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23 (ii) A declaration by the beneficiary made under the penalty of perjury stating that the beneficiary is the actual holder of the promissory note or other obligation secured by the deed of trust shall be sufficient proof as required under this subsection. A violation of this subsection (7)(a)(ii) is a class C felony as provided in RCW 28 9A.20.020 and 9A.20.021.
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The law does not mention false swearing. It says the trustee must have in his possession proof that the beneficiary is the holder, and that a declaration from the beneficiary shall suffice for that purpose. Therefore, the felony would be if the trustee sold the property without the proper declaration. The grantor could take the trustee to court to challenge the truthfulness of the declaration, but the declaration is going to be taken at face value if not challenged by the grantor. This law is not about false swearing, it is about the trustee having the declaration before the sale. They were already required to have that, and the way they do it is for some clerk who has no firsthand knowledge to make a declaration, and they are in compliance with the statute, or so they think. The felony adds teeth to the statute, but they can always get around it with a declaration, even if the declaration does not meet the qualifications of firsthand testimony. The grantor has always had the right to challenge the sufficiency of the declaration.