Final - Response To Uda-Debbie

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7 THE SUPERIOR COURT OF THE STATE OF WASHINGTON
8 IN AND FOR THE COUNTY OF THURSTON
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WASHINGTON FEDERAL SAVINGS, )
10 )
Plaintiff, ) Case No.: 10-2-02191-1
11 )
12 vs. ) DEFENDANTS' RESPONSE TO
) PLAINTIFF'S COMPLAINT FOR
13 DEBORAH E. BURGAN AND JOHN DOE ) UNLAWFUL DETAINER
BURGAN, Husband and Wife, JOHN AND )
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JANE DOE, UNKNOWN OCCUPANTS OF ) TRIAL BY JURY DEMANDED
15 THE PREMISES, )
) (CLERK’S ACTION REQUIRED)
16 Defendants, )
)
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)
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20 Plaintiff's named Defendant, Deborah E. Burgan, hereinafter referred to as “Defendant”
21 (for organizational purposes only and is not intended and should not be relied upon as a
22 statement of law, fact, acquiescence, or otherwise) as the true and lawful originator, drawer, first
23 funds transferor, lien creditor, funder, underwriter, and/or creditor of the funds that were paid for
24 14520 Avis Lane SE, Yelm, WA 98597, otherwise recorded as Lot 3 of Large Lot Subdivision
25 No. LLS-940862TC, as recorded January 31, 1997 under Thurston County Auditor's File No.
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DEFENDANT'S RESPONSE Heather A. Tucci-Jarraf,
27 TO PLAINTIFF'S COMPLAINT -1 Attorney At Law
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FOR UNLAWFUL DETAINER 8805 N. Harborview Dr., Suite 201
Gig Harbor, WA 98332
+253.509.4597 phone
1 3072545 and 3072546 (“the Property”), comes now before this Court, through her Attorney,
2 Heather Ann Tucci-Jarraf, for peaceful resolution of any and all matters claimed, alleged and/or
3 asserted by Plaintiff in Plaintiff's Complaint for Unlawful Detainer (Complaint) and Defendant
4 hereby files her response to said Complaint.
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6 I. PLAINTIFF'S NAMED PARTIES
7 Plaintiff Washington Federal Savings (“Plaintiff Bank”), is the party that filed a Complaint for
8 Unlawful Detainer (“Complaint”) in Thurston County Superior Court.
9 Defendant, Deborah E. Burgan, is the lawful owner and resident of the Property.
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11 II. RESPONSE TO PLAINTIFF BANK'S ALLEGATIONS
12 1. Defendant denies Plaintiff Bank's allegation made at section (1), sentence #1 of Plaintiff
13 Bank's Complaint.
20 5. Defendant denies Plaintiff Bank's allegation made at section (3) of Plaintiff Bank's
21 Complaint.
22 6. Defendant denies Plaintiff Bank's allegation made at section (4) of Plaintiff Bank's
23 Complaint.
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1 III. PLAIN STATEMENT OF FACTS
2 Plaintiff Bank's Prayer for Relief, as stated on pages 2-3 in its Complaint in section (5) (A)-(C),
3 incorporated herein as if set forth in full, should be denied as a matter of law, matter of fact,
4 and/or as a matter of public policy based upon Defendant's sworn affidavits, filed concurrently,
5 attached as Exhibit A and Exhibit B, and incorporated herein as if set forth in full, supporting
6 pertinent and relevant case law and facts, asserted and alleged as follows:
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8 IV. GENERAL FACTS AND LAW
9 7. Defendant re-asserts #1-6, as though set forth in full herein.
10 8. RCW 59.12.032 requires that “[a]n unlawful detainer action, commenced as a result of a
11 trustee's sale under chapter 61.24 RCW, must comply with the requirements of RCW
12 61.24.040 and 61.24.060.”. See RCW 59.12.032.
13 9. RCW 5.40.010, of Evidence Title 5 RCW, declares that pleadings sworn to by either
14 party in any case shall not be deemed proof of the facts alleged therein, nor require other
15 or greater proof on the part of the adverse party.
16 10. A court may not assume the truth of allegations in a pleading which are contradicted by
17 affidavit. Data Disc, Inc. v. Systems Tech Assoc., Inc., 557 F.2d 1280 (9th Cir. 1977).
18 11. “Silence can only be equated with fraud when there is a legal or moral
19 duty to speak or where an inquiry left unanswered would be
20 intentionally misleading.” U.S.v. Tweel, 550 F.2d. 297~ 299 (5th Crr.
21 1977), quoting U.S. v. Prudde, 424 F.2d 1021~ 1032 and Carmine v.
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Bowen, 64 A. 932 (1906)
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12. Plaintiff Bank has not provided Defendant and/or this Court with Plaintiff Bank's prior
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absolute proof of claim as “bona fide purchaser” for value of the Property at trustee's sale,
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1 with full verified and verifiable accounting pursuant to Generally Accepted Accounting
2 Principles (GAAP) and Federal Accounting Standards (FAS) provided by a competent
3 witness with firsthand personal knowledge stated under a verifiable sworn and notarized
4 affidavit as true, correct, and complete with unlimited commercial liability, and,
5 therefore, showing that it is entitled to summary proceedings under RCW59.12. See
6 Exhibit A, and RCW 61.24.040(7), 61.24.070(2), 61.24.060(1) and 59.12.032.
7 13. Plaintiff Bank has not provided Defendant and/or this Court with Plaintiff Bank's prior
8 absolute proof of claim as “beneficiary as purchaser” pursuant to the requisites of RCW
9 61.24.070(2), with full verified and verifiable accounting pursuant to GAAP and FAS
10 provided by a competent witness with firsthand personal knowledge stated under a
11 verifiable sworn and notarized affidavit as true, correct, and complete with unlimited
12 commercial liability, evidencing a debt and amount available for credit available to be
13 applied towards a bid for the purchase of the Property at trustee's sale, and, therefore
14 showing it is entitled to summary proceedings under RCW59.12. See Exhibit A, and
15 RCW 61.24.040(7), 61.24.070(2), 61.24.060(1) and 59.12.032.
16 14. Plaintiff Bank has not provided Defendant and/or this Court with Plaintiff Bank's prior
17 absolute proof of “beneficiary” status defined in RCW 61.24.005 as the holder of the
18 instrument or document evidencing the obligations and/or debt allegedly secured by the
19 deed of trust, with full verified and verifiable accounting pursuant to GAAP and FAS
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verifiable sworn and notarized affidavit as true, correct, and complete with unlimited
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commercial liability, enabling Plaintiff Bank to request and/or take advantage of the
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benefits of applying credit, if any exists, towards a bid as “purchaser as beneficiary”
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allowed by RCW 61.24.070(2), making them a lawful purchaser under RCW 61.24..060,
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1 entitled to the summary proceedings under RCW 59.12. See Exhibit A, and RCW
2 61.24.060, 61.24.040(7), 61.24.070(2) and 59.12.032.
3 15. Plaintiff Bank has not provided Defendant and/or this Court with a sworn affidavit, made
4 under the penalty of perjury, of Plaintiff Bank's prior absolute proof that Plaintiff Bank
5 is/was the the true and lawful originator, drawer, first funds transferor, lien creditor,
6 funder, underwriter, and/or creditor of the funds by full verified and verifiable accounting
7 pursuant to GAAP and FAS provided by a competent witness with firsthand personal
8 knowledge stated under a verifiable sworn and notarized affidavit as true, correct, and
9 complete with unlimited commercial liability, that were/are used to purchase and
10 construct the Property in order to establish that Defendant did owe a monetary obligation
11 and/or debt that the Plaintiff Bank was entitled to credit towards the bid of the Property
12 pursuant to RCW 61.24.070(2) and therefore the lawful purchaser under RCW 61.24.060,
13 entitled to the summary proceedings under RCW 59.12. See Exhibits A, and RCW
14 61.24.060, 61.24.040(7), 61.24.070(2) and 59.12.032.
16 under the penalty of perjury, of Plaintiff Bank's prior absolute proof that Plaintiff Bank
17 did make a loan to Defendant, with full verified and verifiable accounting pursuant to
18 GAAP and FAS provided by a competent witness with firsthand personal knowledge
19 stated under a verifiable sworn and notarized affidavit as true, correct, and complete with
20 unlimited commercial liability, that establishes that a credit was available to Plaintiff
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Bank pursuant to RCW 61.24.070(2), that would otherwise render Plaintiff Bank a lawful
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purchaser under RCW 61.24.060 entitled to the summary proceedings of RCW 59.12.
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See Exhibits A, and RCW 61.24.060, 61.24.040(7), 61.24.070(2) and 59.12.032.
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2 by the Trustee, Bishop, White & Marshall, P.S. (“Trustee”), under the penalty of perjury,
3 of Trustee's prior absolute proof that Trustee did review the terms and conditions of the
4 Deed of Trust for the Property, the statutes of RCW 61.24, and Plaintiff Bank's prior
5 absolute proof that Plaintiff did make a loan to Defendant, if any, and that the loan was
6 secured by the deed of trust for the Property as required by RCW 61.24.040 in order to
7 lawfully credit any alleged amount towards a bid for purchase of the Property, that would
8 render Plaintiff Bank a lawful purchaser of the Property at a trustee's sale entitled to
9 summary proceedings of 59.12, under 61.24.060. See Exhibits A, and RCW 61.24.060,
10 61.24.040(7), 61.24.070(2) and 59.12.032.
12 by the Trustee, Bishop, White & Marshall, P.S. (“Trustee”), under the penalty of perjury,
13 of Trustee's prior absolute proof that the Trustee did comply with the terms and
14 conditions of the Deed of Trust for the Property and the statutes of RCW 61.24 as
15 required by RCW 61.24.040 and 61.24.030, as required in order for a trustee to establish
16 that Plaintiff Bank is/was a beneficiary, and that the beneficiary was owed an amount, if
17 any, that is/was able to be credited and that the credit of said alleged debt for the
18 beneficiary towards beneficiary's bid of purchase at a trustee's sale was done, that would
19 render Plaintiff Bank a lawful purchaser of the Property at a trustee's sale entitled to
20 summary proceedings of 59.12, under 61.24.060. See Exhibit A, and RCW 61.24.060,
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61.24.040(7), 61.24.070(2) and 59.12.032.
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19. RCW 61.24.060 declares that the purchaser at the trustee's sale shall be entitled to
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possession of the property on the twentieth day following the sale, as against the
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borrower and grantor under the deed of trust. See RCW 61.24.060(1).
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1 20. RCW 61.24.040(7) declares that the purchaser shall forthwith pay the price bid and on
2 payment the trustee shall execute to the purchaser its deed.
3 21. RCW 61.24.070(2) requires a bona fide purchaser to pay the trustee in the form of cash,
4 certified check, cashier's check, money order, or funds received by verified electronic
5 transfer, or any combination thereof.
6 22. The law is well settled that in order to be considered a “bona fide purchaser”, one must
7 have purchased the property “for value.” RCW 61.24.040(7). The beneficiary of a deed
8 of trust is not a bona fide purchaser. Johnson v. Johnson, 25 Wn.2d 797 (1946).
9 23. RCW 61.24.070(2) allows a beneficiary to request that any part or all of a monetary
10 obligation secured by the deed of trust be credited toward beneficiary's bid for the
11 Property.
12 24. RCW 61.24.005 defines a “Beneficiary” as the holder of the instrument or document
13 evidencing the obligations secured by the deed of trust, excluding persons holding the
14 same as security for a different obligation.
15 25. Pursuant to GAAP and FAS, Plaintiff Bank did not loan Defendant money for the
16 purchase and/or construction of the Property. See Exhibit A.
17 26. Defendant had/has no legal obligations and/or debts owing to Plaintiff Bank regarding
18 Property. See Exhibit A.
19 27. Defendant is/was, at all times, the true and lawful originator, drawer, first funds
20 transferor, lien creditor, funder, underwriter, and/or creditor of the funds that were/are
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used to purchase and construct the Property. See Exhibit A.
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28. When there are properly executed affidavits that are directly conflicting on material
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points, it is not possible for a judge to weigh the affidavits in order to resolve disputed
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issues. However, in the rare case where the facts put forth in an affidavit are inherently
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1 incredible, and can be so characterized solely by a reading of the affidavit, the judge has
2 no basis for a determination of credibility. Data Disc, Inc. v. Systems Tech Assocs., Inc.,
3 557 F.2d 1280 (9th Cir. 1977).
4 29. Even if Plaintiff Bank were to subsequently file with this Court a Real Estate Excise Tax
5 Affidavit, a trustee's deed, a Notice of Trustee's Sale, a Deed of Trust, a Promissory Note
6 and/or sworn affidavits that Plaintiff Bank was a purchaser, or other declarations, they
7 are gratuitous at best at this juncture and at the very least prima facie evidence that triable
8 issues of material fact exist for the determination of a jury.. They would be insufficient to
9 rebut the points in Defendant's sworn affidavit and would not be prior absolute proof that
10 a loan was made to Defendant by Plaintiff Bank pursuant to GAAP, that the loan amount
11 still outstanding pursuant to GAAP could and/or was lawfully applied as credit towards a
12 beneficiary's bid at trustee's sale, and thus rendering Plaintiff Bank a purchaser entitled to
13 summary proceedings provided by RCW 59.12, under RCW 61.24.060.
14 30. If a Real Estate Excise Tax Affidavit, a trustee's deed, a Notice of Trustee's Sale, a Deed
15 of Trust, a Promissory Note and/or sworn affidavits stipulating that Plaintiff Bank was a
16 purchaser, or other declarations, were subsequently submitted by and/or on behalf of
17 Plaintiff Bank, in the absence of Plaintiff Bank's prior absolute proof of claim and
18 creditor status, with full verified and verifiable accounting pursuant to GAAP and FAS
20 verifiable sworn and notarized affidavit as true, correct, and complete with unlimited
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commercial liability, Defendant's Sworn Affidavit (See Exhibit A) stands uncontested
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and thereby any and all alleged claims by Plaintiff Bank in this matter are inherently
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invalid and constitutes prima facie evidence of Plaintiff Bank's bad faith, fraud, attempted
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fraud, theft, and/or attempted theft of Defendant's Property and/or assets, which vitiates
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1 all interactions, claims, charges, contracts, and/or grounds for any cause of action against
2 Defendant regarding Property. At the very most, they would proof that triable material
3 issues of fact would exist to be decided by a jury.
4 31. Furthermore, absent Plaintiff Bank's prior absolute proof, each and every mailing, or
5 other attempt made by Plaintiff Bank, and/or Bishop, White, Marshall, as trustee and/or
6 as foreclosure attorney on behalf of Plaintiff Bank, would be a separate and individual
7 violation of the Fair Debt Collections Practices Act of Washington, RCW 19.16. See the
8 Sworn Affidavit of Deborah E. Burgan regarding Service/Notice, filed concurrently,
9 attached as Exhibit B and incorporated herein as if set forth in full.
10 32. Furthermore, absent Plaintiff Bank's prior absolute proof, each and every mailing, or
11 other attempt made by Plaintiff Bank, and/or Bishop, White, Marshall, as trustee and/or
12 as foreclosure attorney on behalf of Plaintiff Bank, would be a separate and individual
13 violation of the Consumer Protection Act of Washington, RCW 19.86. See Exhibit B.
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15 V. PRAYER FOR RELIEF
16 WHEREFORE, Defendant prays for the following relief
17 33. Plaintiff Bank has failed to prove standing by absence of filing prior absolute proof to the
18 Defendant and/or this Court that Plaintiff Bank is/was a lawful purchaser of the Property
19 at a trustee's sale who is entitled to the summary proceedings provided by RCW 59.12,
20 under RCW 61.24.060(1), and it has failed to show that it complied with RCW 61.24.040
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thus not meeting the requirement of RCW 59.12.032 in order to bring forth a complaint
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for unlawful detainer, which would otherwise give this Court jurisdiction over the matter.
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THERFORE, this Court should find and declare by written order as a matter of law,
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matter of fact, and/or matter of public policy, and absent Plaintiff Bank's prior
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1 absolute proof as required to contest each point of Defendant's Sworn Affidavit, that:
2 1.) that Plaintiff Bank is/was not a lawful purchaser of Property at trustee's sale, and thus
3 not entitled to the summary proceedings provided by RCW 59.12 under RCW 61.24.060
4 and dismiss this case for lack of standing; 2.) that Defendant was/is, at at all times, the
5 true and lawful originator, drawer, first funds transferor, lien creditor, funder,
6 underwriter, and/or creditor of the funds that were/are used to purchase and/or construct
7 the Property; 3.) No lawful mortgage existed between Defendant and Plaintiff Bank; 4.)
8 Defendant has/had no legal obligations and/or debts owing to Plaintiff Bank regarding
9 Property by absence of Plaintiff Bank's prior absolute proof of claim and creditor status,
10 with full verified and verifiable accounting pursuant to GAAP provided by a competent
11 witness with firsthand personal knowledge stated under a verifiable sworn and notarized
12 affidavit as true, correct, and complete with unlimited commercial liability; 6.) The deed
13 of trust for Property, is invalid, from its inception, as a matter of law; 7.) that Defendant
14 did not/does not have a debt and or other obligation owning to Plaintiff Bank; 8.) that,
15 absent proof that a loan existed pursuant to GAAP, Defendant did not default on any
16 alleged obligations and/or debts to Plaintiff Bank; 9.) The foreclosure of Property, was/is
17 improper and/or illegal and therefore null and void and/or reversed; 10.) any trustee's
18 sale done by Trustee conveying the Property to Plaintiff Bank , was/is improper and/or
19 illegal and therefore null and void and/or reversed; 11.) any Trustee's Deed, made by
20 Trustee conveying the Property to Plaintiff Bank , was/is improper and/or illegal and
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therefore null and void and/or reversed; 12.) Defendant is/was the lawful owner of
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Property; and/or 13.) Plaintiff Bank has no standing and/or valid claim of interest and/or
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right to possession of Defendants' Property.
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27 TO PLAINTIFF'S COMPLAINT - 10 Attorney At Law
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1 34. Furthermore, Defendant requests a judgment for Plaintiff Bank to pay all Defendant's
2 attorney's fees for responding and/or court appearances in this action.
3 35. For such other relief as the Court deems reasonable and just.
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5 CLARIFICATIONS
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7 Headings are only for organizational purposes and are not intended, and should not be
8 relied upon as law, fact, defenses, assertions, and/or allegations made by Deborah E.
9 Burgan, through her attorney.
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11 DEMAND FOR JURY TRIAL
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13 In the instance where there are disputed matters of fact at issue, Plaintiffs demand trial by
14 jury of all matters so triable as a matter of right.
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16 VERIFICATION
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18 Deborah E. Burgan, represented by her Attorney, Heather A. Tucci-Jarraf, has read the
19 foregoing response and knows the contents thereof.
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Dated: For and on behalf of Deborah E. Burgan
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23 _________________________
24 Heather A. Tucci-Jarraf
25 Attorney at Law,
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+253.509.4597 phone
1 WSBA # 30281
2 8805 N. Harborview Dr., Suite 201
3 Gig Harbor, WA 98332
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8 IN AND FOR THE COUNTY OF THURSTON

Gig Harbor, WA 98332

Gig Harbor, WA 98332

Gig Harbor, WA 98332

Gig Harbor, WA 98332

Gig Harbor, WA 98332

Gig Harbor, WA 98332

Gig Harbor, WA 98332

Gig Harbor, WA 98332

Gig Harbor, WA 98332

Gig Harbor, WA 98332

Gig Harbor, WA 98332

Gig Harbor, WA 98332

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