FILED FEBRUARY 9, 2017 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
SAMUEL SALMON and ROXY ) No. 33938-6-111 SALMON, ) ) Appellants, ) ) V. ) UNPUBLISHED OPINION ) MORTGAGE ELECTRONIC ) REGISTRATION SYSTEMS, INC., ) ) Respondent. )
PENNELL, J. - Samuel and Roxy Salmon appeal the dismissal of their lawsuit
against Mortgage Electronic Registration Systems, Inc. (MERS) for violation of the
Consumer Protection Act (CPA), chapter 19.86 RCW. The superior court determined res
judicata barred the Salmons' CPA action. The Salmons contend the court erred in ( 1)
vacating the order of default entered against MERS, (2) determining res judicata barred
their claim, (3) denying their motion for discovery, (4) denying their motion to recuse,
and (5) denying their motion to reconsider. We affirm.
FACTS
In June 2013, the Salmons filed a complaint in Stevens County Superior Court
against MERS, a Delaware corporation. In September 2013, after serving an inactive
Washington domestic corporation named MERS via the secretary of state, the Salmons
attempted to obtain a default judgment against MERS for its alleged failure to appear in No. 33938-6-111 Salmon v. Mortg. Elec. Registration Sys.
this action. The superior court denied their request in a letter, indicating it was unclear if
additional service was required. The Salmons again sought a default judgment in early
2015. This time they obtained an order of default against MERS. 1 When MERS learned
of the order of default, it filed a motion to vacate based on the Salmons' improper service
of the summons and complaint.
In its motion, MERS maintained the Salmons served a bogus MERS entity. The
MERS sued in this lawsuit is a Delaware corporation with its principal place of business
in Virginia. MERS does not have a registered agent in Washington. The bogus MERS
served by the Salmons used MERS' UBI 2 number but was incorporated in Washington on
June 3, 2009, by Robert Jacobson. MERS submitted documents and affidavits in support
of its contention that Mr. Jacobson established this bogus MERS in order to trick people
into thinking he was a proper registered agent who could accept service on MERS'
behalf. Mr. Jacobson would then solicit payment from MERS to obtain the legal notices
and documents he received. In February 2010, MERS obtained a permanent injunction
against Mr. Jacobson in United States District Court for the Northern District of
1 Although the order is entitled "Order of Default Judgment," the contents of the order and the minutes from the court hearing make it clear it is an order of default. See Clerk's Papers (CP) at 17-18. 2 The Unified Business Identifier (UBI) number is a nine-digit number used to identify persons engaging in business activities in Washington.
2 No. 33938-6-111 Salmon v. Mortg. Elec. Registration Sys.
California enjoining him from using MERS' name. The bogus MERS' Washington
registration with the secretary of state expired in June 2010.
Based on this evidence, the superior court determined good cause existed to vacate
the order of default. MERS then filed a CR l 2(b )( 6) motion to dismiss the Salmons'
complaint based on res judicata and collateral estoppel. MERS' motion was based on the
Salmons' prior attempts to litigate the foreclosure of their home.
In November 2010, the Salmons filed a lawsuit in Stevens County Superior Court
against several defendants, including MERS, in an attempt to stop the foreclosure of their
home. 3 Essentially, the Salmons claimed MERS was not a lawful beneficiary of the deed
of trust and thus could not assign its interest in the deed of trust to the third party who
eventually foreclosed on the deed of trust. After the lawsuit was removed to federal
district court, that court dismissed it with prejudice as to all defendants.
Three months after the 2010 lawsuit was dismissed, the Salmons filed a second
lawsuit in Stevens County Superior Court to stop the foreclosure of their home. The
Salmons challenged the bank's authority to foreclose based on MERS' assignment of its
beneficial interest to the bank. MERS was not a party to the 2010 lawsuit. Because of
3The facts of this case, as summarized here, are discussed in more detail in the United States District Court for the Eastern District of Washington's order dismissing the case. See CP 215-35.
3 I No. 33938-6-III I Salmon v. Mortg. Elec. Registration Sys. II the preclusive effect of it, that lawsuit was also dismissed with prejudice.
In 2013, the Salmons filed this third lawsuit. Their complaint, entitled "Consumer I Protection Act Complaint and Injunction Pursuant [to] Supreme Court Decision: 86206-1 II [Bain 4 ]," asserted MERS' assignment of the deed of trust was unlawful because MERS
was not a beneficiary. Clerk's Papers (CP) at 50. The Salmons further requested relief
from MERS' "unfair or deceptive acts or practices." CP at 58.
The superior court heard argument on MERS' motion to dismiss and the Salmons'
motion for discovery, which sought documents relating to the issues discussed in MERS'
motion to vacate the order of default. The court granted MERS' motion to dismiss,
finding the Salmons' claim could have and should have been raised previously.
Following entry of these orders, the Salmons unsuccessfully moved for
reconsideration. The Salmons also moved to recuse the superior court judge from the
case. The court also denied the recusal motion. The Salmons appeal.
ANALYSIS
Vacation of order of default
The superior court has discretion when deciding whether to vacate an order of
default. In re Estate of Stevens, 94 Wn. App. 20, 29, 971 P.2d 58 (1999). As such, this
4 Bain v. Metro. Mortg. Grp., Inc., 175 Wn.2d 83, 285 P.3d 34 (2012).
4 No. 33938-6-111 Salmon v. Mortg. Elec. Registration Sys.
court reviews the superior court's decision for abuse of discretion. 5 Id. Abuse of
discretion means the trial court exercised its discretion on untenable grounds or for
untenable reasons or acted in a manifestly unreasonable way. Stevens, 94 Wn. App. at 29.
The superior court's decision to vacate its order of default was based on a reasoned
analysis of numerous unique facts. There was no abuse of discretion.
Res judicata
The superior court granted MERS' CR 12(b )( 6) motion to dismiss on the ground
ofresjudicata. A court's decision to grant a CR 12(b)(6) motion to dismiss is a question
of law this court reviews de novo. Yurtis v. Phipps, 143 Wn. App. 680,689, 181 P.3d
849 (2008). Res judicata prohibits relitigation of previously decided matters. Ensley v.
Pitcher, 152 Wn. App. 891, 898-99, 222 P.3d 99 (2009). Res judicata requires a
concurrence of identity in four respects: (1) persons or parties, (2) quality of the person
for or against whom the claim is made, (3) cause of action, and (4) subject matter.
Schoeman v. NY. Life Ins. Co., 106 Wn.2d 855, 858, 726 P.2d 1 (1986). Resjudicata
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FILED FEBRUARY 9, 2017 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
SAMUEL SALMON and ROXY ) No. 33938-6-111 SALMON, ) ) Appellants, ) ) V. ) UNPUBLISHED OPINION ) MORTGAGE ELECTRONIC ) REGISTRATION SYSTEMS, INC., ) ) Respondent. )
PENNELL, J. - Samuel and Roxy Salmon appeal the dismissal of their lawsuit
against Mortgage Electronic Registration Systems, Inc. (MERS) for violation of the
Consumer Protection Act (CPA), chapter 19.86 RCW. The superior court determined res
judicata barred the Salmons' CPA action. The Salmons contend the court erred in ( 1)
vacating the order of default entered against MERS, (2) determining res judicata barred
their claim, (3) denying their motion for discovery, (4) denying their motion to recuse,
and (5) denying their motion to reconsider. We affirm.
FACTS
In June 2013, the Salmons filed a complaint in Stevens County Superior Court
against MERS, a Delaware corporation. In September 2013, after serving an inactive
Washington domestic corporation named MERS via the secretary of state, the Salmons
attempted to obtain a default judgment against MERS for its alleged failure to appear in No. 33938-6-111 Salmon v. Mortg. Elec. Registration Sys.
this action. The superior court denied their request in a letter, indicating it was unclear if
additional service was required. The Salmons again sought a default judgment in early
2015. This time they obtained an order of default against MERS. 1 When MERS learned
of the order of default, it filed a motion to vacate based on the Salmons' improper service
of the summons and complaint.
In its motion, MERS maintained the Salmons served a bogus MERS entity. The
MERS sued in this lawsuit is a Delaware corporation with its principal place of business
in Virginia. MERS does not have a registered agent in Washington. The bogus MERS
served by the Salmons used MERS' UBI 2 number but was incorporated in Washington on
June 3, 2009, by Robert Jacobson. MERS submitted documents and affidavits in support
of its contention that Mr. Jacobson established this bogus MERS in order to trick people
into thinking he was a proper registered agent who could accept service on MERS'
behalf. Mr. Jacobson would then solicit payment from MERS to obtain the legal notices
and documents he received. In February 2010, MERS obtained a permanent injunction
against Mr. Jacobson in United States District Court for the Northern District of
1 Although the order is entitled "Order of Default Judgment," the contents of the order and the minutes from the court hearing make it clear it is an order of default. See Clerk's Papers (CP) at 17-18. 2 The Unified Business Identifier (UBI) number is a nine-digit number used to identify persons engaging in business activities in Washington.
2 No. 33938-6-111 Salmon v. Mortg. Elec. Registration Sys.
California enjoining him from using MERS' name. The bogus MERS' Washington
registration with the secretary of state expired in June 2010.
Based on this evidence, the superior court determined good cause existed to vacate
the order of default. MERS then filed a CR l 2(b )( 6) motion to dismiss the Salmons'
complaint based on res judicata and collateral estoppel. MERS' motion was based on the
Salmons' prior attempts to litigate the foreclosure of their home.
In November 2010, the Salmons filed a lawsuit in Stevens County Superior Court
against several defendants, including MERS, in an attempt to stop the foreclosure of their
home. 3 Essentially, the Salmons claimed MERS was not a lawful beneficiary of the deed
of trust and thus could not assign its interest in the deed of trust to the third party who
eventually foreclosed on the deed of trust. After the lawsuit was removed to federal
district court, that court dismissed it with prejudice as to all defendants.
Three months after the 2010 lawsuit was dismissed, the Salmons filed a second
lawsuit in Stevens County Superior Court to stop the foreclosure of their home. The
Salmons challenged the bank's authority to foreclose based on MERS' assignment of its
beneficial interest to the bank. MERS was not a party to the 2010 lawsuit. Because of
3The facts of this case, as summarized here, are discussed in more detail in the United States District Court for the Eastern District of Washington's order dismissing the case. See CP 215-35.
3 I No. 33938-6-III I Salmon v. Mortg. Elec. Registration Sys. II the preclusive effect of it, that lawsuit was also dismissed with prejudice.
In 2013, the Salmons filed this third lawsuit. Their complaint, entitled "Consumer I Protection Act Complaint and Injunction Pursuant [to] Supreme Court Decision: 86206-1 II [Bain 4 ]," asserted MERS' assignment of the deed of trust was unlawful because MERS
was not a beneficiary. Clerk's Papers (CP) at 50. The Salmons further requested relief
from MERS' "unfair or deceptive acts or practices." CP at 58.
The superior court heard argument on MERS' motion to dismiss and the Salmons'
motion for discovery, which sought documents relating to the issues discussed in MERS'
motion to vacate the order of default. The court granted MERS' motion to dismiss,
finding the Salmons' claim could have and should have been raised previously.
Following entry of these orders, the Salmons unsuccessfully moved for
reconsideration. The Salmons also moved to recuse the superior court judge from the
case. The court also denied the recusal motion. The Salmons appeal.
ANALYSIS
Vacation of order of default
The superior court has discretion when deciding whether to vacate an order of
default. In re Estate of Stevens, 94 Wn. App. 20, 29, 971 P.2d 58 (1999). As such, this
4 Bain v. Metro. Mortg. Grp., Inc., 175 Wn.2d 83, 285 P.3d 34 (2012).
4 No. 33938-6-111 Salmon v. Mortg. Elec. Registration Sys.
court reviews the superior court's decision for abuse of discretion. 5 Id. Abuse of
discretion means the trial court exercised its discretion on untenable grounds or for
untenable reasons or acted in a manifestly unreasonable way. Stevens, 94 Wn. App. at 29.
The superior court's decision to vacate its order of default was based on a reasoned
analysis of numerous unique facts. There was no abuse of discretion.
Res judicata
The superior court granted MERS' CR 12(b )( 6) motion to dismiss on the ground
ofresjudicata. A court's decision to grant a CR 12(b)(6) motion to dismiss is a question
of law this court reviews de novo. Yurtis v. Phipps, 143 Wn. App. 680,689, 181 P.3d
849 (2008). Res judicata prohibits relitigation of previously decided matters. Ensley v.
Pitcher, 152 Wn. App. 891, 898-99, 222 P.3d 99 (2009). Res judicata requires a
concurrence of identity in four respects: (1) persons or parties, (2) quality of the person
for or against whom the claim is made, (3) cause of action, and (4) subject matter.
Schoeman v. NY. Life Ins. Co., 106 Wn.2d 855, 858, 726 P.2d 1 (1986). Resjudicata
5 The Salmons argue MERS must prove by clear and convincing proof that service was improper in order to vacate the order of default. But the Salmons are confusing an order of default with a default judgment. The cases they cite deal with the latter. See Allen v. Starr, 104 Wash. 246,247, 176 P. 2 (1918) (after default judgment the burden is on the party attacking service to show, by clear and convincing proof, the service was l irregular); see also McHugh v. Conner, 68 Wash. 229, 231, 122 P. 1018 (1912); Leen v. Demopolis, 62 Wn. App. 473,478, 815 P.2d 269 (1991). If i ! 5 f i !
I No. 33938-6-111 Salmon v. Mortg. Elec. Registration Sys.
also requires a final judgment on the merits. Id. at 860.
All four elements of res judicata are satisfied. MERS was a party to the Salmons'
2010 suit and the quality of its participation, as the reputed beneficiary of a deed of trust,
is the same in both actions. In addition, the subject matter and cause of action are the
same. Both complaints are premised on the claim that MERS could not appoint a
successor trustee to initiate nonjudicial foreclosure of the Salmons' property because
MERS was not the original beneficiary of the deed of trust and never held the applicable
promissory note. The Salmons lost this argument in 2010. Since that time, our supreme
court issued a decision favoring the Salmons' legal theory in Bain v. Metropolitan
Mortgage Group, 175 Wn.2d 83, 285 P.3d 34 (2012). However, res judicata prohibits the
Salmons from reopening their litigation based on Bain. The Salmons could have
appealed their 2010 judgment, relying on arguments ultimately deemed successful in
Bain. Because they did not, they are barred from relitigating the issue of whether MERS
acted unlawfully in assigning the deed of trust to the Salmons' property, regardless of
how their claims are captioned.
Motion for discovery
The Salmons next contend the superior court erred in denying their motion for
discovery. They assert discovery was needed to rebut MERS' claims of ineffective
6 No. 33938-6-III Salmon v. Mortg. Elec. Registration Sys.
service. The superior court has discretion in deciding whether to deny a motion to
compel discovery. Clarke v. Office of the Attorney Gen., 133 Wn. App. 767, 777, 138
P.3d 144 (2006). This court will not disrupt that ruling absent an abuse of discretion. Id.
Because no discovery was necessary to resolve the superior court's decision to vacate its
order of default, there was no abuse of discretion.
Motion to recuse
This court reviews a trial court's decision to recuse for an abuse of discretion.
Tatham v. Rogers, 170 Wn. App. 76, 87,283 P.3d 583 (2012). Washington has long
recognized judges must recuse themselves when the facts suggest they are actually or
potentially biased. Id. at 93. While the facts here demonstrate the trial judge disagreed
with the Salmons' legal argument, there was no indication of bias. Denial of the motion
to recuse was proper. 6
Motion for reconsideration
This court reviews a superior court's denial of a motion for reconsideration for
6 The Salmons contend the superior court committed a felony when it "erased" their proposed orders of default. Br. of Appellant at 13, 18. This claim is outside the scope of the record on review and will not be addressed. The record that exists shows no evidence of bias.
7 I No. 33938-6-III Salmon v. Mortg. Elec. Registration Sys. I I
abuse of discretion. Davies v. Holy Family Hosp., 144 Wn. App. 483,497, 183 P.3d 283
(2008). Because the trial court did not commit any error in addressing the Salmons' legal I J
claims, it was not an abuse of discretion to deny reconsideration. I CONCLUSION
The orders of the superior court are affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Pennell, J. WE CONCUR: