Pamela Owen. Civil Rights. Pamela Owen. DKT 23. Plaintiff's Opposition To Defendant Bishop, Marshall & Weibel, P.S.' Fed. R. Civ. P.

Case 3:15-cv-05375-BHS Document 23 Filed 08/11/15 Page 1 of 24
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UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON (TACOMA)
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) Civil Action No. 15-cv-05375-BHS

PAMELA S. OWEN
) (Formerly in the Superior Court of the State of
Plaintiff, ) Washington, in and for the County of Clark,
vs.
) Case No. 15-2-01264-2, filed on May 7, 2015)
)
FEDERAL HOUSING FINANCE AGENCY; ) PLAINTIFFS OPPOSITION TO
FEDERAL HOME LOAN MORTGAGE
) DEFENDANT BISHOP, MARSHALL &
CORPORATION; MTC FINANCIAL, INC., ) WEIBEL, P.S. FED. R. CIV. P.
D/B/A TRUSTEE CORPS; BISHOP,
) 12(b)(6) MOTION TO DISMISS
MARSHALL & WEIBEL, P.S.; CHUCK E. ) PLAINTIFFS COMPLAINT WITH
ATKINS, in his official capacity as Clark
) PREJUDICE
County Sheriff,
)
Defendants.) Noting Date: September 4, 2015
)
COMES NOW Plaintiff Pamela Owen for her reply in opposition to the above noted
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motion and states:
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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 Trustees
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Deed Upon Sale, Plaintiffs Exhibit 2, issued by Defendant MTC Financial to cause two state
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actors, the Clark County Superior Court and Defendant Clark County Sheriff Atkins, to violate
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Plaintiffs constitutional right to due process, liberty, property and to be safe and secure in her
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home and privacy.

1.3
Plaintiffs 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.
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2.1
Defendant BMW argues that Plaintiff has failed to state a claim upon which relief may be
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granted. Dkt. 21 at 3, lines 12-14.
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2.2
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does not meet the pleading requirements set forth in the Supreme Court decisions of Bell Atlantic
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Defendant BMW also argues that Plaintiffs complaint should be dismissed because it
PLAINTIFFS OPPOSITION TO DEFENDANT BISHOP, MARSHALL & WEIBEL, P.S. FED. R. CIV. P.
12(b)(6) MOTION TO DISMISS PLAINTIFFS COMPLAINT WITH PREJUDICE
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
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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
or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica
Police Dept, 901 F.2d 696, 699 (9th Cir.1990).
2.6
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Dismissal under Rule 12(b)(6) may be based on either the lack of a cognizable legal theory
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.
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allegations of law and unwarranted inferences will not defeat an otherwise proper Rule 12(b)(6)
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motion. Vasquez v. L.A. Cnty., 487 F.3d 1246, 1249 (9th Cir.2007); Sprewell v. Golden State
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Warriors, 266 F.3d 979, 988 (9th Cir.2001).
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2.8
Although the Court must accept as true a complaints well-pled facts, conclusory
[A] plaintiffs 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
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level. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations and footnote omitted). This
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requires a plaintiff to plead more than an unadorned, the-defendant-unlawfully-harmed-me
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accusation. Iqbal, 556 U.S. at 678.
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2.9
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Additionally, a party alleging fraud must state with particularity the circumstances
constituting fraud, but [m]alice, intent, knowledge, and other conditions of a persons 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,
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and how of the misconduct charged. Cafasso v. General Dynamics C4 Sys., Inc., 637 F.3d 1047,
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1055 (9th Cir. 2011). This heightened pleading standard ensures that defendants have adequate
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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
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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
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 Plaintiffs
favor. Keniston v. Roberts, 717 F.2d 1295, 1300 (9th Cir. 1983).
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2.13
The adequacy of pleadings is governed by Fed. R. Civ. P. 8(a)(2), which requires that a
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.
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misconduct, the complaint should be dismissed for failing to show[] that the pleader is entitled
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to relief as required by Rule 8(a)(2). Iqbal, 129 S. Ct. at 1950.
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If the well-pleaded facts do not permit the court to infer more than the mere possibility of
Regarding the concept of notice pleading, defendants 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 defendants subjective notice of claims.
2.16
Dismissal for failure to state claim, unlike dismissal for want of jurisdiction, is disposition
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on merits. Holder v. Nelson, 514 F2d 1091 (9th Cir. 1975).
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III.
TWOMBLY AND IQBAL FACTS ALLEGED BY PLAINTIFF AND ADMITTED BY
DEFENDANT ATKINS.
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3.1
Plaintiffs allegations establishing Defendant BMWs liability for culpable action and or
inaction under Section 1983, are as follows:
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1.19 On May 5, 2015, at approximately 2:00p.m., Defendant Sheriff Atkins

caused to be posted on Plaintiffs real property a copy of the conforming copy of
the Writ of Restitution. Plaintiffs 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.
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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 Writs
issuance then this Writ of Restitution will automatically be renewed for an
additional 20 days without further order of the Court.
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1.25 Defendant Sheriff Atkins Notice informed Plaintiff that she must vacate
the premises on or before 11:59p.m.May 08, 2015. Plaintiffs Exhibit 18 at
page 1.
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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 Plaintiffs
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property from Defendant BMW, as agent acting on behalf of its principal, employer and client,
Defendant Freddie Mac.
IV.
WASHINGTONS UNLAWFUL DETAINER LAW.
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4.1
Under Washington State law, because the unlawful detainer statutes are in derogation of
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the common law, they must be construed in favor of the tenant. Big Bend Land Co. v. Huston,
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98 Wash. 640, 643, 168 P. 470 (1917); Housing Authority of Everett v. Terry, 114 Wn.2d 558,
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563, 789 P.2d 745 (1990).

Defendant BMWs motion to dismiss construes the unlawful detainer statutes in favor of
4.2
the landlord, and his client, Defendant Freddie Mac.
4.3
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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 Washingtons 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).
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The 9th Circuit in Huston v. Big Bend Land Co., 1 F.2d 93 (9th Cir.1924), followed the
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Washington Supreme Courts decision in Big Bend Land Co. v. Huston, 98 Wash. 640, 168 P. 470
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(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.
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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
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.
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4.7
Under Martin v. Hunters 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 Plaintiffs 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 Macs motions for default and issuance of its Writ of Restitution
commanding the Sheriff of Clark County Washington to deliver possession of Appellants real
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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.
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mandated in pertinent part that: A summonsshall not be less than seven nor more than thirty
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days from the date of service.
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On April 2, 2015, RCW 59.12.070, which has existed in one form or another since 1890,
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.
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4.12
In response to Plaintiffs motion to quash service of summons in the Superior Court,
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Defendant BMW, on behalf of Freddie Mac, argued that WA CR 3 and RCW 59.18.365
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specifically allow for Summons and Complaint to be served unfiled.
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59.12.080, which has also existed in one form or another since 1890, directs, in relevant part, that:
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The summons must statethe court in which the same is brought.

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Defendant BMWs argument slaps the face of RCW 59.12.070. Moreover, RCW
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.
Defendant BMWs reliance on WA CR 3 and RCW 59.18.365 is further misplaced by
4.15
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.
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V.
CONSTITUTIONAL DUE PROCESS.
5.1
Under the decisions of Big Bend Land Co. v. Huston, 98 Wash. 640, 168 P. 470 (1917) and
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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
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person of the defendant is acquired, and a default judgment rendered against the defendant is void.
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been the law in the United States that a court can only acquire jurisdiction of a party, where there
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Even before Washington codified its unlawful detainer statutes in 1890, it had already
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
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process must be given a meaningful opportunity to be heard. LK Operating, LLC v. Collection
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Grp., LLC, 181 Wn.2d 48, 331 P.3d 1147, 1158 (Wash. 2014) (en banc), citing Boddie v.
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Connecticut, 401 U.S. 371, 377 (1971).
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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).
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In the context of a judicial proceeding, where a denial of due process is alleged, a
5.5
Defendant BMW did not comply with RCW 59.12. The Superior Courts ex parte
proceedings did not comply with RCW 59.12 and neither did the Superior Courts proceedings
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.
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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, Plaintiffs 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 Plaintiffs rights
under color of State law. West v. Atkins, 487 U.S. 42 (1988) and cases cited, Addickes v. S. H.
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Kress Co., 398 U.S. 144 (1970) and Dennis v. Sparks, 449 U.S. 24, 28-29 (1980).
6.2
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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
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situated. See, law of 1891 c 96 6; RRS 815. Prior: 1890 p 75 5.
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foreclosure was the only method for depriving a mortgagor or trustor of title or possession of real
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property. In 1965, the Legislature adopted the Deeds of Trust Act (DTA), Chapter 61.24 RCW.
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6.4
For nearly 100 years, from 1869 to 1965, the State legislature provided that judicial
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
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by a trustee acting pursuant to RCW 61.24.010, .020, 030 and .040.
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Inc., 175 Wn.2d 83, 93, 285 P.3d 34 (2012), and we have recently observed that the [deed of
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trust] Act must be construed in favor of borrowers because of the relative ease with which lenders
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This is a significant power, said the Court in Bain v. Metropolitan Mortgage Group,
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
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).
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6.8
The Reconstruction Era Civil Rights Act, codified at 42 U.S.C.A. 1983, was passed by
Section 1983 provides a remedy against all forms of official violation of federally
protected rights. Monell v. Dept of Soc. Servs., 436 U.S. 658, 70001, 98 S.Ct. 2018, 204041,
56 L.Ed.2d 611 (1978).
6.9
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).
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6.10
If the rights are protected by federal statute, rather than the federal constitution, the court
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
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federal statute. Sintra, Inc. v. City of Seattle, 119 Wn.2d 1, 829 P.2d 765 (1992); Torrey v. City of
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Tukwila, 76 Wn.App. 32, 37, 882 P.2d 799 (1994).
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or municipalities. See, e.g., R/L Associates, Inc. v. City of Seattle, 113 Wn.2d 402, 780 P.2d 838
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(1989).
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6.12
State law may include the ordinances and policies of creatures of the state such as counties
A federal agent or private individual may be subject to 1983 if the agents or private
persons actions constitute joint participation, are entwined with state action, or otherwise amount
to state action. Brentwood Academy v. Tennessee Secondary Sch. Athletic Assn, 531 U.S. 288,
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295-96 (2001); Lugar v. Edmondson Oil Co., 457 U.S. 922, 941-42 (1982); Knights of Ku Klux
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Klan, Realm of Louisiana v. East Baton Rouge Parish Sch. Bd., 735 F.2d 895, 900-01 (5th Cir.
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1984) (holding that federal officials could be sued under 1983 for pressuring the school board to
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prohibit Klan members from meeting at a school).
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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 Courts analysis, federal courts should
use a two-step approach when deciding a CR 12(b)(6) motion to dismiss: first, ignore all
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conclusory allegations; second, determine the facial plausibility of the non-conclusory factual
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allegations. Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S.
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544, 555 (2007).
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6.14
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
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At one time, based on Monroe v. Pape, 365 U.S. 167 (1961), governmental entities could
held vicariously liable for the acts of their employees on the basis of respondeat superior. Monell
v. Dept 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
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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
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law.
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6.17
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Lashway, 545 F.3d 867 (9th Cir. 2008); Gomez v. Alexian Bros. Hosp., 698 F.2d 1019 (9th
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Cir.1983); Sorannos Gasco., Inc. v. Morgan, 874 F.2d 1310 (9th Cir. 1989).
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A corporation such as Defendant BMW is a 1983 plaintiff. See CarePartners LLC v.
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
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revealed by the law and facts of each case. Brentwood Acad. v. Tenn. Secondary Sch. Athletic
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Assn, 531 U.S. 288, 295 (2001); West v. Atkins, 487 U. S. 42 (1988).
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6.19
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are well established. There are only two essential elements in a 1983 action: (1) the plaintiff
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The essential elements of a Section 1983 cause of action have been variously phrased, but
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.
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32, 37, 882 P.2d 799 (1994).
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6.20
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acted with any specific intent to deprive the claimant of constitutional right, the claim still
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While an action under 1983 does not require a showing that an individual defendant
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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 Commrs 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
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
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must be awarded if a plaintiff proves a violation of his constitutional rights.).

6.23
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Damages are not an essential element of the plaintiffs cause of action. See, e.g., George v.
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
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process, for example, requires proof of the following elements: (1) a liberty or property interest
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protected by the constitution; (2) deprivation of the interest by the government; and (3) lack of
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due process. Portman v. County of Santa Clara, 995 F.2d 898 (9th Cir. 1993) (analysis of interest
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in employment). See also Meyer v. Univ. of Wash., 105 Wn.2d 847, 719 P.2d 98 (1986); Sintra,
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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
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91, 829 P.2d 746 (1992).
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meaning of 1983, if she or he does an affirmative act, participates in anothers affirmative act, or
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does not perform an act which she or he is legally required to do that causes the deprivation.
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A person subjects another to the deprivation of a constitutional or statutory right within the
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
25
investigate the acts of others, which the person knows or reasonably should know would cause
26
others to violate the constitutional or statutory right. Johnson v. Duffy, 588 F.2d 740, 743-44 (9th
27
Cir. 1978).
28
11
6.26
foreclosure sale of Plaintiffs 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
Defendant MTC Financial, Inc. did not have legal authority to conduct a nonjudicial
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 Plaintiffs loan at a time when Defendant Freddie Mac claimed to be
the owner of Plaintiffs mortgage and note:
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
https://ww3.freddiemac.com/loanlookup/fm_owned.html?dt_owned=2005-11-04 [Last visited on
22
August 9, 2015.]
23
6.28
24
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
25
26
27
28
12
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:
A:
***
A:
***
A:
***
A:
5
6
7
8
9
***
A:
***
A:
10
11
12
6.29
13
What I was saying was I dont understand. Youre not an employee of

Recontrust, but you have oversight of the employees at Recontrust?
As I said, no.
I have no oversight of any of the associates at Recontrust.
I do notnone of those associates report to me or have ever reported to me.
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.
I am the police officer. Hows that?
We are following the guides for Fannie and Freddie for our investors.
[Dep. Sjolander at 84.]
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:
14
Q:
I may not be asking it quite right. I guess what Im 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:
***
Q:
No, theres multiple stamps. [Dep. Sjolander at 75.]
A:
***
Q:
As an officer of Countrywide Home Loans, Inc.
A:
No. [Dep. Sjolander at 77.]
15
16
17
18
19
20
21
22
23
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.?
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?
Sjolanders Deposition and the fact that Defendant Freddie Mac continues to maintain that
24
6.30
25
the agency owns Plaintiffs mortgage and note after the note was cancelled on January 16, 2015,
26
27
28
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.
13
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
4
5
to accomplish this purpose. This highly centralized and policed system accounts for Bank of
America filing the wrong copy of Plaintiffs 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 Plaintiffs real property. Defendant Atkins also did not require Defendant
Freddie Mac to give a Sheriffs Bond to protect the County and its residents in the event the Writ
was wrongfully sued out by Defendant Freddie Mac.
10
11
12
6.32
removed the Writ he posted on Plaintiffs home. Nor has Sheriff Atkins apologized to Plaintiff for
violating RCW 59.12.100.
6.33
13
15
16
17
19
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 attorneys actions in prosecuting litigation which are
expressly allowed by statute and Civil Rules can hardly be deemed unfair and
deceptive.
14
18
Although Sheriff Atkins has returned the Writ to the Superior Court, the Sheriff has never
6.34
Defendant BMWs 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
20
right to due process, liberty and property and would cause others to violate Plaintiffs
21
constitutional or statutory rights. Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978).
22
6.35
23
detainer law set forth in Big Bend Land Co. v. Huston, 98 Wash. 640, 643, 168 P. 470 (1917);
24
25
26
27
28
Further, Defendant BMWs argument directly conflicts with the well-settled unlawful
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).
14
6.36
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.
3
4
5
6
7
8
Defendant BMW doubles down on its argument that Plaintiff was properly served by
6.37
Defendant BMWs 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.
10
6.38
11
of Washington. Indeed, 120 years ago, the Washington Supreme Court held that under CR 81(a),
12
the civil rules apply to all civil proceedings [e]xcept where inconsistent with rules or statutes
13
applicable to special proceedings. State ex rel. Smith v. Parker, 12 Wash. 685, 688, 42 P. 113
14
Further, unlawful detainer actions are special proceedings which are not new in the State
(1895).
6.39
15
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.]
16
17
18
19
20
6.40
21
overrules State ex rel. Smith v. Parker, 12 Wash. 685, 688, 42 P. 113 (1895); Big Bend Land Co.
22
Defendant BMW provides the Court with no authority which directly or even indirectly
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,
23
172, 213 P. 919 (1923); Hatfield v. Greco, 87 Wn.2d 780, 782, 557 P.2d 340 (1976); Signal Oil
24
Co. v. Stebick, 40 Wn.2d 599, 602-603, 245 P.2d 217 (1952) and Huston v. Big Bend Land Co., 1
25
F.2d 93 (9th Cir.1924) and these Courts construction of Chapter 59.12 RCW.
26
6.41
27
color of state law. Dkt. 21 at 9, line 12. Defendant BMW attempts to gloss over the fact that
28
Defendant BMW further argues in its motion to dismiss that Bishop took no action under
15
every action taken by the law firm was taken under color of state law. Indeed, Defendant
BMWs argues in its motion to dismiss that the lawfulness of its action must be sustained by this
3
4
5
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 Sheriffs bond. Clem v. Lomeli, 566 F.3d 1177 (9th Cir. 2009); Hunter v. County of Sacramento,
10
652 F.3d 1225 (9th Cir. 2011).

6.43
11
Thus, each Defendant is liable not only for conduct that directly violates Plaintiffs rights,
but for conduct that is the effective cause of anothers direct infliction of the constitutional
12
injury. Sales v. Grant, 158 F.3d 768, 776 (4th Cir. 1998). Under this standard, a defendant
13
becomes individually liable by setting in motion a series of acts by others which the actor knows
14
or reasonably should know would cause others to inflict the constitutional injury. Lakeside-Scott
15
v. Multnomah County, 556 F.3d 797, 804-05 (9th Cir. 2009); Citoli v. City of Seattle, 115
16
17
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 ones
acts or omissions. Connick v. Thompson, U.S. ___, 131 S.Ct. 1350 (2011); City of Canton v.
18
Harris, 489 U.S. 378, 388, 395 (1989); Bryan County Commrs v. Brown, 520 U.S. 397, 410
19
(1997).
20
6.45
21
actor disregarded a known or obvious consequence of his action. Bryan County Commrs v.
22
23
[D]eliberate indifference is a stringent standard of fault, requiring proof that a municipal
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
24
violations of constitutional rights, inaction is the functional equivalent of a decision by the city
25
itself to violate the Constitution. City of Canton v. Harris, 489 U.S. at 395 (OConnor, J.,
26
concurring).
27
28
16
6.47
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).
4
5
6.48
Connick instructs that Plaintiff may rely on one incident without more of a pattern.
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 Sheriffs Bond to protect
the Sheriff and the residents of Clark County Washington.
6.49
the U.S. Supreme Court in Bryan County Commrs v. Brown, 520 U.S. 397 (1997), the 5th Circuit
10
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 Countys 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 Moores decision not to train Burns constituted a policy decision for which
the County is liable under 1983.
11
12
13
14
15
16
17
In Brown v. Bryan County, 219 F.3d 450, 458-65 (5th Cir. 2000), following remand from
6.50
18
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.
19
20
21
22
6.51
23
caused the plaintiff to be subjected (indirectly caused), to a deprivation of federal rights. The
24
statute does not specify whether the direct or indirect causation involves traditional common law
25
26
27
28
Under 1983, the plaintiff must prove that the defendant subjected (directly caused), or
tort concepts of proximate causation.

6.52
Section 1983 requires that the plaintiff prove two causal links: (1) a causal relationship
between the defendants conduct and the deprivation of the plaintiffs federal rights; and (2) a
17
causal relationship between the deprivation and the plaintiffs 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);
4
5
Sintra, Inc. v. City of Seattle, 131 Wn.2d 640, 654-55, 935 P.2d 555 (1997) (Sintra II) (discussing
the jurys finding as to whether the defendants 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
suing for a Writ of Restitution which was used by Sheriff Atkins to unreasonably search for and
seize Plaintiffs home to give possession to Defendant Freddie Mac. Sheriff Atkins also used the
10
11
Defendant BMW admits in its Motion that it was directly involved in filing the lawsuit and
Writ to unreasonably search for and seize Plaintiffs 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
12
BMWs motion to dismiss.
13
6.54
14
some way restrained the liberty of a person by means of physical force or a show of authority.
15
See, Tennessee v. Garner, 471 U.S. 1, 7 (1985) (seizure by fatal gunshot); Graham v. Connor, 490
16
17
A seizure of a person under the Fourth Amendment occurs when a police officer has in
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
18
the circumstances surrounding the incident, a reasonable person would have believed that he was
19
not free to leave); Brower v. County of Inyo, 489 U.S. 593, 595, (1989) (intentional stopping of
20
fleeing suspect by roadblock constituted seizure).
21
6.55
22
23
24
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).
25
6.57
26
may be imposed if the link between the defendants conduct and the deprivation of rights is not
27
too remote. The Court declined to address whether the link is one of traditional proximate
28
In Martinez v. California, 444 U.S. 277, 285 (1980), the Supreme Court held that liability
18
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).
4
5
6.58
The Malley Court held that 1983 qualified immunity would not shield the officers
actions under the circumstances, regardless of a magistrates 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, 108387 (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
10
causation in this context).

6.59
11
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.
12
Sch. Dist. v. Stachura, 477 U.S. 299 (1986) (jury instructions erroneously allowed jurors to award
13
damages based on intrinsic value of First and Fourteenth Amendment rights).
14
6.60
15
order to satisfy the first link in Section 1983s causation requirement. Harper v. City of Los
16
17
The 9th Circuit requires that the plaintiff establish cause-in-fact and proximate cause in
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.
18
County of Los Angeles, 659 F.3d 850 (9th Cir. 2011), the 9th Circuit held that 1983 allows the
19
jury to impose liability for an individual supervisor who indirectly causes a deprivation of
20
constitutional rights by encouraging or directing acts to be committed or omitted by subordinate
21
employees.
22
23
24
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).
25
6.63
26
an award of at least nominal damages. Carey v. Piphus, 435 U.S. 247, 266-67 (1978); Yniguez v.
27
28
If Plaintiffs constitutional rights have been violated, plaintiff is entitled to judgment and
19
Arizonans for Official English, 69 F.3d 920 (9th Cir. 1995), reversed due to mootness, 520 U.S.
43 (1997).
6.64
4
5
Punitive damages may be awarded against an individual defendant found guilty of federal
civil rights violations when the jury finds that the defendants 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
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
10
Although Washington common law does not authorize punitive damages, punitive
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).
11
6.66
In Sintra, Inc. v. Seattle, 131 Wn.2d 640, 935 P.2d 555 (1997), the Supreme Court
12
approved of the trial courts instructions on punitive damages, citing to Pacific Mutual Life
13
Insurance Co. v. Haslip, 499 U.S. 1 (1991) and Morgan v. Woessner, 997 F.2d 1244 (9th Cir.
14
1993). Past Supreme Court cases have addressed in depth the due process standards to be applied
15
in post-verdict review of punitive damage awards. See, e.g., Phillip Morris USA v. Williams, 549
16
17
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).
18
6.67
19
government, the under-color-of-state-law inquiry focuses on the nature of the connections
20
between the private person and the state.
21
6.68
22
23
24
When the challenged action is committed by a person who does not work for the
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
25
of the state.
26
6.69
27
State of Washington when conducting the nonjudicial foreclosure sale on Plaintiffs home on
28
Defendant MTC Financial, Inc., in its capacity as a Trustee, acted as an agent of the
20
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 agencys claim that no state action was
involved when the negligence of a private doctor, under contract to provide care for inmates,
4
5
injured the plaintiff in violation of the state prisons 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
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
10
Joint activity by a private party and a government agent can also transform the private
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
11
Directors, 353 U.S. 230, 231 (1957) (Private college administered by a city board is a state
12
actor in refusing to admit African Americans).
13
6.72
14
rights could not have occurred but for the existence of a governmental framework requiring
15
government approval or action. In North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601
16
17
A private party may also be engaged in state action if the act which deprived federal
(1975), the Court found state action in a private partys 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 Plaintiffs due process rights by
18
failing to require Defendant Freddie Mac to give a bond to Plaintiff before the writ of restitution
19
was issued, ex parte, on April 3, 2015. See Plaintiffs Exhibit 9. RCW 59.12.090, which has
20
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.]
21
22
23
24
25
26
6.74
27
not posting bond as mandated by RCW 59.12.090. Defendant BMW argues in its motion, Dkt. 21
28
Plaintiff was never given notice and an opportunity to object to Defendant Freddie Mac
21
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
4
5
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
10
On May 7, 2015, Plaintiff appealed the Superior Courts violation of Plaintiffs 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
11
entitled to stay these proceedings pending the ruling of the State Court of Appeals under the
12
decisions of Amy v. City of Watertown, 130 U.S. 301, 317 (1889); Colorado River Water
13
Conservation Dist. v. United States, 424 U.S. 800, 817 (1976); Moses H. Cone Memorial Hosp. v.
14
Mercury Constr. Corp., 460 U.S. 1, 19 (1983); Huston v. Big Bend Land Co., 1 F.2d 93 (9th Cir.
15
Wash. 1924); Holder v. Holder, 305 F.3d 854, 867 (9th Cir. 2002); and Nakash v. Marciano, 882
16
17
F.2d 1411, 1415 n.5 (9th Cir. 1989). Plaintiffs 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
18
clerk and a sheriff, acts under color of state law. Here, Defendant BMW invoked the powers of a
19
State Court and a County Sheriff. Defendant BMW knowingly allowed the Superior Court to
20
engage in ex parte communications and issue a default judgment and writ of restitution contrary to
21
the holdings of the States highest Court in State ex rel. Smith v. Parker, 12 Wash. 685, 688, 42 P.
22
23
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 Courts proceedings were a nullity and the writ was void.
24
Defendant BMW further has not caused its client, Defendant Freddie Mac, to return Plaintiffs
25
title. Nor has Defendant BMW taken any action to cause Sheriff Atkins to remove the Writ of
26
Restitution from Plaintiffs home and release Plaintiffs person.
27
VII.
28
WASHINGTON CONSUMER PROTECTION ACT CLAIM.
22
7.1
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
4
5
To assert a claim under the Washington Consumer Protection Act, a plaintiff must allege
plaintiffs suffered injury to his or her business or property; and (5) the deceptive or unfair act or
practice caused the plaintiffs injury. Hangman Ridge Training Stables, Inc. v. Safeco Title Ins.
Co., 105 Wash.2d 778, 780, 719 P.2d 531, 533 (1986).
7.2
Defendant Freddie Macs secondary mortgage market scheme, which were unfair trade practices
that affected the public interest, interfered with a homeowners liberty of contract by inducing
homeowners to accept MERS, Inc. as an illegitimate beneficiary and contracting party and by
10
requiring homeowners to make use of the forms drafted by Defendant Freddie Mac.
7.3
11
Plaintiff alleged under the First Cause of Action, among other things, the contours of
Plaintiff further alleged in her Complaint at page 17 that she was one of those homeowners
that Defendant Freddie Macs unfair practices caused to be injured in her property by alleging that
12
Bank of America used a copy of a Note to create the appearance of ownership of Plaintiffs Note:
13
5.15.8
McMahon-Myhran attached to her Declaration a copy of Plaintiffs
2005 Note, Plaintiffs Exhibit 6, which was materially different from the copy of
the original Note provided to Plaintiff in 2005, Plaintiffs Exhibit 5, in that,
McMahon-Myhrans 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.
14
15
16
17
18
7.4
19
Plaintiffs real property on January 16, 2015, Defendant Freddie Mac was not an innocent
20
(bonafide) purchaser of Plaintiffs real property. Rather, Defendant Freddie Mac was among the
21
core leaders of the brains behind the mortgage electronic registration system and the forms used to
22
draft Plaintiffs core mortgage documents. Complaint at 13, paragraph 5.5.

7.5
23
Plaintiff further alleged that when participating in the nonjudicial foreclosure sale of
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
24
beneficiary of the security in order for the loan to participate in the secondary mortgage market.
25
Complaint at 13, paragraph 5.6.
26
27
28
23
Plaintiffs 2005 Deed of Trust was drafted pursuant to Fannie Mae/Freddie Mac
7.6
UNIFORM INSTRUMENT MERS, Form 3048, attached as Plaintiffs Exhibit 4. Complaint at
14, paragraph 5.12.
7.7
Plaintiffs 2005 Note was drafted pursuant to Fannie Mae/Freddie Mac UNIFORM
INSTRUMENT, Form 3200, attached as Plaintiffs Exhibit 5. Defendant Freddie Mac and its
other co-conspirators, directly and intentionally manipulated the terms of Washingtons Deed of
Trust Act by requiring the use of Forms 3048 and 3200. Complaint at 14, paragraph 5.13.
7.8
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,
10
Defendant Bishop, Marshall & Weibel provides creditor-oriented foreclosure legal
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.
11
12
7.9
13
acted under color of State law in causing the deprivation of Plaintiffs constitutional rights.
14
15
7.10
16
17
18
In filing the civil action on April 2, 2015 Defendant Bishop, Marshall & Weibel, P.S.
Defendant Bishop, Marshall & Weibel, P.S. joined the conspiracy of Defendants Federal
Housing Finance Agency and Federal Home Loan Mortgage Corporation to manipulate
Washingtons 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.
19
8.1
20
to be allowed to proceed to discovery. Whether the substance of Plaintiffs allegations entitles her
21
to relief on the merits is an issue better addressed at trial.
22
23
Plaintiff has adequately pled her Consumer Protection and Section 1983 claims and ought
Respectfully submitted,
Dated: August 11, 2015
24
25
26
27
28
____________________________________
Pamela S. Owen
3912 NE 57th Avenue
Vancouver, WA 98661
Tel: (360) 991-4758
24

Pamela Owen. Civil Rights. Pamela Owen. DKT 23. Plaintiff's Opposition To Defendant Bishop, Marshall & Weibel, P.S.' Fed. R. Civ. P.

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Pamela Owen. Civil Rights. Pamela Owen. DKT 23. Plaintiff's Opposition To Defendant Bishop, Marshall & Weibel, P.S.' Fed. R. Civ. P.

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Case 3:15-cv-05375-BHS Document 23 Filed 08/11/15 Page 1 of 24

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON (TACOMA)

) Civil Action No. 15-cv-05375-BHS

motion and states:

BASIC FACTUAL ALLEGATIONS.

follow when participating in the secondary mortgage market.

home and privacy.

not the owner or holder of her 2005 Note.

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

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

Case 3:15-cv-05375-BHS Document 23 Filed 08/11/15 Page 2 of 24

Police Dept, 901 F.2d 696, 699 (9th Cir.1990).

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

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

accusation. Iqbal, 556 U.S. at 678.

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

(9th Cir. 2008).

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

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

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

on merits. Holder v. Nelson, 514 F2d 1091 (9th Cir. 1975).

inaction under Section 1983, are as follows:

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

Case 3:15-cv-05375-BHS Document 23 Filed 08/11/15 Page 4 of 24

1.23 The Writ of Restitution further commanded Defendant Sheriff Atkins to

Sheriff Atkins obtained the Writ of Restitution he caused to be posted on Plaintiffs

WASHINGTONS UNLAWFUL DETAINER LAW.

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

Case 3:15-cv-05375-BHS Document 23 Filed 08/11/15 Page 5 of 24

the landlord, and his client, Defendant Freddie Mac.

(1917) in holding that:

Case 3:15-cv-05375-BHS Document 23 Filed 08/11/15 Page 6 of 24

property to Freddie Mac.

days from the date of service.

In response to Plaintiffs motion to quash service of summons in the Superior Court,

specifically allow for Summons and Complaint to be served unfiled.

The summons must statethe court in which the same is brought.

Case 3:15-cv-05375-BHS Document 23 Filed 08/11/15 Page 7 of 24

Defendant BMWs reliance on WA CR 3 and RCW 59.18.365 is further misplaced by

statute provided that:

CONSTITUTIONAL DUE PROCESS.

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

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

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

reviewing court must consider:

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

Case 3:15-cv-05375-BHS Document 23 Filed 08/11/15 Page 8 of 24

STATING A CLAIM UNDER SECTION 1983.

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

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

Case 3:15-cv-05375-BHS Document 23 Filed 08/11/15 Page 9 of 24

493 U.S. 103 (1989).

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

prohibit Klan members from meeting at a school).

544, 555 (2007).

Case 3:15-cv-05375-BHS Document 23 Filed 08/11/15 Page 10 of 24

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

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

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

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

properly screen job applicants).

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