“We note that the Bain court declined to answer what legal effect arose from MERS acting as an unlawful beneficiary under our state statutes. It declined to do so based on both an insufficient record in that case and the briefing then before it. In this case, neither of these obstacles to the resolution of the legal issue before us is present.”

MARISA BAVAND,
Appellant,

v.

ONEWEST BANK, F.S.B., a federally
chartered Savings Bank; REGIONAL
TRUSTEE SERVICES
CORPORATION, a Washington
corporation; MORTGAGE
ELECTRONIC REGISTRATION
SYSTEMS, INC., a Delaware
corporation,
Respondents,

DOE DEFENDANTS 1-10,
Defendants.

EXCERPTS:

Cox, J. — Primarily at issue in this appeal of a CR 12(b)(6) dismissal is  whether OneWest Bank, FSB and the Mortgage Electronic Registration Systems,  Inc. (MERS) met their burden to show that Marisa Bavand failed to show any set off acts that would justify granting relief.1 Also at issue is whether the trial court   

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1See Postema v. Pollution Control Hearings Bd., 142 Wn.2d 68, 122, 11  P.3d 726 (2000) (noting that a motion to dismiss pursuant to CR 12(b)(6) should  be granted only if the plaintiff cannot prove any set of facts that would justify  recovery).    

No. 68217-2-1/2  

properly granted the motion to validate the trustee’s sale of Bavand’s property by  Regional Trustee Services Corporation (RTS).  We hold that the motion to dismiss was, for the most part, erroneously  granted. The order validating the trustee’s sale was also erroneously granted.  We affirm in part, reverse in part, and remand for further proceedings.   

. . .  

FAILURE TO STATE A CLAIM  

Bavand first argues that the trial court erred when it granted MERS and  OneWest’s joint CR 12(b)(6) motion to dismiss for failure to state a claim upon  which relief can be granted. Specifically, she argues that a material procedural  defect in the appointment of RTS as successor trustee under the deed of trust  made the trustee’s sale invalid. We agree that Bavand has stated sufficient facts  

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No. 68217-2-1/5  

to demonstrate a material procedural defect in RTS’s appointment as successor  trustee. Thus, she has made out a claim for relief.   

. . .  

The only reasonable reading of this statute is that the successor trustee  must be properly appointed to have the powers of the original trustee.18 Thus, a  dispositive question in this appeal is whether RTS was properly appointed as a  successor trustee by the beneficiary of Bavand’s deed of trust. We conclude that this record shows that RTS was not properly appointed as a successor trustee.  

7

 . . .

We affirm the dismissal of the quiet title claim. We reverse the remainder of the trial court’s order granting OneWest and MERS’s CR 12(b)(6) motion to dismiss. We also reverse the order validating the trustee’s sale. We remand for further proceedings.

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