The FDIC then sold 1A note indorsed in blank is payable to the bearerand "may be negotiated by transfer of possession alone." RCW 62A.3-205(b). 2Theparties referto thepooled trustas eitherthe"Loan Trust" or"WaMu Trust." We use "WaMu Trust" in this opinion.No. 73406-7-1/5 

### Washington Mutual'sassets to Chase.3 Under the sale agreement, "[Chase] specifically purchase[d] allmortgage servicing rights and obligations of [Washington Mutual]." As of September 2008, Chase began servicing the note forthe WaMu Trust. In October2008, LaSalle Bank N.A., merged into, and subsequently operated as 

### partof, Bank ofAmerica, N.A. (BofA). As of October 2008, BofA became trustee of the WaMu Trust, and was the beneficiary of the note.4 

### On January 29, 2009, BofA executed a limited power ofattorney in favor of Chase authorizing Chase to, among otherthings, complete a nonjudicialforeclosure 

### and appoint a successortrustee to serve under the deed. Chase continued to service the loan and as its attorney-in-fact, held the note on behalfof the beneficiary BofA. Bucci defaulted on the note in March 2009. In April2009, Chase notified Bucci that he was in default. Chase's notification letter included contact information for its loan modification hotline. 

### On July 16, BofA, throughChase, recorded an appointment ofsuccessortrustee. The appointment named NWTS as successortrustee under the deed. NWTS recorded the first notice oftrustee's sale in King County on August 14, 

### 2009, setting the sale for November 13, 2009. Thetrustee's sale was postponed and later discontinued. NWTS recorded a second notice oftrustee's sale on July 8, 2010, 

### setting the sale for October 8, 2010. The second sale was also discontinued.

3 (Purchase andAssumption AgreementbetweenFDIC and Chase; see also Purchase and Assumption Agreement, Federal Deposit InsuranceCorporation (2008), https://www.fdic.gov/about/freedom/washington_mutual_p_and_a.pdf(same)). 4Thefull name of the beneficiary was "BankofAmerica, National Association as successorby 

### mergerto "LaSalle BankNAastrustee forWaMu Pass-Through Certificates Series 2007-0A6Trust." For simplicity we will refer to the beneficiary as "BofA." -5-No. 73406-7-1/6 

### On May 12, 2011, NWTS was notified that USB had succeeded BofA as trustee of 

### the WaMu Trust. Consequently USB was the new beneficiary of the note.5 Almost twoyears later on March 12, 2013, NWTSsent Bucci a second notice of default. The notice identified the owner ofthe note as "U.S. Bank National Association,
as Trustee, [ofthe WaMu Trust]." 

### In April 2013, Buccielected to pursue foreclosure mediation through a referral from the Washington Department of Commerce. The referralidentified the owner of the Note as "U.S. Bank National Association, as Trustee, [ofthe WaMu Trust]." Bucci unilaterally cancelled the mediation. NWTS recorded the third notice of trustee's sale on June 25, 2013, and set the 

### sale date forOctober 25, 2013. One day before the scheduled sale, NWTS received confirmation that USB was the deed's beneficiary. The third sale was postponed to January 24, 2014, but did not occur. 

### On August 1, 2013, Select Portfolio Servicing, Inc., (SPS) took overfor Chase as the loan servicer for USB. 

### Bucci filed suitin August 2013, seeking declaratory judgment and injunctive relief 

### to preventthe nonjudicial foreclosure and sale. Thecomplaint alleged thatall defendants were negligent, violated the deed oftrust act (DTA), chapter 61.24RCW, 

### andWashington's ConsumerProtection Act (CPA) chapter 19.86RCW, andtheirduties of good faith.

5Thefull name of the beneficiary was "U.S. BankNational Association, as Trustee, successors in interest to Bank ofAmerica, National Associationas Trustee as successor by merger to LasalleBank, National Association as Trustee forWaMu Mortgage Pass-ThroughCertificates Series 2007-0A6 Trust." Forsimplicitywe refer to the beneficiary as "USB as trustee." -6-No. 73406-7-1/7
All the defendants moved for summaryjudgment. The trial court granted the defendants' motions and dismissed all of Bucci's claims. Subsequent to the dismissal, the trial court granted a motion on the merits previously filed by Chase seeking dismissal based on federal preemption. Bucci timely appealed both orders. We affirm. ANALYSIS This court reviews summaryjudgment decisions de novo, engaging inthe same 

### inquiry as the trial court. Michack v. Transnation Title Ins. Co., 148 Wn.2d 788, 794-95, 64 P.3d 22 (2003). Summaryjudgment is appropriate if, viewing the facts and reasonable inferences inthe light mostfavorable to the nonmoving party, no genuine 

### issues of fact exist and the moving party is entitled to a judgment as a matter of law. Michak, 148 Wn.2d at 794-95. "Agenuine issue ofmaterial fact exists ifreasonable minds could differ about the facts controlling the outcome ofthe lawsuit." Barklev v. Greenpoint Mortq. Funding. Inc., 190 Wn. App. 58, 65, 358 P.3d 1204 (2015). 

### Summaryjudgment "is subjectto a burden shifting scheme." Ranger Ins. Co. v. Pierce County. 164 Wn.2d 545, 552, 192 P.3d 886 (2008). The moving party meets its 

### initial burden by submitting evidence demonstrating that it is entitled to ajudgment as a matter of law. Ranger, 164 Wn.2d at 552. The burden then shifts to the nonmoving 

### party to setforth "specificfacts whichsufficiently rebut the moving party's contentions and disclose the existence of a genuine issue as to a material fact." Ranger. 164Wn.2d at 552 (quoting Meverv. Univ. ofWash.. 105 Wn.2d 847, 852, 719 P.2d 98 (1986)). To 

### accomplish this, the nonmoving party "may not rely on speculation [or] argumentative assertions that unresolved factual issues remain." Ranger. 164 Wn.2d at 552 (quoting Seven Gables Corp. v. MGM/UA Entm't Co.. 106 Wn.2d 1, 13, 721 P.2d 1 (1986).
-7-No. 73406-7-1/8

Underthe Uniform Commercial Code (UCC) Title 62A RCW, the "holder" ofan 

### instrument, including a promissory note, is the "person entitled to enforce" the terms of the note. RCW 62A.3-301; RCW 62A.3-104(e). The holder ofthe note is the 

### beneficiary of a deed of trust securing the note and is entitled to enforce the deed of trust through the nonjudicialforeclosure procedure set out inWashington's DTA. Bain

v. Metropolitan Mortg. Group. Inc., 175 Wn.2d 83, 104, 285 P.3d 34 (2012). 

### USB sought dismissal of Bucci's claims on summaryjudgment claiming that as the holder ofthe note, itwas entitled to enforce the terms ofthe note. The trial court 

### agreed and granted summaryjudgment in favor of USB. Bucciassigns three errors to the trialcourt's decision: (1) the court erred inaccepting testimony and evidence offered 

### by USB'sattorney; (2) the note was not a "negotiable instrument" and thereforefell outside of the UCC; and (3) the court erred in weighing evidence. We disagree and address each argument in turn. A. 

### Bucciargues the trial court erred in admitting a declaration from USB's attorney, J. Will Eidson. Bucciobjects specifically to the statement inEidson's declaration 

### attaching a true and correct copy of the note and declaring that "[t]he current holder of the Note and Deed ofTrust is U.S. Bank N.A., as trustee." Bucci argues that Eidson 

### was prohibited from testifying by the Rules of Professional Conduct, the Rules of Evidence, and CR 56(e) because he lacked personal knowledge ofwhether USB was the holder ofthe note.

-8-No. 73406-7-1/9
Butwhether Eidson's testimony was admissible is irrelevant because the 

### declaration was not necessary to prove that USB was the holder ofthe note. USB did not rely on Eidson's declaration or the copy ofthe note; instead at the summary 

### judgment hearing USB offered the original note. As the trial court confirmed: For the purposes of the record and for clarity Iam reviewing the adjustable rate note involvingthe property at 8102 155th Avenue Southeast 

### Newcastle, Washington 98059. A copy of which was previously provided. There being no articulable basis to dispute authenticity, Iwould note that same on page 3 of 6 itappears identical to the one submitted. There are no modifications to the original thus far at page 4. There's the original 

### signature. Andthe prepaymentfee note addendum also made May 22, 2007. Ididn't include the date, did I,

- which is also the date ofthe 

### adjustable rate note. Also signed bythe borrower. 

### Thank you, Counsel. The originals, as presented to the Court, are identical to the copies provided. Idid have an opportunity to observe the 

### original signature ofMr. [Bucci].[6] Underthe UCC, the "holder" ofthe note is "the person inpossession of a 

### negotiable instrumentthat ispayable eitherto the bearer or to an identified person that is the person in possession." RCW 62A.1-201(b)(21)(A). The "[m]ere production of a note establishes prima facie authenticity and is sufficient to make a promissory note admissible." United States v. Varner, 13 F.3d 1503, 1509 (11th Cir. 1994) (citing United 

### States v. Carriger, 592 F.2d 312, 316-17 (6th Cir. 1979)). USB produced the original 

### note, indorsed in blank, for inspection by the trial court. This was sufficientto prove the status of USB as the holder of Bucci's note. See Deutsche Bank Nat. Trust Co. v. 

### Slotke, 192 Wn. App 166, 175-76, 367 P.3d 600 (2016).7

6Report ofProceedings (Feb. 27, 2015) at 7. 7As stated in Deustche Bank, "weexpress noopinion whether this is the exclusive method for theholderof a note toprove itsrighttoenforce thenote." 192Wn. App. at 175-76. See §__., Barklev, 190 

### Wn. App. at66-68 (note and deed oftrustadmissible as business records pursuanttoRCW 5.45.020).No. 73406-7-1/10

B. Bucci argues next that a negative amortizing note is not a negotiable instrument underWashington's UCC because there must be a promise to pay "a fixed amount of money" and the note provides that the principal may change depending on the 

### borrower's payments and interest.8 Bucci contends that because the note falls outside ofthe UCC, contract law applies and in orderto enforce the note USB needs to 

### establish their rights under common law contracts and demonstrate valid assignments and a chain of title from the original lender. 

### Under the UCC, a "'negotiable instrument' means an unconditional promise or 

### orderto pay a fixed amount of money, with or withoutinterest or othercharges 

### described in the promise or order. RCW62A.3-104(a). Negotiability is determined from the face, the four corners, ofthe instrument at the time it is issued without reference to extrinsic facts. 5A RonaldA. Anderson, Anderson on the Uniform Commercial Code 

### § 3-104:13, at 115 (3d ed. 1994)(citing Holsonbackv. First State Bank ofAlbertville. 394 So. 2d 381, (Ala. Civ. App. 1980)). 

### Bucci relies primarily on Anderson v. Hoard, 63 Wn.2d 290, 387 P.2d 73 (1963), 

### to support his claim that the note is not negotiable because the principal may increase. Bucci's reliance on Anderson is misplaced. The promissory note inAnderson applied 

### the debtor's installment payments first to the accrued interest, and then, "at the option of the holder,.
. . such advances as the holder may have made fortaxes, assessments or 

### insurance premiums and other charges on any property mortgaged or pledged to 8Ayear afterBucci executed thenote, theWashington State Legislature passed legislation 

### prohibiting afinancial institution from making aresidential mortgage loan with "any provisions thatimpose negative amortization." RCW 19.144.050 (effectiveJune 12, 2008). In May 2007, however, aresidential loanwith negative amortization provisions was lawful. -10-No. 73406-7-1/11

secure this note," and finally to the reduction of principal. Anderson. 63 Wn.2d at 291. At the time of the Anderson decision, former RCW 62.01.001 (1995), required a negotiable instrument to "contain an unconditional promise or order to pay a sum certain in money." (Emphasis added.) Because the promissory note inAnderson provided for 

### the repayment of unknown amounts offuture taxes, assessments, insurance premiums, and other charges, the courtfound that the note did not contain a promise to pay a sum certain and was therefore not negotiable. Anderson, 63 Wn.2d at 293-94. RCW 62.01.001 was subsequently repealed and replaced by the current 

### definition of a "negotiable instrument" in RCW62A.3-104(a).9 Under the current definition, a "'negotiable instrument' means an unconditional promise or orderto pay a 

### fixed amount of money, with or without interest or other charges described in the promise or order." RCW 62A.3-104(a) (emphasis added). Further, under RCW 62A.3- 

### 112(b): "Interest may be stated in an instrument as a fixed or variable amount of money 

### or it may be expressed as a fixed or variable rate or rates. The amount or rate of interest may be stated or described in the instrument in any manner and may reguire reference to information not contained inthe instrument." (Emphasis added.) Thus,
9Bucci alsorelies onbriefpassages in two law review articles tosupporttheargumentthata loanwith a negative amortization feature is not negotiable. Neither article is persuasive. In the first, Elizabeth Renuart, Uneasy Intersections: The Right To Foreclose and the U.C.C., 48 Wake ForestL. Rev. 1205, 1231 (2013), the author relies on the unpublishedCalifornia U.S. DistrictCourtopinion in Ralston v. Mortgage Investors Grp.. Inc.. No. C 08-536 JF (PVT), 2010 WL 3211931 (N.D. Cal. Aug. 12, 2010) for the proposition that inevitable negative amortizationrenders the actual principal amount uncertain. Ralston concerned a fraudulent omission claim under California law. It is not a UCC case and does notaddress whether a negative amortization feature renders a promissory note nonnegotiable. InKathleen C. Engel and Thomas J. Fitzpatrick IV, Complexity, Complicity, and Liability up the Securitization Food Chain: Investor and Arranger Exposure to Consumer Claims, 2 Harv. Bus. L. Rev. 345, 358 n.50(2012), the authors state, "Arguably, loanswith negativeamortization could be for uncertain sums because the principal balance can increase over time." The authors provide no support this claim other than a contraryauthority in Goss v.Trinity Savings &Loan Ass'n., 1991 OK19, 813 P.2d 492.
-11-No. 73406-7-1/12 

### negotiabilityexists ifthe fixed amount can be determined from the face ofthe instrument, exceptfor amounts ofinterest, for which reference to information not contained in the note is allowable. As Division Two ofthis court recently explained: "Areference to anotherwriting does not of itself make the promise or order conditional. We analyze the promissory notes' contents to determine whether the notes' holder could determine her or his rights, 

### duties, and obligations withrespect to the payment on the notes without having to examine any other documents." Alpacas of America. LLC v. Groome. 179 Wn. App. 391, 397, 317 P.3d 1103 (2015) (citing RCW62A.3-106 cmt. 1). Indeed, as explained 

### incomment 1 of RCW62A.3-106, the rights, duties, and obligations of the transferee—
not the current balance—must be found on the face of instrument: 

### The rationale is thatthe holder of a negotiable instrument should not be 

### required to examine another document to determine rights with respect to 

### payment. Butsubsection (b)(i) permits reference to a separate writing for information with respect to collateral, prepayment, or acceleration. 

### Manynotes issued in commercial transactions are secured by collateral, are subjectto acceleration in the event of default, or are subject to prepayment, or acceleration does not preventthe note from becoming an instrument ifthe statement is in the note itself. RCW62A.3-106cmt. 1. 

### The note here describes Bucci's obligations on its face: "I promise to pay U.S. 

### $1,530,000.00 plus any amounts added in accordance with Section 4(G) below, (this amount called "Principal"), plus interest, to the order of the Lender." Bucci's note fully discloses how interest accrual may result innegative amortization, depending on the amount Bucci chooses to make as a monthly payment. Negative amortization only
occurs underthe note if Bucci chooses not to pay the full amount ofinterest due each

-12-No. 73406-7-1/13 month and only ifthe monthly payment is insufficientto coverthe accrued interest. Bucci's note provides for a monthly payment, but Bucci is not limited to paying only the monthly payment amount. The note expressly permits Bucci to make prepayments towards the principal. RCW 62A.3-104(a) defines a negotiable instrument as "an unconditional promise


### or orderto pay a fixed amount ofmoney, with or without interest or other charges described inthe promise or order." RCW 62A.3-104(a). Because Bucci's note contains
an unconditional promise to pay a fixed amount of$1.53 million plus any amounts added inaccordance withthe provisions in Section (4)(G) ofthe note, it is a negotiable instrument as defined in RCW 62A.3-104(a). C. 

### Bucci next argues that in granting USB's motion for summaryjudgment, the trial 

### court erroneously weighed the credibility of the parties' evidence. Specifically, Bucci contends that the trial court weighed evidence concerning whether USB, was the holder ofthe note and beneficiary ofthe deed. We disagree. The UCC sets forth the rules for challenging the originality of a note. A note is 

### original if itcontains the original signature of the maker. Under RCW 62A.3-308(a), the validity ofsignatures are admitted unless specifically denied: In an action with respect to an instrument, the authenticity of, and authority to make, each signature on the instrument is admitted unless specifically denied inthe pleadings. Ifthe validity of a signature is denied inthe 

### pleadings, the burden ofestablishing validity is on the person claiming validity, but the signature is presumed to be authentic and authorized unless the action is to enforce the liability ofthe purported signer and the 

### signer is dead or incompetent at the time oftrial of the issue ofvalidity of the signature.

-13-No. 73406-7-1/14 (Emphasis added.) Here, USB produced the original ofthe note before the trial court and the trial court confirmed itcontained Bucci's original signature. Bucci did not dispute the originality ofthe note or the authenticity of his signature on the note. Thus, the validity ofthe signatures is admitted. Under RCW 62A.3-308(b), ifthe validity ofthe signatures is admitted, then 

### so long as the plaintiffproducing the instrument is the "holder" ofthe instrument under RCW 62A.3-301, the plaintiff is "entitled to payment" unless "the defendant proves a defense or claim in recoupment." RCW 62A.3-308(b). Here, USB was 

### the holder ofthe original note and the signature on the note was not disputed. 

### The onlydefenses raised by Bucci inresponse to USB's offer ofthe 

### original note were that (1) the trial court eithererred in admitting Eidson's declaration and evidence; and (2) thatthe note was not negotiable. As discussed above, both of Bucci's defenses fail as a matter of law. The trial court 

### did not err inweighing the evidence. Because Bucci failed to introduce valid evidence disputing that USB was the holder ofthe original note, there was no 

### evidence for the trial court to weigh. Summaryjudgment in favor of USB is affirmed. 

### A majority of the panel having determined that only the foregoing portion of this opinionwill be printed in the Washington Appellate Reports and the remainder having no precedential value shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

-14-No. 73406-7-1/15

Bucci next assigns error to the trial court's dismissal of his CPA claims against USB, loan servicer SPS, Chase, NWTS, and its law firm RCO. To prevail in a CPA action the plaintiffmust prove (1) an unfair or deceptive act or practice, (2) occurring in trade or commerce, (3) affecting the public interest, (4) injury to a person's business or 

### property, and (5) causation. Hangman Ridge Training Stables, Inc.v. Safeco TitleIns. Co., 105 Wn.2d 778, 784, 719 P.2d 531 (1986). "Failure to satisfy even one ofthe elements is fatal to a CPA claim." Sorrel v. Eagle Healthcare. Inc.. 110 Wn. App. 290, 

### 298, 38 P.3d 1024 (2002). Apresale violation ofthe DTA may establish an unfair or 

### deceptive act and be compensable under the CPA. Frias v.Asset Foreclosure Servs. Inc.. 181 Wn.2d 412, 432-333, 334 P.3d 529 (2014); Lyons v. U.S. Bank. NA. 181 Wn.2d 775, 784, 336 P.3d 1142 (2014). A. Bucci claims that USB and servicer SPS, committed an unfair and deceptive act 

### whenit initiated a nonjudicial foreclosure against Bucci on June 26, 2009, in violation of the DTA. We disagree. 

### Bucci'sclaim against USB and SPS fails for tworeasons. First, USB did not 

### initiate the nonjudicial foreclosure in 2009. The 2009foreclosure was initiated on behalf of BofA. USB did not become the trustee ofthe WaMu Trust until May 2011—priorto the third notice of sale. Second, when USB did ultimately initiate nonjudicial foreclosure 

### in 2013, itwas the holder ofthe note and, contrary to Bucci's assertion, the note was a negotiable instrument.

-15-No. 73406-7-1/16 Summaryjudgmentdismissing Bucci's CPA claims against USB and SPS was appropriate as Bucci failed to demonstrate that either entity committed an unfair or deceptive act. B. Bucci asserts that Chase committed an unfair or deceptive act when itinduced him to stop making his mortgage payments and failed to inform him that if he defaulted they could foreclose on his property. Bucci also asserts that Chase committed an unfair
or deceptive act because itlacked authority to appoint NWTS as successortrustee to 

### conductthe nonjudicialforeclosure.10 We disagree.
1. 

### Inresponse to Chase's motion for summaryjudgment, Bucci supported his claim that Chase induced him to quit making loan payments by explaining that afterthe 2007 

### housing crash, his property lost approximately one half of its value. Inresponse, while he was stillable to make his loan payments, he "hoped to negotiate" new loan terms 

### reflecting "market conditions and the new value" of his property. He then claimed that "on numerous occasions, WaMu told me that itwould not work with me regarding a loan 

### modification whileIwas current on my loan payments."11 He then relied on the media to supportthis belief: "'everybody' knew this to be the case and, by that, Imean that due to 

### strong media attention itwas basically public knowledge that you had to be behind on your mortgage payments to qualify for a loan modification."

10 Bucci also claims that Chase failed to provide him a preforeclosure letter under RCW 61.24.031. Bucci failed to present substantive argument in support of this claim and it is deemed waived. RAP 10.3(a)(3); Ang v. Martin. 154 Wn.2d 477, 486-87, 114 P.3d 637 (2005). 11 Bucci later recalled itwas Chase that continued to advise him to miss payments. -16-No. 73406-7-1/17
In response to a motion for summaryjudgment, a party must "setforth specific facts showing that there is a genuine issue for trial." CR 56(e). A declaration containing 

### only conclusory statements without adequate factual support does not create an issue of material fact that defeats a motion for summaryjudgment. Lane v. Harborview Medical Center. 154 Wn. App. 279, 288, 227 P.3d 297 (2010). Bucci failed to meet his burden ofdemonstrating thatWashington Mutual or 

### Chase induced him to stop making loan payments. He offered nothing otherthan his beliefthat he needed to default in order to obtain a loan modification. In essence, Bucci 

### alleged only that Washington Mutual, then Chase, informed him that they do notmodify performing loans. Bucci failed to demonstrate that Chase induced him to default. Bucci does not allege that he was promised a loan modification if he defaulted—only that he believed that one ofthe requirements for obtaining a loan modification was to be behind on payments. Bucci also does not argue that Chase's alleged inducement in any way 

### prevented him from curing his default. To the contrary, while Bucci admitted an 

### obligation to pay, he also admitted that he did not attempt to pay the arrears on his loan after he defaulted because he "didn't want to" since there was "negative equity" inthe 

### property. Thus, Bucci failed to cure his default, butdoes not allege that his failure to

cure the default was attributable to Chase's alleged inducement. 

### Bucci also asserts that Chase acted deceptively by "failing to disclose that if 

### failed to make his payments, they would take his home and not provide him a loan modification."

-17-No. 73406-7-1/18
Atthe outset, Bucci's disappointment overthe denial of his desire for a loan modification is not actionable: "While the parties may choose to renegotiate their 

### agreement, they are under no good faith obligation to do so." Badgett v. Sec. State Bank, 116 Wn.2d 563, 572 87 P.2d 356 (1991). The record shows that Chase tried to 

### help Bucci with a loan modification. Bucciwas in favor of a loan modification, butwas denied because his unpaid principal exceeded the amount allowed underthe Home Affordable Foreclosure Alternative Program limit. Bucci was also denied a short sale because he failed to provide the documents requested by Chase. Further, Bucci 

### unilaterally cancelled his Foreclosure Fairness Act mediation based on his belief that the beneficiary wouldn't mediate ingood faith. Bucci also cannot demonstrate that Chase failed to disclose that the remedy for 

### defaultwas a potential foreclosure sale. Bucci does not dispute that the note includes hisexpress agreementthat: "IfIdo not pay the full amount ofeach monthly payment on the date it is due, Iwill be in default." Nordoes Buccidispute that the deed expressly allows for foreclosure sale in the event of a default under the note. While Chase worked 

### with Bucci on a possible loan modification, itwas under no obligation to do so. 

### Bucci also alleges thatChase acted unfairly and deceptively by"dual tracking" him and working with him on a loanmodification while simultaneously moving forward with nonjudicial foreclosure. Bucci relies on the unpublished federal district court opinion Singh v. Federal National Mortgage Ass'n. No. C13-1125RAJ, 2014 WL 

### 504820, at *4-5 (W.D. Wash. Feb. 7, 2014) (court order) for the proposition that "'dual tracking'" is unlawful. Butin Singh, there was evidence that the plaintiff"'continually received promises from the representatives at the service centerthat the foreclosure
-18-No. 73406-7-1/19
sale would not proceed while their loan modification was being processed.'" Singh. 2014 WL 504820, at *5. Here, Bucci offered no evidence of any such promises. Moreover, Bucci offers no evidence that Chase followed through on a foreclosure sale while he was attempting a loan modification. Both the 2009 and 2010 foreclosure sales
were cancelled. Chase was under no obligation to give up its rights to foreclosure while considering a modification. The deed expressly provides that the lender's willingness to consider modification or forbearance does not waive the lender's rights or remedies. Bucci argues next that Chase committed an unfair or deceptive act by appointing NWTS as successorto the original trustee without authority. This is true, according to Bucci, because BofA, not Chase, was the beneficiary ofthe WaMu Trust in July 2009. Bucci asserts that because Chase was not the beneficiary, Chase lacked authority to appoint NWTS as successortrustee. 

### Underthe DTA, the beneficiary has the powerto appoint any trustee that is qualified to act as such pursuant to law. RCW 61.24.010(2). But "only a proper 

### beneficiary has the power to appoint a successorto the originaltrustee named in the deed oftrust." Bavand v. OneWest Bank. F.S.B.. 176 Wn. App. 475, 486, 309 P.3d 636 

### (2013). "[W]hen an unlawful beneficiary appoints a successortrustee the putative trustee lacks the legal authority to record and serve a notice oftrustee's sale. Walker v. Quality Loan Serv. Corp.. 176 Wn. App. 294, 306, 308 P.3d 716 (2013). "Such actions 

### by the improperlyappointed trustee . . . constitute 'material violations of the DTA.'" Ruckerv. Novastar Mortg.. Inc.. 177 Wn. App. 1, 14,311 P.3d 31 (2013) (quoting Walker, 176 Wn. App. at 308).

-19-No. 73406-7-1/20 

### Chase acquired Washington Mutual's assets on September25, 2008, including 

### its servicing obligations for the WaMu Trust. On January 29, 2009, BofA executed a 

### limited power of attorney in favor ofChase authorizing Chase to, among other things, complete a nonjudicial foreclosure and appoint a successortrustee to serve under the deed. Thus, while BofA was the beneficiary of Bucci's note in July 2009, Chase was 

### acting as BofA's agent and attorney-in-factwith the express authority to appoint a

successor trustee. 

### WhileBucci agrees that the DTA allows the use ofagents, he asserts that the 

### DTA "does notallow an agentto appoint a successortrustee." We disagree. In Bain, 

### our Supreme Court held that "nothing in thisopinion should be construed to suggest an 

### agentcannot representtheholderofa note," and that"Washington law, and the deed of trust actitself, approves ofthe use of agents." 175Wn.2d 83, 106, 285 P.3d 34(2012). 

### In July 2009, BofAwas theholderofthenote and thebeneficiary undertheDTA. BofA
was entitled to initiateforeclosure proceedings. BofA also had authority to appoint 

### Chase as its agent and attorney-in-fact. AsBofA's agent, Chase had theauthority to appoint a successortrustee to carryout the nonjudicial foreclosure. Summaryjudgmentdismissing Bucci's CPA claims against Chase was appropriate as Bucci failed to demonstrate an unfair or deceptive act.
C. 

### Bucci argues thatNWTS and RCO committed an unfair ordeceptive actby (1) 

### violating the DTA andrelying on an ambiguous beneficiary declaration toinitiate 

### nonjudicialforeclosure in violation ofRCW61.24.070(7)(a); and (2) violating its duty of good faith byfailing to conducta cursory investigation. We disagree.
-20-No. 73406-7-1/21
RCW 61.24.010(4) imposes a duty ofgood faith on the trustee toward the 

### borrower, beneficiary, and grantor. See RCW 61.24.010(4). The Lyons court confirmed 

### that the duty of good faith requires the trustee to "remain impartial and protectthe interests of allthe parties." Lyons. 181 Wn.2d at 787. "[T]hetrustee in a nonjudicial foreclosure action has been vested with incredible power. Concomitantwith that power 

### is an obligation to both sides to do more than merely follow an unread statute and the 

### beneficiary's directions." Klem v. Washington Mutual Bank. 176 Wn.2d 771, 791, 295 P.3d 1179 (2013). "Aforeclosure trustee must 'adequately inform' itselfregarding the purported beneficiary's right to foreclose, including, at a minimum, a 'cursory investigation' to adhere to its duty of good faith." Lyons. 181 Wn.2d at 787 (quoting Walker. 176 Wn. App. at 309-10. "Atrustee does not need to summarily accept a 

### borrower's side ofthe story or instantly submitto a borrower's demands. But a trustee 

### must treat both sides equally and investigate possible issues using its independent 

### judgment to adhere to its duty of goodfaith." Lyons. 181 Wn.2d at 787. A trustee's failure to act impartially can support a CPA claim. Klem, 176 Wn.2d at 792.
1. 

### Bucci argues first that NWTS violated RCW61,24.070(7)(a) byrelying on an ambiguous beneficiary declaration. 

### RCW61.24.030(7)(a) requires a trustee have proof that the beneficiary is the 

### owner of any promissory note beforerecording the notice oftrustee's sale. "Although ownership can be proved in different ways, the statute itselfsuggests one way: 'A 

### declaration by the beneficiary made under the penalty ofperjury stating that the 

### beneficiary is the actualholderofthe promissory note . . . shall be sufficient proofas
-21-No. 73406-7-1/22 required under this subsection.'" Lyons, 181 Wn.2d at 789-90 (quoting RCW 61.24.030(7)(a)). In Lyons, our Supreme Court held that a successortrustee could not rely on an ambiguous beneficiary declaration that states an entity either held the note or had 

### authority under RCW 62A.3-301 to enforce the note. Lyons, 181 Wn.2d at 791. The 

### beneficiary declaration in Lyons read, "WellsFargo Bank, NA, is the actual holder of the promissory note or has requisite authority under RCW 62A.3-301 to enforce said 

### obligation." Lyons, 181 Wn.2d at 780 (emphasis added). Strictly construing RCW 61.24.030(7), the court found the declaration ambiguous on itsface as it did not prove whether "Wells Fargo is the holder, or whetherWells Fargo is a nonholder in 

### possession orperson not inpossession who is entitled to enforce." Lyons. 181 Wn.2d

at 791.

### It is undisputed in this case that the July 30, 2009, beneficiary statement 

### provided to NWTS sufferedfrom the same defect as the declaration in Lyons. The declaration read "Bank ofAmerica, National Association as successor by merger to 

### "LaSalle Bank NAas trustee for WaMu Mortgage Pass-Through Certificates Series 2007-0A6 Trust is the actual holder ofthe promissory note or other obligation 

### evidencing the above-referenced loan or has requisite authority underRCW 62A.3-301 to enforce said obligation." (Emphasis added.) Thus, ifNWTS had relied solely on the 

### July 30, 2009, equivocal beneficiary declaration, Bucci would be correct—that NWTS
violated the DTS. The Lyons court, however, noted that the trustee could stillcomply with RCW 

### 61.24.030(7)(a) byrelying on evidence other than the equivocal beneficiary declaration.
-22-No. 73406-7-1/23 Lyons, 181 Wn.2d at 791. Similarly, in Truiillo v. Northwest Trustee Services. Inc.. 183 Wn.2d 820, 828, 833-34, 355 P.3d 1100 (2015), the court reviewed a similarly defective ambiguous beneficiary declaration. But, while the declaration in Trujillo failed to satisfy RCW 61.24.030(7)(a), the Court remanded with instructions that the borrower "have the opportunity to prove that the [trustee] actually relied on the impermissibly ambiguous declaration as a basis for issuing the notice oftrustee's sale." Trujillo, 183 Wn.2d at 834. Here, there is adequate evidence to demonstrate that NWTS possessed 

### information that satisfied RCW 61.24.030(7)(a)'s proof requirement before issuing its 2009 Notice ofTrustee's Sale. First, NWTS received a foreclosure referral through a 

### secure messaging platform on June 26, 2009, that identified BofA of WaMu Trust as the 

### foreclosing entity.12 Along with the referral NWTS received a copy of the note, indorsed in blank. Second, NWTS obtained a trustee's sale guarantee dated June 23, 2009, from First American that identified BofA ofthe WaMu Trust as the owner of Bucci's 

### Note. Third, Chase, as attorney-in-factfor BofA ofthe WaMu Trust appointed NWTS as 

### successortrustee of Bucci's deed on July 10, 2009. Fourth, an assignment ofdeed of trust was recorded in King County on July 10, 2009, that identifiedBofA of the WaMu Trust as the beneficiary of Bucci's note. The appointment unambiguously states that BofA "is the owner and holder of the obligation secured by the subject deed of trust and

12 Mr. Stenman, NWTS's Vice President and Director ofOperations, stated in a declaration that the secure-messaging system is "routinely relied uponin the course of[NWTS's] business as containing accurate information." CP at 1286. -23-No. 73406-7-1/24
is not holding the same as a security for a different obligation." On July 30, 2009, 

### Chase, the attorney-in-factfor BofA, issued the ambiguous beneficiary declaration.13 Even with the lacking beneficiary declaration, it is clearfrom the record before us that NWTS had sufficient proofofthe foreclosing beneficiary's identity prior to serving its 

### first notice oftrustee's sale on August 13, 2009.14
2. Bucci asserts that NWTS committed an unfair or deceptive act when itviolated its duty ofgood faith under RCW 61.24.010(4) by failing to perform a "cursory 

### investigation" into whether Chase was BofA's attorney-in-fact and whether BofAor USB,
were infact proper beneficiaries. Other than citing Lyons and Walker, Bucci provides
no argument in support of his contention. In Lyons, there was evidence Lyon's attorneys repeatedly communicated with 

### Wells Fargo and NWTS and informed them ofsignificant errors and conflicting 

### information before the nonjudicialforeclosure. Cf. Lyons, 181 Wn.2d at 787-88. Here, Bucci never contacted NWTS. But even ifBucci had notified NWTS of improprieties, it is clear that NWTS would not have breached its duty of good faith by proceeding with 

### the foreclosure process. NWTS possessed reliable information showing that Chase 

### was the attorney-in-fact forBofA and that BofA and USB were the beneficiaries of the

13 At the time the declaration was issued, Lyons had not been decided. NWTS only learned that the beneficiary declaration was ambiguous after the Lyons opinion was published in 2014. 14 After NWTS issued its first notice of trustee's sale, evidence that BofA as trustee of the WaMu Trust was the beneficiary of Bucci's note, continued to accrue. First, On September 9, 2013, First American issued an indorsement to its June 23, 2009, trustee's sale guarantee that confirmed—again— BofAas Trustee of the Loan Trust as beneficiary. Second, prior to issuance of the third notice oftrustee sale, NWTS was informed that USB became the successor ininterest to BofAas trustee of the WaMu Trust. Finally, on July 7, 2011, NWTS received screenshots fromChase's electronic records that identified USB as trustee ofthe WaMu Trust as the beneficiary ofthe note. -24-No. 73406-7-1/25

note prior to issuing the notices oftrustee sale. Here, NWTS met its duty ofgood faith under RCW 61.24.010(4). Summaryjudgment dismissing Bucci's CPA claims against NWTW and RCO
was appropriate as Bucci failed to demonstrate an unfair or deceptive act.
III. Bucci next assigns error to the dismissal of his negligence claims against all the respondents. Bucci argue that the respondents had a duty to use reasonable care 

### because they created a risk of harm when they made "errors, misrepresentations, and 

### omissions . . . during the loan modification and nonjudicialforeclosure." Bucci relies 

### solely on his alleged violations of the DTA and CPA to demonstrate the duty of care. Bucci does not argue the elements ofbreach, causation, or damage. Because Bucci does not argue independent grounds for negligence, and his 

### claims against respondents for violations of the DTA and CPAfail, his negligence claims 

### similarly fail. Summaryjudgment dismissing Bucci's negligence claims was appropriate.
IV. After the trial court dismissed Bucci's claims against Chase on summary 

### judgment, the trial judge granted in part and denied in part Chase's motion to dismiss based on its argument that Bucci's claims were preempted by the Home Owners' Loan 

### Act of 1933 (HOLA), 12 U.S.C. §§ 1461-1468. Bucci assigns error to the trial court's
decision. Because the trial court was correct in dismissing Bucci's underlying claims 

### against Chase under the CPA and for negligence, we decline to address whether Bucci's claims were also preempted by HOLA.
-25-No. 73406-7-1/26

V. Bucci's amended complaint and appeal included RCO, NWTS's law firm, as a 

### party. NWTS asks us to sanction Bucci for including RCO as a party on appeal. Washington Rules ofAppellate Procedure 18.9 allows this court to order a party
or counsel who files a frivolous appeal to pay terms or compensatory damages to this 

### court or any other party who has been harmed by the failure to comply. "An appeal is frivolous ifthere are no debatable issues upon which reasonable minds might differ, and 

### it is so totally devoid of merit that there was no reasonable possibility ofreversal." Lee v. Kennard. 176 Wn. App. 678, 692, 310 P.3d 845 (2013). "RAP 18.9(a) does not 

### speak in terms offiling one or more frivolous issues or assignments oferror—only a frivolous appeal as a whole." Lee, 176 Wn. App. at 693. 

### Here, while Bucci did not assign error to the trial court's grant of summary 

### judgment to RCO, and neglected to address RCO's liability, the appeal, when considered as a whole, is not frivolous. We decline to impose sanctions. 

### The trial court's decision granting summary judgment in favor of the respondents is affirmed.
ft»7

WE CONCUR: 

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