Case 3:15-cv-05375-BHS Document 25 Filed 08/19/15 Page 1 of 6

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UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON (TACOMA)

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)
PAMELA S. OWEN
)
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.)
)

Civil Action No. 15-cv-05375-BHS

(Formerly in the Superior Court of the State of
Washington, in and for the County of Clark,
Case No. 15-2-01264-2, filed on May 7, 2015)

MOTION TO STAY PROCEEDINGS

PENDING OUTCOME OF STATE COURT
OF APPEALS WITH MEMORANDUM OF
POINTS AND AUTHORITIES
Judge: Honorable Benjamin J. Settle
Date: August 28, 2015

Plaintiff Pamela S. Owen hereby moves the Court for an Order to stay its proceedings
pending the outcome of an appeal filed on May 7, 2015 in the Court of Appeals, State of
Washington (Division II) under case number 47566-9-II, entitled: Federal Home Loan Mortgage
Corporation, Respondent v. Pamela S. Owen, Appellant, for the following reasons:
1.

On June 8, 2015, the Honorable Judge Benjamin H. Settle issued an Order

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directing the following tasks and duties be completed: (A) FRCP 26(f) Conference Deadline is

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9/15/2015; (B) Initial Disclosure Deadline is 9/29/2015; and (C) Joint Status Report due by

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10/6/2015;

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2.

None of the Defendants will be unfairly prejudiced by altering the current

deadlines;
3.

Sheriff Atkins has ceased his alleged unconstitutional execution of the Writ of

Restitution as evidenced by his RETURN TO COURT OF WRIT OF RESTITUTION Number

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15-2-00924-2 filed on May 15, 2015. A true and correct copy of which is attached hereto as

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Plaintiffs Exhibit 1;

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4.

Plaintiff filed her Opening Brief and Clerks Papers in the State Court of Appeals

on July 20, 2015 and July 17, 2015, respectively. A true and correct copy of which is attached
hereto as Plaintiffs Exhibits 2 and 3;
MOTION TO STAY PROCEEDINGS PENDING OUTCOME OF STATE COURT OF
APPEALS WITH MEMORANDUM OF POINTS AND AUTHORITIES
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5.

The Reply Brief of Defendant Federal Home Loan Mortgage Corporation is due in

the State Court of Appeals on or before August 19, 2015; and

6.

In this Federal Circuit, State courts have concurrent jurisdiction over Federal

claims. This Court must also follow the decisions of Washingtons highest court defining how
jurisdiction of a state court is obtained under a special statutory proceeding. This action, formerly
in the Superior Court of the State of Washington, in and for the County of Clark and removed to

this Court on June 4, 2015, is but a spin-off of the state unlawful detainer litigation commenced

on April 2, 2015 under Cause No. 15-2-00924-2, now on appeal under Cause No. 47566-9-II.

Thus, any ruling by the State Court of Appeals with regard to the regularity of the unlawful

detainer proceedings in the Superior Court will have a profound impact on the resources of this

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Court and the parties as to the issues left to be litigated. Under the decisions of Amy v. City of
Watertown, 130 U.S. 301, 317 (1889); Colorado River Water Conservation Dist. v. United States,

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424 U.S. 800, 817 (1976); Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1,

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19 (1983); Huston v. Big Bend Land Co., 1 F.2d 93 (9th Cir. Wash. 1924); Holder v. Holder, 305

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F.3d 854, 867 (9th Cir. 2002); and Nakash v. Marciano, 882 F.2d 1411, 1415 n.5 (9th Cir. 1989),

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this Court would be justified in granting a stay of its proceedings pending the outcome of the State

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Court of Appeals.

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Respectfully submitted,
Dated: August 10, 2015

/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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MOTION TO STAY PROCEEDINGS PENDING OUTCOME OF STATE COURT OF

APPEALS WITH MEMORANDUM OF POINTS AND AUTHORITIES
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MEMORANDUM OF POINTS AND AUTHORITIES

The Court should stay its proceedings pending outcome of the State Court of Appeals.
Plaintiffs principal argument before the State Court of Appeals is that the ex parte proceedings of
the Superior Court were a nullity under the decisions of Big Bend Land Co. v. Huston, 98 Wash.
640, 168 P. 470 (1917) and 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 person of the defendant is acquired, and a default judgment

rendered against the defendant is void.

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Even before Washington codified its unlawful detainer statutes in 1890, it had already
been the law in the United States that a court can only acquire jurisdiction of a party, where there
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).

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Properly understood, Plaintiffs Complaint, removed to this Court on June 4, 2015, alleges

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an unlawful scheme created by Defendant Freddie Mac under its authority to conduct activities in

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the secondary mortgage market created by Congress. The scheme resulted in each Defendant,

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together with divers others, contributing to the ultimate deprivation of Plaintiffs rights under

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color of State law affirmed under West v. Atkins, 487 U.S. 42 (1988) and cases cited, Addickes

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v. S. H. Kress Co., 398 U.S. 144 (1970) and Dennis v. Sparks, 449 U.S. 24, 28-29 (1980).
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
situated. See, 1891 c 96 6; RRS 815. Prior: 1890 p 75 5.
Because it is an equitable mortgage, title in the property pledged as security for the debt

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is not conveyed by the statutory deed of trust because the deed is given as security for an

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obligation. Bain v. Metropolitan Mortgage Group, Inc., 175 Wn.2d 83, 285 P.3d 34 (2012).

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For nearly 100 years, from 1869 to 1965, the State legislature provided that judicial
foreclosure was the only method for depriving a mortgagor or trustor of title or possession of real
property in the State.
In 1965, the Legislature adopted the Deeds of Trust Act (DTA), Chapter 61.24 RCW, to

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provide for nonjudicial foreclosure as a compromise with lenders and borrowers out of concern

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that residential financing in the State was being inhibited by the cumbersome nature of judicial

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MOTION TO STAY PROCEEDINGS PENDING OUTCOME OF STATE COURT OF

APPEALS WITH MEMORANDUM OF POINTS AND AUTHORITIES
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foreclosure procedures. John A. Gose, The Trust Deed Act in Washington, 41 WASH. L. REV. 94,

96-97 (1966); John A. Gose & Aleana W. Harris, Deed of Trust: Its Origin, History and

Development in the United States and in the State of Washington, 32 REAL PROP., PROBATE,

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& TRUST J., 10-11 (2005); John Rao & Geoff Walsh, Foreclosing a Dream: State Laws Deprive
Homeowners of Basic Protections, Natl Consumer Law Center 14 (2009).
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 a power of sale, may be foreclosed upon without judicial supervision by a

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

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This is a significant power, said the Court in Bain v. Metropolitan Mortgage Group,
Inc., 175 Wn.2d 83, 93, 285 P.3d 34 (2012), and we have recently observed that the [deed of
trust] Act must be construed in favor of borrowers because of the relative ease with which lenders

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can forfeit borrowers interests and the lack of judicial oversight in conducting nonjudicial

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foreclosure sales. Thus, unlawful detainer actions, nonjudicial foreclosure and writs of restitution

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are not new to any of the named Defendants.

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Washington courts have further held that because the unlawful detainer statutes are in

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derogation of the common law, they must also be construed in favor of the tenant. Housing

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Authority of Everett v. Terry, 114 Wn.2d 558, 563, 789 P.2d 745 (1990).
The Defendants cannot dispute the fact that the 1965 DTA allow for nonjudicial
foreclosures by a Trustee, the capacity in which Defendant MTC Financial, Inc. acted.
When the challenged action is committed by a person who does not work for the

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government, the under-color-of-law inquiry focuses on the nature of the connections between the

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private person and the state. Two common situations easily suggest actions under color of law.

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First, a private person who conspires with a state actor is a state actor for the purpose of the

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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 of the state, because for purposes of the challenged action the person
functions as if he or she were a full-time employee.

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MOTION TO STAY PROCEEDINGS PENDING OUTCOME OF STATE COURT OF

APPEALS WITH MEMORANDUM OF POINTS AND AUTHORITIES
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The delegation of a state responsibility to a private party can also make the party a state

actor, particularly if the function delegated is one traditionally performed by the state, such as

foreclosures of real property.

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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, 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).

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Joint activity by a private party and a government agent can also transform the private
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).

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Similarly, in Dennis v. Sparks, 449 U.S. 24, 28-29 (1980), the Court held that private

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parties who conspired with a judge to fix a case acted under color of law. It has also been held that

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a nominally private entity controlled by the state is also a state actor. Pennsylvania v. Board of

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Directors, 353 U.S. 230, 231 (1957) (Private college administered by a city board is a state

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actor in refusing to admit African Americans).

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A private party may also be engaged in state action if the act which deprived federal
rights could not have occurred but for the existence of a governmental framework requiring
government approval or action. In North Georgia Finishing, Incorporated v. Di-Chem, Inc., 419

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U.S. 601 (1975), the Court found state action in a private partys invocation of a court-ordered

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attachment that failed to afford due process to the debtor.

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And 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 clerk and a sheriff, acts under color of state law.
Under Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817
(1976) considerations of wise judicial administration, giving regard to conservation of judicial
resources and comprehensive disposition of litigation may justify the imposition of a stay. See
also Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 19 (1983).

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MOTION TO STAY PROCEEDINGS PENDING OUTCOME OF STATE COURT OF

APPEALS WITH MEMORANDUM OF POINTS AND AUTHORITIES
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Exact parallelism is not required. It is enough if the two proceedings are substantially

similar. Holder v. Holder, 305 F.3d 854, 867 (9th Cir. 2002) (quoting Nakash v. Marciano, 882

F.2d 1411, 1415 n.5, 1416 (9th Cir. 1989).

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Colorado River also permits the issuance of a partial stay of claims over which this Court
and the State Court of Appeals have concurrent jurisdiction. Should the State Court of Appeals
sustain the Superior Court actions as valid, then Plaintiffs Complaint and arguments for liability

and damages removed to this Court will be moot and there would be nothing left for this Court to

do and no basis for it to award relief to Plaintiff. See, e.g., Holder, 305 F.3d at 868.

For the foregoing reasons, staying consideration of the underlying merits would conserve

judicial resources and promote comity because state law controls the jurisdiction to be exercised

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by a Superior Court.
On the other hand, should the State Court of Appeals rule that the proceedings of the

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Superior Court were a nullity under the authority of Big Bend Land Co. v. Huston, 98 Wash.

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640, 168 P. 470 (1917); State ex rel. Seaborn Shipyards Co. v. Superior Court of Pierce County,

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102 Wash. 215, 216, 172 P. 826 (1918); Lee v. Weerda, 124 Wash. 168, 172, 213 P. 919 (1923);

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Signal Oil Co. v. Stebick, 40 Wn.2d 599, 602-603, 245 P.2d 217 (1952) and Hatfield v. Greco, 87

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Wn.2d 780, 782, 557 P.2d 340 (1976), the ruling would reach key issues that must be adjudicated

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by this Court and this Court would be further constrained under Amy v. City of Watertown, 130
U.S. 301, 317 (1889) and Huston v. Big Bend Land Co., 1 F.2d 93 (9th Cir.1924) to follow the
decisions of the highest court of this State defining how jurisdiction of a State Superior Court is
obtained under a special statutory proceeding such as an action for unlawful detainer.
In conclusion, Plaintiffs motion for stay of proceedings pending the outcome of the State

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Court of Appeals should be granted.

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Respectfully submitted,

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Dated: August 13, 2015

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/s/Pamela S. Owen____
Pamela S. Owen
Plaintiff

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MOTION TO STAY PROCEEDINGS PENDING OUTCOME OF STATE COURT OF

APPEALS WITH MEMORANDUM OF POINTS AND AUTHORITIES
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