pamela owen. civil rights. pamela owen. dkt 23. plaintiff’s opposition to defendant bishop,...

PLAINTIFF’S OPPOSITION TO DEFENDANT BISHOP, MARSHALL & WEIBEL, P.S.’ FED. R. CIV. P.

12(b)(6) MOTION TO DISMISS PLAINTIFF’S COMPLAINT WITH PREJUDICE 1

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UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON (TACOMA)

PAMELA S. OWEN

Plaintiff,

vs.

FEDERAL HOUSING FINANCE AGENCY;

FEDERAL HOME LOAN MORTGAGE

CORPORATION; MTC FINANCIAL, INC.,

D/B/A TRUSTEE CORPS; BISHOP,

MARSHALL & WEIBEL, P.S.; CHUCK E.

ATKINS, in his official capacity as Clark

County Sheriff,

Defendants.

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Civil Action No. 15-cv-05375-BHS

(Formerly in the Superior Court of the State of

Washington, in and for the County of Clark,

Case No. 15-2-01264-2, filed on May 7, 2015)

PLAINTIFF’S OPPOSITION TO

DEFENDANT BISHOP, MARSHALL &

WEIBEL, P.S.’ FED. R. CIV. P.

12(b)(6) MOTION TO DISMISS

PLAINTIFF’S COMPLAINT WITH

PREJUDICE

Noting Date: September 4, 2015

COMES NOW Plaintiff Pamela Owen for her reply in opposition to the above noted

motion and states:

I. BASIC FACTUAL ALLEGATIONS.

1.1 Defendant Freddie Mac created a framework for all originators of mortgage loans to

follow when participating in the secondary mortgage market.

1.2 Defendants Freddie Mac and Bishop Marshall & Weibel (“BMW”) used the Trustee’s

Deed Upon Sale, Plaintiff’s Exhibit 2, issued by Defendant MTC Financial to cause two state

actors, the Clark County Superior Court and Defendant Clark County Sheriff Atkins, to violate

Plaintiff’s constitutional right to due process, liberty, property and to be safe and secure in her

home and privacy.

1.3 Plaintiff’s Exhibits 5 and 6 demonstrated that Bank of America National Association was

not the owner or holder of her 2005 Note.

II. FED. R. CIV. P. 12(b)(6) STANDARD.

2.1 Defendant BMW argues that Plaintiff has failed to state a claim upon which relief may be

granted. Dkt. 21 at 3, lines 12-14.

2.2 Defendant BMW also argues that Plaintiff’s complaint should be dismissed because it

does not meet the pleading requirements set forth in the Supreme Court decisions of Bell Atlantic

Case 3:15-cv-05375-BHS Document 23 Filed 08/11/15 of 24



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Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Dkt. 21 at 4,

lines 3-6.

2.3 The Federal Rules of Civil Procedure are designed to further the due process of law that

the Constitution guarantees. Nelson v. Adams USA, Inc., 529 U.S. 460, 463 (2000).

2.4 Because cases should be decided on their merits, Rule 12(b)(6) motions are generally

disfavored in this Circuit. Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003).

2.5 Dismissal under Rule 12(b)(6) may be based on either the lack of a cognizable legal theory

or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica

Police Dep’t, 901 F.2d 696, 699 (9th Cir.1990).

2.6 A complaint must allege facts to state a claim for relief that is plausible on its face.

Ashcroft v. Igbal, 556 U.S. 662, 678 (2009). A claim has “facial plausibility” when the party

seeking relief “pleads factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Id.

2.7 Although the Court must accept as true a complaint’s well-pled facts, conclusory

allegations of law and unwarranted inferences will not defeat an otherwise proper Rule 12(b)(6)

motion. Vasquez v. L.A. Cnty., 487 F.3d 1246, 1249 (9th Cir.2007); Sprewell v. Golden State

Warriors, 266 F.3d 979, 988 (9th Cir.2001).

2.8 “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires

more than labels and conclusions, and a formulaic recitation of the elements of a cause of action

will not do. Factual allegations must be enough to raise a right to relief above the speculative

level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations and footnote omitted). This

requires a plaintiff to plead “more than an unadorned, the-defendant-unlawfully-harmed-me

accusation.” Iqbal, 556 U.S. at 678.

2.9 Additionally, a party alleging fraud must “state with particularity the circumstances

constituting fraud,” but “[m]alice, intent, knowledge, and other conditions of a person’s mind may

be alleged generally.” Fed.R.Civ.P. 9(b).

2.10 To comply with Rule 9(b), allegations of fraud must state “the who, what, when, where,

and how” of the misconduct charged. Cafasso v. General Dynamics C4 Sys., Inc., 637 F.3d 1047,

1055 (9th Cir. 2011). This heightened pleading standard ensures that defendants have adequate

notice of the alleged misconduct so that they can defend against the charge and are not left to




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simply deny that they have done anything wrong. Kerns v. Ford Motor Co., 567 F.3d 1120, 1124

(9th Cir. 2008).

2.11 “A pleading is sufficient under Rule 9(b) if it identifies the circumstances constituting

fraud so that the defendant can prepare an adequate answer from the allegations.” Neubronner v.

Milken, 6 F.3d 666, 671-72 (9th Cir. 1993) (citing Gottreich v. San Francisco Inv. Corp., 552 F.2d

866, 866 (9th Cir. 1977)) (internal quotations omitted).

2.12 The adequacy of pleadings is governed by Fed. R. Civ. P. 8(a)(2), which requires that a

complaint allege “a short and plain statement of the claim showing that the pleader is entitled to

relief.” Material allegations are taken as admitted and the complaint is construed in the Plaintiff’s

favor. Keniston v. Roberts, 717 F.2d 1295, 1300 (9th Cir. 1983).

2.13 Determining whether the allegations in a complaint are “plausible” is “a context-specific

task that requires the reviewing court to draw on its judicial experience and common sense.”

Iqbal, 129 S. Ct. at 1950.

2.14 If the “well-pleaded facts do not permit the court to infer more than the mere possibility of

misconduct,” the complaint should be dismissed for failing to “show[] that the pleader is entitled

to relief” as required by Rule 8(a)(2). Iqbal, 129 S. Ct. at 1950.

2.15 Regarding the concept of “notice” pleading, defendant’s subjective notice is not governing

standard; nor does plausibility standard established in Bell Atl. Corp. v. Twombly, 550 U.S. 544

(2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009) turn on defendant’s subjective notice of claims.

2.16 Dismissal for failure to state claim, unlike dismissal for want of jurisdiction, is disposition

on merits. Holder v. Nelson, 514 F2d 1091 (9th

Cir. 1975).

III. TWOMBLY AND IQBAL FACTS ALLEGED BY PLAINTIFF AND ADMITTED BY DEFENDANT ATKINS. 3.1 Plaintiff’s allegations establishing Defendant BMW’s liability for culpable action and or

inaction under Section 1983, are as follows:

“1.19 On May 5, 2015, at approximately 2:00p.m., Defendant Sheriff Atkins

caused to be posted on Plaintiff’s real property a copy of the conforming copy of

the Writ of Restitution. Plaintiff’s Exhibit 18, at pages 4 and 5.

***

1.22 Page 2 of the Writ of Restitution indicated it “shall expire twenty days from

the date of issuance.”




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1.23 The Writ of Restitution further commanded Defendant Sheriff Atkins to

“deliver possession of the subject property to the Plaintiff, and to make return of

this Writ twenty days from its issuance.”

1.24 The Writ further provided that should Defendant Sheriff Atkins be unable

to “fully deliver possession of the described premises within 20 of this Writ’s

issuance then this Writ of Restitution will automatically be renewed for an

additional 20 days without further order of the Court….”

1.25 Defendant Sheriff Atkins’ Notice informed Plaintiff that she “must vacate

the premises on or before 11:59p.m.May 08, 2015….” Plaintiff’s Exhibit 18 at

page 1.”

3.2 Defendant Sheriff Atkins admitted the above allegations in his Answer as follows:

3.3 Sheriff Atkins obtained the Writ of Restitution he caused to be posted on Plaintiff’s

property from Defendant BMW, as agent acting on behalf of its principal, employer and client,

Defendant Freddie Mac.

IV. WASHINGTON’S UNLAWFUL DETAINER LAW.

4.1 Under Washington State law, because the “unlawful detainer statutes are in derogation of

the common law,” they must be “construed in favor of the tenant.” Big Bend Land Co. v. Huston,

98 Wash. 640, 643, 168 P. 470 (1917); Housing Authority of Everett v. Terry, 114 Wn.2d 558,

563, 789 P.2d 745 (1990).




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4.2 Defendant BMW’s motion to dismiss construes the unlawful detainer statutes in favor of

the landlord, and his client, Defendant Freddie Mac.

4.3 Since 1890, unlawful detainer actions were vested exclusively in the superior court of the

county in which the property or some part of it was situated. Thus, unlawful detainer actions are

not new to Washington’s trial courts and Defendant BMW, who has often acted as a Trustee.

4.4 The procedure for unlawful detainer is simple and direct. In Big Bend Land Co. v. Huston,

98 Wash. 640, 168 P. 470 (1917), the Washington Supreme Court held that the Complaint must be

filed first, and afterwards, the Court “must” issue a Summons returnable at a day designated

therein, or jurisdiction will fail to attach and the proceeding will be a nullity:

“This is a special statutory proceeding, summary in its nature and in derogation of

the common law. It is an elementary rule of universal application in actions of this

character, that the statute conferring jurisdiction must be strictly pursued and, if the

method of procedure prescribed by it is not strictly observed, jurisdiction will fail

to attach and the proceeding will be a nullity. (Citation omitted.)” Big Bend Land

Co. v. Huston, 98 Wash. 640 at 643; State ex rel. Seaborn Shipyards Co. v.

Superior Court of Pierce County, 102 Wash. 215, 216, 172 P. 826 (1918); Lee v.

Weerda, 124 Wash. 168, 172, 213 P. 919 (1923); Hatfield v. Greco, 87 Wn.2d 780,

782, 557 P.2d 340 (1976).

4.5 The 9th

Circuit in Huston v. Big Bend Land Co., 1 F.2d 93 (9th

Cir.1924), followed the

Washington Supreme Court’s decision in Big Bend Land Co. v. Huston, 98 Wash. 640, 168 P. 470

(1917) in holding that:

“There is no reason for excepting the case from the usual rule that the federal

courts will follow the decisions of the highest court of a state, defining how

jurisdiction of the state court is obtained under a special statutory proceeding.

(Citation omitted.) We therefore consider it as determined that the state court did

not acquire authority to issue the writ of possession or to decide the unlawful

detainer proceedings….

It is clear that the complaint was properly filed in the state court, which had power

in unlawful detainer actions -- that is to say, the initial step was properly taken. It

was in the next step that plaintiff failed, for, so it has been decided, no valid

summons was issued at the time of filing the complaint (section 817, Rem. Code

Wash.), and, a valid summons being an indispensable matter, the court could not

lawfully proceed. The Hustons never submitted to the jurisdiction.”

4.6 The Court in Signal Oil Co. v. Stebick, 40 Wn.2d 599, 602-603, 245 P.2d 217 (1952),

reiterated the steps necessary to commence a valid action for unlawful detainer:

“It then became necessary for the landlord, in order to obtain possession, to

institute an unlawful detainer action by filing and serving on Stebick a summons




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and complaint. Although the complaint was signed October 31, 1950 (the date that

the right of forfeiture arose), it was not filed until January 8, 1951, and both the

summons and complaint were served on the defendant January 12, 1951.” The

action was therefore commenced January 12, 1951.”

4.7 Under Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 346-48 (1816), it is beneficial

for state and federal courts in Washington State to strive for predictable and uniform interpretation

when construing provisions of the United States Constitution.

4.8 The Superior Court never required Plaintiff’s participation in the ex parte proceedings held

on April 3, 2015, nor conducted an inquiry as to why Appellant should not be heard before

granting Defendant Freddie Mac’s motions for default and issuance of its Writ of Restitution

commanding the Sheriff of Clark County Washington to deliver possession of Appellant’s real

property to Freddie Mac.

4.9 The Superior Court should have known, from historical law; the facts of the case before it

on April 3, 2015; and the face of its docket as it existed on April 3, 2015, that it was impossible

for Plaintiff to be in judicial default less than 24 hours after the unlawful detainer complaint was

filed and the summons was issued.

4.10 On April 2, 2015, RCW 59.12.070, which has existed in one form or another since 1890,

mandated in pertinent part that: “A summons…shall not be less than seven nor more than thirty

days from the date of service….”

4.11 The face of the summons filed and issued on April 2, 2015 informed the Superior Court

that the summons requested by Defendant BMW on behalf of Freddie Mac was void ab initio,

because it was returnable on March 30, 2015, four days before it was issued on April 2, 2015.

4.12 In response to Plaintiff’s motion to quash service of summons in the Superior Court,

Defendant BMW, on behalf of Freddie Mac, argued that “WA CR 3 and RCW 59.18.365

specifically allow for Summons and Complaint to be served unfiled….”

4.13 Defendant BMW’s argument slaps the face of RCW 59.12.070. Moreover, RCW

59.12.080, which has also existed in one form or another since 1890, directs, in relevant part, that:

“The summons must state…the court in which the same is brought….”

4.14 The word “brought” is the past tense and past participle of the verb “bring,” and plainly

means an action which has been completed. A summons which is “unfiled” does not and cannot

comply with the plain meaning of the word “brought” found in RCW 59.12.080.




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4.15 Defendant BMW’s reliance on “WA CR 3 and RCW 59.18.365” is further misplaced by

RCW 59.12.180, which has also existed in one form or another since 1890. On April 2, 2015, the

statute provided that:

“Except as otherwise provided in this chapter, the provisions of the laws of this

state with reference to practice in civil actions are applicable to, and constitute the

rules of practice in the proceedings mentioned in this chapter; and the provisions of

such laws relative to new trials and appeals, except so far as they are inconsistent

with the provisions of this chapter, shall be held to apply to the proceedings

mentioned in this chapter.”

V. CONSTITUTIONAL DUE PROCESS.

5.1 Under the decisions of Big Bend Land Co. v. Huston, 98 Wash. 640, 168 P. 470 (1917) and

Huston v. Big Bend Land Co., 1 F.2d 93 (9th Cir. Wash. 1924), where service of process is not

carried out in accordance with the manner provided by law it is invalid, no jurisdiction over the

person of the defendant is acquired, and a default judgment rendered against the defendant is void.

5.2 Even before Washington codified its unlawful detainer statutes in 1890, it had already

been the law in the United States that a court can only acquire jurisdiction of a party, where there

is no appearance, by the service of process in the manner prescribed by law. Amy v. City of

Watertown, 130 U.S. 301, 317, (1889).

5.3 “[D]ue process requires, at a minimum, that absent a countervailing state interest of

overriding significance, persons forced to settle their claims of right and duty through the judicial

process must be given a meaningful opportunity to be heard.” LK Operating, LLC v. Collection

Grp., LLC, 181 Wn.2d 48, 331 P.3d 1147, 1158 (Wash. 2014) (en banc), citing Boddie v.

Connecticut, 401 U.S. 371, 377 (1971).

5.4 In the context of a judicial proceeding, where a denial of due process is alleged, a

reviewing court must consider:

“The precise nature of the interest that has been adversely affected, the manner in

which this was done, the reasons for doing it, the available alternatives to the

procedure that was followed, the protection implicit in the office of the functionary

whose conduct is challenged, [and] the balance of hurt complained of and good

accomplished.” LK Operating, LLC v. Collection Grp., LLC, 181 Wn.2d 48, 331

P.3d 1147, 1158 (Wash. 2014).

5.5 Defendant BMW did not comply with RCW 59.12. The Superior Court’s ex parte

proceedings did not comply with RCW 59.12 and neither did the Superior Court’s proceedings




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comport with due process. See, e.g., Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306,

314 (1950) (“The fundamental requisite of due process of law is the opportunity to be heard.”)

(quoting Grannis v. Ordean, 234 U.S. 385, 394 (1914)); Nelson v. Adams USA, Inc., 529 U.S.

460, 463 (2000). Plaintiff was never heard before Judgment was issued on April 3, 2015.

VI. STATING A CLAIM UNDER SECTION 1983.

6.1 Properly understood, Plaintiff’s Complaint, removed to this Court on June 4, 2015 by the

Defendants, alleges an unlawful scheme created by Defendant Freddie Mac under its authority to

conduct activities in the secondary mortgage market created by Congress. The scheme resulted in

each Defendant, together with divers others, contributing to the deprivation of Plaintiff’s rights

under “color of State law.” West v. Atkins, 487 U.S. 42 (1988) and cases cited, Addickes v. S. H.

Kress Co., 398 U.S. 144 (1970) and Dennis v. Sparks, 449 U.S. 24, 28-29 (1980).

6.2 Since 1890, foreclosures of real property and unlawful detainer actions were vested

exclusively in the superior court of the county in which the property or some part of it was

situated. See, law of 1891 c 96 § 6; RRS § 815. Prior: 1890 p 75 § 5.

6.3 For nearly 100 years, from 1869 to 1965, the State legislature provided that “judicial

foreclosure” was the only method for depriving a mortgagor or trustor of title or possession of real

property. In 1965, the Legislature adopted the Deeds of Trust Act (DTA), Chapter 61.24 RCW.

6.4 The 1965 DTA also amended the Forcible Entry and Forcible and Unlawful Detainer

statutes, Chapter 59.12 RCW. The gist of the 1965 DTA was that real property, when secured by a

statutory deed of trust with a power of sale, may be foreclosed upon without judicial supervision

by a trustee acting pursuant to RCW §§ 61.24.010, .020, 030 and .040.

6.5 “This is a significant power,” said the Court in Bain v. Metropolitan Mortgage Group,

Inc., 175 Wn.2d 83, 93, 285 P.3d 34 (2012), “and we have recently observed that “the [deed of

trust] Act must be construed in favor of borrowers because of the relative ease with which lenders

can forfeit borrowers’ interests and the lack of judicial oversight in conducting nonjudicial

foreclosure sales.” Thus, unlawful detainer actions, nonjudicial foreclosure and writs of restitution

are not new to any of the named Defendants.

6.6 Defendant BMW does not dispute the fact that the 1965 DTA allows for nonjudicial

foreclosures by a Trustee, the capacity in which Defendant MTC Financial, Inc. acted.




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6.7 The Reconstruction Era Civil Rights Act, codified at 42 U.S.C.A. § 1983, was passed by

Congress in 1871 to provide a remedy to those prevented by individuals from exercising their civil

rights. See Edgar v. State, 92 Wn.2d 217, 595 P.2d 534 (1979).

6.8 Section 1983 provides a remedy “against all forms of official violation of federally

protected rights.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 700–01, 98 S.Ct. 2018, 2040–41,

56 L.Ed.2d 611 (1978).

6.9 If the rights are protected by federal statute, rather than the federal constitution, the court

determines whether the particular federal statutory rights are enforceable under Section 1983. See,

e.g., Suter v. Artist M., 503 U.S. 347 (1992); Golden State Transit Corp. v. City of Los Angeles,

493 U.S. 103 (1989).

6.10 A cause of action under § 1983 requires proof that the defendant acted under color of state

law, and that the defendant deprived the plaintiff of a right protected by the federal constitution or

federal statute. Sintra, Inc. v. City of Seattle, 119 Wn.2d 1, 829 P.2d 765 (1992); Torrey v. City of

Tukwila, 76 Wn.App. 32, 37, 882 P.2d 799 (1994).

6.11 State law may include the ordinances and policies of creatures of the state such as counties

or municipalities. See, e.g., R/L Associates, Inc. v. City of Seattle, 113 Wn.2d 402, 780 P.2d 838

(1989).

6.12 A federal agent or private individual may be subject to § 1983 if the agent’s or private

person’s actions constitute joint participation, are entwined with state action, or otherwise amount

to state action. Brentwood Academy v. Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288,

295-96 (2001); Lugar v. Edmondson Oil Co., 457 U.S. 922, 941-42 (1982); Knights of Ku Klux

Klan, Realm of Louisiana v. East Baton Rouge Parish Sch. Bd., 735 F.2d 895, 900-01 (5th Cir.

1984) (holding that federal officials could be sued under § 1983 for pressuring the school board to

prohibit Klan members from meeting at a school).

6.13 A complaint fails to state a claim under § 1983 if it merely sets forth a conclusion that

there is a nexus between the plaintiff, each defendant, and the conduct that created the

constitutional tort. According to the United States Supreme Court’s analysis, federal courts should

use a two-step approach when deciding a CR 12(b)(6) motion to dismiss: first, ignore all

conclusory allegations; second, “determine the facial plausibility of the non-conclusory factual

allegations.” Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 555 (2007).




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6.14 At one time, based on Monroe v. Pape, 365 U.S. 167 (1961), governmental entities could

not be sued under § 1983 because they were not considered “persons” under the wording of the

statute. In 1978, the Supreme Court reversed this position but held that such entities should not be

held vicariously liable for the acts of their employees on the basis of respondeat superior. Monell

v. Dep’t of Social Services, 436 U.S. 658 (1978).

6.15 A cause of action under § 1983 requires proof that the defendant acted under color of state

law, and that the defendant deprived the plaintiff of a right protected by the federal constitution or

federal statute. Sintra, Inc. v. Seattle, 119 Wn.2d 1, 829 P.2d 765 (1992); Torrey v. City of

Tukwila, 76 Wn.App. 32, 37, 882 P.2d 799 (1994).

6.16 The “color of state law” element may be admitted or established by the court as a matter of

law. Defendants MTC Financial (RCW 61.24 et seq.); BMW (RCW 59.12 et seq.) and Sheriff

Atkins (RCW 59.12.100), have each admitted in their papers of taking actions under color of state

law.

6.17 A corporation such as Defendant BMW is a § 1983 plaintiff. See CarePartners LLC v.

Lashway, 545 F.3d 867 (9th Cir. 2008); Gomez v. Alexian Bros. Hosp., 698 F.2d 1019 (9th

Cir.1983); Soranno’s Gasco., Inc. v. Morgan, 874 F.2d 1310 (9th Cir. 1989).

6.18 A private corporation or other entity acts under color of law under Section 1983 when

“there is such a close nexus between the State and the challenged action that seemingly private

behavior may fairly be treated as that of the State itself.” The issue of whether the private

corporation nexus is sufficiently close is determined by analyzing the specific relationships as

revealed by the law and facts of each case. Brentwood Acad. v. Tenn. Secondary Sch. Athletic

Ass’n, 531 U.S. 288, 295 (2001); West v. Atkins, 487 U. S. 42 (1988).

6.19 The essential elements of a Section 1983 cause of action have been variously phrased, but

are well established. There are only two essential elements in a § 1983 action: (1) the plaintiff

must show that some person deprived it of a federal constitutional or statutory right, and (2) that

person must have been acting under color of state law. Sintra v. City of Seattle, 119 Wn.2d 1, 11,

829 P.2d 765 (1992). See also Thomas v. Carpenter, 881 F.2d 828 (9th Cir. 1989); Robinson v.

City of Seattle, 119 Wn.2d 34, 58, 830 P.2d 318 (1992); Torrey v. City of Tukwila, 76 Wn.App.

32, 37, 882 P.2d 799 (1994).

6.20 While an action under § 1983 does not require a showing that an individual defendant

acted with any “specific intent” to deprive the claimant of constitutional right, the claim still




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requires that the plaintiff prove that the defendant acted with a particular mens rea as part of the

proof necessary to show violation of a constitutional right. See, Bryan County Comm’rs v. Brown,

520 U.S. 397, 405 (1997) (municipal liability; deliberate indifference standard for failure to

properly screen job applicants).

6.21 The statutory language of § 1983 further provides that a person may either “subject”

another to a deprivation of a federal right or “cause them to be subjected” to such a deprivation.

See Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978).

6.22 Damages are not an essential element of the plaintiff’s cause of action. See, e.g., George v.

City of Long Beach, 973 F.2d 706 (9th Cir. 1992), citing Floyd v. Laws, 929 F.2d 1390, 1401 (9th

Cir.1991); Romberg v. Nichols, 970 F.2d 512, 521 (9th

Cir.1992) (per curiam) (“nominal damages

must be awarded if a plaintiff proves a violation of his constitutional rights.”).

6.23 There are also special requirements for showing other particular types of constitutional

deprivation. Establishing a cause of action under § 1983 for violation of a right to procedural due

process, for example, requires proof of the following elements: (1) a liberty or property interest

protected by the constitution; (2) deprivation of the interest by the government; and (3) lack of

due process. Portman v. County of Santa Clara, 995 F.2d 898 (9th Cir. 1993) (analysis of interest

in employment). See also Meyer v. Univ. of Wash., 105 Wn.2d 847, 719 P.2d 98 (1986); Sintra,

Inc. v. City of Seattle, supra (substantive due process, property rights); Grader v. City of

Lynnwood, 53 Wn.App. 431, 767 P.2d 952 (1989) (deprivation of property claim, equal protection

and substantive due process), as clarified in Lutheran Day Care v. Snohomish County, 119 Wn.2d

91, 829 P.2d 746 (1992).

6.24 A person subjects another to the deprivation of a constitutional or statutory right within the

meaning of § 1983, if she or he does an affirmative act, participates in another’s affirmative act, or

does not perform an act which she or he is legally required to do that causes the deprivation.

Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978).

6.25 A person causes another to be subjected to the deprivation of a constitutional or statutory

right within the meaning of § 1983 by direct personal participation in the deprivation, or by setting

in motion a series of acts by others or by failing to stop the acts of others, or by failing to

investigate the acts of others, which the person knows or reasonably should know would cause

others to violate the constitutional or statutory right. Johnson v. Duffy, 588 F.2d 740, 743-44 (9th

Cir. 1978).




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6.26 Defendant MTC Financial, Inc. did not have legal authority to conduct a nonjudicial

foreclosure sale of Plaintiff’s primary residence. Exhibits 5 and 6, attached to the Complaint,

demonstrate that Bank of America National Association was never the owner or holder of the

original Note when it filed Exhibit 6 in Federal Bankruptcy court on October 29, 2014.

6.27 Defendant Freddie Mac further contradicts Defendant MTC Financial, Inc.’s arguments

that Bank of America owned Plaintiff’s loan at a time when Defendant Freddie Mac claimed to be

the owner of Plaintiff’s “mortgage” and “note”:

https://ww3.freddiemac.com/loanlookup/fm_owned.html?dt_owned=2005-11-04 [Last visited on

August 9, 2015.]

6.28 According to the Deposition taken on January 25, 2012 of Michele Sjolander (“Dep.

Sjolander”), Senior Vice President, Bank of America, in the case of Kirby, et al. v. Bank of


https://ww3.freddiemac.com/loanlookup/fm_owned.html?dt_owned=2005-11-04



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America, N.A. et al.,1 Defendant Freddie Mac created a police/law enforcement apparatus for the

mortgage contracts participating in the secondary mortgage market:

Q: What I was saying was I don’t understand. You’re not an employee of

Recontrust, but you have oversight of the employees at Recontrust?

A: As I said, no.

***

A: I have no oversight of any of the associates at Recontrust.

***

A: I do not—none of those associates report to me or have ever reported to me.

***

A: I have oversight of the operations that go on to ensure that we are in

compliance to the Fannie and Freddie guidelines, that we are in compliance

with the securities that we create.

***

A: I am the police officer. How’s that?

***

A: We are following the guides for Fannie and Freddie for our investors.

[Dep. Sjolander at 84.]

6.29 Sjolander further testified in her deposition that she has “multiple” rubber stamps in

circulation at any given time and that she does not know the people doing the stamping:

Q: I may not be asking it quite right. I guess what I’m asking is: Do they – the

people who actually use the stamps -- is there more than one, or is there just

one stamp? I said “stamps” multiple. Is there only one, or is there –

A: No, there’s multiple stamps. [Dep. Sjolander at 75.]

***

Q: So this was -- this power of attorney was not just for your name; it was for

your name as executive vice president of Countrywide Home Loans, Inc.?

A: As an officer of Countrywide Home Loans, Inc.

***

Q: Okay. Okay. And let me just clarify this one more time. The people at

Recontrust who do the actual stamping, I mean, do you know who they are?

Do you know them by name, for example?

A: No. [Dep. Sjolander at 77.]

6.30 Sjolander’s Deposition and the fact that Defendant Freddie Mac continues to maintain that

the agency owns Plaintiff’s mortgage and note after the note was cancelled on January 16, 2015,

1 Kirby, et al. v. Bank of America, N.A. et al., U.S. District Court, Southern District of Mississippi (Eastern

(Hattiesburg)), Civil Docket Case No. 09-cv-00182-DCB-JMR.




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explains a contour of the secondary mortgage market where all loans sold to members of MERS,

Inc. are deemed owned by Defendant Freddie Mac. To facilitate its ownership of loans, Defendant

Freddie Mac requires all notes to be immediately indorsed in blank. Rubber stamps are provided

to accomplish this purpose. This highly centralized and policed system accounts for Bank of

America filing the wrong copy of Plaintiff’s note in the bankruptcy court on October 29, 2014.

6.31 Defendant Sheriff Atkins never determined whether Plaintiff had been served with

summons and complaint pursuant to RCW 59.12.100 when he used the allegedly void Writ of

Restitution to seize Plaintiff’s real property. Defendant Atkins also did not require Defendant

Freddie Mac to give a Sheriff’s Bond to protect the County and its residents in the event the Writ

was wrongfully sued out by Defendant Freddie Mac.

6.32 Although Sheriff Atkins has returned the Writ to the Superior Court, the Sheriff has never

removed the Writ he posted on Plaintiff’s home. Nor has Sheriff Atkins apologized to Plaintiff for

violating RCW 59.12.100.

6.33 Defendant BMW argues in its Motion at 4, lines 14-19, that:

Under Washington law, a civil action is commenced by service of a summons and

complaint or by filing a complaint. RCW 4.28.020; CR 3(a); Seattle Seahawks, Inc.

v. King County, 128 Wn.2d 915, 917, 913 P.2d 375 (1996). Ms. Owen could have

demanded the suit be filed within 14 days of serving a written demand on Bishop.

CR 3(a). She did not. An attorney’s actions in prosecuting litigation which are

expressly allowed by statute and Civil Rules can hardly be deemed “unfair and

deceptive.”

6.34 Defendant BMW’s argument attempts to deceive since a complaint for unlawful detainer

is a “special proceeding” governed by RCW 59.12, the violation of which Defendant BMW

knows or reasonably should know would subject Plaintiff to a deprivation of her constitutional

right to due process, liberty and property and would cause others to violate Plaintiff’s

constitutional or statutory rights. Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978).

6.35 Further, Defendant BMW’s argument directly conflicts with the well-settled unlawful

detainer law set forth in Big Bend Land Co. v. Huston, 98 Wash. 640, 643, 168 P. 470 (1917);

State ex rel. Seaborn Shipyards Co. v. Superior Court of Pierce County, 102 Wash. 215, 216, 172

P. 826 (1918); Lee v. Weerda, 124 Wash. 168, 172, 213 P. 919 (1923); Hatfield v. Greco, 87

Wn.2d 780, 782, 557 P.2d 340 (1976); Signal Oil Co. v. Stebick, 40 Wn.2d 599, 602-603, 245

P.2d 217 (1952) and Huston v. Big Bend Land Co., 1 F.2d 93 (9th

Cir.1924).




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6.36 Defendant BMW doubles down on its argument that Plaintiff was properly served by

arguing that:

“Third, Ms. Owen had already defaulted in the U.D. Case by the time Bishop

allegedly engaged in ex parte communications with the trial court to obtain the

Writ of Restitution. A defaulted party is not entitled to notice of proceedings. CR

55(a)(3) (“Any party who has not appeared before the motion for default and

supporting affidavit are filed is not entitled to a note of the motion [for default.]”).”

Dkt. 21 at 5, lines 3-7.

6.37 Defendant BMW’s argument again slaps the face of the Washington Supreme Court and

the 9th

Circuit in their construction of RCW 59.12.070 and .080, holding that a plaintiff properly

commences a complaint for unlawful detainer by first filing the complaint and, thereafter, serving

a summons returnable within the time set forth in RCW 59.12.070 and .080.

6.38 Further, unlawful detainer actions are special proceedings which are not new in the State

of Washington. Indeed, 120 years ago, the Washington Supreme Court held that under CR 81(a),

the civil rules apply to all civil proceedings “[e]xcept where inconsistent with rules or statutes

applicable to special proceedings.” State ex rel. Smith v. Parker, 12 Wash. 685, 688, 42 P. 113

(1895).

6.39 The Parker construction is consistent with RCW 59.12.180 which provides that:

“Except as otherwise provided in this chapter, the provisions of the laws of this

state with reference to practice in civil actions are applicable to, and constitute the

rules of practice in the proceedings mentioned in this chapter; and the provisions of

such laws relative to new trials and appeals, except so far as they are inconsistent

with the provisions of this chapter, shall be held to apply to the proceedings

mentioned in this chapter.” [History: 1891 c 96 § 20; RRS § 829. Prior: 1890 p 80

§ 21.]

6.40 Defendant BMW provides the Court with no authority which directly or even indirectly

overrules State ex rel. Smith v. Parker, 12 Wash. 685, 688, 42 P. 113 (1895); Big Bend Land Co.

v. Huston, 98 Wash. 640, 643, 168 P. 470 (1917); State ex rel. Seaborn Shipyards Co. v. Superior

Court of Pierce County, 102 Wash. 215, 216, 172 P. 826 (1918); Lee v. Weerda, 124 Wash. 168,

172, 213 P. 919 (1923); Hatfield v. Greco, 87 Wn.2d 780, 782, 557 P.2d 340 (1976); Signal Oil

Co. v. Stebick, 40 Wn.2d 599, 602-603, 245 P.2d 217 (1952) and Huston v. Big Bend Land Co., 1

F.2d 93 (9th

Cir.1924) and these Courts’ construction of Chapter 59.12 RCW.

6.41 Defendant BMW further argues in its motion to dismiss that “Bishop took no action ‘under

color of state law.’” Dkt. 21 at 9, line 12. Defendant BMW attempts to gloss over the fact that




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every action taken by the law firm was taken under “color of state law.” Indeed, Defendant

BMW’s argues in its motion to dismiss that the lawfulness of its action must be sustained by this

Court under “color of state law.” Dkt. 21 at 4-5.

6.42 Further, Defendant BMW is also liable under § 1983 for culpable inaction, such as “failing

to stop the acts of others,” as with the Superior Court and Sheriff Atkins and allowing its client,

Freddie Mac to use the law firm to litigate the unlawful detainer action against Plaintiff; and

“failing to investigate the acts of others,” such as MTC Financial, Inc., Bank of America National

Association and its client, Defendant Freddie Mac, as well as the actions Defendant BMW took to

obtain a void Judgment, void Writ of Restitution and the services of Sheriff Atkins without giving

a Sheriff’s bond. Clem v. Lomeli, 566 F.3d 1177 (9th Cir. 2009); Hunter v. County of Sacramento,

652 F.3d 1225 (9th Cir. 2011).

6.43 Thus, each Defendant is liable not only for conduct that directly violates Plaintiff’s rights,

“but for conduct that is the effective cause of another’s direct infliction of the constitutional

injury.” Sales v. Grant, 158 F.3d 768, 776 (4th Cir. 1998). Under this standard, a defendant

becomes individually liable by “setting in motion a series of acts by others which the actor knows

or reasonably should know would cause others to inflict the constitutional injury.” Lakeside-Scott

v. Multnomah County, 556 F.3d 797, 804-05 (9th Cir. 2009); Citoli v. City of Seattle, 115

Wn.App. 459, 487-88, 61 P.3d 1165 (2002); Sales v. Grant, 158 F.3d at 776.

6.44 “Deliberate indifference” is the disregard for a known or obvious consequence of one’s

acts or omissions. Connick v. Thompson, U.S. ___, 131 S.Ct. 1350 (2011); City of Canton v.

Harris, 489 U.S. 378, 388, 395 (1989); Bryan County Comm’rs v. Brown, 520 U.S. 397, 410

(1997).

6.45 “[D]eliberate indifference is a stringent standard of fault, requiring proof that a municipal

actor disregarded a known or obvious consequence of his action.” Bryan County Comm’rs v.

Brown, 520 U.S. at 410.

6.46 When a local government has a “policy of inaction,” despite the fact that the local

government is on notice that the untrained or inadequately trained employees cause such

violations of constitutional rights, inaction “is the functional equivalent of a decision by the city

itself to violate the Constitution.” City of Canton v. Harris, 489 U.S. at 395 (O’Connor, J.,

concurring).




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6.47 Connick instructs that Plaintiff may rely on one incident without more of a pattern.

Connick v. Thompson, 131 S.Ct. at 1360-66. See also: Neil v. Biggers, 409 U.S. 188, 199-201

(1972) and Foster v. California, 394 U.S. 440, 443 (1969).

6.48 Before causing Sheriff Atkins to serve the alleged void Writ of Restitution, Defendant

BMW executed a “Tenant Information Sheet” (TIS) at the request of Defendant Atkins. The face

of the TIS did not require Defendant BMW to certify compliance with RCW 59.12 or any other

law. Nor did Defendant Atkins require Defendant Freddie Mac to give a Sheriff’s Bond to protect

the Sheriff and the residents of Clark County Washington.

6.49 In Brown v. Bryan County, 219 F.3d 450, 458-65 (5th

Cir. 2000), following remand from

the U.S. Supreme Court in Bryan County Comm’rs v. Brown, 520 U.S. 397 (1997), the 5th

Circuit

upheld the jury finding the County liable:

“We conclude that the evidence, given the standard of review of a jury verdict,

fairly allowed the jury reasonably to conclude that Bryan County’s sheriff,

admittedly a policymaker, failed to train Burns in the light of facts demonstrating

an obvious need to train him. We think the jury reasonably concluded that, given

notice of the need to train Burns and that the consequences of the failure to train

him were so obvious, that the County is culpable for its failure to train him.

Furthermore, the evidence allowed a reasonable inference that the decision not to

train Burns was the “moving force” behind, i.e., directly caused, the injuries

suffered by Brown. Given these conclusions, we hold that Brown established that

Sheriff Moore’s decision not to train Burns constituted a policy decision for which

the County is liable under § 1983.”

6.50 The 5th

Circuit further upheld a jury instruction that stated:

“Sheriff B. J. Moore would have acted with deliberate indifference in adopting an

otherwise constitutional training policy if in light of the duties assigned to Deputy

Sheriff Stacy Burns the need for more or different training was so obvious and the

inadequacy so likely to result in violations of constitutional rights, that Sheriff B. J.

Moore can be reasonably said to have been deliberately indifferent to the

constitutional needs of the Plaintiff.” 219 F.3d at 462 n.12.

6.51 Under § 1983, the plaintiff must prove that the defendant subjected (directly caused), or

caused the plaintiff to be subjected (indirectly caused), to a deprivation of federal rights. The

statute does not specify whether the direct or indirect causation involves traditional common law

tort concepts of proximate causation.

6.52 Section 1983 requires that the plaintiff prove two causal links: (1) a causal relationship

between the defendant’s conduct and the deprivation of the plaintiff’s federal rights; and (2) a




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causal relationship between the deprivation and the plaintiff’s injury or damages. Mission Springs,

Inc. v. City of Spokane, 134 Wn.2d 947, 964-65, 954 P.2d 250 (1998) (finding that a Section 1983

due process claim was ripe because the harm occurred immediately upon government action);

Sintra, Inc. v. City of Seattle, 131 Wn.2d 640, 654-55, 935 P.2d 555 (1997) (Sintra II) (discussing

the jury’s finding as to whether the defendant’s conduct was a proximate cause of “harm” to the

plaintiff); Lutheran Day Care v. Snohomish County, 119 Wn.2d 91, 124-25, 829 P.2d 746 (1992)

(substantive due process violation, causation discussed but not analyzed).

6.53 Defendant BMW admits in its Motion that it was directly involved in filing the lawsuit and

suing for a Writ of Restitution which was used by Sheriff Atkins to unreasonably search for and

seize Plaintiff’s home to give possession to Defendant Freddie Mac. Sheriff Atkins also used the

Writ to unreasonably search for and seize Plaintiff’s person to prevent Plaintiff from remaining in

her home or returning to her home upon completion of the scheduled eviction. The “two causal

links” required under § 1983 are deemed established in the Complaint and admitted in Defendant

BMW’s motion to dismiss.

6.54 A “seizure” of a person under the Fourth Amendment occurs when a police officer has in

some way restrained the liberty of a person by means of physical force or a show of authority.

See, Tennessee v. Garner, 471 U.S. 1, 7 (1985) (seizure by fatal gunshot); Graham v. Connor, 490

U.S. 386, 395 n.10 (1989) (seizure by means of physical force or show of authority that in some

way restrains the liberty of a citizen); United States v. Faulkner, 450 F.3d 466, 469 (9th Cir. 2006)

(“a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all

the circumstances surrounding the incident, a reasonable person would have believed that he was

not free to leave”); Brower v. County of Inyo, 489 U.S. 593, 595, (1989) (intentional stopping of

fleeing suspect by roadblock constituted “seizure”).

6.55 Under the Fourth Amendment, a search occurs if the government intrudes upon a

subjective and reasonable expectation of privacy. Katz v. United States, 389 U.S. 347, 351-52

(1967); State v. Young, 123 Wn.2d 173, 181, 867 P.2d 593 (1994).

6.56 Warrantless searches are presumptively unreasonable. Arizona v. Gant, 556 U.S. 332, 351

(2009); State v. Acrey, 148 Wn.2d 738, 745-46, 64 P.3d 594 (2003).

6.57 In Martinez v. California, 444 U.S. 277, 285 (1980), the Supreme Court held that liability

may be imposed if the link between the defendant’s conduct and the deprivation of rights is not

“too remote.” The Court declined to address whether the link is one of traditional proximate




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causation under the common law of torts. See also DeShaney v. Winnebago County Dept. of Soc.

Servs., 489 U.S. 189, 197 n.4, 201-202 (1989) and Malley v. Briggs, 475 U.S. 335, 344 n.7,

(1986).

6.58 The Malley Court held that § 1983 qualified immunity would not shield the officer’s

actions under the circumstances, regardless of a magistrate’s ruling that probable cause existed.

475 U.S. at 345-46. See also: Groh v. Ramirez, 540 U.S. 551, 563-64 (2004) (magistrate made a

determination of probable cause and issued a search warrant, but the search warrant was defective

on its face and the officer who sought the warrant was not entitled to qualified immunity); Bravo

v. City of Santa Maria, 665 F.3d 1076, 1083–87 (9th Cir. 2011) (discussing causation in this

context); In re Estate of Hansen, 81 Wn.App. 270, 285-92, 914 P.2d 127 (1996) (discussing

causation in this context).

6.59 In two cases, the Court held that a plaintiff must prove actual injury in order to justify

compensatory damages. See Carey v. Piphus, 435 U.S. 247, 257-67, (1978) and Memphis Cmty.

Sch. Dist. v. Stachura, 477 U.S. 299 (1986) (jury instructions erroneously allowed jurors to award

damages based on intrinsic value of First and Fourteenth Amendment rights).

6.60 The 9th

Circuit requires that the plaintiff establish cause-in-fact and proximate cause in

order to satisfy the first link in Section 1983’s causation requirement. Harper v. City of Los

Angeles, 533 F.3d 1010, 1026-27 (9th

Cir. 2008); Arnold v. I.B.M. Corp., 637 F.2d 1350 (9th

Cir.1981).

6.61 In Starr v. Baca, 652 F.3d 1202 (9th Cir.), opinion on denial of rehearing en banc, Starr v.

County of Los Angeles, 659 F.3d 850 (9th Cir. 2011), the 9th

Circuit held that §1983 allows the

jury to impose liability for an individual supervisor who indirectly causes a deprivation of

constitutional rights by encouraging or directing acts to be committed or omitted by subordinate

employees.

6.62 The determination of who is a final policy-maker is a legal issue to be determined by the

court based on state and local law. City of St. Louis v. Praprotnik, 485 U.S. 112, 124 (1988); Jett

v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737-38, (1989); McMillian v. Monroe County, 520 U.S.

781, 785-93 (1997).

6.63 If Plaintiff’s constitutional rights have been violated, plaintiff is entitled to judgment and

an award of at least nominal damages. Carey v. Piphus, 435 U.S. 247, 266-67 (1978); Yniguez v.




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Arizonans for Official English, 69 F.3d 920 (9th Cir. 1995), reversed due to mootness, 520 U.S.

43 (1997).

6.64 Punitive damages may be awarded against an individual defendant found guilty of federal

civil rights violations when the jury finds that the defendant’s behavior was driven by evil motive

or intent or involved a reckless or callous indifference to constitutional rights. Smith v. Wade, 461

U.S. 30, 56 (1983). However, punitive damages cannot be awarded against municipal defendants.

City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981).

6.65 Although Washington common law does not authorize punitive damages, punitive

damages may nonetheless be awarded in Section 1983 cases involving Washington defendants,

either in federal court, see Davis v. Mason County, 927 F.2d 1473 (9th Cir.1991), overruled on

other grounds in Davis v. City of San Francisco, 976 F.2d 1536 (9th Cir. 1992), or in state court,

Peterson v. Littlejohn, 56 Wn.App. 1, 781 P.2d 1329 (1989).

6.66 In Sintra, Inc. v. Seattle, 131 Wn.2d 640, 935 P.2d 555 (1997), the Supreme Court

approved of the trial court’s instructions on punitive damages, citing to Pacific Mutual Life

Insurance Co. v. Haslip, 499 U.S. 1 (1991) and Morgan v. Woessner, 997 F.2d 1244 (9th Cir.

1993). Past Supreme Court cases have addressed in depth the due process standards to be applied

in post-verdict review of punitive damage awards. See, e.g., Phillip Morris USA v. Williams, 549

U.S. 346 (2007); State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003); Cooper

Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001); and BMW of N. Am., Inc. v.

Gore, 517 U.S. 559 (1996).

6.67 When the challenged action is committed by a person who does not work for the

government, the under-color-of-state-law inquiry focuses on the nature of the connections

between the private person and the state.

6.68 Two common situations easily suggest actions under color of law. First, a private person

who conspires with a state actor is a state actor for the purpose of the alleged conspiracy. Dennis

v. Sparks, 449 U.S. 24, 28-29 (1980). Second, a private person who acts as an agent of the state

acts under color of law. Addickes v. S. H. Kress Co., 398 U.S. 144, 152 (1970). In the latter

situation, action under color of law is present, even though the person is not a full-time employee

of the state.

6.69 Defendant MTC Financial, Inc., in its capacity as a “Trustee,” acted as an agent of the

State of Washington when conducting the nonjudicial foreclosure sale on Plaintiff’s home on




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January 16, 2015, and in so doing, acted in the stead of a State judge. This principle is illustrated

by West v. Atkins, 487 U.S. 42 (1988), which rejected an agency’s claim that no state action was

involved when the negligence of a private doctor, under contract to provide care for inmates,

injured the plaintiff in violation of the state prison’s constitutional duty to avoid “deliberate

indifference” to the medical needs of those in its custody. Another example of delegation is the

privatization of the prison system. Richardson v. McKnight, 521 U.S. 399 (1997).

6.70 Joint activity by a private party and a government agent can also transform the private

party into a state actor, where the purpose of the collusion is to violate the federal rights of the

plaintiff. Addickes v. S. H. Kress Co., 398 U.S. 144 (1970).

6.71 Similarly, in Dennis v. Sparks, 449 U.S. 24, 28-29 (1980), the Court held that private

parties who conspired with a judge to fix a case acted under color of law. It has also been held that

a nominally private entity controlled by the state is also a state actor. Pennsylvania v. Board of

Directors, 353 U.S. 230, 231 (1957) (Private college administered by a city board is a “state

actor” in refusing to admit African Americans).

6.72 A private party may also be engaged in “state action” if the act which deprived federal

rights could not have occurred but for the existence of a governmental framework requiring

government approval or action. In North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601

(1975), the Court found state action in a private party’s invocation of a court-ordered attachment

that failed to afford due process to the debtor.

6.73 Defendant BMW and the Superior Court directly violated Plaintiff’s due process rights by

failing to require Defendant Freddie Mac to give a bond to Plaintiff “before” the writ of restitution

was issued, ex parte, on April 3, 2015. See Plaintiff’s Exhibit 9. RCW § 59.12.090, which has

existed in one form or another since 1890, provided in pertinent part that:

“[B]efore any writ shall issue prior to judgment the plaintiff shall execute to the

defendant and file in court a bond in such sum as the court or judge may order,

with sufficient surety to be approved by the clerk, conditioned that the plaintiff will

prosecute his or her action without delay, and will pay all costs that may be

adjudged to the defendant, and all damages which he or she may sustain by reason

of the writ of restitution having been issued, should the same be wrongfully sued

out. [History: [2010 c 8 § 19010; 1927 c 123 § 3; 1891 c 96 § 10; RRS § 819.

Prior: 1890 p 77 § 9.]

6.74 Plaintiff was never given notice and an opportunity to object to Defendant Freddie Mac

not posting bond as mandated by RCW 59.12.090. Defendant BMW argues in its motion, Dkt. 21




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at 5, lines 3-9, that because “Ms. Owen had already defaulted in the U.D. Case… [a] defaulted

party is not entitled to notice of proceedings. CR 55(a)(3).” Under Washington law, Plaintiff has

never been served with the Complaint and Summons filed on April 2, 2015 and therefore, could

not be in default less than 24 hours as a matter of law stated in State ex rel. Smith v. Parker, 12

Wash. 685, 688, 42 P. 113 (1895); Big Bend Land Co. v. Huston, 98 Wash. 640, 643, 168 P. 470

(1917); State ex rel. Seaborn Shipyards Co. v. Superior Court of Pierce County, 102 Wash. 215,

216, 172 P. 826 (1918); Lee v. Weerda, 124 Wash. 168, 172, 213 P. 919 (1923); Hatfield v.

Greco, 87 Wn.2d 780, 782, 557 P.2d 340 (1976); Signal Oil Co. v. Stebick, 40 Wn.2d 599, 602-

603, 245 P.2d 217 (1952) and Huston v. Big Bend Land Co., 1 F.2d 93 (9th

Cir.1924).

6.75 On May 7, 2015, Plaintiff appealed the Superior Court’s violation of Plaintiff’s due

process rights to the Washington State Court of Appeals, Division Two; Case name: Federal

Home Loan Mortgage Corporation v. Pamela S. Owen, Case No. 47566-9-II. Thus, Plaintiff is

entitled to stay these proceedings pending the ruling of the State Court of Appeals under the

decisions of Amy v. City of Watertown, 130 U.S. 301, 317 (1889); Colorado River Water

Conservation Dist. v. United States, 424 U.S. 800, 817 (1976); Moses H. Cone Memorial Hosp. v.

Mercury Constr. Corp., 460 U.S. 1, 19 (1983); Huston v. Big Bend Land Co., 1 F.2d 93 (9th Cir.

Wash. 1924); Holder v. Holder, 305 F.3d 854, 867 (9th Cir. 2002); and Nakash v. Marciano, 882

F.2d 1411, 1415 n.5 (9th Cir. 1989). Plaintiff’s motion to stay is noted for August 28, 2015.

6.76 In Lugar v. Edmondson Oil Company, 467 U.S. 922, 934, 940-42 (1980), the Court held

that a creditor who invokes prejudgment attachment remedies requiring the participation of a court

clerk and a sheriff, acts under color of state law. Here, Defendant BMW invoked the powers of a

State Court and a County Sheriff. Defendant BMW knowingly allowed the Superior Court to

engage in ex parte communications and issue a default judgment and writ of restitution contrary to

the holdings of the State’s highest Court in State ex rel. Smith v. Parker, 12 Wash. 685, 688, 42 P.

113 (1895) and Big Bend Land Co. v. Huston, 98 Wash. 640, 643, 168 P. 470 (1917).

6.77 Defendant BMW knowingly allowed Defendant Sheriff Atkins to enforce the Writ of

Restitution knowing the Superior Court’s proceedings were a nullity and the writ was void.

Defendant BMW further has not caused its client, Defendant Freddie Mac, to return Plaintiff’s

title. Nor has Defendant BMW taken any action to cause Sheriff Atkins to remove the Writ of

Restitution from Plaintiff’s home and release Plaintiff’s person.

VII. WASHINGTON CONSUMER PROTECTION ACT CLAIM.




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7.1 To assert a claim under the Washington Consumer Protection Act, a plaintiff must allege

that (1) the defendant engaged in an unfair or deceptive act or practice; (2) the act or practice

occurred in trade or commerce; (3) the act or practice impacted the public interest; (4) the

plaintiffs suffered injury to his or her business or property; and (5) the deceptive or unfair act or

practice caused the plaintiff’s injury. Hangman Ridge Training Stables, Inc. v. Safeco Title Ins.

Co., 105 Wash.2d 778, 780, 719 P.2d 531, 533 (1986).

7.2 Plaintiff alleged under the First Cause of Action, among other things, the contours of

Defendant Freddie Mac’s secondary mortgage market scheme, which were unfair trade practices

that affected the public interest, interfered with a homeowner’s liberty of contract by inducing

homeowners to accept MERS, Inc. as an illegitimate “beneficiary” and contracting party and by

requiring homeowners to make use of the forms drafted by Defendant Freddie Mac.

7.3 Plaintiff further alleged in her Complaint at page 17 that she was one of those homeowners

that Defendant Freddie Mac’s unfair practices caused to be injured in her property by alleging that

Bank of America used a copy of a Note to create the appearance of ownership of Plaintiff’s Note:

“5.15.8 McMahon-Myhran attached to her Declaration a copy of Plaintiff’s

2005 Note, Plaintiff’s Exhibit 6, which was materially different from the copy of

the original Note provided to Plaintiff in 2005, Plaintiff’s Exhibit 5, in that,

McMahon-Myhran’s copy of the Note had two holes punched at the top; the MERS

Identification Number and the Loan Number were missing; and an Allonge was

attached which documented a series of undated indorsements resulting in a blank

indorsement of the Note by Countrywide Home Loans, Inc. from Countrywide

Bank, N.A.”

7.4 Plaintiff further alleged that when participating in the nonjudicial foreclosure sale of

Plaintiff’s real property on January 16, 2015, Defendant Freddie Mac was not an innocent

(bonafide) purchaser of Plaintiff’s real property. Rather, Defendant Freddie Mac was among the

core leaders of the brains behind the mortgage electronic registration system and the forms used to

draft Plaintiff’s core mortgage documents. Complaint at 13, paragraph 5.5.

7.5 Defendant Freddie Mac, among other mortgage leaders and shareholders of MERSCORP,

Inc., fraudulently mandated that all lenders must name MERS, Inc. in their deeds of trust as the

“beneficiary” of the security in order for the loan to participate in the secondary mortgage market.

Complaint at 13, paragraph 5.6.




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7.6 Plaintiff’s 2005 Deed of Trust was drafted pursuant to Fannie Mae/Freddie Mac

UNIFORM INSTRUMENT – MERS, Form 3048, attached as Plaintiff’s Exhibit 4. Complaint at

14, paragraph 5.12.

7.7 Plaintiff’s 2005 “Note” was drafted pursuant to Fannie Mae/Freddie Mac UNIFORM

INSTRUMENT, Form 3200, attached as Plaintiff’s Exhibit 5. Defendant Freddie Mac and its

other co-conspirators, directly and intentionally manipulated the terms of Washington’s Deed of

Trust Act by requiring the use of Forms 3048 and 3200. Complaint at 14, paragraph 5.13.

7.8 Defendant Bishop, Marshall & Weibel provides “creditor-oriented” foreclosure legal

services in Washington, Oregon and Idaho. The Bain Supreme Court placed this Defendant on

notice that its foreclosure legal support services would be subject to this ruling. Defendant Bishop,

Marshall & Weibel intentionally failed to scrutinize its legal practices to avoid aiding and abetting

Defendant Freddie Mac and Bank of America in violating State laws and the Federal Constitution.


7.9 In filing the civil action on April 2, 2015 Defendant Bishop, Marshall & Weibel, P.S.

acted under color of State law in causing the deprivation of Plaintiff’s constitutional rights.


7.10 Defendant Bishop, Marshall & Weibel, P.S. joined the conspiracy of Defendants Federal

Housing Finance Agency and Federal Home Loan Mortgage Corporation to manipulate

Washington’s Deed of Trust Act by filing a complaint and summons and obtaining an ex parte

Writ of Restitution. Complaint at 23, paragraph 6.10.

VIII. CONCLUSION.

8.1 Plaintiff has adequately pled her Consumer Protection and Section 1983 claims and ought

to be allowed to proceed to discovery. Whether the substance of Plaintiff’s allegations entitles her

to relief on the merits is an issue better addressed at trial.

Respectfully submitted,

Dated: August 11, 2015

____________________________________

Pamela S. Owen

3912 NE 57th

Avenue

Vancouver, WA 98661

Tel: (360) 991-4758


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