IN THE SUPREME COURT OF THE STATE OF WASHINGTON
NORTHWEST TRUSTEE SERVICES, INC.,
WELLS FARGO BANK, NA,
GORDON McCLOUD, J.- Rocio Trujillo’s home loan was secured by a
deed of trust encumbering the home. She defaulted, and Northwest Trustee Services
Inc. (NWTS), the successor trustee, sent a notice of default and scheduled a trustee’s
sale of her property. Under the deeds of trust act (DTA), a trustee may not initiate
such a nonjudicial foreclosure without “proof that the beneficiary [of the deed of
trust] is the owner of any promissory note … secured by the deed of trust.” RCW
61.24.030(7)(a) (emphasis added). But the very next sentence of that statute says,
“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.” Id.
NWTS had a beneficiary declaration from Wells Fargo Banlc It did not
contain that specific statutory language. Instead, it stated under penalty of perjury,
“Wells Fargo Banlc, NA is the actual holder of the promissory note . . . or has
requisite authority under RCW 62A.3-301 to enforce said [note].” Clerk’s Papers
(CP) at 36 (emphasis added). This declaration language differs from the language
ofRCW 61.24.030(7)(a), quoted above, by adding the “or” alternative.
Following our recent decision in Lyons v. U.S. Bank National Ass ‘n, 181
Wn.2d 775, 336 P.3d 1142 (2014), we hold that a trustee cannot rely on a beneficiary
declaration containing such ambiguous alternative language. Trujillo therefore
alleged facts sufficient to show that NWTS breached the DT A and also to show that
that breach could support the elements of a Consumer Protection Act (CPA) claim.
Ch. 19.86 RCW. However, her allegations do not support a claim for intentional
infliction of emotional distress or criminal profiteering. We therefore reverse in part
and remand for trial.