Pamela Owen. Civil Rights. BMW Motion To Dismiss - Final.8!7!2015

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UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF WASHINGTON AT TACOMA
PAMELA S. OWEN,
Plaintiff,
v.
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,
DEFENDANT BISHOP, MARSHALL

& WEIBEL, P.S. FED. R. CIV. P.
12(b)(6) MOTION TO DISMISS
PLAINTIFFS COMPLAINT WITH
PREJUDICE
Noting Date: September 4, 2015
Defendants.
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No. 3:15-cv-05375-BHS
I.
INTRODUCTION AND RELIEF REQUESTED
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Pursuant to Fed. R. Civ. P. 12(b)(6), Defendant Bishop, Marshall & Weibel, P.S.
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(Bishop) moves to dismiss the Complaint against it by Plaintiff Pamela S. Owen with
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prejudice. After a nonjudicial foreclosure of Ms. Owens real property was completed,
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Bishop represented the current property owner, co-Defendant Federal Home Loan
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Mortgage Corporation (Freddie Mac), in an unlawful detainer proceeding to evict Ms.
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Owen from the premises.
Ms. Owens claims against Bishop are premised on her
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DEFENDANT BISHOP, MARSHALL &

WEIBEL, P.S. FED. R. CIV. P. 12(b)(6)
MOTION TO DISMISS PLAINTIFFS
COMPLAINT WITH PREJUDICE - 1
No. 3:15-cv-05375-BHS
MARSHALL & WEIBEL, P.S.

720 OLIVE WAY, SUITE 1201
SEATTLE, WASHINGTON 98101-1801
206/622-5306 FAX: 206/622-0354
misunderstanding of Washingtons Civil Rules, and the incorrect and insufficient
assertions that Bishop acted under color of state law in prosecuting the eviction suit for
Freddie Mac and conspired with the co-Defendants to violate her constitutional rights.
Because as a matter of law Ms. Owen has not and cannot state any claim against
Bishop upon which relief may be granted, this action against it should be dismissed with
prejudice and without leave to amend, pursuant to Fed. R. Civ. P. 12(b)(6).
II.
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STATEMENT OF FACTS
Bishop incorporates by this reference the Statement of Facts section of Defendant

MTC Financial Inc.s Motion to Dismiss [Dkt. 11, pp. 2-3] as if fully set forth herein.
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Representing Freddie Mac, Bishop served an unfiled Summons and unfiled
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Complaint for Unlawful Detainer dated March 3, 2015, on Ms. Owen (the U.D. Case).
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[Dkt. 2-3, 1.5.10-11, and Exs. 12-13 thereto.]
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All of Ms. Owens allegations against Bishop are contained in a mere ten
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paragraphs of her 25 page Complaint. After describing Bishops identity [id., 1.16,
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3.33], Ms. Owen asserts Bishop:
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created an unfiled Summons and Complaint in the U.D. Case [id., 1.5.10-11];
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mailed her an unfiled Response to her Motion to Quash Service of Summons in the
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U.D. Case [id., 1.5.9];
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acted under color of State in law in causing the deprivation of [her]constitutional

rights when it filed the U.D. Case against her [id., 3.35];
engaged in ex parte communications with the trial court in obtaining the issuance
of a Writ [of Restitution] [id., 1.17];
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caused to be filed with the trial court an Order untruthfully claiming the Court
had reviewed [two unfiled pleadings] [id., 1.18];
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was aware that the Assignment of her Deed of Trust and Appointment of Successor
Trustee were null and void [id., 3.34];
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intentionally failed to scrutinize its legal practices to avoid aiding and abetting
Defendants Freddie Mac and BANA in violating State laws [id., 1.16]; and
joined the conspiracy of Defendants Federal Housing Finance Agency and Federal
Home Loan Mortgage Corporation to manipulate Washingtons Deed of Trust Act
by filing the U.D. Case and obtaining an ex parte Writ of Restitution [id., 6.10].
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III.
A.
AUTHORITIES AND ARGUMENT
Standard for Ruling on Dismissal Motion.
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Bishop incorporates by this reference the standard governing motions under Rule
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12(b)(6) section of Defendant MTC Financial Inc.s Motion to Dismiss [Dkt. 11, pp. 3-4]
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as if fully set forth herein.
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B.
Plaintiffs Complaint Fails to State a CPA Cause of Action Against Bishop.
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Ms. Owens Complaint asserts two causes of action, the first for violation of
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Washingtons Consumer Protection Act, RCW 19.86, et seq. (CPA). To prevail on a
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CPA claim, a plaintiff must allege and prove that the defendants act or practice: (1) is
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unfair or deceptive; (2) occurs in the conduct of trade or commerce; (3) affects the public
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interest; (4) causes injury to the plaintiffs business or property; and (5) caused the specific
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injury suffered. Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d
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778, 780, 719 P.2d 531 (1986). The failure to establish any one of these elements is fatal
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to a CPA claim. Nguyen v. Doak Homes, Inc., 140 Wn. App. 726, 733, 167 P.3d 1162
(2007); Bavand v. OneWest Bank, F.S.B., 176 Wn. App. 475, 503, 309 P.3d 636 (2013).
As against Bishop, Ms. Owens CPA cause of action does not meet the pleading
standards established by Ashcroft v. Iqbal, 556 U.S. 662, 677-79, 129 S. Ct. 1937, 1949-
50, 173 L. Ed. 2d 868 (2009) and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct.
1955, 1965, 167 L. Ed. 2d 929 (2007). Initially, it is unclear whether Plaintiffs CPA
cause of action is even intended to be pleaded against Bishop. There is not a single
reference to Bishop in the entire 10 pages devoted to the CPA claim. [Dkt. 2-3, pp. 12-22.]
To the extent Ms. Owen may claim her allegations against Bishop elsewhere in the
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Complaint sufficiently plead an unfair or deceptive act or practice, she is wrong. First,
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there was nothing unfair or deceptive about Bishop serving Ms. Owen with an unfiled
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Summons and Complaint in the U.D. Case.
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Washington statutes and Civil Rules.
Such actions are expressly allowed by
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Under Washington law, a civil action is commenced by service of a summons and
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complaint or by filing a complaint. RCW 4.28.020; CR 3(a); Seattle Seahawks, Inc. v.
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King County, 128 Wn.2d 915, 917, 913 P.2d 375 (1996). Ms. Owen could have demanded
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the suit be filed within 14 days of serving a written demand on Bishop. CR 3(a). She did
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not. An attorneys actions in prosecuting litigation which are expressly allowed by statute
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and Civil Rules can hardly be deemed unfair and deceptive.
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Second, there was nothing unfair or deceptive about Bishop serving Ms. Owen with
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an unfiled Response to her Motion to Quash Service of Summons in the U.D. Case.
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Nowhere in all of Washingtons Civil Rules appears a requirement that only file-stamped
copies of pleadings be served. See, e.g., CR 4-16.
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.]). The exhibits to Ms. Owens
Complaint establish she did not appear in the U.D. Case until 10 days after the default
order and Writ of Restitution were issued. [Dkt. 2-3, p. 26, Ex. 1.]
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Fourth, even if Ms. Owens assertion that Bishop caused to be filed with the trial
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court an Order untruthfully claiming the Court had reviewed [two unfiled pleadings]
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[id., 1.18] could be read as alleging an unfair or deceptive act (which Bishop expressly
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denies), Ms. Owen has not alleged and cannot satisfy other elements of her CPA claim.
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The state Court either did or did not review Bishops allegedly unfiled pleadings in the
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U.D. Case it is a distinction without a difference. The Courts entry of the Order
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containing untruthful information denied Ms. Owens requested relief regardless
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whether the Court reviewed the listed pleadings. [Id., pp. 62-63, Ex. 10.] That Order was
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entered by the Court as its own act not Bishops.
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Thus Bishops preparation of an allegedly erroneous proposed Order as a matter of
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law could not be the proximate cause of any CPA damages to Ms. Owen. Whether the
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Order was accurate is irrelevant to Ms. Owens alleged damages. The inaccuracy or not
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of the listed pleadings did not cause Plaintiff any CPA injuries; rather, she suffered such
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injuries because she failed to pay her mortgage and restrain the Trustees Sale before it
occurred.
Similarly, Ms. Owens allegations that the Assignment of her Deed of Trust and
Appointment of Successor Trustee were null and void [id., 3.34] and Bishop
intentionally failed to scrutinize its legal practices to avoid violating State laws [id.,
1.16] are not allegations of unfair and deceptive practices because they are premised on
incorrect assertions of law.
Washington does not recognize a cause of action for a borrowers claims relating to
any Assignments of his Deed of Trust and/or Appointments of a Successor Trustee. See,
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Brophy v. JPMorgan Chase Bank Natl. Assn., 2013 WL 4048535, *3 (E.D.Wash. Aug. 9,
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2013). The Brophy court specifically held that even if a Successor Trustee Appointment is
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somehow fraudulent, void, or invalid, the plaintiff borrower does not have standing to contest
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it. Id. The borrower cannot be injured by the allegedly fraudulent document because he is
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neither a party to it, nor an intended beneficiary of it. See, Brodie v. Northwest Trustee
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Services, Inc., 2012 WL 6192723, *2 (E.D.Wash. Dec. 12, 2012).
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The critical fact from the standpoint of later purchasers or mortgagees is notice the
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earlier mortgage exists, not that it has been assigned. Kim v. Lee, 145 Wn.2d 79, 100, 31
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P.3d 665, as amended (Dec. 12, 2001), opinion corrected, 43 P.3d 1222 (2001) (citing, 18
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William B. Stoebuck, Washington Practice, Real Estate: Transactions 17.21, at 311
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(1995)). Further, to establish a claim based on an alleged fraudulent assignment, a plaintiff
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must prove that: (1) he knew about the assignment; (2) relied on it to his detriment; and (3)
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suffered damages. Gossen v. JPMorgan Chase Bank, N.A., 819 F.Supp.2d 1162, 1170
(W.D.Wash. 2011). Ms. Owens Complaint contains no such allegations.
Because Ms. Owens assertion that the Assignment of her Deed of Trust and
Appointment of Successor Trustee were null and void [id., 3.34] is incorrect, she cannot
claim Bishop engaged in an unfair and deceptive act or practice by fail[ing] to scrutinize
its legal practices to avoid violating State laws [id., 1.16].
Having failed to plead all elements or any at all of a CPA cause of action
against Bishop, Ms. Owens Complaint should be dismissed. And because her CPA claim
is based on incorrect and erroneous assertions of law and misunderstanding of
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Washingtons Civil Rules, amendment would be futile; accordingly, the CPA cause of
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action should be dismissed against Bishop with prejudice.
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C.
Plaintiffs Complaint Fails to State a 42 U.S.C. 1983 Claim Against Bishop.
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Unlike her CPA cause of action, Ms. Owens second claim for violation of 42
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U.S.C. 1983 deprivation of her constitutional rights committed under color of state law
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mentions Bishop in a single allegation: Defendant Bishop joined the conspiracy of
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Defendants Federal Housing Finance Agency and Federal Home Loan Mortgage
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Corporation to manipulate Washingtons Deed of Trust Act by filing a complaint and
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summons and obtaining an ex parte Writ of Restitution. [Id., 6.10.] This sole allegation
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is insufficient, and the 1983 cause of action should be dismissed for filing to state a claim
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upon which relief against Bishop may be granted.
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It is black letter law that 1983 claims must be specifically plead. Vague and
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conclusory allegations of official participation in civil rights violations are not sufficient to
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withstand a motion to dismiss. Gibson v. United States, 781 F.2d 1334, 1343 (9th Cir.
1986) (quoting Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir.1982)). When the
complaints allegations do not define the scope of any conspiracy involving [the
defendant], what role he had, or when or how the conspiracy operated [t]hey are
insufficient to implicate [the defendant.] Lacey v. Maricopa Cnty., 693 F.3d 896, 937-38
(9th Cir. 2012). Where the plaintiff only uses the words conspired, conspiracy and
conspiratorial the complaint does nothing to inform the court regarding any agreement or
meeting of the minds between the other defendants to violate Plaintiffs constitutional
rights. Walters v. Seattle Sch. Dist. No. 1, 578 F.Supp.2d 1310, 1313 (W.D. Wash. 2008).
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Ms. Owens Complaint suffers from these precise flaws. Nowhere in its 97 pages
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is there any assertion that Bishop communicated with any of the multiple defendants (other
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than, presumably, its client Freddie Mac) at all. Nor are there any allegations of a meeting
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of the minds among the alleged co-conspirators, let alone an agreement to deprive Ms.
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Owen of her constitutional rights. And to the extent Ms. Owens claim is premised on
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Bishops communications with Freddie Mac, she will never be able to prove it. Those
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communications are protected by the attorney/client privilege.
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The main elements to state a 1983 cause of action are: (1) a person has deprived
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the plaintiff of a federal constitutional or statutory right, and (2) that person acted under
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color of state law. Wood v. Ostrander, 879 F.2d 583, 587 (9th Cir.1989); Brower v. Wells,
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103 Wn.2d 96, 10405, 690 P.2d 1144 (1984). Property rights, in addition to personal
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liberties, are within the protection of 42 U.S.C. 1983. Robinson v. City of Seattle, 119
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Wn.2d 34, 55, 830 P.2d 318 (1992) (citing Gibson v. Seattle (Wash.) Dept. of Police, 472
F.2d 1220 (9th Cir.1973)).
Ms. Owens 1983 claim cannot stand against Bishop as a matter of law for two
reasons. First, a privately-retained attorney does not act under color of state law for the
purposes of a 1983 claim. Hunter v. Ferebauer, 980 F.Supp.2d 1251, 1263 (E.D. Wash.
2013) (citing, Briley v. State of Cal., 564 F.2d 849, 855 (9th Cir.1977)). Even the great
majority of court-appointed attorneys are not considered state actors.
Glover, 467 U.S. 914, 91920, 104 S.Ct. 2820, 81 L.Ed.2d 758 (1984) (public defenders);
Taylor v. First Wyo. Bank, N.A., 707 F.2d 388, 389 (9th Cir. 1983) (guardians ad litem);
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RCW 2.42.120 (interpreters); RCW 64.55.120 (mediators); Sutton v. Llewellyn, 288
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Fed.Appx. 411, 412 (9th Cir. 2008) (conservators).
See, Tower v.
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Second, Bishop took no action under color of state law. It is true that action
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taken by private individuals may be under color of state law where there is significant
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state involvement in the action. See, e.g., Lugar v. Edmunson Oil Co., Inc., 457 U.S. 922,
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941, 102 S.Ct. 2744, 2756, 73 L.Ed.2d 482 (1982); Melara v. Kennedy, 541 F.2d 802, 804
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(9th Cir.1976); Scott v. Eversole Mortuary, 522 F.2d 1110, 1113 (9th Cir.1975). At some
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point as police involvement increases, repossession by private individuals assumes the
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character of state action. Howerton v. Gabica, 708 F.2d 380, 383 (9th Cir. 1983).
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However, Ms. Owen does not allege that she in fact was evicted from her home
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such that there may have been extensive police involvement in repossessing her home.
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And the mere filing of an unlawful detainer action cannot be attributed to the state. See,
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Lugar, supra, 457 U.S. at 941. Further, the fact that Bishop was representing Freddie Mac
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does not automatically convert Bishops actions into state actions, because Freddie Mac is
not a governmental actor:
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It is well-established that Plaintiffs cannot maintain their 1983 and

constitutional claims against Freddie Mac absent state action. See
Rubin v. Fannie Mae, No. 12cv12832, 2012 WL 6000572, at *2
(E.D.Mich. Nov. 30, 2012) (citing Northrip v. Fed. Nat'l Mortg.
Ass'n, 527 F.2d 23, 25 (6th Cir.1975)). Plaintiffs argue that, by
virtue of FHFAs conservatorship, Freddie Mac is a government
actor that can be held liable for constitutional violations. This Court
disagrees and follows the rationale and result reached by the federal
courts addressing similar claims, applying the Supreme Courts
decision in Lebron v. National Railroad Passenger Corp., 513 U.S.
374, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995), holding that Freddie
Mac, and similar entity Fannie Mae, were not governmental actors
post-conservatorship, and dismissing claims alleging a
constitutional violation as a matter of law. See Herron v. Fannie
Mae, 857 F.Supp.2d 87, 9596 (D.D.C.2012); Lopez v. Bank of
America, N.A., No. 1:12CV667, 920 F.Supp.2d 798, 80001,
2013 WL 150460 at *23 (W.D.Mich. Jan. 14, 2013); Kapla v.
FNMA (In re Kapla), 485 B.R. 136, 145153, 2012 WL 6569739, at
*816 (Bankr.E.D.Mich.2012); Rubin v. Fannie Mae, No. 12cv
12832, 2012 WL 6000572, at *23 (E.D.Mich. Nov. 30, 2012);
Syriani v. Freddie Mac Multiclass Certificates, Series 3365, No. CV
123035JFW, 2012 WL 6200251, at *4 (C.D.Cal. July 10, 2012).
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Fed. Home Loan Mortgage Corp. v. Shamoon, 922 F.Supp.2d 641, 644 (E.D. Mich. 2013),
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appeal dismissed (Sept. 5, 2013) (emphasis supplied).
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Because on the facts alleged Bishop performed no acts under color of state law,
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and Ms. Owens allegations are insufficient to establish communications and a meeting of
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the minds to form a 1983 conspiracy against her, Plaintiffs claims should be dismissed.
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As a privately-retained attorney for a non-governmental entity, Bishop was not a state actor
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as a matter of law; consequently, Plaintiffs 1983 claim should be dismissed with
prejudice and without leave to amend.
IV.
CONCLUSION
Pursuant to Fed. R. Civ. P. 12(b)(6) and in consideration of the foregoing points,
authorities, and arguments, Defendant Bishop, Marshall & Weibel, P.S., respectfully
requests the Court dismiss all claims of Plaintiff Pamela Owen against it, with prejudice,
for her failure to state a claim upon which relief may be granted.
DATED this 7th day of August, 2015.
/s/ Barbara L. Bollero

Barbara L. Bollero, WSBA No. 28906
David A. Weibel, WSBA No. 24031
720 Olive Way, Suite 1201
Seattle, WA 98101-1801
Phone: (206) 622-5306, ext. 5918
Email: dweibel@bwmlegal.com
Email: bbollero@bwmlegal.com
Attorneys for Defendant Bishop,
Marshall & Weibel, P.S.
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DECLARATION OF SERVICE
I hereby certify that on August 7, 2015, I electronically filed the foregoing with the
Clerk of the Court using the CM/ECF system, which will send notification of such filing to
the following CM/ECF participants:
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Pamela S. Owen
3912 NE 57th Avenue
Vancouver, WA 98661
Plaintiff Pro Se
[ ] By United States Mail

[ ] By Legal Messenger
[ ] By Federal Express
[X] By CM/ECF
Michael S. DeLeo, WSBA #22037

PETERSON RUSSELL KELLY PLLC
1850 Skyline Tower
10900 NE Fourth Street
Bellevue, WA 98004-8341
Attorneys for Defendant MTC
Financial Inc. d/b/a Trustee Corps

[X] By CM/ECF
[ ] By Email to: mdeleo@prklaw.com
William P. Richardson, WSBA #42104

Clark County Prosecution Civil Div. P.O.
Box 5000
1300 Franklin St.
Vancouver, WA 98660-2865
Attorneys for Defendant Chuck E. Atkins

[X] By CM/ECF
[ ] By Email to:
Bill.Richardson@clark.wa.gov
Jody M. McCormick, WSBA #26351

WITHERSPOON KELLEY
422 W. Riverside Ave., Ste. 1100
Spokane, WA 99201-0300
Attorneys for Defendant Freddie Mac

[X] By CM/ECF
[ ] By Email to:
JMM@witherspoonkelley.com
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Dated this 8th day of August, 2015, at Seattle, Washington.

/s/ Tamorah L. Burt

Tamorah L. Burt, Legal Assistant
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Pamela Owen. Civil Rights. BMW Motion To Dismiss - Final.8!7!2015

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1

UNITED STATES DISTRICT COURT FOR THE

DEFENDANT BISHOP, MARSHALL

INTRODUCTION AND RELIEF REQUESTED

Mortgage Corporation (Freddie Mac), in an unlawful detainer proceeding to evict Ms.

Owen from the premises.

Ms. Owens claims against Bishop are premised on her

DEFENDANT BISHOP, MARSHALL &

MARSHALL & WEIBEL, P.S.

misunderstanding of Washingtons Civil Rules, and the incorrect and insufficient

prejudice and without leave to amend, pursuant to Fed. R. Civ. P. 12(b)(6).

Bishop incorporates by this reference the Statement of Facts section of Defendant

Representing Freddie Mac, Bishop served an unfiled Summons and unfiled

[Dkt. 2-3, 1.5.10-11, and Exs. 12-13 thereto.]

3.33], Ms. Owen asserts Bishop:

U.D. Case [id., 1.5.9];

acted under color of State in law in causing the deprivation of [her]constitutional

DEFENDANT BISHOP, MARSHALL &

MARSHALL & WEIBEL, P.S.

Home Loan Mortgage Corporation to manipulate Washingtons Deed of Trust Act

AUTHORITIES AND ARGUMENT

Standard for Ruling on Dismissal Motion.

as if fully set forth herein.

Plaintiffs Complaint Fails to State a CPA Cause of Action Against Bishop.

Washingtons Consumer Protection Act, RCW 19.86, et seq. (CPA). To prevail on a

DEFENDANT BISHOP, MARSHALL &

MARSHALL & WEIBEL, P.S.

Summons and Complaint in the U.D. Case.

Washington statutes and Civil Rules.

Such actions are expressly allowed by

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.

and Civil Rules can hardly be deemed unfair and deceptive.

DEFENDANT BISHOP, MARSHALL &

MARSHALL & WEIBEL, P.S.

copies of pleadings be served. See, e.g., CR 4-16.

Restitution. A defaulted party is not entitled to notice of proceedings. CR 55(a)(3) (Any

containing untruthful information denied Ms. Owens requested relief regardless

entered by the Court as its own act not Bishops.

Thus Bishops preparation of an allegedly erroneous proposed Order as a matter of

DEFENDANT BISHOP, MARSHALL &

MARSHALL & WEIBEL, P.S.

incorrect assertions of law.

Services, Inc., 2012 WL 6192723, *2 (E.D.Wash. Dec. 12, 2012).

William B. Stoebuck, Washington Practice, Real Estate: Transactions 17.21, at 311

(1995)). Further, to establish a claim based on an alleged fraudulent assignment, a plaintiff

DEFENDANT BISHOP, MARSHALL &

MARSHALL & WEIBEL, P.S.

(W.D.Wash. 2011). Ms. Owens Complaint contains no such allegations.

its legal practices to avoid violating State laws [id., 1.16].

is based on incorrect and erroneous assertions of law and misunderstanding of

action should be dismissed against Bishop with prejudice.

Plaintiffs Complaint Fails to State a 42 U.S.C. 1983 Claim Against Bishop.

mentions Bishop in a single allegation: Defendant Bishop joined the conspiracy of

Corporation to manipulate Washingtons Deed of Trust Act by filing a complaint and

upon which relief against Bishop may be granted.

DEFENDANT BISHOP, MARSHALL &

MARSHALL & WEIBEL, P.S.

communications are protected by the attorney/client privilege.

DEFENDANT BISHOP, MARSHALL &

MARSHALL & WEIBEL, P.S.

F.2d 1220 (9th Cir.1973)).

majority of court-appointed attorneys are not considered state actors.