Marcel Maddox Bey v. Guild Mortgage Company ( 2018 )

FILED
CUM'OF APPEALS DIV I
STATE OF WASHIT,1TON
2018 JAN 16 AIN: 23
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
MARCEL MADDOX BEY,
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Appellant,
DIVISION ONE
V.
GUILD MORTGAGE COMPANY, UNPUBLISHED OPINION
Respondent. FILED: January 16, 2018
SPEARMAN, J. — Dismissal under CR 12(b)(2) and (5) is proper only
where, due to insufficient service of process, the trial court lacks jurisdiction over
a person. Dismissal under CR 12(b)(6) is warranted only where no facts exist
that would justify recovery, as when there is some insuperable bar to relief.
Marcel Maddox Bey appeals the dismissal of his claim against Guild Mortgage
Company (Guild). Maddox Bey, however, fails to make a prima facie showing of
sufficient service of process. He also fails to state a claim upon which relief may
be granted. We affirm.
FACTS
Maddox Bey defaulted on a home loan and the lender, Guild, recorded a
notice of trustee's sale. The sale was scheduled for July 22, 2016. On July 20,
Maddox Bey filed this action seeking to quiet title, naming Guild as a defendant.
Maddox Bey declared that he rescinded his signature on the deed of trust and
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was no longer liable for any debt arising from the deed. He also filed documents
proclaiming that, as a Moorish-American, he was immune from taxation as well
as criminal and civil jurisdiction of the United States.
Maddox Bey's complaint did not seek to enjoin the trustee's sale. The sale
took place as scheduled on July 22 and DWA Investments, LLC, purchased the
property.1
Guild moved to dismiss Maddox Bey's suit on the grounds that Maddox
Bey failed to conduct personal service of process and the trial court thus lacked
personal jurisdiction over Guild. CP at 339-40. Guild also asserted that Maddox
Bey's complaint failed to state a claim upon which relief could be granted.
Maddox Bey did not respond to Guild's motion or attend the hearing. The
trial court found that Maddox Bey failed to properly serve Guild and his complaint
failed to state a claim. The court granted Guild's motion to dismiss. Maddox Bey
appeals.
DISCUSSION
We review de novo the trial court's conclusions that service was
insufficient and that Maddox Bey failed to state a claim upon which relief may be
granted. Scanlan v. Townsend, 181 Wash. 2d 838, 847, 336 P.3d 1155(2014);
Cutler v. Phillips Petroleum Co., 124 Wash. 2d 749, 755, 881 P.2d 216(1994)
(citing Hoffer v. State, 110 Wash. 2d 415, 421, 755 P2d 781 (1988)).
1 In a related appeal, Maddox Bey challenges the trial court's issuance of a writ of
restitution to DWA. See DWA Investments, LLC v. Marcel Maddox, No. 77154-0.
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Maddox Bey appeals the trial court's grant of Guild's motion to dismiss. He
does not, however, address the trial court's ruling on this motion. Instead,
Maddox Bey raises several arguments to challenge the trustee's sale. He asserts
that Guild failed to prove that it was the holder of the promissory note. Maddox
Bey alleges that any contract between him and Guild is unenforceable due to
duress and fraud. He contends Guild had unclean hands. He asserts that the
trustee's sale was void and the trial court had the duty to vacate the void
judgment. Maddox Bey also contends corporations and governments are
fictitious persons that have no jurisdiction over natural humans. He appears to
contend that he is not subject to the jurisdiction of the United States or the State
of Washington and he has rescinded all contractual obligations. We decline to
reach these arguments as beyond the scope of review and unsupported.2
The trial court granted Guild's motion to dismiss on two grounds. First, the
trial court found that Maddox Bey failed to properly serve Guild with the
summons and complaint. A plaintiff accomplishes personal service on a
corporation by serving the head of the corporation, the company's registered
agent, the corporate secretary, cashier, or managing agent. Weber v. Associated
Surgeons, P.S., 166 Wash. 2d 161, 163, 206 P.3d 671 (2009)(citing RCW
4.28.080(9)). Where a defendant challenges the sufficiency of service, the
plaintiff has the initial burden of making a prima facie showing of proper service.
2 The authority Maddox Bey cites, including the United States Constitution, the Bill of
Rights, and the Washington State Constitution, provides no support for his claims that he is
beyond the reach of the law and has not agreed to submit to the State's jurisdiction.
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Scanlan v. Townsend, 181 Wash. 2d 838, 847, 336 P.3d 1155(2014)(citing
Streeter-Dvbdahl v. Nquvet Huynh, 157 Wash. App. 408, 412, 236 P.3d 986
(2010)). A plaintiff may meet this burden by producing an affidavit of service. Id.
at 847-48. The burden then shifts to the defendant to demonstrate that the
service was insufficient. Id. at 847.
In this case, Guild challenged the sufficiency of service. Maddox Bey did
not respond. Maddox Bey failed to make a prima facie showing that service was
properly carried out and, on this appeal, Maddox Bey points to no evidence that
he properly served Guild.3 The trial court did not err in granting Guild's motion to
dismiss based on insufficient service of process.
The trial court also granted Guild's motion to dismiss based on Maddox
Bey's failure to state a claim. A motion to dismiss for failure to state a claim
should only be granted where the plaintiff cannot prove any set of facts that
would justify recovery. Cutler, 124 Wash. 2d at 755. This is the case where the
complaint demonstrates "'some insuperable bar to relief." Id. (quoting Hoffer, 110
Wn.2d at 421).
Maddox Bey's complaint seeks to quiet title on the grounds that he
rescinded the deed of trust. An action to quiet title is designed to resolve
competing claims of ownership. Walker v. Quality Loan Service Corp., 176 Wn.
App. 294, 322, 308 P.3d 716(2013)(citing Kobza v. Tripp, 105 Wash. App. 90, 95,
3 The record contains evidence that Maddox Bey served Guild's attorney. Maddox Bey
points to no authority that personal service on a corporation may be accomplished by serving the
corporation's attorney. See Weber, 166 Wash. 2d at 163 (citing ROW 4.28.080(9)).
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18 P.3d 621 (2001)). A plaintiff may only succeed on the strength of his own title,
not on the weakness of his adversary. Bavand v. OneWest Bank, F.S.B., 176
Wash. App. 475, 502, 309 P.3d 636(2013)(citing Desimone v. Spence, 51 Wash. 2d
412, 415, 318 P.2d 959(1957)). A borrower bringing a quiet title action against a
lender must allege that he has satisfied loan obligations. Walker, 176 Wash. App. at
321-22; Bavand, 176 Wash. App. at 502.
In this case, Maddox Bey does not allege that he satisfied the loan
obligations. He thus fails to assert a claim based upon the strength of his own
title. Instead, he asks the court to declare the deed of trust void based on his
unilateral rescission of his signature. He cites no authority recognizing unilateral
rescission of signature as a ground to quiet title in a borrower against a lender.
In addition, Maddox Bey's complaint to quiet title essentially asks the court
to set aside the foreclosure sale. But this relief is not available to a borrower who
did not bring an action to enjoin the foreclosure sale. RCW 61.24.127. The
borrower's failure to bring such an action waives any claim affecting the "the
validity or finality of the foreclosure sale" if the borrower (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 enjoin the sale.
(Citing RCW 61.24.127(2)(c); Frizzell v. Murray, 179 Wash. 2d 301, 306-07, 313
P.3d 1171(2013);(quoting Plein v. Lackey, 149 Wash. 2d 214, 227,67 P.3d 1061
(2003)).
Here, the record establishes that Maddox Bey received notice of the right
to enjoin the sale. Maddox Bey's alleged defense to foreclosure, the rescission of
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his signature, occurred before the sale took place. It is undisputed that Maddox
Bey failed to bring an action to enjoin the foreclosure sale. Maddox Bey waived
his right to contest the sale.
Maddox Bey's quiet title complaint fails to state a claim upon which relief
may be granted because he fails to allege superior title to the property and
because, by statute, he has no right to bring a postsale challenge to the
foreclosure sale. The trial court did not err in granting Guild's motion to dismiss.
Affirmed.
WE CONCUR:
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