KARIM ABDUL-LATIF, Appellant, v. HOUSEHOLD MORTGAGE SERVICE and HOUSEHOLD FINANCE CORPORATION, Respondents.

No. 54137-4-IThe Court of Appeals of Washington, Division One.
Filed: January 18, 2005 UNPUBLISHED OPINION

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from Superior Court of King County. Docket No. 03-2-12901-1. Judgment or order under review. Date filed: 03/25/2004. Judge signing: Hon. Joan B Allison.

Counsel for Appellant(s), Karim Abdul-Latif (Appearing Pro Se), 8857 Gramercy Place SW, Lakewood, WA 98498.

Counsel for Respondent(s), Patrick James Layman, Bishop White Miersma Marshall PS, 720 Olive Way Ste 1301, Seattle, WA 98101-1834.

David A. Weibel, Bishop White Miersma Marshall PS, 720 Olive Way Ste 1301, Seattle, WA 98101-1834.

Counsel for Other Parties, David A. Weibel, Bishop White Miersma Marshall PS, 720 Olive Way Ste 1301, Seattle, WA 98101-1834.

PER CURIAM

Karim Abdul-Latif appeals the judicial foreclosure sale of his home. He contends that the trial court erred in failing to make a finding as to jurisdiction, denied his right to a jury trial, improperly dismissed the action for failure to state a claim upon which relief could be granted, and failed to enter findings of fact and conclusions of law. Abdul-Latif further contends that the trial court erred in failing to recognize his character as plenipotentiary and transmitting utility for the fiction KARIM ABDUL-LATIF; to recognize that the lis pendens met notice requirements; or to take judicial notice of the governing articles of the United States and Washington Constitutions. We find no error and affirm.

FACTS
Karim Abdul-Latif purchased real property in Vashon, Washington. On September 7, 2001 he executed a Deed of Trust in favor of Fieldstone Mortgage Company (Fieldstone) as beneficiary, and an adjustable rate note in the amount of $256,000 in favor of Fieldstone as the lender. By its terms, the note stated that Abdul-Latif would `make all payments under this Note in the form of cash, check or money order;’ that he would `pay Principal and interest by making a payment every month,’ and that he would `make these payments every month until [he] paid all of the principal and interest and any other charges . . . that [he might] owe under this Note.’ Abdul-Latif states in his reply brief that Fieldstone subsequently informed him that Household Mortgage Service and Household Finance Corporation (Household) had purchased the servicing rights to the property.[1] On May 6, 2003, Household filed a notice of trustee’s sale because Abdul-Latif had not made mortgage payments since October 2002.[2] The sale was originally scheduled for August 15, 2003, but was stayed until January 2, 2004 after Abdul-Latif filed for bankruptcy.

Abdul-Latif claims to have tendered documents including a bond, instructions for bond, note, and demand for release of deed of reconveyance on December 2, 2003. He asserts that these documents represented full payment of the amount owing under the note. The bond and note purported to represent a debt from Abdul-Latif to Household in the amount of $288,158.74, `due and payable upon demand’ and expiring 90 days from November 6, 2003, the date of issue. The bond also stated that `acceptance of delivery is considered acceptance of Bond and discharge of debt obligation.’ The bond instructed: `[F]or recovery negotiate this item through the back office for settlement via the pass through account at the treasury window, Washington DC-550744884.’

On December 16, Abdul-Latif executed a document entitled Substitute Trustee. This document purported to name an individual, Devin Clemens, as substitute trustee under the Deed of Trust and instructed Clemens to reconvey the property to Abdul-Latif on the basis that the debt had been fully discharged. Paragraph 6 of this document also states:

By the Trustee accepting this document and replacement Bond and Promissory Note and its attachments, Trustee thereby discharged the debt the BORROWER had with the Lender, who was the Lender of the Settlor’s credit to the BORROWER.

On December 26, Abdul-Latif filed a summons and complaint to quiet title and invalidate the trustee’s sale, a lis pendens, and a motion for a restraining order. The complaint alleged that the sale would be invalid because of fraud and misrepresentation in that Abdul-Latif had not authorized Household to hold any right, title or interest in the property. Abdul-Latif did not take any further action to obtain a restraining order. The sale went forward on January 2, 2004. Household purchased the property based on its credit bid.

On January 29, 2004, Household filed a motion to dismiss Abdul-Latif’s complaint and remove the lis pendens under CR 12(b)(6). At a hearing on February 4, the trial court continued the proceedings to allow Abdul-Latif to amend his complaint. At a hearing on March 25, the trial court dismissed the action and released the lis pendens. Abdul-Latif appeals.

DISCUSSION
Abdul-Latif initially contends that the trial court deprived him of his right to trial under common law. He cites the Judiciary Act of 1789, `saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it,’ and RCW 4.04.010, which states that `[t]he common law, so far as it is not inconsistent with the Constitution and laws of . . . the state of Washington . . . shall be the rule of decision in all the courts of this state.’[3] But Abdul-Latif asserted a common law fraud in his pleading. Household argued that he had failed to assert all the elements of fraud required under the common law, and the trial court agreed, dismissing the action on this basis. The record does not support Abdul-Latif’s claim on this issue.

Abdul-Latif contends that the trial court should have made a finding as to jurisdiction, and that this failure made the order dismissing the action void ab initio. But RCW 2.08.010 states that `[t]he superior court shall have original jurisdiction in all cases . . . which involve the title or possession of real property.’ This is such a case. There is no requirement that the trial court make a formal finding of jurisdiction, and the trial court did not err when it did not do so.

Abdul-Latif contends the trial court erred in dismissing the action. We review an order dismissing an action under CR 12(b)(6) de novo.[4] The court accepts the facts and all reasonable inferences therefrom as true, and dismissal is appropriate where it appears beyond a reasonable doubt that no facts exist that would justify recovery.[5]

In the order of dismissal, the trial court found that Abdul-Latif had failed to state a claim upon which relief may be granted. Abdul-Latif asserts that the trial court’s finding was erroneous because he had tendered and Household had `tacitly accepted’ payment in full on the Deed of Trust. Although Abdul-Latif may have tendered documents purporting to make such payment, they did not cure the default under the applicable statute.

RCW 61.24.090(1) states:

[T]he borrower . . . shall be entitled to cause a discontinuance of the sale proceedings by curing the default . . . by paying to the trustee:
(a) The entire amount then due under the terms of the deed of trust. . . .[6]

Under its terms, the Deed of Trust required that Abdul-Latif must `make all payments under this Note in the form of cash, check or money order.’ The documents tendered to Household were not in the form of cash, check or money order, and do not satisfy the terms of the Deed of Trust or of the statute.[7] As such, they did not cure the default.

Neither did Abdul-Latif comply with the statutory requirements for restraining a trustee’s sale. RCW 61.24.130 sets out the only means for restraining a trustee’s sale once a foreclosure has begun.[8] The statute provides that a borrower may restrain a sale on the condition that he `pay to the clerk of the court the sums that would be due on the obligation secured by the deed of trust if the deed of trust was not being foreclosed’[9]
and `gives five days notice to the trustee of the time when, place where, and the judge before whom the application for the restraining order or injunction is to be made.’[10] There is no evidence in the record that Abdul-Latif made any attempt to comply with these statutory requirements.

Abdul-Latif makes no argument that Household failed to comply with any statutory requirements, and by failing himself to effectuate the sole legal means available to him to prevent the trustee’s sale, he has waived the right to contest the sale. “[A]n action contesting the default, filed after notice of sale and foreclosure has been received, does not have the effect of restraining the sale.”[11] `Moreover, if it did, it would render the requirements of RCW 61.24.130 meaningless because it would be unnecessary to obtain an actual order restraining the sale or to provide five days’ notice to the trustee and payment of amounts due on the obligation.’[12] Abdul-Latif’s action did not itself restrain the sale, and he took no action to obtain a restraining order.

Abdul-Latif contends that the trial court erred in failing to enter findings of fact and conclusions of law. But no findings and conclusions are required after a hearing on a motion to dismiss under CR 12(b)(6); the trial court did not err.

Abdul-Latif contends the trial court deprived him of his right to a jury trial in dismissing the action on summary judgment. `The purpose of a summary judgment is to avoid a useless trial when no genuine issue of material fact remains to be decided.’[13] Because Abdul-Latif failed to adequately state facts supporting all the necessary elements of fraud, he failed to state a claim. The trial court correctly dismissed the action. As there were no issues to present to a jury, Abdul-Latif was not deprived of a jury trial.

Abdul-Latif also asserts that the trial court erroneously failed to recognize his character as plenipotentiary and transmitting utility for the fiction KARIM ABDUL-LATIF; to recognize that the lis pendens met notice requirements; or to take judicial notice of the governing articles of the United States and Washington Constitutions. As these issues do not pertain to and would not be dispositive of the questions relating to the foreclosure and trustee’s sale, we decline to address them. Household has requested its costs and attorneys fees. Under RAP 18.9(a), we may order a party to pay sanctions to the court or damages to the opposing party for filing a frivolous appeal. `An appeal is frivolous if there are no debatable issues upon which reasonable minds might differ and it is so totally devoid of merit that there was no reasonable possibility of reversal.’[14] Because this appeal is completely devoid of merit, we order Abdul-Latif to pay attorneys fees and costs to Household.

AFFIRMED.

BAKER, J., GROSSE, J. and AGID, J., concur.

[1] The document naming Household as Trustee is not in the record on appeal.
[2] This document is not in the record on appeal.
[3] RCW 4.04.010.
[4] Cutler v. Phillips Petroleum Co., 124 Wn.2d 749, 755, 881 P.2d 216 (1994).
[5] Reid v. Pierce County, 136 Wn.2d 195, 201, 961 P.2d 333
(1998).
[6] RCW 61.24.090(1) (emphasis added).
[7] RCW 61.24.090(1); Barron v. Robinson, 67 Wash. 656, 659, 122 P. 343 (1912).
[8] Cox v. Helenius, 103 Wn.2d 383, 388, 693 P.2d 683 (1985).
[9] RCW 61.24.130 (1).
[10] RCW 61.24.130 (2).
[11] Plein v. Lackey, 149 Wn.2d 214, 227, 67 P.3d 1061 (2003) (quoting Cox, 103 Wn.2d at 388).
[12] Plein, 149 Wn.2d at 227.
[13] Neilson v. Spanaway Gen. Med. Clinic, Inc., 135 Wn.2d 255, 262, 956 P.2d 312 (1998).
[14] Fay v. Northwest Airlines, Inc., 115 Wn.2d 194, 200-01, 796 P.2d 412 (1990).