Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
PAMELA S. OWEN,
v.
FEDERAL HOUSING FINANCE AGENCY;
FEDERAL HOME LOAN MORTGAGE
CORPORATION; MTC FINANCIAL, INC.
d/b/a TRUSTEE CORPS; BISHOP
MARSHALL & WEIBEL, P.S.; and CHUCK
E. ATKINS, in his official capacity as Clark
County Sheriff,
16
Defendants.
17
I.
18
19
20
Financial Inc., d/b/a Trustee Corps (MTC) Motion to Dismiss Pursuant to Fed. R. Civ. P.
21
12(b)(6) cannot rescue her claims against MTC from dismissal. As for Ms. Owens claims
22
against MTC under 42 U.S.C. 1983, she does not and cannot challenge the point that there is
23
no state action when a creditor enforce[s] a lien through purely private, non-judicial sale . . .
24
even though the lien was authorized by the states legislative enactment. 1 Because nothing
25
26
Apao v. Bank of New York, 324 F.3d 1091, 1094 (9th Cir. 2003) (citing to Flagg Bros., Inc. v. Brooks, 436 U.S.
149, 98 S.Ct. 1729, 56 L.Ed2d 185 (1978)). See also Charmicor, Inc. v. Deaner, 572 F.2d 694, 696 (9th
Cir.1978) (finding no state action where plaintiffs challenged Nevada's non-judicial foreclosure statute on due
process grounds).
27
DEFENDANT MTC FINANCIAL INC.S REPLY IN
SUPPORT OF ITS MOTION TO DISMISS PURSUANT TO
FED. R. CIV. P. 12(b)(6)
(NO. 3:15-CV-05067-BHS) - 1
107977 110 fg17bp02bf
MTC did in this matter involved state action or transpired under color of state law, Ms.
Owens claims against MTC for violating her civil rights fail as a matter of law. Ms. Owens
attempt to rescue her CPA claim against MTC also fails. In fact, because Ms. Owens attempt to
save her CPA claim is based on new allegationsshe has tacitly admitted that her complaint is
insufficient. Accordingly, all of Ms. Owens claims against MTC should be dismissed.
II.
ARGUMENT IN REPLY
Ms. Owen relies on Steckman v. Hart Brewing, Inc., 143 F.3d 1293 (9th Cir. 1998) for
7
8
the proposition that a complaint should not be dismissed unless it appears beyond a doubt that
plaintiff can prove no set of facts in support of her claim which would entitle her to relief. 2
10
However, Steckman pre-dates the United States Supreme Courts decisions in both Bell Atlantic
11
Corp. v. Twombly, 3 and Ashcroft v. Iqball. 4 As described by the Court of Appeals for the Ninth
12
Circuit,
Twombly and Iqbal addressed the pleading required to survive a motion to dismiss for
failure to state a claim, and, distilled to their essence, impose two requirements. First, the
reviewing court, though crediting factual assertions made in the pleadings, is not required
to credit legal conclusions. Second, the complaint cannot survive a motion to dismiss
unless it alleges facts that plausibly (not merely conceivably) entitle plaintiff to relief. 5
13
14
15
16
17
Each of Ms. Owens claims against MTC fails to satisfy these Twombly/Iqbal pleading
requirements.
18
19
20
Ms. Owens claim against MTC for breach of the Washington Consumer Protection Act
(CPA) fails because her Complaint does not allege facts that plausibly (not merely
conceivably) entitle [her] to relief. 6 Indeed, as pointed out in MTCs Motion to Dismiss, Ms.
21
22
23
24
2
25
26
27
DEFENDANT MTC FINANCIAL INC.S REPLY IN
SUPPORT OF ITS MOTION TO DISMISS PURSUANT TO
FED. R. CIV. P. 12(b)(6)
(NO. 3:15-CV-05067-BHS) - 2
107977 110 fg17bp02bf
Owens Complaint barely alleges any facts at all pertaining to MTCs alleged CPA violation, or
even makes a formulaic recitation of the elements of a [CPA] cause of action against MTC. 7
In the Complaint, the essence of Ms. Owens CPA allegation against MTC appears to be
that MTC Financial fraudulently issued to Defendant Freddie Mac a Trustees Deed upon sale .
. . which misrepresented the language from Defendant Freddie Macs Form . . . to reflect the fact
that Landmark Mortgage Company, and not MERS, Inc., was the Beneficiary of the security
instrument. 8 Yet Ms. Owen can show no injury from the wording of the Trustees Deed
MTC issued to Freddie Mac after the foreclosure sale, nor can she show that the language in that
deed referring to Landmark Mortgage as the beneficiary of the deed of trust was deceptive. 9 In
10
her Opposition, Ms. Owen does not even attempt to address these issues.
11
Instead, Ms. Owens Opposition attempts to re-formulate her CPA claim against MTC to
12
focus on MTCs actions prior to the foreclosure sale (as opposed to its actions in issuing the
13
Trustees Deed to Freddie Mac). However, Ms. Owens new allegations would also not support
14
a CPA claim, and amending her Complaint to add them would be futile. 10 In particular, Ms.
15
Owen does not even allege that MTCas opposed to Bank of Americawas aware of her
16
temporary change of address to the Clark County Jail. 11 Even if Bank of America sent the
17
Notice of Default to an incorrect address, this would not support a CPA claim against MTC.
18
Thus, as Ms. Owens Opposition confirmsshe has not yet plead any plausible claims against
19
MTC. And, as pointed out, her new allegations likewise fail to give rise to a plausible claim
20
against MTC and, therefore, fail. Ms. Owens CPA claim against MTC should be dismissed.
21
22
7
23
24
25
26
Twombly, 550 U.S. at 555. Compare Complaint, at pp. 12-22, 5.1 to 5.40 (making a formulaic recitation of the
elements of a CPA claim against Defendant Federal Home Loan Mortgage Association (Freddie Mac), but not
doing so as to MTC).
8
Complaint at 5.15.1.
9
Compare Complaint at 5.15.1 and Exhibit 4, pp. 2-3, with Motion to Dismiss, at p. 5.
10
See, e.g., Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011)
(noting that [a]lthough leave to amend should be given freely, a district court may dismiss without leave where a
plaintiff's proposed amendments would fail to cure the pleading deficiencies and amendment would be futile).
11
Opposition, at 4.34.
27
DEFENDANT MTC FINANCIAL INC.S REPLY IN
SUPPORT OF ITS MOTION TO DISMISS PURSUANT TO
FED. R. CIV. P. 12(b)(6)
(NO. 3:15-CV-05067-BHS) - 3
107977 110 fg17bp02bf
As for Ms. Owens claims against MTC under 42 U.S.C. 1983, they fail as a matter of
law, and should be dismissed. As pointed out in MTCs Motion, the Ninth Circuit has held that
that there is no state action when a creditor enforce[s] a lien through purely private, non-judicial
sale . . . even though the lien was authorized by the states legislative enactment. 12 Because the
non-judicial foreclosure sale here did not involve either state action or anyone acting under
color of state law, all of Ms. Owens 1983 claims based on the non-judicial sale fail as a matter
of law. 13
8
9
Moreover, Ms. Owen completely fails to allege any plausible factual or legal basis for
holding MTC responsible for the conduct of the unlawful detainer action Freddie Mac initiated
10
some three months after the foreclosure sale. Her Oppositions new assertion that [b]y
11
unlawfully foreclosing upon Plaintiffs home, Defendant MTC Financial is directly responsible
12
and liable for causing Sheriff Atkins unconstitutional conduct is a textbook example of
13
confusing a condition precedent (or a but for cause) with a proximate cause. 14 MTC no more
14
proximately caused Freddie Macs or Sheriff Atkins actions in the unlawful detainer action than
15
16
17
18
19
20
21
22
23
24
25
26
12
Apao v. Bank of New York, 324 F.3d 1091, 1094 (9th Cir. 2003) (citing to Flagg Bros., Inc. v. Brooks, 436 U.S.
149, 98 S.Ct. 1729, 56 L.Ed2d 185 (1978)). See also Charmicor, Inc. v. Deaner, 572 F.2d 694, 696 (9th
Cir.1978) (finding no state action where plaintiffs challenged Nevada's non-judicial foreclosure statute on due
process grounds).
13
A plaintiff advancing a claim under 42 U.S.C. 1983 must establish that the defendant acted under color of state
law. See, e.g., Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50, 119 S. Ct. 977, 985, 143 L. Ed. 2d 130
(1999). See also Johnson v. Knowles, 113 F.3d 1114, 1118 (9th Cir. 1997) (noting that when a plaintiff is required
to establish state action for purposes of their constitutional claims, [the courts] treat the under-color-of-state-law
requirement and the state-action requirement as equivalent).
14
Opposition, at p. 7, 2.17. Compare Arnold v. Int'l Bus. Machines Corp., 637 F.2d 1350, 1355 (9th Cir. 1981)
(noting that the causation requirement of sections 1983 and 1985 is not satisfied by a showing of mere causation in
fact. . . . Rather, the plaintiff must establish proximate or legal causation). See also Hoffman v. Halden, 268 F.2d
280, 296-97 (9th Cir. 1959), overruled in part on other grounds, Cohen v. Norris, 300 F.2d 24 (9th Cir. 1962)
(noting that in the context of a commitment proceeding the various preliminary steps would not cause damage
unless they could be said to be the proximate cause of the injury. In the usual case, the order of the court would be
the proximate cause and the various preliminary steps would be remote causes of any injury from imprisonment or
restraint under the court order). Here, MTCs conduct of the foreclosure sale was at most a preliminary step
towards, and no more than a remote cause of, the unlawful detainer action.
27
DEFENDANT MTC FINANCIAL INC.S REPLY IN
SUPPORT OF ITS MOTION TO DISMISS PURSUANT TO
FED. R. CIV. P. 12(b)(6)
(NO. 3:15-CV-05067-BHS) - 4
107977 110 fg17bp02bf
between MTC and Freddie Mac is facially inadequate. 15 To show a conspiracy between
private and state actors for 1983 purposes, there must be an agreement or meeting of the minds
to violate a person's constitutional rights. 16 No such meeting of the minds between MTC and
Freddie Mac, or MTC and the Clark County Sheriff is or could plausibly be alleged here.
Similarly, Ms. Owen does not and could not plausibly allege that MTC had any control over
Freddie Macs actions, let alone those of the Sheriff. 17 Accordingly, Ms. Owens 1983 claims
against MTC fail as a matter of law. These claims should be dismissed without leave to amend,
10
III.
11
CONCLUSION
For the reasons stated above and in its Motion, this Court should grant MTCs Motion to
12
Dismiss Ms. Owens claims against MTC for failure to state a claim upon which relief can be
13
granted.
14
15
16
By:
17
18
19
20
21
22
23
24
25
26
15
Complaint, at 6.9 (alleging that MTC Financials wrongful foreclosure . . . was pursuant to a conspiracy with
Defendants Federal Housing Finance Agency and Federal Home Loan Mortgage Corporation to manipulate
Washingtons Deed of Trust Act). Compare Motion, at pp. 8-9.
16
Trujillo v. City of Ontario, 428 F. Supp. 2d 1094, 1114 (C.D. Cal. 2006) aff'd sub nom. Bernhard v. City of
Ontario, 270 F. App'x 518 (9th Cir. 2008).
17
See Arnold, 637 F.2d at 1357 (noting that to be considered to be in joint activity with the state, the private actor
needs to have some control over the state actors' decision making).
18
Steckman, 143 F.3d at 1296.
27
DEFENDANT MTC FINANCIAL INC.S REPLY IN
SUPPORT OF ITS MOTION TO DISMISS PURSUANT TO
FED. R. CIV. P. 12(b)(6)
(NO. 3:15-CV-05067-BHS) - 5
107977 110 fg17bp02bf
CERTIFICATE OF SERVICE
1
2
I certify that I caused to be served in the manner noted below a copy of the foregoing
pleading on the following individual(s):
3
4
5
6
7
8
9
10
11
12
13
14
Steven J. Dixson
422 W Riverside Ave, Ste 1100
Spokane, WA 99201
E-Mail: aliciaa@witherspoonkelley.com,
sjd@witherspoonkelley.com
[]
[]
[]
[]
[X]
Via Facsimile
Via First Class Mail
Via Messenger
Via Email
Via CM/ECF Electronic Notice
Barbara L. Bollero
Bishop White Marshall & Weibel PS
720 Olive Way, Ste 1201
Seattle, WA 98101
E-Mail: tburt@bwmlegal.com,
bbollero@bwmlegal.com
[]
[]
[]
[]
[X]
Via Facsimile
Via First Class Mail
Via Messenger
Via Email
Via CM/ECF Electronic Notice
[]
[]
[]
[]
[X]
Via Facsimile
Via First Class Mail
Via Messenger
Via Email
Via CM/ECF Electronic Notice
[]
[]
[]
[]
[X]
Via Facsimile
Via First Class Mail
Via Messenger
Via Email
Via CM/ECF Electronic Notice
[]
[X]
[]
[]
[]
Via Facsimile
Via First Class Mail
Via Messenger
Via Email
Via CM/ECF Electronic Notice
Jody M. McCormick
Witherspoon, Kelley, Davenport & Toole
1100 US Bank Bldg
422 W Riverside Ave, Ste 1100
Spokane, WA 99201
E-Mail: erinh@witherspoonkelley.com,
jmm@witherspoonkelley.com
15
16
17
18
William P. Richardson
Clark County Prosecution -Civil Division
1300 Franklin St
Vancouver, WA 98660
E-Mail: thelma.kremer@clark.wa.gov,
bill.richardson@clark.wa.gov
19
20
21
Pamela S. Owen
3912 NE 57th Avenue
Vancouver WA 98661
22
23
24
25
26
27