Opinion
CV-22-01752-PHX-DWL
10-18-2022
One Nation Irrevocable Trust, Plaintiff, v. Randhir Gandhi Das, et al., Defendants.
ORDER
Dominic W, Lanza United States District Judge
On September 9, 2022, Michael Westbrook El (“Westbrook”) initiated this case by filing, pro se, a “Petition in the Nature of a Quiet Title Action and Claim/Emergency Motion for Preliminary Injunction Verified Complaint for Quiet Title” (the “Complaint”) on behalf of “Petitioner(s), One Nation Irrevocable Trust and Michael Westbrook El (hereinafter individually and jointly ‘One Nation Irrevocable Trust.'” (Doc. 1-3 at 2.) The action seeks to quiet title to certain real property-a residence in Chandler, Arizona, where Westbrook and his family have resided since 2018 (“the Property”). (Id. ¶¶ 1-2, 11-12, 24.) Westbrook alleges that “Plaintiffs” purchased the Property and have paid off the mortgage and all expenses related to the Property, such that “there are no known encumbrances of record to the Property.” (Id. ¶¶ 21-28.) “Plaintiff' seeks “a judicial declaration that Plaintiff is the 100% owner” of the Property. (Id. ¶ 30.)
The Complaint alternates between referencing “Plaintiffs” and “Plaintiff.”
Attached to the Complaint are various documents, including, inter alia, a deed of trust and fixed/adjustable rate note executed by Westbrook on February 7, 2018 (id. at 10-27), a notice of default addressed to Westbrook, dated December 28, 2021 (id. at 2831), a letter of congratulations indicating the mortgage on the Property was paid in full and a deed of release from the deed of trust (id. at 32-33), and a quitclaim deed, dated June 9, 2022, in which Westbrook quitclaimed the Property to the “One Nation Irrevocable Trust” (“the Trust”) (id. at 56-59).
On October 5, 2022, Defendant First American Mortgage Solutions filed, in state court, a “notice of disclaimer and request for order of dismissal, stating it “has no relationship or connection whatsoever to Plaintiffs” and requesting costs. (Id. at 171-72.)
On October 12, 2022, Defendants Randhir Gandhi (erroneously named as Randhir Gandhi Das), Select Portfolio Servicing, Inc., and U.S. Bank National Association, as trustee for Colt 2020-IR Mortgage Loan Trust (the “Loan Defendants”) removed this action on diversity grounds. (Doc. 1.)
Before this case can proceed, the Court must ensure that the parties are properly before the Court. The Trust likely lacks the capacity to sue and is not a proper party to this case. Arizona law governs this issue. Fed.R.Civ.P. 17(b)(3) (capacity to sue, for parties other than individuals or corporations, is determined by the law of the state where the court is located, with exceptions not relevant here); Irwin Union Collateral Inc. v. Peters & Burris, LLC, 2009 WL 5184902, *3 (D. Ariz. 2009) (“[S]ince the trust is neither an individual nor a corporation, the law governing whether the Sass Trust has the capacity to sue or be sued is governed by Arizona law, the state in which this Court sits.”).
In general, a trust “lack[s] the capacity to sue or be sued under Arizona law.” Irwin Union, 2009 WL 5184902 at *4; see also 76 Am. Jur. 2d Trusts § 601 (“At common law, a trust cannot sue or be sued because it is not a juristic person. In most jurisdictions, a trust is not an entity separate from its trustees, and cannot sue or be sued in its own name, and therefore, the trustee, rather than the trust, is the real party in interest in litigation involving trust property. Because a trust is not a legal entity, and does not have capacity, any suits involving the trust must be brought by or against the trustees.”); Matter of Book, 2019 WL 2394259, *2 (Ariz.Ct.App. 2019), review denied (2019) (unpublished) (“Generally, a common-law trust is not considered a legal entity capable of suing or being sued; therefore, any suit involving the trust must be brought by or against its trustee.”). Thus, a common-law trust cannot sue in its own name-such a suit must be brought by its trustee. There is an exception to the general rule for a “business trust,” created pursuant to A.R.S. § 10-1871, which may sue in its own name. McLeod v. Deutsche Bank Nat'l Tr. Co., 2017 WL 2189498, *3 (Ariz.Ct.App. 2017) (unpublished).
Here, although the Trust does not appear to be a “business trust” pursuant to A.R.S. § 10-1871, the Court lacks the information necessary to determine this conclusively. If the Trust is a traditional trust, it must be dropped as a party to this lawsuit and can participate only through a trustee. Fed.R.Civ.P. 21. However, if it is a business trust, it can proceed as a party in this action.
Either way, however, it must be represented by counsel. Westbrook, a nonlawyer, cannot represent the Trust. In re Am. W. Airlines, 40 F.3d 1058, 1059 (9th Cir. 1994) (non-attorney members of an association cannot appear on behalf of the association). Nor can Westbrook represent himself to the extent that he appears in his capacity as trustee for the Trust. C.E. Pope Equity Tr. v. United States, 818 F.2d 696, 698 (9th Cir. 1987) (“Rule 17(a) authorizes a trustee of an express trust to sue on behalf of the trust, without joining persons ‘for whose benefit the action is brought;' the rule does not warrant the conclusion that a nonlawyer can maintain such a suit in propria persona. The reciprocal relation between the bar and the bench permits an exception only for a person acting personally.”).
Finally, Westbrook attached to his complaint proof that he quitclaimed the Property to the Trust and therefore no longer personally owns the property. (Doc. 1-3 at 56-59.) Thus, Westbrook has no standing to bring this action in a personal capacity and is dismissed from this action to the extent he appears in his personal capacity.
For these reasons, this case cannot be maintained without competent counsel. Moreover, the Complaint is dismissed because Westbrook is dismissed and the Trust could not file a pleading without counsel. D-Beam Ltd. P'ship v. Roller Derby Skates, Inc., 366 F.3d 972, 973-74 (9th Cir. 2004) (“[M]otions and pleadings must be filed by counsel.”). The Loan Defendants' motion to extend the deadline to respond to the Complaint (Doc. 9) is therefore denied as moot.
By November 18, 2022, retained counsel for the remaining Plaintiff must file either (1) an amended complaint substituting Westbrook, in his capacity as trustee, for the Trust as the remaining Plaintiff in this action, or (2) evidence that the Trust is a business trust, capable of suing in its own name. If the remaining Plaintiff fails to adhere to this order through retained counsel, this case will be dismissed without further notice.
Accordingly, IT IS ORDERED that the Complaint (Doc. 1-3) is dismissed with leave to amend.
IT IS FURTHER ORDERED that Westbrook, in his personal capacity, is dismissed with prejudice.
IT IS FURTHER ORDERED that the remaining Plaintiff in this action must retain counsel, and, by November 18, 2022, retained counsel for the remaining Plaintiff must file either (1) an amended complaint substituting Westbrook, in his capacity as trustee, for the Trust as the remaining Plaintiff in this action, or (2) evidence that the Trust is a business trust, capable of suing in its own name.
IT IS FURTHER ORDERED that the Loan Defendants' motion to extend the deadline to respond to the Complaint (Doc. 9) is denied as moot.