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Pamela Owen. Civil Rights. Plaintiff's Response To Defendant Bishop, Marshall & Weibel, P.s.'s Joinder in Mtc's Opposition To Motion To Stay. Doc 33
Pamela Owen. Civil Rights. Plaintiff's Response To Defendant Bishop, Marshall & Weibel, P.s.'s Joinder in Mtc's Opposition To Motion To Stay. Doc 33
Pamela Owen. Civil Rights. Plaintiff's Response To Defendant Bishop, Marshall & Weibel, P.s.'s Joinder in Mtc's Opposition To Motion To Stay. Doc 33
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UNITED STATES DISTRICT COURT
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PAMELA S. OWEN
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Plaintiff, )
vs.
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FEDERAL HOUSING FINANCE AGENCY; )
FEDERAL HOME LOAN MORTGAGE
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CORPORATION; MTC FINANCIAL, INC., )
D/B/A TRUSTEE CORPS; BISHOP,
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MARSHALL & WEIBEL, P.S.; CHUCK E. )
ATKINS, in his official capacity as Clark
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County Sheriff,
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Defendants.)
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Comes now Plaintiff Pamela S. Owen for her response to the above captioned document
and state:
Defendants Bishop, Marshall & Weibel, P.S.s (BMW) and MTC Financial Inc.
(MTC), opposes the Motion To Stay. The remaining Defendants have not responded.
Defendants BMW and MTC have asked the Court to abstain from staying its proceedings
by arguing, among other things, that they are not parties to the case before the State Court of
Appeals.
By their opposition, Defendants MTC and BMW are attempting to avoid a settled rule of
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law more than 311 years old: When the actions of one party hinder the rights of another, that party
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may be found liable. Nixon v. Herndon, 273 U.S. 536 (1927), citing Ashby v. White, 92 E.R. 126
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(1703); Wiley v. Sinkler, 179 U.S. 58, 64, 65 (1900); Giles v. Harris, 189 U.S. 475, 485 (1903).
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The Court should reject these arguments under Lugar v. Edmondson Oil Co., 457 U.S.
922, 934 (1982) and the Colorado River doctrine. See Colorado River Water Conservation
Dist. v. United States, 424 U.S. 800, 817 (1976) and Moses H. Cone Memorial Hosp. v. Mercury
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Under Lugar, the federal portion of this case concerns the relationship between the 1983
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requirement of action under color of state law and the Fourteenth Amendment requirement of
state action.
The two-part approach to a 1983 cause of action was derived from Adickes v.
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Cases of the U. S. Supreme Court have insisted that the conduct allegedly causing the deprivation
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of a federal right be fairly attributable to the State. Lugar v. Edmondson Oil Co., at 937.
To be fairly attributable to the State, a two-part approach is utilized: First, the
deprivation must be caused by the exercise of some right or privilege created by the State or by a
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rule of conduct imposed by the State or by a person for whom the State is responsible. Second, the
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party charged with the deprivation must be a person who may fairly be said to be a state actor.
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This may be because he is a state official, because he has acted together with or has obtained
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significant aid from state officials, or because his conduct is otherwise chargeable to the State.
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A private Trustee conducting a foreclosure sale of real property exercises State power in
the stead of a State judicial officer and is responsible to the State of Washington for her or his
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(1) The trustee of a deed of trust under this chapter shall be:
(a) Any domestic corporation or domestic limited liability corporation incorporated
under Title 23B, 25, *30, 31, 32, or 33 RCW of which at least one officer is a
Washington resident.
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The State Legislature codified the mandatory requisites to a private trustees sale under
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RCW 61.24.030. The Legislature provided in RCW 61.24.030(7)(a) and (b) that:
(a) That, for residential real property, before the notice of trustees sale is
recorded, transmitted, or served, the trustee shall have proof that the beneficiary is
the owner of any promissory note or other obligation secured by the deed of trust.
A declaration by the beneficiary made under the penalty of perjury stating that the
beneficiary is the actual holder of the promissory note or other obligation secured
by the deed of trust shall be sufficient proof as required under this subsection.
(b) Unless the trustee has violated his or her duty under RCW 61.24.010(4), the
trustee is entitled to rely on the beneficiarys declaration as evidence of proof
required under this subsection.
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The Legislature did not require Defendant MTC to conduct due diligence designed to
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uncover whether other persons claimed to be the owner of any promissory note or other
obligation secured by the deed of trust.
At the time Defendant MTC conducted the foreclosure sale, both Defendant Freddie Mac
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and Bank of America National Association claimed to be the owner of the promissory note or
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other obligation secured by Plaintiffs deed of trust, both of which were drafted by Defendant
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Freddie Mac. Plaintiffs Complaint at paragraphs 1.28; 1.28; 5.12; 5.13 and 5.15.
In its analysis of the case presented in Bain v. Metropolitan Mortgage Group, Inc., 175
Wn.2d 83, 285 P.3d 34 (2012), the Supreme Court stated that it was whoever drafted the forms
used in these cases that manipulated the terms of the [Deed of Trust] act. Plaintiffs Complaint
at paragraphs 1.27; 5.12-5.13.
The Legislature, in relevant part, granted Defendant Freddie Mac special rights and
remedies as a RCW 61.24.060 trustees sale purchaser:
(1) The purchaser at the trustees sale shall be entitled to possession of the
property on the twentieth day following the sale, as against the borrower and
PLAINTIFFS RESPONSE TO DEFENDANT BISHOP, MARSHALL & WEIBEL, P.S.s JOINDER IN
MTCS AND OPPOSITION TO PLAINTIFFS MOTION TO STAY PROCEEDINGS PENDING
OUTCOME OF STATE COURT OF APPEALS
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grantor under the deed of trust and anyone having an interest junior to the deed of
trust, including occupants who are not tenants, who were given all of the notices to
which they were entitled under this chapter. The purchaser shall also have a right to
the summary proceedings to obtain possession of real property provided in chapter
59.12 RCW.
In enacting RCW 61.24.060(1), the State was guaranteeing to Defendant Freddie Mac the
corporation would have the authority of state officials to put the weight of the State behind
Defendant Freddie Macs decision.
Under RCW 59.12.100, the State was guaranteeing to Defendant Freddie Mac the power
of Defendant Sheriff Atkins to summarily evict Plaintiff and place Defendant Freddie Mac in
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The Legislature did not require Defendant Freddie Mac to file a declaration made under
the penalty of perjury that it was a bona fide purchaser (BFP).
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The statutory scheme set forth under Chapters 59.12 and 61.24 are the products of state
action as was held in Lugar v. Edmondson Oil Co.
Lugar held that a private partys joint participation with state officials in the seizure of
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disputed property is sufficient to characterize that party as a state actor for purposes of the
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Fourteenth Amendment. Respondents were, therefore, acting under color of state law in
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commenced as a result of a trustees sale under chapter 61.24 RCW, must comply with the
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To prevail on a 1983 claim, a plaintiff must allege that the defendant acted under color
of state law, in other words, that there was state action. Lugar v. Edmondson Oil Co., 457 U.S.
922, 929.
Defendant MTCs actions taken pursuant to Chapter 61.24 RCW directly facilitated the
actions of Defendant BMW under Chapters 59.12 RCW and 61.24 RCW. The issues before the
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State Court of Appeals is whether the Superior Court and Defendants Freddie Mac and BMW
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Defendant BMW drafted and filed the complaint for unlawful detainer. Defendant BMW
knew its client, Defendant Freddie Mac, did not qualify as a bona fide purchaser under Chapter
61.24 RCW. Defendant BMW caused the Superior Court and Defendant Sheriff Atkins to take the
actions each took in depriving Plaintiff of her property without due process of law.
Defendant BMWs arguments that Bishop took no action under color of state law; A
privately-retained attorney does not act under color of state law for the purposes of a 1983
claim; and Bishops representation of Freddie Mac does not make Bishop a state actor
because Freddie Mac is not a governmental actor, are arguments rejected by the Lugar Court.
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The private party need not be a governmental actor. The deprivation must be caused by
the exercise of some right or privilege created by the State or by a rule of conduct imposed by the
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State or by a person for whom the State is responsible. The party charged with the deprivation
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must be a person who may fairly be said to be a state actor. This may be because he is a state
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official, because he has acted together with or has obtained significant aid from state officials, or
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because his conduct is otherwise chargeable to the State. Lugar v. Edmondson Oil Co., at 937.
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Further:
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[W]e have consistently held that a private partys joint participation with state
officials in the seizure of disputed property is sufficient to characterize that party as
a state actor for purposes of the Fourteenth Amendment. Private persons,
jointly engaged with state officials in the prohibited action, are acting under color
of law for purposes of the statute. To act under color of law does not require that
the accused be an officer of the State. It is enough that he is a willful participant in
joint activity with the State or its agents. Lugar v. Edmondson Oil Co., at 941.
Under Colorado River, considerations of wise judicial administration, giving regard to
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conservation of judicial resources and comprehensive disposition of litigation may justify the
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imposition of a stay. 424 U.S. at 817. Exact parallelism is not required; it is enough if the two
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proceedings are substantially similar. Holder v. Holder, 305 F.3d 854, 867 (9th Cir. 2002)
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the order in which the forums obtained jurisdiction; (5) whether state or federal law controls; and
(6) whether the state proceeding is adequate to protect the parties rights. See Nakash, 882 F.2d at
1415 (citing Colorado River, 424 U.S. at 818 and Moses Cone, 460 U.S. at 25-26).
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This Court will be bound by the decision of the State Court of Appeals whether State laws
were violated resulting in a denial of due process of law. A ruling favorable to Plaintiff will
support the causes of action currently before the Court, while a ruling adverse to Plaintiff will
necessitate the dismissal of the causes of action before the Court with prejudice.
Whether Defendant MTC was a lawful Trustee under Chapter 61.24 RCW is an additional
matter supporting a stay. From June 30, 1992 and continuing to the present, Defendant MTC
Financial has represented to the public on the website of the California Secretary of State that it is
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From May 18, 2006 to December 31, 2008, Defendant MTC represented to the public on
the website of the Washington Secretary of State that it was a legal entity incorporated in
California:
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From March 3, 2009 to February 23, 2010, Defendant MTC was registered with the
Washington Secretary of State as a foreign corporation incorporated in the State of California:
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The State Legislature mandated under RCW 61.24.010(1)(a) that every corporation
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domestic limited liability corporation incorporated under Title 23B, 25, *30, 31, 32, or 33 RCW
of which at least one officer is a Washington resident.
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From May 18, 2006 to February 22, 2010, Defendant MTC acted as a trustee of a deed of
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California.
In an attempt to correct its violation of state law, from February 23, 2010 to the present,
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Defendant MTC has represented to the public through the website of the Washington Secretary of
State that it is a Washington domestic corporation, while at the same time continuing to represent
to the public through the website of the California that it is a California corporation:
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Defendant MTCs Washington domestic corporation mailing address on file with the
Washington State Department of Revenue, 17100 Gillette Ave Irvine, CA 92614-5603, is the
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same address on file with the California Secretary of State for Defendant MTC as a California
domestic corporation.
However, a letter sent to Defendant MTCs Seattle address on file with the Washington
Department of Revenue was returned by the U.S. Post Office as undeliverable:
PLAINTIFFS RESPONSE TO DEFENDANT BISHOP, MARSHALL & WEIBEL, P.S.s JOINDER IN
MTCS AND OPPOSITION TO PLAINTIFFS MOTION TO STAY PROCEEDINGS PENDING
OUTCOME OF STATE COURT OF APPEALS
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Thus, Defendant MTCs claim that it is both a Washington domestic corporation and a
California domestic corporation raises due process concerns. Further, on June 8, 2015, Attorney
Michael S. DeLeo, WSBA # 22037, attorney for Defendant MTC, informed this Court in
Defendant MTCs Corporate Disclosure Statement, Doc. 5, that: Defendant MTC Financial Inc.
d/b/a Trustee Corps has no parent corporation and no publicly held corporation owns 10% or more
of its stock.
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The court, or a judge, may, on motion of either party, and on showing reasonable
grounds therefor, require the attorney for the adverse party, or for any one of
several adverse parties, to produce or prove the authority under which he or she
appears, and until he or she does so, may stay all proceedings by him or her on
behalf of the party for whom he or she assumes to appear.
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To protect its jurisdiction, this Court may be obliged to stay its proceedings until a
determination is made as to which legal entity of Defendant MTC is before this Court.
Plaintiff therefore prays this Court stay its proceedings pending outcome of the State Court
of Appeals.
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Respectfully submitted,
Dated: September 2, 2015
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/s/Pamela S. Owen
Pamela S. Owen
3912 NE 57th Avenue
Vancouver, WA 98661
Tel: (360) 991-4758
pamela.owen99@gmail.com
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