IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
FORD SERVICES, LLC, a Washington No. 72131-3-1 limited liability company,
Appellant,
CITY OF SEDRO-WOOLLEY, a Washington municipal corporation,
Respondent, — ^c t —'—I v.
DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee on behalf of 5- r*'": Certificateholders of the Morgan o
Stanley ABS Capital 1 Inc. Trust 2006- CD O HE6, Mortgage Pass-Through Certificates, Series 2005-HE6, UNPUBLISHED OPINION
Respondent. FILED: June 29, 2015
JOSE JUAN AMARO & MARY AMARO, husband and wife,
Defendants.
Verellen, A.C.J. — We must decide the narrow issue whether the long-arm
statute's affidavit requirement applies to out-of-state personal service upon a foreign
corporation in a utility lien foreclosure action. Under these facts, and upon this briefing,
we conclude that it does. When a plaintiff makes out-of-state personal service upon a
defendant who has submitted to the jurisdiction of Washington courts, the long-arm
statute's affidavit requirement applies. The trial court did not err in concluding that No. 72131-3-1/2
absent such an affidavit, the default judgment against Deutsche Bank must be vacated.
We affirm.
FACTS
The material facts are undisputed. The City of Sedro-Woolley (City) filed suit to
foreclose utility liens on property owned by the Amaros. Deutsche Bank had a recorded
deed of trust on the property of the Amaros. The City personally served Deutsche Bank
in California, but Deutsche Bank did not answer the complaint. The City was granted a
default judgment.
Heritage Forest purchased the property at a sheriff's sale. That same day, the
Amaros executed a quitclaim deed to Zion Services. Zion Services assigned its interest
in the property to Ford Services, LLC (Ford). Ford later redeemed the property from
Heritage Forest.
Washington's long-arm statute, RCW 4.28.185, permits personal service outside
the state. But personal service outside the state is "valid only when an affidavit is made
and filed to the effect that service cannot be made within the state." RCW 4.28.185(4).
The City did not make or file such an affidavit.
Deutsche Bank sought to vacate the default judgment one year after it was
entered. Deutsche Bank argued below that since no affidavit was ever filed, the default
judgment was void.
The trial court determined that "no affidavit, as required by RCW 4.28.185(4),
was filed before the default judgment against Deutsche Bank was entered."1 The trial
court therefore vacated the default judgment.
1 Clerk's Papers at 104. No. 72131-3-1/3
Ford appeals.
ANALYSIS
When the facts are undisputed, the determination of a superior court's personal
jurisdiction over a party is a question of law. Lewis v. Bours, 119 Wn.2d 667, 669, 835
P.2d 221 (1992). We review questions of law de novo. City of Bonnev Lake v. Kananv,
185 Wn. App. 309, 314, 340 P.3d 965 (2014).
Out-of-state personal service is governed by statute. RCW 4.28.180-. 185; see
Ralph's Concrete Pumping, Inc. v. Concord Concrete Pumps, 154 Wn. App. 581, 585-
86, 225 P.3d 1035 (2010). Statutes allowing service outside the state are in "derogation
of common law" and must be "strictly construed." Ralph's Concrete, 154 Wn. App. at
585. "At common law it was fundamental that personal service of summons upon a
defendant must be had upon him within the limits of the state, in order to confer
jurisdiction upon a court of that state." Gerrick & Gerrick Co. v. Llewellyn Iron Works,
105 Wash. 98, 102, 177 P. 692 (1919); see also State ex rel. Hopman v. Superior Court
of Snohomish County, 88 Wash. 612, 617, 153 P. 315 (1915).
Ford contends the issue here is a matter of statutory construction. We agree.
There is no constitutional controversy here. The constitutional due process notice and
minimum contacts standards for personal jurisdiction apply equally to actions in rem,
quasi in rem, or in personam. Shaffer v. Heitner, 433 U.S. 186, 212, 97 S. Ct. 2569, 53
L Ed. 2d 683 (1977); Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314,
70 S. Ct. 652, 94 L. Ed. 865 (1950). No. 72131-3-1/4
Specifically, Ford contends RCW 4.28.180 should be interpreted to permit out-of-
state service separate and apart from RCW 4.28.185 and its requirements. But Ford's
arguments are unpersuasive.
Ford argues that before the legislature enacted RCW 4.28.185 in 1959, the prior
version of RCW 4.28.180 allowed out-of-state personal service with no affidavit
requirement. Therefore, Ford contends the savings clause of RCW 4.28.185(6)—
"[njothing herein contained limits or affects the right to serve any process in any other
manner now or hereafter provided by law"—allows out-of-state personal service under
RCW 4.28.180 in current foreclosure actions. But Ford does not establish the
standards that applied to out-of-state personal service before 1959. Ford relies on
Harder v. McKinnev, 187 Wash. 457, 60 P.2d 84 (1936). But that case resolved only
the narrow issue whether a complaint had to be filed before a party effectuated out-of-
state service on a nonresident defendant in a foreclosure action. Harder did not
analyze or discuss any other requirements for out-of-state personal service.
Ford also cites Hatch v. Princess Louise Corp., 13 Wn. App. 378, 534 P.2d 1036
(1975). Hatch obtained both a money judgment and a decree foreclosing a chattel
mortgage. This court concluded the money judgment was invalid because Hatch failed
to file an affidavit as required by RCW 4.28.185(4). In dicta, this court affirmed the
foreclosure decree, but the Princess Louise Corporation did "not contest the foreclosure
portion of the judgment." Hatch, 13 Wn. App. at 379. Hatch's dicta regarding the
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
FORD SERVICES, LLC, a Washington No. 72131-3-1 limited liability company,
Appellant,
CITY OF SEDRO-WOOLLEY, a Washington municipal corporation,
Respondent, — ^c t —'—I v.
DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee on behalf of 5- r*'": Certificateholders of the Morgan o
Stanley ABS Capital 1 Inc. Trust 2006- CD O HE6, Mortgage Pass-Through Certificates, Series 2005-HE6, UNPUBLISHED OPINION
Respondent. FILED: June 29, 2015
JOSE JUAN AMARO & MARY AMARO, husband and wife,
Defendants.
Verellen, A.C.J. — We must decide the narrow issue whether the long-arm
statute's affidavit requirement applies to out-of-state personal service upon a foreign
corporation in a utility lien foreclosure action. Under these facts, and upon this briefing,
we conclude that it does. When a plaintiff makes out-of-state personal service upon a
defendant who has submitted to the jurisdiction of Washington courts, the long-arm
statute's affidavit requirement applies. The trial court did not err in concluding that No. 72131-3-1/2
absent such an affidavit, the default judgment against Deutsche Bank must be vacated.
We affirm.
FACTS
The material facts are undisputed. The City of Sedro-Woolley (City) filed suit to
foreclose utility liens on property owned by the Amaros. Deutsche Bank had a recorded
deed of trust on the property of the Amaros. The City personally served Deutsche Bank
in California, but Deutsche Bank did not answer the complaint. The City was granted a
default judgment.
Heritage Forest purchased the property at a sheriff's sale. That same day, the
Amaros executed a quitclaim deed to Zion Services. Zion Services assigned its interest
in the property to Ford Services, LLC (Ford). Ford later redeemed the property from
Heritage Forest.
Washington's long-arm statute, RCW 4.28.185, permits personal service outside
the state. But personal service outside the state is "valid only when an affidavit is made
and filed to the effect that service cannot be made within the state." RCW 4.28.185(4).
The City did not make or file such an affidavit.
Deutsche Bank sought to vacate the default judgment one year after it was
entered. Deutsche Bank argued below that since no affidavit was ever filed, the default
judgment was void.
The trial court determined that "no affidavit, as required by RCW 4.28.185(4),
was filed before the default judgment against Deutsche Bank was entered."1 The trial
court therefore vacated the default judgment.
1 Clerk's Papers at 104. No. 72131-3-1/3
Ford appeals.
ANALYSIS
When the facts are undisputed, the determination of a superior court's personal
jurisdiction over a party is a question of law. Lewis v. Bours, 119 Wn.2d 667, 669, 835
P.2d 221 (1992). We review questions of law de novo. City of Bonnev Lake v. Kananv,
185 Wn. App. 309, 314, 340 P.3d 965 (2014).
Out-of-state personal service is governed by statute. RCW 4.28.180-. 185; see
Ralph's Concrete Pumping, Inc. v. Concord Concrete Pumps, 154 Wn. App. 581, 585-
86, 225 P.3d 1035 (2010). Statutes allowing service outside the state are in "derogation
of common law" and must be "strictly construed." Ralph's Concrete, 154 Wn. App. at
585. "At common law it was fundamental that personal service of summons upon a
defendant must be had upon him within the limits of the state, in order to confer
jurisdiction upon a court of that state." Gerrick & Gerrick Co. v. Llewellyn Iron Works,
105 Wash. 98, 102, 177 P. 692 (1919); see also State ex rel. Hopman v. Superior Court
of Snohomish County, 88 Wash. 612, 617, 153 P. 315 (1915).
Ford contends the issue here is a matter of statutory construction. We agree.
There is no constitutional controversy here. The constitutional due process notice and
minimum contacts standards for personal jurisdiction apply equally to actions in rem,
quasi in rem, or in personam. Shaffer v. Heitner, 433 U.S. 186, 212, 97 S. Ct. 2569, 53
L Ed. 2d 683 (1977); Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314,
70 S. Ct. 652, 94 L. Ed. 865 (1950). No. 72131-3-1/4
Specifically, Ford contends RCW 4.28.180 should be interpreted to permit out-of-
state service separate and apart from RCW 4.28.185 and its requirements. But Ford's
arguments are unpersuasive.
Ford argues that before the legislature enacted RCW 4.28.185 in 1959, the prior
version of RCW 4.28.180 allowed out-of-state personal service with no affidavit
requirement. Therefore, Ford contends the savings clause of RCW 4.28.185(6)—
"[njothing herein contained limits or affects the right to serve any process in any other
manner now or hereafter provided by law"—allows out-of-state personal service under
RCW 4.28.180 in current foreclosure actions. But Ford does not establish the
standards that applied to out-of-state personal service before 1959. Ford relies on
Harder v. McKinnev, 187 Wash. 457, 60 P.2d 84 (1936). But that case resolved only
the narrow issue whether a complaint had to be filed before a party effectuated out-of-
state service on a nonresident defendant in a foreclosure action. Harder did not
analyze or discuss any other requirements for out-of-state personal service.
Ford also cites Hatch v. Princess Louise Corp., 13 Wn. App. 378, 534 P.2d 1036
(1975). Hatch obtained both a money judgment and a decree foreclosing a chattel
mortgage. This court concluded the money judgment was invalid because Hatch failed
to file an affidavit as required by RCW 4.28.185(4). In dicta, this court affirmed the
foreclosure decree, but the Princess Louise Corporation did "not contest the foreclosure
portion of the judgment." Hatch, 13 Wn. App. at 379. Hatch's dicta regarding the
undisputed jurisdiction for foreclosure is not compelling. Hatch offers no support for
Ford's position that RCW 4.28.185(4)'s affidavit requirement does not apply to a utility No. 72131-3-1/5
lien foreclosure action. Additionally, Ford offers no legislative history addressing
affidavit requirements that existed before 1959.
There is clearly an interplay between the current RCW 4.28.180 and
RCW 4.28.185. In 1959, the legislature amended RCW 4.28.180 and adopted
RCW 4.28.185 "in the same piece of legislation." Lewis H. Orland, Washington's
Second Longarm?, 17 Gonz. L. Rev. 905, 908 (1981-82). Both statutes have
corresponding provisions governing those who have submitted to the jurisdiction of
Washington courts. The words and concepts in the current RCW 4.28.180 "parallel the
words and concepts of RCW 4.28.185. ]a\
RCW 4.28.185(1) recognizes that a person who does any of the acts enumerated
in RCW 4.28.185(1 )(a)-(f) "thereby submits ... to the jurisdiction of the courts of this
state as to any cause of action arising from the doing of any of said acts."
RCW 4.28.185(2) also recognizes that service of process "upon any person who is
subject to the jurisdiction of the courts of this state, as provided in this section, may be
made by personally serving the defendant outside this state, as provided in
RCW 4.28.180, with the same force and effect as though personally served within this
state." In turn, RCW 4.28.180 provides that personal service "may be made upon any
party outside the state"; ifsuch service is upon a "person who has submitted to the
jurisdiction of the courts of this state, it shall have the force and effect of personal
service within this state."
The parties agree that Deutsche Bank has "submitted" itself to the jurisdiction of
Washington courts. Deutsche Bank lent money and recorded a deed of trust on
property located in this state. See Mennonite Bd. of Missions v. Adams, 462 U.S. 791, No. 72131-3-1/6
798, 103 S. Ct. 2706, 77 L. Ed. 2d 180 (1983) (holding that "a mortgagee clearly has a
legally protected property interest" that "is significantly affected" by a foreclosure sale).
Having "submitted" to the jurisdiction of Washington courts, both RCW 4.28.180 and
RCW 4.28.185 apply to any out-of-state service upon Deutsche Bank. We need go no
further to resolve the narrow issue presented here. For those who have "submitted"
themselves to the jurisdiction of Washington courts, like Deutsche Bank, we read
RCW 4.28.180 and RCW 4.28.185 together as authorizing out-of-state personal service.
But for such service to be valid, a party must comply with RCW 4.28.185(4)'s affidavit
requirement.
We note the long-established "policy of the law is to require the plaintiff to give
the defendant the best service possible under the circumstances." Nw. & Pac.
Hypotheek Bank v. Ridpath, 29 Wash. 687, 709, 70 P. 139 (1902). Before the
legislature chose to allow out-of-state service upon those who had submitted to the
jurisdiction of Washington courts, it was reasonable to require some showing that in
state service was impractical under the circumstances. RCW 4.28.185(4)'s affidavit
requirement for out-of-state personal service is consistent with this policy consideration.
We need not analyze the entire landscape of out-of-state personal service under
Washington law. We conclude that a plaintiff who seeks out-of-state personal service
on a person who has "submitted" to the jurisdiction of Washington courts must comply
with RCW 4.28.185(4)'s affidavit requirement. Absent the filing of an affidavit, the trial
court lacks personal jurisdiction over the defendant and any judgment against that
defendant is void. No. 72131-3-1/7
Finally, the City of Sedro-Woolley mirrors many of Ford's arguments. The City
also argues that if the service upon Deutsche Bank was invalid, it should not impact the
foreclosure's validity as to others who claimed an interest in the property.2 But the only
order entered by the trial court was the vacation of the default judgment against
Deutsche Bank. The City did not appeal or cross appeal from that order, and there
does not appear to be any other order by the trial court specifically addressing the
impact upon others asserting an interest in the property. We decline to offer an
advisory opinion on issues that have not yet been presented to or ruled upon by the trial
court.
We affirm the order vacating the default judgment against Deutsche Bank.
WE CONCUR:
S^J^R, (
2 The panel has considered the City's reply brief. See Notation Ruling of Feb. 23, 2015.