Lake et al v. MTC Financial Inc et al

Filing 15

ORDER Denying 13 MOTION to Strike Defendant's Appearance and Motion to Dismiss, filed by Plaintiffs Cynthia A Lake, Wayne R Lake; by Judge James L. Robart.(RM) Copy mailed to Cynthia Lake & Wayne Lake.

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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WAYNE R. LAKE, et al.,

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CASE NO. C16-1482JLR

Plaintiffs,

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v.

ORDER DENYING MOTION TO
STRIKE

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MTC FINANCIAL, INC., et al.,

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Defendants.

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I.

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INTRODUCTION

Before the court is Plaintiffs Wayne R. Lake and Cynthia A. Lake’s (collectively

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“the Lakes”) “motion to strike” Defendant’s appearance and motion to dismiss. (Mot.

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(Dkt. # 13).) Defendant Deutsche Bank Trust Company Americas as Trustee for the

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Certificate Holders of Dover Mortgage Holder Capital 2005-A Corporation Grantor Trust

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Certificate, Series 2005-A (hereinafter “Deutsche Bank”) opposes the Lakes’ motion.

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(Resp. (Dkt. # 14).) The court has considered the motion, the submissions filed in

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ORDER - 1

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support thereof and opposition thereto, the relevant portions of the record, and the

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applicable law. Being fully advised, 1 the court DENIES the Lakes’ motion to strike.

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II.

BACKGROUND

This case arises out of a planned foreclosure of the Lakes’ home. (Compl. (Dkt.

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# 1) at 2.) On October 11, 2002, the Lakes signed a deed of trust for $145,000.00, which

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was recorded against the Lakes’ residence in Lake Forest Park, Washington. (Id.)

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On September 20, 2016, the Lakes filed a complaint in which they allege, in part,

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that Deutsche Bank violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et

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seq., and breached a contract with the Lakes. (Id. at 7, 13, 15.) On October 12, 2016,

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Daniel Gibbons and Steven Dixson filed a notice of appearance as lead attorneys on

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behalf of Deutsche Bank. (Not. of App. (Dkt. # 7) at 1-2.) On November 14, 2016,

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Deutsche Bank filed a motion to dismiss the Lakes’ complaint against Deutsche Bank.

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(MTD (Dkt. # 8).) The Lakes did not respond to the motion to dismiss (see generally

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Dkt.), and on December 19, 2016, Deutsche Bank filed a reply memorandum in support

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of its motion (Reply (Dkt. # 12)).

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On January 10, 2017, after Deutsche Bank filed its reply, the Lakes moved to

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strike the appearance of Mr. Gibbons and Deutsche Bank’s motion to dismiss. (See Mot.)

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The Lakes contend that Deutsche Bank does not exist and thus cannot move to dismiss.

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(Mot. at 1-2.) On January 23, 2017, Deutsche Bank responded to the Lakes’ motion.

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(Resp.) The Lakes did not file a reply memorandum. (See generally Dkt.)

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No party has requested oral argument, and the court deems it unnecessary to the
disposition of this motion. See Local Rules W.D. Wash. LCR 7(b)(4).

ORDER - 2

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III.

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ANALYSIS

Although not a model of clarity, the Lakes’ motion to strike appears to argue that

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the Office of the Washington Secretary of State confirms that Deutsche Bank does not

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exist. (Mot. at 1.) In support of their motion, the Lakes attach a memorandum from the

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Office of the Washington Secretary of State: Corporations and Charities Division. (Id. at

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3.) 2 In relevant part, the memorandum states that “Deutsche Bank Trust Company

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Americas is not registered with [the Washington Secretary of State’s] office.” (Id.) The

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Lakes also contend that there are “no records anywhere, within any known system of

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records . . . establishing that [Deutsche Bank] exists.” (Id. at 1.) Further, based on the

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argument that Deutsche Bank does not exist, the Lakes contend that Mr. Gibbons’

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appearance in this suit is “false and deceptive” and that he was “not retained or

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requested” by Deutsche Bank. (Id. at 1-2.) Finally, the Lakes state that Deutsche Bank is

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“not a national association and not permitted to appear in this forum under any rule.” (Id.

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at 2.) The Lakes cite no legal authority to support their contentions. (See generally Mot.)

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Deutsche Bank responds that it is a named defendant in this lawsuit. (Resp. at 2.)

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Because the Lakes brought claims against it, Deutsche Back argues that it has the right to

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respond to the claims. (Id.) Further, Deutsche Bank notes that if the Lakes’ motion was

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accepted by the court, the appropriate remedy would be for the court to dismiss the

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charges against Deutsche Bank. (Id.) Nevertheless, Deutsche Bank argues that the court

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has personal jurisdiction over it and that it has the capacity to be sued. (Id. at 2-4.)

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//

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The Lakes attach documents directly to their motion to strike. (See Mot. at 3-4.)

ORDER - 3

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A.

Personal Jurisdiction

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At its core, personal jurisdiction represents the right of a court to exercise judicial

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power over a party. Dow Chem. Co. v. Calderon, 422 F.3d 827, 831 (9th Cir. 2005). In

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order to adjudicate a suit, a court must have personal jurisdiction over the defendants.

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Id. The court’s adherence to the limitations of personal jurisdiction ensures that “the

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maintenance of the suit . . . [does] not offend traditional notions of fair play and

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substantial justice.’” Ranza v. Nike, Inc., 793 F.3d 1059, 1068 (9th Cir. 2015), cert.

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denied, 136 S. Ct. 915, 193 L. Ed. 2d 793 (2016) (quoting Int’l Shoe v. Washington, 326

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U.S. 310, 316 (1945)). There are a variety of ways a court can establish personal

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jurisdiction over a party, and the defendant’s consent is the most relevant to the motion at

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hand. Dow Chem., 422 F.3d at 831. “[B]ecause the personal jurisdiction requirement is a

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waivable right,” the litigant can give “express or implied consent to the personal

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jurisdiction of the court.” Id. (quoting Ireland v. Compagnie des Bauxites de Guinee, 456

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U.S. 694, 703 (1982)).
Here, by filing a Federal Rule of Civil Procedure 12(b) motion (see MTD) and not

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raising a defense under Federal Rule of Civil Procedure 12(b)(2), Deutsche Bank has

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waived the right to object to personal jurisdiction. See Fed. R. Civ. P. 12(g), (h).

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Further, Deutsche Bank has affirmatively acknowledged that it does not object to the

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court’s exercise of personal jurisdiction over it. (Resp. at 3.) Thus, the court has

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personal jurisdiction over Deutsche Bank.

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ORDER - 4

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B.

Capacity to Be Sued

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Deutsche Bank interprets the Lakes’ motion to challenge Deutsche Bank’s

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capacity to be sued. (Id. at 2-3.) Although it is unclear if the Lakes make this argument

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(see Mot. at 1-2), the court nevertheless addresses it. As a threshold matter, the court

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notes that the plaintiff brought this lawsuit against Deutsche Bank. (See Compl. at 7.) If

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the court were to find, as the Lakes urge, that Deutsche Bank “does not exist,” it is

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unclear whether and how the Lakes could continue their suit against Deutsche Bank. The

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Lakes, however, appear to argue that Deutsche Bank is somehow barred from responding

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to their complaint. (Mot. at 1-2.) The court finds no legal authority in support of the

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Lakes’ position that a defendant may have the capacity to be sued but lacks a

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corresponding right to respond. The Lakes do not offer any such legal authority either.

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(See generally Mot.)
Capacity to be sued “for a corporation, is governed by the law under which it was

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organized.” Fed. R. Civ. P. 17(b)(2). Assuming that Deutsche Bank is a New York

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corporation, 3 New York law explains that “[e]ach corporation . . . shall have the

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power . . . [t]o sue and be sued.” N.Y. Bus. Corp. Law § 202. Thus, Deutsche Bank has

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the capacity to be sued.

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Additionally, it is possible to read the Lakes’ motion to assert a violation of RCW

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§ 23.95.505. This statute declares that a “foreign entity doing business in this state may

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not maintain an action or proceeding in this state unless it is registered to do business in

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In its response to the motion to strike, Deutsche Bank asserts it is a subsidiary of
“Deutsche Bank Trust Corporation” which is a “New York Corporation.” (Resp. at 3.)

ORDER - 5

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this state.” RCW § 23.95.505. This statute limits a foreign corporation’s ability to sue,

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not its capacity to be sued. RCW § 23.95.505. However, this argument fails because

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Deutsche Bank did not initiate this suit. (See generally Compl.) Accordingly, the court

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concludes that Deutsche Bank has the capacity to be sued.

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C.

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Appearance of Counsel
The court also rejects the Lakes’ challenge to the appearance of Mr. Gibbons. The

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Lakes argue that the “appearance filed by Daniel J. Gibbons is false and deceptive and

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this attorney was not retained or requested by any interested party for” Deutsche Bank “to

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represent its interests . . . because [Deutsche Bank] does not exist.” (Mot. at 1-2.) This

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assertion is without merit and frivolous. Deutsche Bank’s lack of registration in

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Washington is inconsequential and does not support the assertion that Deutsche Bank

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does not exist. See supra § III.B. Because the Lakes offer no evidence that Deutsche

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Bank “does not exist” or any “false and deceptive” practices regarding Mr. Gibbons’s

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representation of Deutsche Bank, the court denies this aspect of the Lakes’ motion.
IV.

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CONCLUSION

Based on the foregoing analysis, the court DENIES the Lakes’ motion to strike
(Dkt. # 13).
Dated this 3rd day of March, 2017.

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A

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JAMES L. ROBART
United States District Judge

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ORDER - 6