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7/24/2019 Pamela Owen. Civil Rights. Motion to Dismiss for Failure to State a Claim by Defendants Fhfa and Freddie Mac. D
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FEDERAL HOUSING FINANCE AGENCYS AND FEDERALHOME LOAN MORTGAGE CORPORATIONS JOINTMOTION TO DISMISS PLAINTIFFS COMPLAINT- 1Case No. 3:15-cv-05375-BHS
S1278915.DOCX
422 W. Riverside Avenue, Suite 1100 Phone: 509.624.5265
Spokane, Washington 99201-0300 Fax: 509.458.2728
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The Honorable Benjamin H. Settle
UNITED STATES DISTRICT COURTWESTERN DISTRICT OF WASHINGTON
AT TACOMA
PAMELA S. OWEN,
Plaintiff,vs.
FEDERAL HOUSING FINANCE AGENCY;FEDERAL HOME LOAN MORTGAGECORPORATION; MTC FINANCIAL, INC.,dba TRUSTEE CORPS; BISHOP,MARSHALL & WEIBEL, P.S.; CHUCK E.ATKINS, in his official capacity as ClarkCounty Sheriff,
Defendants.
Case No. 3:15-cv-05375-BHS
FEDERAL HOUSING FINANCEAGENCYS AND FEDERAL HOMELOAN MORTGAGE CORPORATIONSJOINT MOTION TO DISMISSPLAINTIFFS COMPLAINT
NOTE ON MOTION CALENDAR:November 6, 2015
I.INTRODUCTION
Plaintiffs1Complaint constitutes a futile attempt to stave off a prior eviction action filed
by the lawful owner of the property, defendant Federal Home Loan Mortgage Corporation
("Freddie Mac"); it should be dismissed with prejudice. Plaintiff defaulted on a mortgage loan,
and in due course the property was sold at a lawful trustees sale to Freddie Mac, which
subsequently filed an unlawful detainer action against Plaintiff. Rather than challenge the
1Hereinafter, Plaintiff shall refer to Pamela S. Owen.
Case 3:15-cv-05375-BHS Document 40 Filed 10/14/15 Page 1 of 20
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FEDERAL HOUSING FINANCE AGENCYS AND FEDERALHOME LOAN MORTGAGE CORPORATIONS JOINTMOTION TO DISMISS PLAINTIFFS COMPLAINT- 2Case No. 3:15-cv-05375-BHS
S1278915.DOCX
422 W. Riverside Avenue, Suite 1100 Phone: 509.624.5265
Spokane, Washington 99201-0300 Fax: 509.458.2728
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foreclosure in that action, Plaintiff instead waited until judgment was issued against her, then
filed unsuccessful post-judgment motions and the instant suit. Plaintiffs attempt to side-step
the judgment in the unlawful detainer action should be rejected for a number of independent
reasons.
First, the Federal Housing Finance Agency ("FHFA" or the "Agency") is not subject to
this Courts jurisdiction because Plaintiff failed to serve the Agency. Second, Plaintiffs claims
are barred; she should have raised the claims asserted here in the unlawful detainer action; thus,
res judicata principles bar her from raising these claims here. Third, even if Plaintiff could
properly bring the instant claims, they fail as a matter of law. The Complaint contains scattered,
general allegations of wrongdoing concerning the foreclosure, as well as an attack upon the
involvement of Mortgage Electronic Registrations Systems, Inc. ("MERS") in her loan.
Plaintiff challenges the appearance of MERS on her Deed of Trust, which she argues is a result of
Freddie Mac and FHFAs conspiracy to manipulate the Washington Deed of Trust Act, rendering
the foreclosure void. But not only does the Complaint omit allegations of specific wrongdoing by
Freddie Mac or the Agency, Plaintiffs premise is wrong: It is well -settled under Washington law
that MERS can be appointed as a nominee by the beneficiary, and that MERS can also record an
assignment on behalf of the beneficiary lender. Further, Plaintiff, as a borrower who is not a party to
the assignment, lacks standing to challenge it. As to Plaintiffs constitutional claims under Section
1983, they also fail because neither Freddie Mac nor FHFA is subject to such a claim, and even if
they were, Plaintiff cannot establish a constitutional violation based upon an unspecified
"conspiracy to manipulate the Washington Deed of Trust Act." Accordingly, Plaintiffs Complaint
fails as a matter of law to state a viable claim and must be dismissed with prejudice.
Case 3:15-cv-05375-BHS Document 40 Filed 10/14/15 Page 2 of 20
7/24/2019 Pamela Owen. Civil Rights. Motion to Dismiss for Failure to State a Claim by Defendants Fhfa and Freddie Mac. D
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FEDERAL HOUSING FINANCE AGENCYS AND FEDERALHOME LOAN MORTGAGE CORPORATIONS JOINTMOTION TO DISMISS PLAINTIFFS COMPLAINT- 3Case No. 3:15-cv-05375-BHS
S1278915.DOCX
422 W. Riverside Avenue, Suite 1100 Phone: 509.624.5265
Spokane, Washington 99201-0300 Fax: 509.458.2728
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II. FACTS
On November 4, 2005, Plaintiff took out a $208,250 loan from Landmark Mortgage (the
"Loan") to purchase the property located at 3912 NE 57th Ave., Vancouver, WA 98661 (the
"Property"). ECF No. 2-3 (the "Compl."), Ex. 5. The Loan was secured by a Deed of Trust on the
Property recorded on November 15, 2006 that lists Fidelity National Title as the trustee and MERS
as the beneficiary, acting solely as nominee for lender and its successors and assigns. Id., Ex. 4. On
October 17, 2011, MERS, on behalf of the beneficiary, issued an Assignment of Deed of Trust,
evidencing that the interest in the Deed of Trust had been assigned to Bank of America, N.A.
("BANA"). Id., Ex. 7. BANA later recorded an Appointment of Successor Trustee, appointing co-
defendant MTC Financial, Inc. d/b/a Trustee Corps ("MTC") as the trustee of the Deed of Trust.
Id., Ex. 8.
Thereafter, on or about April 22, 2014, BANA, as the beneficiary of the Deed of Trust,
issued a written Notice of Default.2 A Notice of Trustees Sale was later recorded by MTC.
Compl., Ex. 3. MTC held the trustees sale on January 16, 2015, at which time the Property was
purchased by Freddie Mac. Compl., Ex. 2 (Trustees Deed Upon Sale). On or about April 2, 2015,
Freddie Mac initiated an unlawful detainer action against Plaintiff relating to the Property. See
Compl, Ex. 13 (Unlawful Detainer Complaint). Freddie Mac obtained a writ of restitution in that
matter, directing the Sheriff of Clark County to deliver possession of the Property to Freddie Mac.
Compl., Ex. 18. On April 13, 2015 and April 23, 2015, respectively, Plaintiff filed post-judgment
motions raising the same issues she asserts here: a Motion to Vacate Judgment and to Stay
Enforcement of Judgment and Writ of Restitution and Motion to Quash Service of Summons.
Declaration of Jody M. McCormick ("McCormick Dec."), Exs. C & D. Both were denied.
2While Plaintiff does not attach the Notice of Default to her Complaint, it is referenced at p. 2of the Notice of Trustees Sale which is attached as Exhibit 3.
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FEDERAL HOUSING FINANCE AGENCYS AND FEDERALHOME LOAN MORTGAGE CORPORATIONS JOINTMOTION TO DISMISS PLAINTIFFS COMPLAINT- 4Case No. 3:15-cv-05375-BHS
S1278915.DOCX
422 W. Riverside Avenue, Suite 1100 Phone: 509.624.5265
Spokane, Washington 99201-0300 Fax: 509.458.2728
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Plaintiff filed the instant Complaint in Clark County Superior Court on May 7, 2015 seeking
money damages and restoration of the property to her. The matter was subsequently removed to
instant Court. ECF 1. Both MTC and Bishop Marshall & Weibel, P.S. ("BMW") have filed a
Motion to Dismiss Plaintiffs Complaint, while co-defendant Sheriff Chuck E. Atkins has filed an
Answer. ECF 10-11, 21. The Court responded by issuing an Order granting MTCs and BMWs
Motions to Dismiss. ECF 37. Plaintiffs alleges: 1) a violation of the Washington Consumer
Protection Act ("CPA"); and 2) a violation of 42 U.S.C. 1983. Both claims fail.
III. EVIDENCE RELIED UPON
This Motion to Dismiss relies upon the allegations in the Complaint and the undisputed
recorded documents, of which the Court may take judicial notice.3
IV. ISSUE
Whether the Court should dismiss the Complaint in its entirety for failure to state a
claim upon which relief can be granted as to Defendants.
V. ARGUMENT
A. Legal Standard
Federal Rule of Civil Procedure 8(a)(2) requires a plaintiff to provide "a short and plain
statement of the claim showing that [he] . . . [is] entitled to relief to give the defendant[s] fair
notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp. v.
3 The Court may take judicial notice of publicly recorded documents and may consider thedocuments without turning this motion into a motion for summary judgment. See, e.g., Parrinov. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998) ("A court may consider evidence on which thecomplaint necessarily relies if: (1) the complaint refers to the document; (2) the document is
central to the Plaintiffs claim; and (3) no party questions the auth enticity of the copy attachedto the 12(b)(6) motion.").
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7/24/2019 Pamela Owen. Civil Rights. Motion to Dismiss for Failure to State a Claim by Defendants Fhfa and Freddie Mac. D
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FEDERAL HOUSING FINANCE AGENCYS AND FEDERALHOME LOAN MORTGAGE CORPORATIONS JOINTMOTION TO DISMISS PLAINTIFFS COMPLAINT- 5Case No. 3:15-cv-05375-BHS
S1278915.DOCX
422 W. Riverside Avenue, Suite 1100 Phone: 509.624.5265
Spokane, Washington 99201-0300 Fax: 509.458.2728
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Twombly, 550 U.S. 544, 545 (2007). Claims that fail to meet this standard must be dismissed
under F.R.C.P 12(b)(6).
These Rules require that a complaint contain sufficient factual allegations, which,
accepted as true, state a claim for relief "that is plausible on its face." Ashcroft v. Iqbal, 556
U.S. 662, 129 S. Ct. 1937, 1949 (2009). To survive a motion to dismiss under Rule 12(b)(6),
the Plaintiff must provide more than just "labels and conclusions"; rather, he must provide the
grounds of his entitlement to relief. Twombly, 550 U.S. at 555; see alsoIqbal, 129 S. Ct. at
1949-50 ("threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements do not suffice[;] only a complaint that states a plausible claim for relief
survives a motion to dismiss."). While legal conclusions may establish the complaints basic
framework, "they must be supported by factual allegations." Id. at 1950. Where it is clear
amendment would be futile, the court may dismiss the Complaint without leave to amend. See
Havas v. Thorton, 609 F.2d 372 (9th Cir. 1979).
B. FHFA Is Not Subject to This Courts Jurisdiction Because Plaintiff Failed to Serve
FHFA.
The Court should dismiss the Complaint as to FHFA pursuant to Rule 12(b)(5) because
Plaintiff failed to serve FHFA. FHFA is a federal agency and thus must be served in
accordance with Rule 4(i)(2) of the Federal Rules of Civil Procedure. See 12 U.S.C. 4511
(establishing FHFA as an independent federal agency to regulate and oversee government-
sponsored entities including Freddie Mac); Rule 4(i)(2) (describing required service of process
upon agencies of the United States). Rule 4(i)(2) requires a plaintiff to deliver the summons
and complaint to the U.S. attorney for the district where the action is brought; send a copy by
registered or certified mail to the Attorney General for the United States; and send a copy by
registered or certified mail to FHFA itself. See Rule 4(i)(1), 4(i)(2); Rangel v. United States,
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FEDERAL HOUSING FINANCE AGENCYS AND FEDERALHOME LOAN MORTGAGE CORPORATIONS JOINTMOTION TO DISMISS PLAINTIFFS COMPLAINT- 6Case No. 3:15-cv-05375-BHS
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422 W. Riverside Avenue, Suite 1100 Phone: 509.624.5265
Spokane, Washington 99201-0300 Fax: 509.458.2728
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No. 09-3061, 2010 WL 3715489, *1-2 (E.D. Wa. 2010) (dismissing complaint against federal
agencies for failing to comply with Rule 4(i)).
Plaintiff admittedly has not served FHFA in accordance with Rule 4(i), instead claiming
to have accomplished service upon FHFA by delivering a copy of the Complaint to the
Washington Secretary of State. SeeECF Nos. 31, 35. Plaintiff asserts that such service satisfies
RCW 23B.18.040, but does not explain how that provisionwhich governs service upon
nonresident corporate holders of security interests in mortgagesapplies to FHFA or exempts
Plaintiff from her obligations to serve FHFA pursuant to the Federal Rules. See RCW
23B.18.010; RCW 23B.18.040. It does neither. Moreover, although under no obligation to do
so, FHFA (through its counsel) twice informed Plaintiff that she had not properly served FHFA
and offered to accept service on the condition that Plaintiff stipulate setting a reasonable
briefing schedule for FHFA to respond to her claims; Plaintiff refused. See McCormick Dec. at
Exs. A & B (attaching August 4, 2015 and September 30, 2015 correspondence from Plaintiff
rejecting Freddie Macs and FHFAs offers to stipulate).
Because Plaintiff failed to serve FHFA, the Court cannot properly exercise jurisdiction
over FHFA and should dismiss the allegations against it under Rule 12(b)(5).4 See Rangel,
2010 WL 3715489, at *1 ("In order for the court to exercise jurisdiction over a defendant, the
defendant must be served properly."). Further, a dismissal with prejudice is appropriate here,
where the Complaint suffers from additional defects fatal to Plaintiffs claims. See Sanchez v.
Drug Enforcement Administration, 2:14-cv-236, 2015 WL 2453452, at *3 (E.D. Wash. May 22,
4 Regardless of service defects, Plaintiffs claims are independently subject to dismissal forthe additional reasons stated herein. See infra, Sections C-E.
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2015) (dismissing complaint against DEA with prejudice because of "other deficiencies in the
complaint");see infra, Sections C-E.
C. Plaintiffs Claims Challenging Freddie Macs Entitlement to Possession of the
Property Are Barred By Res Judicata.
To the extent that Plaintiffs assertions were, or could have been, raised in the Unlawful
Detainer action, they are barred by the doctrine of res judicata. Res judicata bars the re-
litigation of claims that were raised, or could have been raised, in a previous litigation that was
resolved on the merits. "Under the doctrine of res judicata, no party may re-litigate claims and
issues that were litigated, or might have been litigated, in a prior action." Pederson v. Potter,
103 Wash. App. 62, 69, 11 P.3d 833 (2000) (quotation omitted). The doctrine applies "where a
prior final judgment is identical to the challenged action in (1) subject matter, (2) cause of
action, (3) persons and parties, and (4) the quality of the persons for or against whom the claim
is made." Id. (quotation omitted); see also Pedrina v. Chun, 97 F.3d 1296, 1301 (9th Cir.
1996) ("In determining whether a prior state court action bars a subsequent federal action, the
federal court must look to the res judicata principles of the state court in which the judgment
was rendered."). Here, Plaintiff are attempts to defend her right to possession of the property by
raising questions about, inter alia, the foreclosure, the validity of Freddie Macs title to the
Property, and the propriety of eviction procedures. Id., 1.16-1.29. Plaintiff is questioning
whether Freddie Mac is entitled to possession of the propertythe very same issues which the
state court conclusively addressed in its making factual findings concerning ownership of the
property and in issuing its Judgment for Writ of Restitution Only. See McCormick Dec., Ex E.
Plaintiff could have raised a number of the instant claims in her Motion to Vacate Judgment,
which the Court denied following briefing and a hearing on April 17, 2015, or in her Motion to
Quash. See McCormick Dec., Exs. D & E. Accordingly, as to Plaintiffs claims is entitled to
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possession of the property, these claims could have been raised or were raised in the Unlawful
Detainer action. They are barred.5
D. Plaintiffs Attempt to Challenge MERS Involvement In Her Deed of Trust Is
Without Merit and Cannot Support a CPA Claim
Plaintiff seeks to void the foreclosure sale because of the appearance of MERS in her
Deed of Trust ("DOT"), and based on its actions in assigning the DOT to BANA. See Compl.,
1.9-1.15, 1.27-1.28. Plaintiff appears to assert that their DOT was defective because of
MERS involvement, and also asserts that the Assignment of her DOT by MERS was improper,
hence everything that flowed therefrom was also ineffective, including the Appointment of
Successor Trustee and subsequent sale. Id., 5.5-5.15.11, 5.18. But Plaintiffs challenge to
MERS appearance on her DOT is time-barred. Moreover, to the extent she challenges the
validity of the subsequent assignment of her DOT, Plaintiff lacks standing to challenge any
assignment to which she was not a party. Finally, the mere appearance of MERS on her DOT
does not support her claim for violation of the CPA, and indeed Washington law makes it clear
that nothing that was done here was actionable.
1. Plaintiffs Challenge To MERS Appearanceon Her Deed of Trust is Time-Barred
To the extent Plaintiffs claims are based on MERS being named as beneficiary in a
nominee capacity in her DOT, such an argument fails. The DOT that names MERS was
5The inclusion of FHFA, Bishop Marshall & Weibel, P.S. and Sheriff Chuck E. Atkins in theinstant action does not violate the doctrines requirement that the persons or parties in both
actions be identical or in privity. In order to show privity between a non-party and a party toformer litigation, the party who asserts that the matter is barred by claim preclusion mustdemonstrate that the nonparty's interests and rights were represented and protected in the prioraction. Pedrina v. Chun, 97 F.3d at 1301. Here, these three defendants adopt the sameposition as Freddie Mac concerning Plaintiff lack of entitlement to possession of the property.Thus, Freddie Mac adequately represented these parties rights concerning this issue in the state
court litigation.
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executed by Plaintiff in November 7, 2005. The statute of limitations for a claim for violation
of the CPA is four years. See RCW 19.86.120. Accordingly, Plaintiffs CPA claim is time-
barred to the extent that she relies on MERS inclusion on her DOT. The DOT was executed in
2005 and her CPA claim based on MERS involvement on her DOT would have expired at the
latest four years later, in November, 2009. Because courts lack subject matter jurisdiction to
hear claims brought outside the limitations period, Miguel v. Country Funding Corp., 309 F.3d
1161, 1164 (9th Cir. 2002), Plaintiffs CPA claim fails.
2. Plaintiff Lacks Standing to Challenge the Validity of the Assignment of the
Deed of Trust
Borrowers, as non-parties to an assignment, lack standing to challenge the validity of the
assignment. See Ukpoma v. U.S. Bank Natl Assn, No. 12-CV-0184-TOR, 2013 U.S. Dist.
LEXIS 66576, at *13 (E.D. Wash. 2013) ("Even assuming for the sake of argument that the
assignments in question were fraudulently executed, Plaintiff, as a third party, lacks standing to
challenge them."); Borowski v. BNC Mortgage, Inc., No. C12-5876, 2013 U.S.Dist. LEXIS
122104, at *13 (W.D. Wash. 2013) ("[B]orrowers, as third parties to the assignment of their
mortgage (and securitization process), cannot mount a challenge to the chain of assignments
unless a borrower has a genuine claim that they are at risk of paying the same debt twice if the
assignment stands."). Further, an assignment is not a requirement to foreclose in Washington.
See St. John v. Northwest Trustee Services, Inc., No. C11-5382BHS, 2011 WL 4543658 at *3
(W.D.Wash., 2011).
Accordingly, Plaintiffschallenge the validity of the Assignment of the Deed of Trust,
and argument that her entire loan and the subsequent trustees sale are void as a result, fails.
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3. PlaintiffsMERS Allegations Cannot Support a Claim for Violation of the
CPA
Plaintiffs argument in support of her claim for violation of the CPA is based on a
misunderstanding ofBain v. Mortg. Elec. Registration Systems, Inc., 175 Wash.2d 83, 104, 285
P.3d 34 (2012). Plaintiffs reliance on MERS inclusion on her DOT, and on a purportedly
defective assignment of the DOT to support a CPA claim is misplaced.
UnderBain, Plaintiffs are still required to prove each of the elements of a private CPA
claim: (1) an unfair or deceptive act or practice; (2) that occurs in trade or commerce; (3) an
impact on the public interest; (4) injury to the plaintiff in his or her business or property; and (5)
a causal link between the unfair or deceptive act and the injury suffered. Hangman Ridge
Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 785 (1986). Whether a
defendants conduct is an unfair or deceptive act or practice is a question of law. Micro
Enhancement Intern., Inc. v. Coopers & Lybrand, LLP, 110 Wn. App. 412, 438, 40 P.3d 1206
(2002). An unfair or deceptive act or practice requires the plaintiff to prove that the act "had the
capacity to deceive a substantial portion of the public." Burns v. McClinton, 135 Wn. App. 285,
302-03 (2006). The first two elements of a CPA claim may be satisfied by establishing that the
alleged act constitutes a per se unfair act or practice, which exists when a statutory violation has
been "declared by the Legislature to constitute an unfair or deceptive act in trade or commerce."
Hangman Ridge, 105 Wn. 2d at 78586. A per se unfair trade practice requires the legislature
to "specifically define[] the exact relationship between a statute and the CPA . . . ." Anderson
v. Valley Quality Homes, Inc., 84 Wn. App. 511, 516 (1997) (quoting Hangman Ridge, 105
Wn.2d at 787). Such per se unfair practices are limited to specific legislative declarations that
violation of the underlying statute constitutes an unfair or deceptive act or practice. See id. at
518.
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Plaintiffs challenges MERS involvement on her DOT generally, as well as its actions
in recording an assignment of the DOT. However, under Washington law, the mere appearance
of MERS on a deed of trust does not create actionable injury, nor does it provide grounds to
quiet title to property. Washington law is clear that it is not an assignment which grants the right
to foreclose, rather it is the status as the holder of the Note.
TheBaincourt considered and rejected plaintiffs argument that he should be entitled to
quiet title to the property on the ground that MERS was listed on his deed of trust as a
beneficiary. See Bain v. Metro Mortg. Grp., Inc., 175 Wash. 2d 83, 105 (Wash. 2012). In
addition, Judge Leighton of the Western District recently addressed a similar case where the
plaintiff argued that the holder of the note could not seek to foreclose because the deed of trust
had been assigned by MERS:
Here, Plaintiff's claims arise from a fundamental misunderstanding of the law.U.S. Bank is the beneficiary of the deed because it holds Plaintiff's note, notbecause MERS assigned it the deed. Under Washington law, a beneficiary is bydefinition the party holding the note: " Beneficiary means the holder of theinstrument or document evidencing the obligations secured by the deed of trust."Wash. Rev. Code 61.24.005(2). This rule, however, is merely the codification ofthe longstanding principle that "the deed follows the debt." See Restatement(Third) of Property (Mortgages) 5.4(a). . . . In sum, possession of the notemakes U.S. Bank the beneficiary; the assignment merely publicly records thatfact. Because U.S. Bank is the proper beneficiary, it is empowered to initiateforeclosure following Plaintiff's default.
Lynott v. Mortgage Electronic Registration Systems, Inc., 2012 WL 5995053 at *2 (W.D. Wash.
2012). Hence, Bain does not stand for the proposition that a deed of trust is unenforceable
simply because it names MERS as a beneficiary. See Zhong v. Quality Loan Service Corp. of
Wash., 2013 WL 5530583, at *3 (W.D. Wash. 2013) (determining that "Bainalso held that a
deed of trust naming MERS as a beneficiary is not automatically unenforceable). Indeed, the
Deed of Trust remains valid and enforceable by the holder of the Note even where a violation of
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422 W. Riverside Avenue, Suite 1100 Phone: 509.624.5265
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the Deed of Trust occurs. See, e.g., Walker v. Quality Loan Service Corp. of Wash., 308 P.3d
716, 729 (Wash. App. Div. 1 2013) (rejecting the argument that designation of an ineligible
beneficiary "standing alone, renders [a deed of trust] void");Borowski v. BNC Morg., 2013 WL
4522253, at *5 (W.D. Wash. 2013) (finding that "a violation of the Deed of Trust Act should
not result in a void deed of trust").Other Washington federal cases have similarly concluded
that merely listing MERS as beneficiary, or MERS assigning a deed of trust does not extinguish
the borrowers duty to repay, nor does it destroy defendants interests in the property. See
Wilson v. Bank of America, N.A., et al, 2013 WL 275018 at *(W.D. Wash. 2013) ("Even if
MERS were a sham beneficiary, [plaintiffs lender] would still be entitled to repayment of the
loans and would be [a] proper part[y] to initiate foreclosure after the plaintiffs defaulted on their
loans."); Order Granting Defendants Motion for Summary Judgment, Dietz v. Quality Loan
Service Corp. of Wash., Case No. C13-5948 RJB (W.D. Wash. October 20, 2014) (the mere
inclusion of MERS in a loan transaction is not actionable under Washington law, quotingBain).
In the wake ofBain, Washington courts have frequently rejected the conclusory MERS-
based allegations Plaintiff offers here, where plaintiffs fail to allege facts showing that MERS
had a causal role in their claimed injuries. See, e.g., Kullman v. Northwest Trustee Services,
Inc., No. 12cv5852RBL, 2012 WL 5922166, at *2 (W.D. Wash. 2012) ("Plaintiffs have
failed to allege any prejudice arising from MERS role in the foreclosure. Plaintiffs admit
default and seek to generate controversy where none exists."); Burkart v. Mortgage Elec.
Registration Sys., Inc., C11-1921RAJ, 2012 WL 4479577, at *5 (W.D. Wash. 2012) (Jones, J.)
("If the Burkarts want to plead one or more claims based on MERS' improper designation as the
beneficiary in their deed of trust, they must provide sufficient allegations to establish that they
have been injured."); See also Peterson v. Citibank, N.A., No. 671774I, 2012 WL 4055809,
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422 W. Riverside Avenue, Suite 1100 Phone: 509.624.5265
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at *4 (Wash. Ct. App. 2012) ("the Petersons have failed to plead facts demonstrating that their
alleged injuries would not have occurred but for MERS actions; regardless of MERS conduct
as the beneficiary under the deed of trust, the Petersons property would still have been
foreclosed upon based on their failure to make payments on the loan.").
Plaintiff has not alleged prejudice resulting from MERS involvement in her loan, much
less any damages resulting from MERS assignment of the DOT. Rather, Plaintiffs allegations
reveal that she defaulted and failed to cure her default, which resulted in a sale of the Property
to Freddie Mac. Thus, any harm she has suffered was not caused by anything that MERS has
done, but rather flowed from Plaintiffs default. It follows that Plaintiffs challenges to
BANAs right to appoint a new trustee and the subsequent foreclosure must also fail, as they are
predicated on the same meritless MERS-based arguments. BANAs ability to appoint a
successor trustee was based on its status as the Note holder and beneficiary of Plaintiffs loan
and not upon anything recorded by MERS. As such, the resulting trustees sale was not
defective simply because of the assignment of the DOT which was recorded by MERS. Rather,
that document merely put the public on notice of what was already true as a matter of law, that
BANA was the beneficiary of Plaintiffs Loan because it held the Note. Finally, it bears noting
that Plaintiff has alleged no facts that are capable of supporting any claim that Freddie Mac and
FHFA conspired to manipulate the Washington Deed of Trust Act. A borrower is not permitted
simply to rely on "labels and conclusions"; rather, she must provide the grounds of her
entitlement to relief, which she has failed to do.
Accordingly, Plaintiffs CPA claim must be dismissed insofar as her claims are based on
legally untenable challenges to MERS status as nominee beneficiary under her Deed of Trust
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and its actions in recording an assignment of that interest. Plaintiff has not established the
elements of such a claim, and there can be no question that Plaintiff has not been harmed here.
E. Plaintiffs Section 1983 Claim Fails.
1. Neither Freddie Mac Nor FHFA Is Subject to Plaintiffs 1983 Claim.
To establish a Section 1983 violation, a plaintiff must establish: (1) that the conduct
complained of was committed by a person acting under color of state law; and (2) that the
conduct deprived plaintiff of a federal constitutional or statutory right. Patel v. Kent School
Dist., 648 F.3d 965, 971 (9th Cir. 2011). While Plaintiffs allegations are somewhat opaque,
their gist seems to be that through a purported "conspiracy to manipulate the Washington Deed
of Trust Act," Freddie Mac and FHFA violated Plaintiffs "constitutional right to contract" and
due process rights. Compl. 22-23. However, Freddie Mac is a private entity that does not act
under color of state law.
Section 1983 is "generally not applicable to private parties," Kirtley v. Rainey, 326 F.3d
1088, 1092 (9th Cir. 2003), such as Freddie Mac. See Am. Bankers Mortgage Corp. v. Fed.
Home Loan Mortgage Corp., 75 F.3d 1401, 1408 (9th Cir. 1996) (approvingly citing a district
court holding that ("Freddie Mac [is a] private corporation rather than [a] government agency").
It is well established that Freddie Mac is not a federal agency, see, e.g., id., Mik v. Fed. Home
Loan Mortg. Corp., 743 F.3d 149, 168 (6th Cir. 2014); Syriani v. Freddie Mac Multiclass
Certificates, Series 336, 2012 WL 6200251, 4 (C.D. Cal. 2012), and Plaintiff could not
seriously claim that Freddie Mac is part of the state government.
Neither is Freddie Mac acting under color of state law. Plaintiff has not alleged
sufficient facts under any of the four tests that courts employ to determine whether a private
actor acts under color of state law; namely, a sufficiently close nexus between Freddie Mac and
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the state government; a position of interdependence between these two actors; the state
governments endowment of governmental powers or functions to Freddie Mac; or any coercive
influence or significant encouragement of the state government in Freddie Macs actions. Nor
could Plaintiff do so. Section 1983 liability for a constitutional violation cannot be based on
Freddie Macs "participat[ion] in the Trustees sale," as Plaintiff alleges. Compl. 3.29.
Invoking a state-law non-judicial foreclosure process does not constitute action under color of
state law. See Apao v. Bank of N.Y., 324 F.3d 1091, 1095 (9th Cir.2003) (holding that non-
judicial foreclosure procedures "slip under" Section 1983s state action requirement "for want of
direct state involvement");Northrip v. Fed. Natl Mortg. Assn, 527 F.2d 23, 2829 (6th Cir.
1975) (rejecting the argument "that state action exists because of the involvement of a state
official"namely, the sheriffin a non-judicial foreclosure procedure). As the Court recently
recognized when rejecting Plaintiffs 1983 claim against MTC Corporation, "the states
statutory authorization of self-help provisions is not sufficient to convert private conduct into
state action." ECF 37 at pg. 5 (citing Apao, 324 F.3d at 1094). Accordingly, Freddie Macs
purchase of the Property at the foreclosure sale and initiation of the subsequent unlawful
detainer action cannot establish Section 1983 liability.
FHFA is likewise not subject to Plaintiffs 1983 claim as regulator of Freddie Mac.
Plaintiff argues that FHFA "acts under color of state law when regulating the activities of
Defendant Freddie Mac in the mortgage markets in the State of Washington." Compl. 3.11.
But federal agencies, including FHFA, are immune from claims under Section 1983 because
"[a] federal agency is not a person within the meaning of [Section 1983]." Jachetta v. United
States, 653 F.3d 898, 908 (9th Cir. 2011). Indeed, FHFA, as the federal agency that regulates
Freddie Mac, enjoys sovereign immunity from claims under Section 1983 as well as a broad set
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of claims against federal agencies. Id. at 908 (federal government "may not be sued without its
consent and . . . the existence of consent is a prerequisite for jurisdiction."); see also Settles v.
United States Parole Commn, 429 F.3d 1098, 1106 (D.C. Cir. 2005) (holding that, "as an arm
of the federal sovereign," Parole Commission is immune from 1983 claim); Cobb v. Dept. of
Education, 487 F.Supp.2d 1049, 1055 (D. Minn. 2007) (rejecting 1983 claim against the
Department of Education Office of Civil Rights because "the federal agency itself is immune
from suit."). FHFAs authorizing statute contains no waiver of sovereign immunity, see
generally12 U.S.C. 4511 et seq., and Plaintiffs 1983 claim is therefore barred.6 See Jones v.
Fulwood, 860 F.Supp.2d 16, 21 (D.D.C. 2012) (holding that claims against the United States
Parole Commission were precluded by the doctrine of sovereign immunity).
While Plaintiff appears to sue FHFA only as regulator for Freddie Mac, see Complaint
3.11, FHFA acts in another capacity as wellas Freddie Macs Conservator. Even if Plaintiff
had sued FHFA as Conservator, that claim too would fail. In mid-2008, Congress created
FHFA and empowered it to act as conservator or receiver of Freddie Mac in certain
circumstances of financial crisis, and in September 2008, FHFAs Director placed Freddie Mac
into conservatorship. 12 U.S.C. 4617 et seq. As Conservator, "immediately succeed[ed]" by
operation of law to "all rights, titles, powers, and privileges of [Freddie Mac]." Id. at
6 Plaintiff could not avoid FHFAs sovereign immunity by restyling her Section 1983 claimas aBivens claim. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403U.S. 38 (1971). First,Bivensclaims are permitted only against federal officers (not agencies)acting in their individual (not official) capacity. Correctional Servs. Corp. v. Malesko, 534 U.S.
61, 69-70 (2001) ([T]o allow aBivens claim against a federal agency would be the eviscerationof the Bivens remedy, rather than its extension) (internal citation omitted); Kaiser v. BlueCross of California, 347 F.3d 1107, 1117 (9th Cir. 2003). Plaintiff has alleged no such facts.Second, while sovereign immunity does not apply where federal officials' actions are ultra viresor where the statute or order conferring power upon the officer to take action . . . is c laimed tobe unconstitutional, the Complaint contains no facts supporting such a claim. Al-Nashiri v.
MacDonald, 741 F.3d 1002, 1008 (9th Cir. 2013).
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4617(b)(2)(A). Accordingly, the Conservator "steps into the shoes" of private corporation
Freddie Mac. Herron v. Fannie Mae, 857 F. Supp. 2d 87, 96 (D.D.C. 2012) (stating that
similarly situated Fannie Mae "was a private entity; when FHFA took over as conservator of
Fannie Mae, it stepped into Fannie Maes private role."). Accordingly, FHFA as Conservator is
a private actor for purposes of constitutional claims. Id. at 95 (rejecting Bivens claim against
FHFA because "the federal agency in its guise as a conservator or receiver of a private
corporation is not a government actor" for such a claim); see also Parra v. Fed. Natl Mortg.
Corp., No. CV-13-4031, 2013 WL 5638824, *3 (C.D. Cal. Oct. 16, 2013) (agreeing with
Herron); Fannie Mae v. Mandry, No. 12-13236, 2013 WL 687056, at *1 (E.D. Mich. 2013)
("Fifth Amendment claims asserted against FHFA and Fannie Mae are dismissed because
Fannie Mae and FHFA are not government actors that can be held liable for constitutional
violations."). This uniform precedent confirms that FHFA as Conservator is not a government
actor for purposes of Plaintiffs Section 1983 claim.
2. Regardless, Plaintiff Failed to Allege That Freddie Mac or FHFA Deprived
Her of a Federally Protected Right.
Plaintiffs 1983 claim is deficient not only because neither Freddie Mac nor FHFA is
subject to such a claim, but also because she fails to establish they have deprived her of a
constitutionally protected right. See Patel, 648 F.3d at 971. While the theory behind Plaintiffs
allegations is difficult to discern, Plaintiff appears to ground her 1983 claim in a purported
conspiracy by Freddie Mac and FHFA "to manipulate Washingtons Deed of Trust Act," which
she claims led to the wrongful foreclosure, the unlawful detainer action, and the subsequent
improperly issued and delivered Writ of Restitution. Compl. 6.9-6.11. Those actions
purportedly deprived her of her "constitutional right to contract," her property rights, and her
due process rights. Compl. 1.6, 1.29, 3.29, and 6.5.
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However, because Plaintiffs underlying theorythat Freddie Mac and FHFA conspired
to manipulate the Washington Deed of Trust Actis deficient, see supra, Sections C-D,
Plaintiff also cannot establish a constitutional violation based on the alleged misconduct.
Plaintiff alleges no specific facts connecting Freddie Mac or FHFA to the purported conspiracy
to manipulate state law.7 While the Complaint is littered with references to constitutional rights
the Defendants purportedly violated, including the "right to contract" and "right to be safe and
secure in her home," Plaintiff alleges no facts relevant to any such violation. See U.S. Const.,
Art. I, 10 (prohibition on states enacting legislation that "impairs the Obligation of Contract");
id. at Amend. IV (prohibition on unreasonable searches and seizures). Further, other than
stating that Freddie Mac "participat[ed] in the trustees sale," she has alleged no facts
connecting Freddie Mac of FHFA to her claimed due process violations, instead offering only
threadbare, conclusory assertions that the other Defendants undertook these alleged actions as
part of a conspiracy with FHFA and Freddie Mac. See Compl. 6.9-6.11. Plaintiffs purported
injury is simply "too remote a consequence" of any conduct by FHFA or Freddie Mac to
support liability under Section 1983. See Martinez v. State of Cal., 444 U.S. 277, 285 (1980);
cf. Order at 4-5 (dismissing Plaintiffs claims against MTC because MTCs participation in the
foreclosure was too remote from alleged due process violation).
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7 Moreover, even if FHFA as Conservator could be held liable for a Section 1983 violation,which it cannot, the purported misconduct Plaintiff ascribes to Freddie MacFreddie Macsdrafting the state foreclosure formsoccurred prior to the Conservatorship, and prior toFHFAs existence, which makes it impossible to hold FHFA so liable.
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VI. CONCLUSION
For all these reasons, Plaintiffs Complaint fails to state a single viable cause of action
against Freddie Mac or FHFA. Defendants respectfully request that the Court grant their
Motion to Dismiss the Complaint with prejudice pursuant to F. R. Civ. P. 12(b)(6).
Respectfully submitted this 14thday of October, 2015.
WITHERSPOON KELLEY
s/Jody M. McCormickJody M. McCormick WSBA # 26351422 W. Riverside Ave., Suite 1100
Spokane, WA 99201-0300Phone: 509-624-5265Fax: 509-458-2728jmm@witherspoonkelley.comAttorneys for Defendants Federal Home Loan MortgageCorporation and Federal Housing Finance Agency
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CERTIFICATE OF SERVICE
I hereby certify that on the 14thday of October, 2015,
1. I caused to be electronically filed the foregoing FEDERAL HOUSING
FINANCE AGENCYS AND FEDERAL HOME LOAN MORTGAGE CORPORATIONSJOINT MOTION TO DISMISS PLAINTIFFS COMPLAINTwith the Clerk of the Court usingthe CM/ECF System which will send notification of such filing to the following:
Michael Steven DeLeo mdeleo@prklaw.com, rwhite@prklaw.com
Barbara L Bollero bbollero@bwmlegal.com, tburt@bwmlegal.com
William P. Richardson bill.richardson@clark.wa.gov,nicole.davis@clark.wa.gov,thelma.kremer@clark.wa.gov
Pamela S. Owen pamela.owen99@gmail.com, emanuel.mccray@hotmail.com,pamela.99.johnson@gmail.com
David A Weibel dweibel@bwmlegal.com
2. I hereby certify that I have mailed by United States Postal Service the foregoingdocument to the following non-CM/ECF participants at the address listed below: None.
3. I hereby certify that I have mailed by United States Postal Service the foregoingdocument to the following CM/ECF participants at the address listed below: None.
4. I hereby certify that I have hand-delivered the foregoing document to thefollowing participants at the addresses listed below: None.
s/Jody M. McCormick
Jody M. McCormick WSBA # 26351WITHERSPOON KELLEY422 W. Riverside Ave., Suite 1100Spokane, WA 99201-0300Phone: 509-624-5265Fax: 509-458-2728jmm@witherspoonkelley.com
Case 3:15-cv-05375-BHS Document 40 Filed 10/14/15 Page 20 of 20
mailto:thelma.kremer@clark.wa.govmailto:thelma.kremer@clark.wa.govmailto:thelma.kremer@clark.wa.govRecommended