pamela owen. civil rightson removal. motion to dismiss by defendant bmw. dkt 21

DEFENDANT BISHOP, MARSHALL &

WEIBEL, P.S.’ FED. R. CIV. P. 12(b)(6)

MOTION TO DISMISS PLAINTIFF’S

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

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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,

Defendants.

No. 3:15-cv-05375-BHS DEFENDANT BISHOP, MARSHALL & WEIBEL, P.S.’ FED. R. CIV. P. 12(b)(6) MOTION TO DISMISS PLAINTIFF’S COMPLAINT WITH PREJUDICE Noting Date: September 4, 2015

I. INTRODUCTION AND RELIEF REQUESTED

Pursuant to Fed. R. Civ. P. 12(b)(6), Defendant Bishop, Marshall & Weibel, P.S.

(“Bishop”) moves to dismiss the Complaint against it by Plaintiff Pamela S. Owen with

prejudice. After a nonjudicial foreclosure of Ms. Owen’s real property was completed,

Bishop represented the current property owner, co-Defendant Federal Home Loan

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

Owen from the premises. Ms. Owen’s claims against Bishop are premised on her

Case 3:15-cv-05375-BHS Document 21 Filed 08/07/15 of 12





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misunderstanding of Washington’s 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. 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.

Representing Freddie Mac, Bishop served an unfiled Summons and unfiled

Complaint for Unlawful Detainer dated March 3, 2015, on Ms. Owen (the “U.D. Case”).

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

All of Ms. Owen’s allegations against Bishop are contained in a mere ten

paragraphs of her 25 page Complaint. After describing Bishop’s identity [id., ¶¶1.16,

3.33], Ms. Owen asserts Bishop:

created an unfiled Summons and Complaint in the U.D. Case [id., ¶1.5.10-11];

mailed her an unfiled Response to her Motion to Quash Service of Summons in the

U.D. Case [id., ¶1.5.9];

“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];

was aware that the Assignment of her Deed of Trust and Appointment of Successor

Trustee “were null and void” [id., ¶3.34];

“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 Washington’s Deed of Trust Act”

by filing the U.D. Case and obtaining an ex parte Writ of Restitution [id., ¶6.10].

III. AUTHORITIES AND ARGUMENT

A. Standard for Ruling on Dismissal Motion.

Bishop incorporates by this reference the “standard governing motions under Rule

12(b)(6)” section of Defendant MTC Financial Inc.’s Motion to Dismiss [Dkt. 11, pp. 3-4]

as if fully set forth herein.

B. Plaintiff’s Complaint Fails to State a CPA Cause of Action Against Bishop.

Ms. Owen’s Complaint asserts two causes of action, the first for violation of

Washington’s Consumer Protection Act, RCW 19.86, et seq. (“CPA”). To prevail on a

CPA claim, a plaintiff must allege and prove that the defendant’s act or practice: (1) is

unfair or deceptive; (2) occurs in the conduct of trade or commerce; (3) affects the public

interest; (4) causes injury to the plaintiff’s business or property; and (5) caused the specific

injury suffered. Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d

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. Owen’s 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 Plaintiff’s 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

Complaint sufficiently plead an unfair or deceptive act or practice, she is wrong. First,

there was nothing unfair or deceptive about Bishop serving Ms. Owen with an unfiled

Summons and Complaint in the U.D. Case. Such actions are expressly allowed by

Washington statutes and Civil Rules.

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

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

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

the suit be filed within 14 days of serving a written demand on Bishop. CR 3(a). She did

not. An attorney’s actions in prosecuting litigation which are expressly allowed by statute

and Civil Rules can hardly be deemed “unfair and deceptive.”

Second, there was nothing unfair or deceptive about Bishop serving Ms. Owen with

an unfiled Response to her Motion to Quash Service of Summons in the U.D. Case.


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Nowhere in all of Washington’s 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. Owen’s

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.]

Fourth, even if Ms. Owen’s assertion that Bishop “caused to be filed with the trial

court an Order … untruthfully claiming the Court had ‘reviewed’ [two unfiled pleadings]”

[id., ¶1.18] could be read as alleging an unfair or deceptive act (which Bishop expressly

denies), Ms. Owen has not alleged and cannot satisfy other elements of her CPA claim.

The state Court either did or did not review Bishop’s allegedly unfiled pleadings in the

U.D. Case – it is a distinction without a difference. The Court’s entry of the Order

containing “untruthful” information denied Ms. Owen’s requested relief regardless

whether the Court reviewed the listed pleadings. [Id., pp. 62-63, Ex. 10.] That Order was

entered by the Court as its own act – not Bishop’s.

Thus Bishop’s preparation of an allegedly erroneous proposed Order as a matter of

law could not be the proximate cause of any CPA damages to Ms. Owen. Whether the

Order was accurate is irrelevant to Ms. Owen’s alleged damages. The inaccuracy – or not

– 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 Trustee’s Sale before it

occurred.

Similarly, Ms. Owen’s 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 borrower’s claims relating to

any Assignments of his Deed of Trust and/or Appointments of a Successor Trustee. See,

Brophy v. JPMorgan Chase Bank Nat’l. Ass’n., 2013 WL 4048535, *3 (E.D.Wash. Aug. 9,

2013). The Brophy court specifically held that even if a Successor Trustee Appointment is

somehow fraudulent, void, or invalid, the plaintiff borrower does not have standing to contest

it. Id. The borrower cannot be injured by the allegedly fraudulent document because he is

neither a party to it, nor an intended beneficiary of it. See, Brodie v. Northwest Trustee

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

“The critical fact from the standpoint of later purchasers or mortgagees is notice the

earlier mortgage exists, not that it has been assigned.” Kim v. Lee, 145 Wn.2d 79, 100, 31

P.3d 665, as amended (Dec. 12, 2001), opinion corrected, 43 P.3d 1222 (2001) (citing, 18

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

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. Owen’s Complaint contains no such allegations.

Because Ms. Owen’s 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. Owen’s Complaint should be dismissed. And because her CPA claim

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

Washington’s Civil Rules, amendment would be futile; accordingly, the CPA cause of

action should be dismissed against Bishop with prejudice.

C. Plaintiff’s Complaint Fails to State a 42 U.S.C. §1983 Claim Against Bishop.

Unlike her CPA cause of action, Ms. Owen’s second claim for violation of 42

U.S.C. §1983 – deprivation of her constitutional rights committed under color of state law

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

Defendants Federal Housing Finance Agency and Federal Home Loan Mortgage

Corporation to manipulate Washington’s Deed of Trust Act by filing a complaint and

summons and obtaining an ex parte Writ of Restitution.” [Id., ¶6.10.] This sole allegation

is insufficient, and the §1983 cause of action should be dismissed for filing to state a claim

upon which relief against Bishop may be granted.

It is black letter law that §1983 claims must be specifically plead. “Vague and

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

complaint’s 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).

Ms. Owen’s Complaint suffers from these precise flaws. Nowhere in its 97 pages

is there any assertion that Bishop communicated with any of the multiple defendants (other

than, presumably, its client Freddie Mac) at all. Nor are there any allegations of a meeting

of the minds among the alleged co-conspirators, let alone an agreement to deprive Ms.

Owen of her constitutional rights. And to the extent Ms. Owen’s claim is premised on

Bishop’s communications with Freddie Mac, she will never be able to prove it. Those

communications are protected by the attorney/client privilege.

The main elements to state a §1983 cause of action are: (1) a person has deprived

the plaintiff of a federal constitutional or statutory right, and (2) that person acted under

color of state law. Wood v. Ostrander, 879 F.2d 583, 587 (9th Cir.1989); Brower v. Wells,

103 Wn.2d 96, 104–05, 690 P.2d 1144 (1984). “Property rights, in addition to personal

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.) Dep’t. of Police, 472

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

Ms. Owen’s §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. See, Tower v.

Glover, 467 U.S. 914, 919–20, 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);

RCW 2.42.120 (interpreters); RCW 64.55.120 (mediators); Sutton v. Llewellyn, 288

Fed.Appx. 411, 412 (9th Cir. 2008) (conservators).

Second, Bishop took no action “under color of state law.” It is true that action

taken by private individuals may be “under color of state law” where there is “significant”

state involvement in the action. See, e.g., Lugar v. Edmunson Oil Co., Inc., 457 U.S. 922,

941, 102 S.Ct. 2744, 2756, 73 L.Ed.2d 482 (1982); Melara v. Kennedy, 541 F.2d 802, 804

(9th Cir.1976); Scott v. Eversole Mortuary, 522 F.2d 1110, 1113 (9th Cir.1975). At some

point as police involvement increases, repossession by private individuals assumes the

character of state action. Howerton v. Gabica, 708 F.2d 380, 383 (9th Cir. 1983).

However, Ms. Owen does not allege that she in fact was evicted from her home

such that there may have been extensive police involvement in “repossessing” her home.

And the mere filing of an unlawful detainer action cannot be attributed to the state. See,

Lugar, supra, 457 U.S. at 941. Further, the fact that Bishop was representing Freddie Mac


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does not automatically convert Bishop’s actions into state actions, because Freddie Mac is

not a governmental actor:

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. 12–cv–12832, 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 FHFA’s 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 Court’s

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, 95–96 (D.D.C.2012); Lopez v. Bank of

America, N.A., No. 1:12–CV–667, 920 F.Supp.2d 798, 800–01,

2013 WL 150460 at *2–3 (W.D.Mich. Jan. 14, 2013); Kapla v.

FNMA (In re Kapla), 485 B.R. 136, 145–153, 2012 WL 6569739, at

*8–16 (Bankr.E.D.Mich.2012); Rubin v. Fannie Mae, No. 12–cv–

12832, 2012 WL 6000572, at *2–3 (E.D.Mich. Nov. 30, 2012);

Syriani v. Freddie Mac Multiclass Certificates, Series 3365, No. CV

12–3035–JFW, 2012 WL 6200251, at *4 (C.D.Cal. July 10, 2012).

Fed. Home Loan Mortgage Corp. v. Shamoon, 922 F.Supp.2d 641, 644 (E.D. Mich. 2013),

appeal dismissed (Sept. 5, 2013) (emphasis supplied).

Because on the facts alleged Bishop performed no acts “under color of state law,”

and Ms. Owen’s allegations are insufficient to establish communications and a meeting of

the minds to form a §1983 conspiracy against her, Plaintiffs claims should be dismissed.

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, Plaintiff’s §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: [email protected]

Email: [email protected]

Attorneys for Defendant Bishop,

Marshall & Weibel, P.S.


mailto:[email protected]

mailto:[email protected]





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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 all

registered CM/ECF participants in this case.

Dated this 7th day of August, 2015, at Seattle, Washington.


/s/ Tamorah L. Burt

Tamorah L. Burt, Legal Assistant


pamela owen. civil rightson removal. motion to dismiss by defendant bmw. dkt 21

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