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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Stephen Mitchell Baquet Family Trust,

Plaintiff, 

v. 

Bayview Loan Services LLC, et al., 

Defendants. 

CV-17-00617-TUC-DCB

ORDER 

 Defendant Bayview’s Motion to Dismiss (Doc. 11) pursuant to Fed.R.Civ.P. 

12(b)(6) is before the Court. 

FACTUAL BACKGROUND 

 This action is derived from a defaulted commercial loan that existed between 

Plaintiff and Defendant Bayview Loan Services LLC, (Bayview) and the subsequent 

trustee sale of that property. In January 2008, Plaintiff purchased commercial property at 

890 W. Grant Road, Tucson, Arizona, 85705, for $400,000. (Response at ¶ 2). On 

January 4, 2008, Plaintiff proceeded to take out a $320,000 loan for the financing of the 

890 W. Grant Road property from Silver Hill Financial, LLC. (Silver Hill) (Response at 

¶¶ 2-3). The commercial loan was recorded with a Promissory Note, Deed of Trust, 

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Assignment of Leases and Rents, Security Agreement and Fixture Filing and officially 

filed on January 7, 2008. (Response at ¶ 3; Exhibit 11-2). 

 The commercial loan with Silver Hill was subsequently conveyed from Silver Hill 

to Bayview some time prior to 2011. (Response at ¶ 3; Document 11-3). Likely the 

conveyance was on January 31, 2008 by Assistant Secretary Robert G. Hall. (Response 

at ¶ 4). However, due to the lack of clarity and supporting evidence in the Complaint, this 

is not particularly clear. On October 7, 2009, Baquet conveyed the property from himself 

to Baquet Properties Grant Center, LLC. (Response at ¶ 3). Between 2008 and 2011, 

Plaintiff successfully made every monthly loan payment. (Response at ¶ 3). In 2011, 

Plaintiff expressed financial difficulties and requested a renegotiation of the commercial 

loan. (Document 11-3). On August 30, 2011 Bayview agreed to renegotiate terms and 

updated the loan agreement. (Document 11-4). These are the last known and final loan 

terms and are not in dispute by either party. 

 In 2013, Plaintiff again requested a loan adjustment expressing financial 

difficulties again. On May 1, 2013, Plaintiff missed a loan payment but cured the default 

and continued to make all payments for the year. (Response at ¶ 3). No known loan 

adjustment was made in response to Plaintiff’s second adjustment request. Plaintiff 

continued to successfully make all further loan payments until the second default on 

March 1, 2017. (Response at ¶ 3). This default was confirmed uncured by January 29, 

2018 and there has been no record of it being cured since. (Response at ¶ 3). Finally, on 

September 26, 2017, a notice of trustee sale was recorded for January 3, 2018. (Response 

at ¶ 4; Document 11-5). Jason P. Sherman was appointed Trustee of the property via 

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Bayview but he had no legal authority to sell the property. 

PROCEDURAL BACKGROUND 

 Plaintiff pro se filed a Complaint and Motion for Temporary Restraining Order 

(TRO) on December 28, 2017. (Doc. 1.) The Court entered an Order maintaining the 

status quo until the Defendants were notified and responded, which they did on January 

29, 2018 by filing a Response and Motion to Dismiss, which is before the Court. (Docs. 

9, 10.) On February 26, 2018, Defendant Lawyers Title Insurance was voluntarily 

terminated from the action. (Doc. 15.) Plaintiff filed a Reply (Doc. 18) to the Motion to 

Dismiss on February 28, 2018 and Defendant Bayview filed an Answer. (Doc. 19.) The 

Court ordered the parties to supplement the record, which they did. (Docs. 29, 30.)1

 

 Subsequent to filing this action in federal court, on March 23, 2017, Plaintiff 

Plaintiff filed a claim against Richard O’Brien as Chief Financial Officer of Bayview 

Loan Servicing, LLC, effectively naming Bayview as the Defendant, in Pima County 

Consolidated Justice Court. (Doc. 29-1). The claim was filed under case CV17-007609. 

(Response at ¶ 4; Doc. 29-1). Plaintiff claimed injuries in the form of unjust enrichment, 

conversion, denial of Due Process, and trespass regarding the commercial loan, much the 

same as the allegations lodged in this action. (Doc. 29-1 ¶ 18). The Justice Court action 

was dismissed without prejudice on September 13, 2017. (Doc. 11-1). Plaintiff was also 

 1

 The Court has determined to review and utilize only those extrinsic materials that are 

subject to judicial notice to resolve this motion. Davis v. HSBC Bank Nev., 691 F.3d 

1152, 1159-60 (9th Cir. 2012) (matters of public record). There is no need to, and the 

Court will not, convert the motion to dismiss to a motion for summary judgment. 

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designated a vexatious litigant2 pursuant to A.R.S. § 12-3201, because he had filed fifteen 

(15) separate cases, all with virtually identical claims as those lodged in this action. (Id.) 

STANDARD OF REVIEW

 Under Fed.R.Civ.P. 12(b)(6), a claim may be dismissed because of the plaintiff's 

“failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). This 

rule provides for dismissal of a claim with prejudice if, as a matter of law, “it is clear that 

no relief could be granted under any set of facts that could be proved consistent with the 

allegations.” Neitzke v. Williams, 490 U.S. 319, 327 (1989); Parks Sch. of Business, Inc. 

v. Symington, 51 F.3d 1480, 1484 (9th Cir.1995). Thus, the determinative question is 

whether there is any set of “facts that could be proved consistent with the allegations of 

the complaint” that would entitle plaintiff to some relief. Swierkiewicz v. Sorema N.A.,

534 U.S. 506, 514 (2002). A dismissal under Rule 12(b)(6) may be based on the lack of a 

cognizable legal theory or on the absence of sufficient facts alleged under a cognizable 

legal theory. Navarro v. Block, 250 F.3d 729, 732 (9th Cir.2001); Balistreri v. Pacifica 

Police Dep't ., 901 F.2d 696, 699 (9th Cir.1988). In reviewing a complaint under Rule 

12(b)(6), all allegations of material fact are taken as true and construed in the light most 

favorable to the non-moving party. Newman v. Sathyavaglswaran, 287 F.3d 786, 788 (9th 

Cir.2002); Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir.1999). The Court must also 

assume that general allegations embrace the necessary, specific facts to support the claim. 

Smith v. Pacific Prop. and Dev. Corp., 358 F.3d 1097, 1106 (9th Cir.2004); Peloza v. 

Capistrano Unified Sch. Dist., 37 F.3d 517, 521 (9th Cir.1994). But, the Court is not 2

 It is not within the power of a state court to bar litigants from filing and prosecuting actions in federal court. General Atomic Co., v. Felter, 434 U.S. 12, 13 (1977). 

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required “to accept as true allegations that are merely conclusory, unwarranted 

deductions of fact, or unreasonable inferences.” Sprewell v. Golden State Warriors, 266 

F.3d 979, 988 (9th Cir.2001); see also Warren v. Fox Family Worldwide, Inc., 328 F.3d 

1136, 1139 (9th Cir.2003); Western Mining Council v. Watt, 643 F.2d 618, 624 (9th 

Cir.1981). Courts will not “assume the truth of legal conclusions merely because they are 

cast in the form of factual allegations.” Warren, 328 F.3d at 1139; Western Mining 

Council, 643 F.2d at 624. Furthermore, Courts will not assume that plaintiffs “can prove 

facts which [they have] not alleged, or that the defendants have violated . . . laws in 

ways that have not been alleged.” Associated General Contractors of California, Inc. v. 

California State Council of Carpenters, 459 U.S. 519, 526 (1983). 

 In deciding whether to dismiss a claim under Rule 12(b)(6), the Court is generally 

limited to reviewing only the complaint, but may review materials which are properly 

submitted as part of the complaint and may take judicial notice of public records outside 

the pleadings. See Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir.2001); 

Campanelli v. Bockrath, 100 F.3d 1476, 1479 (9th Cir.1996); MGIC Indem. Corp. v. 

Weisman, 803 F.2d 500, 504 (9th Cir.1986). A court may not look beyond the complaint 

to a plaintiff's moving papers, such as a memorandum in opposition to a defendant's 

motion to dismiss. Broam v. Bogan, 320 F.3d 1023, 1026 (9th Cir.2003); Schneider v. 

Cal. Dep't. of Corr., 151 F.3d 1194, 1197 n. 1 (9th Cir.1998). Facts raised for the first 

time in opposition papers should be considered by the court in determining whether to 

grant leave to amend or to dismiss the complaint with or without prejudice. Broam v. 

Bogan, 320 F.3d 1023, 1026 (9th Cir.2003). 

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 If a Rule 12(b)(6) motion to dismiss is granted, “[the] district court should grant 

leave to amend even if no request to amend the pleading was made, unless it determines 

that the pleading could not possibly be cured by the allegation of other facts.” Lopez v. 

Smith, 203 F.3d 1122, 1127 (9th Cir.2000) (en banc), quoting Doe v. United States, 58 

F.3d 494, 497 (9th Cir.1995). In other words, leave to amend need not be granted when 

amendment would be futile. Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th Cir.2002). 

DISCUSSION 

 Because Plaintiff is proceeding without counsel, the Court will treat Defendant’s 

Motion to Dismiss as responded to by Plaintiff based on the Application for TRO (Doc. 

18) and the response (Doc. 30) to the Court’s Minute Entry, as well as what factual 

allegations may be gleaned from the Complaint and other filings with the Court. Haines 

v. Kerner, 404 U.S. 519, 520-21 (1972). Unrepresented litigants are not relieved of their 

obligation to allege sufficient facts to support a cognizable legal claim. Id. 

Defendant Bayview correctly argues that Plaintiff has failed to rebut any of the 

facts concerning the Commercial Loan and subsequent default in any document 

submitted with this Court. Further, this action in one form or another has been litigated 

repeatedly in various state courts, leading Defendant Bayview to persuasively claim that 

this action is barred by res judicata. Plaintiff does not dispute that C17-007609-RC was 

filed based on the same claims and issues as presented in this action before this Court. 

This action resulted in an adjudication on the merits, despite Plaintiff’s claim otherwise. 

Plaintiff argues that the same parties were not named but that is inaccurate because the 

CEO of Bayview was named, as well as Bayview; Plaintiff’s improper designation of the 

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named Defendants does not change the fact that the same parties were involved in the 

same litigation of the same claims. Ultimately, this Court finds that Bayview is a secured 

creditor, entitled to move forward with the trustee’s sale in light of the undisputed facts in 

this action. (Docs. 11-A to E; 29-A to C.) 

 Plaintiff argues that Bayview has failed to prove that it is the beneficiary of the 

Deed of Trust. In Arizona, the deed of trust statutes impose no obligation on the 

beneficiary to “show the note” before the trustee conducts a non-judicial foreclosure sale. 

Hogan v. Washington Mut. Bank, N.A., 230 Ariz. 584, 587 (2012). In fact, “...the only 

proof of authority the trustee’s sales statutes require is a statement indicating the basis for 

the trustee’s authority.” Id. Plaintiff’s “show the note” argument has no validity in this 

situation. 

 Further, Plaintiff argues that the Uniform Commercial Code (UCC) has been 

violated and that the Trustee’s sale would violate a bankruptcy discharge. Plaintiff points 

to no bankruptcy case precluding foreclosure and the UCC has no bearing on actions to 

collect on real property liens. Plaintiff also admits that Silver Hills Financial is no longer 

a viable entity and not a property party to this action. Finally, Plaintiff fails to state a 

viable claim of slander of title under the facts in this action. In addition, the claim refers 

to a January 31, 2008 “slanderous” document and the statute of limitations for slander of 

title is one year. Gee v. Pima County, 126 Ariz. 116 (Ariz. App. 1980). 

 Plaintiff filed the Justice Court lawsuit on March 27, 2017. Plaintiff’s theory of 

liability is the same in this case as it was in the Justice Court action. Specifically, in the 

Justice Court action, Plaintiff erroneously argued that a document prepared by Plaintiff 

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and delivered to “Richard O’Brian” had the legal effect of discharging all of Plaintiff’s 

obligations under the Commercial Loan. The Justice Court granted Defendant Bayview’s 

motion to dismiss and then declared Plaintiff a vexatious litigant. (Doc. 11 at A.) 

The doctrine of res judicata, or claim preclusion, bars further litigation of a claim 

by the parties and their privies following a final judgment on the merits. Poblete 

Mendoza v. Holder, 606 F.3d 1137, 1140 (9th Cir.2010). Under res judicata, a final 

judgment on the merits precludes parties and their privies from re-litigating all issues that 

were or could have been raised in the prior action. ProShipLine Inc. v. Aspen 

Infrastructures Ltd., 609 F.3d 960, 968 (9th Cir.2010); Valencia–Alvarez v. 

Gonzales, 469 F.3d 1319, 1323 n. 6 (9th Cir.2006) (“Res judicata or claim preclusion 

bars a subsequent action ‘not only as to every matter which was offered and received to 

sustain or defeat the claim or demand, but as to any other admissible matter which might 

have been offered for that purpose.’ ” (quoting Cromwell v. County of Sac, 94 U.S. 351, 

352 (1877)). The preclusive effect of a federal-court judgment is determined by federal 

common law. Taylor v. Sturgell, 553 U.S. 880, 891 (2008). Under the doctrine 

of res judicata, also known as “claim preclusion,” a final judgment on the merits 

forecloses successive litigation of the same claim, whether or not relitigation of the claim 

raises the same issues as the earlier suit. Id. at 892 (quotation and citation omitted). 

Moreover, res judicata bars relitigation not only of all grounds of recovery that were 

actually asserted, but also those that could have been asserted. Tahoe–Sierra Pres. 

Council, Inc. v. Tahoe Reg'l Planning Agency, 322 F.3d 1064, 1077–78 (9th Cir. 2003). 

Res judicata applies when there is: (1) an identity of claims; (2) a final judgment on the 

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merits; and (3) identity or privity between parties. Ruiz v. Snohomish Co. Pub. Util. Dist. 

No. 1, 824 F.3d 1161, 1164 (9th Cir. 2016) (quotation and citation omitted). Upon 

review, Plaintiff is not permitted to re-litigate these claims in federal court. Peterson v. 

Newton, 232 Ariz. 593, 598 (Ariz. App. 2013). 

 Because this action may be resolved based both on res judicata and the failure to 

state a viable cause of action, the Court will not address the vexatious litigant or real 

party in interest issues as they add nothing to the analysis. The Court does note that the 

Plaintiff is a trust and the trustee is not a licensed attorney. Entities must be represented 

in Court by an attorney and may not appear pro se; only a licensed attorney may represent 

the Plaintiff in this action henceforth. C.E. Pope Equity Trust v. United States, 818 F.2d 

696, 698 (9th Cir. 1987)(a corporate entity may not proceed pro se). 

 Plaintiff’s ongoing attempts to involve Silver Hill Financial, LLC, a dissolved 

entity, are frivolous and do not prevent the Court from dismissing this action. Defendant 

Silver Hill Financial, LLC, was the original lender associated with the loan that is the 

subject of this suit. The loan was subsequently transferred to Defendant Bayview. 

Bayview is the proper party to defend this action and to move forward with the trustee’s 

sale to fulfill the loan obligation due since 2013. All motions to enter default judgment 

against Silver Hill financial have been denied previously. (Doc. 27.) Plaintiff failed to 

properly effect service of process on this possibly defunct entity. (Doc. 21, 21-1.) 

 Finally the Court has determined that no amendment of the Complaint will avoid 

the legal defenses raised and that no viable cause of action is possible with future 

litigation. Gompper, 298 F.3d at 898. 

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 Accordingly, 

 IT IS ORDERED that the Defendant’s Motion to Dismiss (Doc. 11) this action in 

its entirety is GRANTED with prejudice. The Motion to Strike Plaintiff’s Motion for 

Default Judgment (Doc. 25) is DENIED. This action is terminated. 

 Dated this 13th day of July, 2018. 

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