Dacumos v. Toyota Motor Credit Corporation et al

RESPONSE

W.D. Wash.November 27, 2017

PLAINTIFF’S RESPONSE TO TMCC’S MOTION TO DISMISS 1 Law Office of SaraEllen Hutchison, PLLC 2367 Tacoma Avenue South, Tacoma, WA 98402 Ph: (206) 529-5195 | Fax: (877) 485-4893 Robert Mitchell, Attorney at Law, PLLC 1020 N. Washington, Spokane, WA 99201 Ph (509) 327-2224 | Fax (888) 840-6003 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 SaraEllen M. Hutchison The Honorable Ricardo S. Martinez Law Office of SaraEllen Hutchison, PLLC 2367 Tacoma Avenue South Tacoma, WA 98402 Telephone: (206) 529-5195 Facsimile: (877) 485-4893 Email: saraellen@saraellenhutchison.com Robert W. Mitchell (WSBA # 37444) Attorney at Law, PLLC 1020 N. Washington Spokane, WA 99201 Telephone: 509-327-2224 Facsimile: 509-888-840-6003 Email: bobmitchellaw@yahoo.com Attorneys for Plaintiff, Caren Rose Dacumos UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE CAREN ROSE DACUMOS, Plaintiff, v. TOYOTA MOTOR CREDIT CORPORATION, a California Corporation, EQUIFAX INFORMATION SERVICES LLC, a Georgia Limited Liability Company, and EXPERIAN INFORMATION SOLUTIONS, INC., an Ohio Corporation, Defendants. NO. 2:17-cv-00964-RSM PLAINTIFF’S RESPONSE IN OPPOSITION TO TOYOTA MOTOR CREDIT CORPORATION’S MOTION TO DISMISS COMES NOW Plaintiff, CAREN ROSE DACUMOS (“Plaintiff” or “Ms. Dacumos”), by and through counsel, SARAELLEN HUTCHISON and ROBERT MITCHELL, and submits this Response in Opposition to Defendant TOYOTA MOTOR CREDIT CORPORATION’s (“TMCC”) Fed. R. Civ. P. 12(c) Motion for Judgment on the Pleadings. Pursuant to Fed. R. Civ. P. 12(d), Plaintiff requests that the Court treat this motion as a Motion for Summary Judgment, and continue the motion, pursuant to Fed. R. Civ. P. 56(d). Case 2:17-cv-00964-RSM Document 29 Filed 11/27/17 Page 1 of 21 PLAINTIFF’S RESPONSE TO TMCC’S MOTION TO DISMISS 2 Law Office of SaraEllen Hutchison, PLLC 2367 Tacoma Avenue South, Tacoma, WA 98402 Ph: (206) 529-5195 | Fax: (877) 485-4893 Robert Mitchell, Attorney at Law, PLLC 1020 N. Washington, Spokane, WA 99201 Ph (509) 327-2224 | Fax (888) 840-6003 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 I. INTRODUCTION Defendant Toyota Motor Credit Corporation (TMCC) furnishes consumer information to credit reporting agencies (CRAs). As a “furnisher” TMCC has a duty to furnish accurate credit information to the CRAs. TMCC is currently reporting that Plaintiff owes TMCC $13,593. TMCC’s reporting is factually and legally inaccurate. Factually, TMCC’s credit reporting is inacurate because TMCC discharged the account to avoid liability to Plaintiff. TMCC’s motion ommits that the parties were involved in two seperate lawsuits. The parties then resolved both lawsuits, including the underlying debt, through a mutual release and settlement agreement. The parties’ history is simple. TMCC sued Plaintiff, Caren Rose Dacumos (Plaintiff) in King County, Washington, Superior Court to collect a vehicle loan she co-signed. Plaintiff’s rights were violated in the process, and she filed a separate King County Superior Court action against TMCC and its collection lawyers, Patenaude & Felix, A.P.C. The parties vigoriously litigated Plaintiff’s case, and then entered a mutual release and settlement agreement to resolve both cases. TMCC agreed to cease all future collection of the $13,593, and dismiss its lawsuit against Ms. Dacumos “with prejudice.” The parties’ agreement also required payment to Ms. Dacumos in the amount of $5,000, plus costs and attorney’s fees, as the prevailing party in the lawsuit she filed against TMCC. Therefore, it is innacurate to report that Plaintiff owes TMCC $13,593. To be accurate, TMCC should report a “$0.00” balance. Legally, TMCC’s credit reporting is inaccurate because in the State of Washington, dismissal of a civil action “with prejudice,” even if agreed, is a final judgment on the merits of the controversy. When the controversy involves a lender’s attempt to collect an account, a dismissal with prejudice resolves liability for the underlying account, and renders the balance uncollectible. Therefore, Washington law does not allow TMCC to collect the $13,593 from Plaintiff after dismissing its lawsuit “with prejudice.” TMCC should report a “$0.00” balance. Case 2:17-cv-00964-RSM Document 29 Filed 11/27/17 Page 2 of 21 PLAINTIFF’S RESPONSE TO TMCC’S MOTION TO DISMISS 3 Law Office of SaraEllen Hutchison, PLLC 2367 Tacoma Avenue South, Tacoma, WA 98402 Ph: (206) 529-5195 | Fax: (877) 485-4893 Robert Mitchell, Attorney at Law, PLLC 1020 N. Washington, Spokane, WA 99201 Ph (509) 327-2224 | Fax (888) 840-6003 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Despite the parties’ release and settlement agreement, the two dismissals with prejudice, and payment of damages, costs, and attorney’s fees to Ms. Dacumos, TMCC continues to report that Ms. Dacumos still owes TMCC $13,593. TMCC’s continued refusal to report a “$0.00” balance amounts to willful violations of the Fair Credit Reporting Act. The erroneous reporting forced Plaintiff to submit multiple written disputes to the CRAs. In response, TransUnion corrected its reporting to reflect a “$0.00” balance. As a result, TransUnion is not a party to this action. Plaintiff brought this action against TMCC, Defendant Equifax Information Services, LLC (“Equifax”), and Defendant Experian Information Solutions, Inc. (“Experian”), because Defendants refuse to report a $0.00 balance. TMCC now seeks dismissal from this action based on the theory that TMCC still has the right to report the $13,593 balance, because TMCC believes it has the right to non- judicially collect the balance. However, TMCC’s theory is based on an outlier Massachussetts case, a misapplication of Washington law, and a complete disregard of the parties’ litigation history. TMCC’s motion seeks to narrow this entire litigation into a single question of whether TMCC’s dismissal with prejudice of the single debt collection lawsuit, by itself, resolved liability for the underlying account. That question fails to properly frame this case because the parties’ history involves much more than a single dismissal with prejudice. Aside from being factually and legally baseless, the form of TMCC’s motion is inappropriate because the Motion for Judgment on the Pleadings introduces 21 extraneous exhibits, while ignoring other crucial documents and the parties’ history. Given the above, at this stage in this litigation, the proper form of motion is a Motion for Summary Judgment. Therefore, this Court should dimiss TMCC’s motion, or treat the motion as a Summary Judgment Motion, and continue the motion to allow the parties to complete pending discovery. Case 2:17-cv-00964-RSM Document 29 Filed 11/27/17 Page 3 of 21 PLAINTIFF’S RESPONSE TO TMCC’S MOTION TO DISMISS 4 Law Office of SaraEllen Hutchison, PLLC 2367 Tacoma Avenue South, Tacoma, WA 98402 Ph: (206) 529-5195 | Fax: (877) 485-4893 Robert Mitchell, Attorney at Law, PLLC 1020 N. Washington, Spokane, WA 99201 Ph (509) 327-2224 | Fax (888) 840-6003 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 II. FACTS TMCC sued Plaintiff for a $13,593 debt, in King County Superior Court. See, Toyota Motor Credit Corporation v. Melanthon Ibañez and Carenrose Dacumos, King County Cause No. 15-2-13622-4 KNT. (TMCC’s Exhibit B, pp. 4 - 6) (“15-2-13622-4 KNT”). Plaintiff’s rights were violated during that process, so she filed a separate lawsuit alleging that TMCC and TMCC’s counsel violated state and federal law. See, Carenrose Dacumos v. Patenaude & Felix, A.P.C. and Toyota Motor Credit Corporation, King County Cause No. 15-2-26288-2 SEA. (TMCC’s Exhibit S, pp. 72 – 77) (“15-2-26288-2 SEA”). The two lawsuits were interrelated and litigated simultaneously. The parties vigorously litigated the second lawsuit. Together, the cases involved dozens of docket entries and at least two dispositive motions. The parties simultaneously resolved both lawsuits and all claims through a global release and settlement agreement, which provided: 1) Washington law governs the parties’ agreement; 2) All parties entered a mutual release of claims; 3) TMCC’s counsel paid Ms. Dacumos $5,000.00; 4) TMCC agreed to cease collection of the underlying account; 5) To that end, TMCC dismissed its lawsuit, 15-2-13622-4 KNT, against Ms. Dacumos with prejudice; and 6) Ms. Dacumos filed a motion for prevailing party costs and attorney’s fees in her Plaintiff’s case, 15-2-26288-2 SEA. See, EXHIBIT A to the Declaration of Caren Rose Dacumos, TMCC_0001 – 0003 and EXHIBIT B, Plaintiff 0000216 – 0000219. The governing law provision explicitly states: “7. Governing Law: The parties hereby agree that the validity, construction, and interpretation of this Agreement shall be governed by the laws of the State of Washington.” Id. at TMCC_0006, at ¶ 7. Despite the parties’ agreement, TMCC admits that it continued reporting that Ms. Dacumos owes TMCC $13,593.00. Ms. Dacumos disputed the balance to all three major credit reporting agencies. Her most recent dispute, the one that resulted in Trans Union Case 2:17-cv-00964-RSM Document 29 Filed 11/27/17 Page 4 of 21 PLAINTIFF’S RESPONSE TO TMCC’S MOTION TO DISMISS 5 Law Office of SaraEllen Hutchison, PLLC 2367 Tacoma Avenue South, Tacoma, WA 98402 Ph: (206) 529-5195 | Fax: (877) 485-4893 Robert Mitchell, Attorney at Law, PLLC 1020 N. Washington, Spokane, WA 99201 Ph (509) 327-2224 | Fax (888) 840-6003 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 correcting the reporting to a $0.00 balance, included copies of the dismissal with prejudice of 15-2-13622-4 KNT. Trans Union is not a party to this action. TMCC, and the other two credit reporting agencies, Experian and Equifax, however, failed or refused to correct the erroneous reporting. Ms. Dacumos brought this action for violation of the Fair Credit Reporting Act. Despite the parties’ clear intent to resolve all claims at issue in the two underlying state court actions, TMCC now argues through its motion that the dismissal with prejudice in 15-2- 13622-4 KNT, the award of costs and fees to Ms. Dacumos as the prevailing party in 15-2- 26288-2 SEA, and the parties’ release and settlement agreement that ceased all collection pursuant to Washington State law, did not serve as an adjudication on the merits. In fact, to bolster its argument, TMCC refused to include even a single reference to the second, vigorously litigated lawsuit, the parties’ global release and settlement agreement, the dismissal of the second case with prejudice, or Ms. Dacumos’ subsequent award of costs and fees as the prevailing party in that second lawsuit. Worse yet, TMCC actually attempted to obfuscate these important facts by stating, in pertinent part: “This document appears to relate to another case and was inadvertently filed in the Collection Action.” See, Dkt. #27, at pp. 3 – 4, lines 22 – 2, regarding Defendant’s Exhibit S, concerning a document from Dacumos v. TMCC, et al., 15-2-26288-2, which was filed in TMCC v. Dacumos, 15-2-13622-4 KNT. Emphasis added. This characterization of the other case as an afterthought or mistake reveals TMCC’s efforts to mislead this Court about the interrelationship between the two cases, the single release and settlement agreement that was designed to resolve all claims in both cases, the resulting dismissal with prejudice, and Ms. Dacumos’ subsequent motion for costs and fees as the prevailing party. // // Case 2:17-cv-00964-RSM Document 29 Filed 11/27/17 Page 5 of 21 PLAINTIFF’S RESPONSE TO TMCC’S MOTION TO DISMISS 6 Law Office of SaraEllen Hutchison, PLLC 2367 Tacoma Avenue South, Tacoma, WA 98402 Ph: (206) 529-5195 | Fax: (877) 485-4893 Robert Mitchell, Attorney at Law, PLLC 1020 N. Washington, Spokane, WA 99201 Ph (509) 327-2224 | Fax (888) 840-6003 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 III. AUTHORITY A. FED. R. CIV. P. 12(C) STANDARD ON MOTION TO DISMISS. Courts apply the same standard for a Fed. R. Civ. P. 12(c) as used for a 12(b)(6). Cafasso v. General Dynamics C4 Systems, Inc., 637 F. 3d 1047, 1054, fn. 4 (9 th Cir. 2011). When considering a Fed. R. Civ. P. 12(b)(6) motion, the court construes the complaint in the light most favorable to the non-moving party. Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 946 (9 th Cir. 2005). In deciding such a motion, all material allegations of the complaint are accepted as true, as well as all reasonable inferences to be drawn from them. Navarro v. Block, 250 F. 3d 729, 732 (9 th Cir. 2001) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 338 (9 th Cir. 1996)) (emphasis added). Navarro v. Block, 250 F. 3d 729, 732; Wyler Summit P’ship v. Turner Broad. Sys., Inc., 135 F.3d 658, 663 (9 th Cir. 1998). A plaintiff need not allege detailed factual allegations in the complaint, but must provide the grounds of his or her entitlement to relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint must “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim may be dismissed “only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Navarro, supra. A Fed. R. Civ. P. 12(c) motion must also be timely. Federal Rule of Civil Procedure 12(c) provides that: “After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings.” In this case, Defendant’s motion is untimely. Defendant waited until after the deadline to amend pleadings expired. Therefore, any defect in the pleadings cannot be cured through amendment. TMCC’s motion is untimely and unduly prejudicial to Plaintiff. Case 2:17-cv-00964-RSM Document 29 Filed 11/27/17 Page 6 of 21 PLAINTIFF’S RESPONSE TO TMCC’S MOTION TO DISMISS 7 Law Office of SaraEllen Hutchison, PLLC 2367 Tacoma Avenue South, Tacoma, WA 98402 Ph: (206) 529-5195 | Fax: (877) 485-4893 Robert Mitchell, Attorney at Law, PLLC 1020 N. Washington, Spokane, WA 99201 Ph (509) 327-2224 | Fax (888) 840-6003 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 B. DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS SHOULD BE TREATED AS A MOTION FOR SUMMARY JUDGMENT AND SHOULD BE DENIED. A motion to dismiss under FRCP 12(c) shall be treated as a motion for summary judgment if the movant relies on matters extrinsic to the pleadings. “[J]udgment on the pleadings is improper when the district court goes beyond the pleadings to resolve an issue; such a proceeding must properly be treated as a motion for summary judgment.” Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1550 (9th Cir. 1990), citing Fed. R. Civ. P. 12(c); cf. Bonilla v. Oakland Scavenger Co., 697 F.2d 1297, 1301 (9th Cir.1982) (discussing Fed. R. Civ. P. 12(b)(6)), cert. denied, 467 U.S. 1251, 104 S.Ct. 3533, 82 L.Ed.2d 838 (1984). On a Rule 12(b)(6) motion to dismiss, when a court takes judicial notice of another court’s opinion, it may do so “not for the truth of the facts recited therein, but for the existence of the opinion, which is not subject to reasonable dispute over its authenticity.” Lee v. City of Los Angeles, 250 F. 3d 668, 690 (9th Cir. 2001), citing Southern Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group Ltd., 181 F.3d 410, 426-27 (3rd Cir.1999) (holding it improper for a court, on 12(b)(6) motion to dismiss, to take judicial notice of disputed facts stated in public records). Here, the form of TMCC’s motion is inappropriate. TMCC filed a Rule 12(c) motion for judgment on the pleadings, yet it relies on TMCC’s other pending motion for judicial notice of a curated selection of records from the two separate King County Superior Court lawsuits involving TMCC, its collection lawyers, and Ms. Dacumos. TMCC then misleadingly states that Ms. Dacumos did not defend the collection action. Ms. Dacumos disputes that characterization. Although the Court may properly take judicial notice of these other records, the fact that TMCC deliberately excludes the related case is asking the Court to take judicial notice of disputed facts, in effort to lead the Court to conclude that Ms. Dacumos did not defend the collection action. TMCC asks the court to take judicial notice of a selectively incomplete record and draw a factually insupportable conclusion about the resulting dismissal Case 2:17-cv-00964-RSM Document 29 Filed 11/27/17 Page 7 of 21 PLAINTIFF’S RESPONSE TO TMCC’S MOTION TO DISMISS 8 Law Office of SaraEllen Hutchison, PLLC 2367 Tacoma Avenue South, Tacoma, WA 98402 Ph: (206) 529-5195 | Fax: (877) 485-4893 Robert Mitchell, Attorney at Law, PLLC 1020 N. Washington, Spokane, WA 99201 Ph (509) 327-2224 | Fax (888) 840-6003 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 with prejudice that is not supported by Washington State law. Therefore, TMCC’s motion must be treated as a motion for summary judgment. The selected state court exerpts TMCC asks the Court to consider do not tell the whole story of how TMCC knowingly and repeatedly furnished and verified false information to the credit reporting agencies. The settlement agreement that resolved both of those underlying state court matters is mysteriously missing from TMCC’s exhibits. That agreement, which was provided to TMCC in Plaintiff’s Initial Disclosures and also produced by TMCC in discovery, demonstrates that TMCC contracted with Ms. Dacumos to extinguish her liability for the debt. See, EXHIBIT A to the Declaration of Caren Rose Dacumos, TMCC_0001 – 0003; EXHIBIT B, Plaintiff 000216 – 000219. This litigation has progressed too far, the parties have admitted too many documents into the record, and we are too close to trial for this Court to ignore crucial documents and treat this as a Motion for Judgment on the Pleadings. If this Court entertains this dispositive motion at this time, this Court should treat this dispositive motion as a Motion for Summary Judgment and allow Plaintiff to finish discovery prior to hearing the motion. C. TMCC DISMISSED ITS COLLECTION ACTION “WITH PREJUDICE,” MAKING THE DEBT UNCOLLECTIBLE AS A MATTER OF LAW. In Washington State, a dismissal “with prejudice,” even if stipulated to, is considered a final judgment on the merits: “A final order or judgment, settled and entered by agreement or consent of the parties, is no less effective as a bar or estoppel than is one which is rendered upon contest and trial.” LeBire v. Dep’t of Labor & Indus., 14 Wn.2d 407, 418, 128 P.2d 308 (1942). See also Berschauer Phillips Const. Co. v. Moe, 175 Wn. App. 222, 308 P.3d 681, 683, fn. 11 (2013) citing Banchero v. City Council of City of Seattle, 2 Wn. App. 519, 525, 468 P.2d 724 (1970) (“Here, the judgment in the prior Thurston County lawsuit, a dismissal Case 2:17-cv-00964-RSM Document 29 Filed 11/27/17 Page 8 of 21 PLAINTIFF’S RESPONSE TO TMCC’S MOTION TO DISMISS 9 Law Office of SaraEllen Hutchison, PLLC 2367 Tacoma Avenue South, Tacoma, WA 98402 Ph: (206) 529-5195 | Fax: (877) 485-4893 Robert Mitchell, Attorney at Law, PLLC 1020 N. Washington, Spokane, WA 99201 Ph (509) 327-2224 | Fax (888) 840-6003 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ‘with prejudice’ stipulated by agreement of both parties, was final for purposes of res judicata. Dismissal of an action ‘with prejudice’ is a final judgment on the merits of a controversy.”). As a matter of law, if a Washington State civil action is dismissed “with prejudice,” the dismissal serves as a final decision on the merits. Washington State courts do not measure the intent of the parties or otherwise question the purpose for the dismissal. In this case, TMCC asserts that the rule does not apply because TMCC’s dismissal “with prejudice” was voluntary. TMCC argues, contrary to Washington law, that dismissing a case “with prejudice” out of a sense of apathy leaves the issue of liability undecided. TMCC audaciously asserts that it has every right to continue reporting the $13,593 balance on Plaintiff’s credit report because TMCC has the right to engage in non-judicial collection. See, Dkt. #26, at pp. 2 - 3, lines 20 – 2, stating in pertinent part: TMCC merely chose not to pursue the Collection Action further, but that decision did not preclude TMCC from reporting that a debt was still owed on the Account. The absence of a judicial remedy to collect on a debt owed is entirely different from a lender’s obligation to accurately report what is actually owed. Indeed, the absence of a judicial remedy does not even bar creditors from continuing non-judicial collection efforts (although no such collection efforts are alleged here). TMCC’s theory can be boiled down to a single statement: Vountarily dismissing a debt collection lawsuit with prejudice does not extinguish the debt, and the creditor may still collect the debt and report a balance due. There is no controlling legal authority supporting TMCC’s argument; it is actually a serious admission of willful misconduct by TMCC. Even if such a legal rule existed, the facts of this case simply do not support a finding that TMCC dismissed the case in an offhand way out of a sense of apathy. What TMCC omits from its Motion is that TMCC intentionally dismissed the case “with prejudice” after entering a release and settlement agreement with Ms. Dacumos, to extinguish liability on the account and end vigorous litigation. Therefore, this Court should reject TMCC’s theory for five reasons. Case 2:17-cv-00964-RSM Document 29 Filed 11/27/17 Page 9 of 21 PLAINTIFF’S RESPONSE TO TMCC’S MOTION TO DISMISS 10 Law Office of SaraEllen Hutchison, PLLC 2367 Tacoma Avenue South, Tacoma, WA 98402 Ph: (206) 529-5195 | Fax: (877) 485-4893 Robert Mitchell, Attorney at Law, PLLC 1020 N. Washington, Spokane, WA 99201 Ph (509) 327-2224 | Fax (888) 840-6003 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 1. TMCC’s Motion Relies almost entirely upon an Outlier Massachussetts case. TMCC asks this Court to ignore principles of comity and apply law other than Washington State law. Because Washington law treats a stipulated dismissal with prejudice as a decision on the merits, and leaves no issue undecided, TMCC was forced to reach outside Washington’s borders to find support for its theory that TMCC maintains the right to non- judicially collect and credit report the $13,593 balance. TMCC bases its legal theory on an outlier case interpreting Massachussetts law, Dawe v. Capital One Bank, 456 F. Supp. 2d. 236 (D. Mass. 2006). TMCC’s own brief describes the case as: “The procedural posture of Dawe is unique…” See, Dkt. #26, at p. 7, lines 18 – 21. The legal result in Dawe directly contradicts Washington law, and the facts of Dawe are more distinguishable than they are similar. In Dawe, the creditor chose to move for summary judgment on the effect of a state court dismissal and concluded that the issue of the consumer’s liability was undecided, leaving the debt collectible outside of court. This is a completely different procedural posture from here, where TMCC chose to enter a dismissal with prejudice that, in Washington State, functions as a decision on the merits as to all claims. TMCC cannot now backtrack from its choices in state court by filing what is essentially a circuitous attempt to seek relief from a state court judgment in federal court, in the form of a 12(c) motion. TMCC inappropriately relies on Lawlor v. Nat'l Screen Serv. Corp., 349 U.S. 322, 327 (1955), in which the United States Supreme Court held that a subsequent action that raises issues that were raised in a prior action is not barred by res judicata. TMCC also relies inappropriately on Amadeo v. Principal Mut. Life Ins. Co., 290 F.3d 1152 (9th Cir. 2002), a case concerning what is “full and fair” opportunity to litigate an issue that arose out of a California dispute. Case 2:17-cv-00964-RSM Document 29 Filed 11/27/17 Page 10 of 21 PLAINTIFF’S RESPONSE TO TMCC’S MOTION TO DISMISS 11 Law Office of SaraEllen Hutchison, PLLC 2367 Tacoma Avenue South, Tacoma, WA 98402 Ph: (206) 529-5195 | Fax: (877) 485-4893 Robert Mitchell, Attorney at Law, PLLC 1020 N. Washington, Spokane, WA 99201 Ph (509) 327-2224 | Fax (888) 840-6003 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Lawlor and Amadeo are inapplicable here because principles of comity dictate that the Court must analyze the effect of the state court judgment under Washington State law. Under 28 U.S.C. §1738, Federal courts are not allowed “to employ their own rules of res judicata in determining the effect of state judgments.” They are “command[ed] to accept the rules chosen by the State from which the judgment was taken.” See, Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 380 (1985) (citations omitted). “The preclusive effect of a state court judgment in a subsequent federal lawsuit generally is determined by the full faith and credit statute, which provides that state judicial proceedings ‘shall have the same full faith and credit in every court within the United States…as they have by law or usage in the courts of such State…from which they are taken.’” Id, citing 28 U.S.C. §1738. TMCC cannot ask this court to ignore 28 U.S.C. §1738 and Washington State law. 2. TMCC’s Motion Mischaracterizes Washington Law. TMCC cites Washington State cases that either address issues that are not pertinent to the instant case, or, as in the case of Soundbuilt, infra, directly support Plaintiff’s position and not TMCC’s. TMCC’s motion further claims that Plaintiff has “confused res judicata and collateral estoppel” and that TMCC only agreed to stop the collection action, and keep the debt alive on its books. In addition to that language appearing nowhere in the settlement agreement, it is plainly not the effect of a dismissal with prejudice in Washington, regardless of TMCC’s subjective desires at the time it agreed to enter a dismissal with prejudice. Defendant cites Christensen v. Grant Cty. Hosp. Dist. No. 1, 152 Wn.2d 299, 96 P.3d 957 (2004) for the proposition that collateral estoppel bars a party from relitigating an issue already decided in previous litigation. To the extent the case is even relevant here, it actually supports Plaintiff, and not TMCC. Christensen concerned a hospital employee whose unfair labor practices claim was heard in an administrative proceeding -- where he lost -- and then was collaterally estopped Case 2:17-cv-00964-RSM Document 29 Filed 11/27/17 Page 11 of 21 PLAINTIFF’S RESPONSE TO TMCC’S MOTION TO DISMISS 12 Law Office of SaraEllen Hutchison, PLLC 2367 Tacoma Avenue South, Tacoma, WA 98402 Ph: (206) 529-5195 | Fax: (877) 485-4893 Robert Mitchell, Attorney at Law, PLLC 1020 N. Washington, Spokane, WA 99201 Ph (509) 327-2224 | Fax (888) 840-6003 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 from bringing a retaliatory discharge claim in Superior Court thereafter, because those issues had already been litigated between the parties. In citing this case, TMCC is confusing the regulatory scheme of credit reporting with relitigation of an issue. To make this implausible leap of logic, TMCC must first assert that the two state court cases between Ms. Dacumos, TMCC, and TMCC’s collection counsel did not actually decide the discrete issue of the vehicle loan account (which TMCC does by relying on a Massachusetts case, Dawe, supra), and then claim that because the state court actions did not adjudicate the debt (which is incorrect), leaving TMCC with non-judicial remedies, Ms. Dacumos is now estopped from complaining about TMCC’s exercise of those remedies (such as credit reporting). Christensen supports Ms. Dacumos, because since a dismissal with prejudice is on the merits and decides every issue in the lawsuit, TMCC is the party that would be estopped from engaging in non-judicial collection efforts, such as credit reporting the balance that may have existed before the debt was resolved forevermore by the dismissal. TMCC cites Irondale Cmty. Action Neighbors v. Western Wash. Growth Mgmt. Hearings Board, 163 Wn. App. 513, 262 P.3d 81 (2011), review denied, 173 Wn.2d 1014 (2012), a case concerning the application of the res judicata doctrine to administrative hearings, for the proposition that the judgment in favor of Ms. Dacumos was not “actually litigated and necessarily determined,” which TMCC can only argue with any success by leaving out the complete litigation record and the settlement agreement. TMCC also relies on Soundbuilt Northwest, LLC v. Price, No. 40585-7-II Consolidated with 40925-9-II, 2011 Wash.App. LEXIS 2401 (Wash. Ct. App. Oct. 18, 2011), petition for review denied, Soundbuilt Northwest, LLC v. Price, 164 Wn. App. 1019 (2011). The legal analysis undertaken by the Washington State Court of Appeals in the unpublished Soundbuilt opinion, which was affirmed on the grounds upon which TMCC relies, directly supports Plaintiff. It merits discussion. Case 2:17-cv-00964-RSM Document 29 Filed 11/27/17 Page 12 of 21 PLAINTIFF’S RESPONSE TO TMCC’S MOTION TO DISMISS 13 Law Office of SaraEllen Hutchison, PLLC 2367 Tacoma Avenue South, Tacoma, WA 98402 Ph: (206) 529-5195 | Fax: (877) 485-4893 Robert Mitchell, Attorney at Law, PLLC 1020 N. Washington, Spokane, WA 99201 Ph (509) 327-2224 | Fax (888) 840-6003 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Soundbuilt was a dispute between real estate developers who had a joint venture to build a project in Pierce County. Soundbuilt’s predecessor entered into a stipulated dismissal of certain claims against Price’s business entity. Soundbuilt sued Price in his individual capacity again for some of the same claims in a separate, later lawsuit. The trial court denied Price’s motion to dismiss. On appeal, the Washington State Court of Appeals (COA) reversed, holding that the stipulated dismissal of the first case operated as a final judgment on the merits, and the second case against Price was barred by res judicata. The Washington State Supreme Court denied review. The COA’s analysis is instructive to the case at bar because TMCC makes the very argument that the COA rejected as completely unsupported by Washington State law. The COA stated: “SBNW argues that Sound Built’s 2006 stipulated dismissal with prejudice was not a resolution of the issues on the merits and thus does not act to bar suit against Price and Um, individually. Price and Um are correct.” Soundbuilt Northwest, LLC v. Price, 2011 Wash.App. LEXIS 2401 at *15. The Court reasoned: “SBNW argued below, as it does now on appeal, that dismissal with prejudice is not a resolution of the issues on their merits, or in other words, that dismissal with prejudice is merely a settlement between the parties and does not act to bar their suit against Price and Um, individually. Sound Built is mistaken. A stipulated voluntary dismissal with prejudice acts as a prior judgment barring a subsequent action between the same parties on the same claim. CR 41(a)(1)(B); Restatement (Second) of Judgments § 43(1)(b) (1982) (“A judgment in an action that determines interests in real or personal property . . . [h]as preclusive effects upon a person who succeeds to the interest of a party to the same extent as upon the party himself.”). And ‘a final order or judgment, settled and entered by agreement or consent of the parties, is no less effective as a bar or estoppel than is one which is rendered upon contest and trial.’” (Citations omitted.) Case 2:17-cv-00964-RSM Document 29 Filed 11/27/17 Page 13 of 21 PLAINTIFF’S RESPONSE TO TMCC’S MOTION TO DISMISS 14 Law Office of SaraEllen Hutchison, PLLC 2367 Tacoma Avenue South, Tacoma, WA 98402 Ph: (206) 529-5195 | Fax: (877) 485-4893 Robert Mitchell, Attorney at Law, PLLC 1020 N. Washington, Spokane, WA 99201 Ph (509) 327-2224 | Fax (888) 840-6003 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Given the above, the stipulated dismissal with prejudice in TMCC’s Washington State collection action against Ms. Dacumos, a product of vigorous litigation and a settlement agreement, did not leave TMCC with any legal right (judicial or non-judicial) to collect a $13,593 balance. It resulted in a judgment that determined interests in personal property that warrants the full faith and credit of this Court. Therefore, reporting that Ms. Dacumos owes TMCC over $13,593 was objectively inaccurate and contradicts the public record. 3. TMCC’s Motion Completely Ignores the Parties’ Two Previous Lawsuits and Subsequent Release and Settlement Contract. Even if it were true that vountarily dismissing a debt collection lawsuit with prejudice does not extinguish the debt, and the creditor may still collect the debt, the facts of the case at bar extend far beyond a single voluntary dismissal with prejudice. The parties vigorously litigated and ultimately resolved two Superior Court lawsuits through a global release and settlement agreement. TMCC then dismissed its lawsuit “with prejudice,” and Plaintiff then filed a motion for costs and fees as the prevailing party in her lawsuit. One of the paramount purposes of the parties’ global release and settlement agreement was to discharge the underlying account. See, TMCC_0003, at ¶ 2(a) and 2(b), stating in pertinent part: Patenaude & Felix also offers the following consideration for full and final release provided for below: a. Dismissal with prejudice of the collection action against Caren Dacumos in King County Cause No. 15-2-26288-2; b. No further collection action shall be pursued, and no further lawsuit shall be brought, against Caren Dacumos by TMCC or Patenaude & Felix on the debt that is the subject of this lawsuit. Surprisingly, TMCC’s motion does not contain a single reference to the parties’ global release and settlement agreement, which was designed to put an end to both lawsuits and stop collection of the underlying debt. Worse yet, rather than providing this Court with a full and accurate picture of the parties’ litigation history, TMCC instead attempts to mislead this Court by stating: “This document appears to relate to another case and was inadvertently filed Case 2:17-cv-00964-RSM Document 29 Filed 11/27/17 Page 14 of 21 PLAINTIFF’S RESPONSE TO TMCC’S MOTION TO DISMISS 15 Law Office of SaraEllen Hutchison, PLLC 2367 Tacoma Avenue South, Tacoma, WA 98402 Ph: (206) 529-5195 | Fax: (877) 485-4893 Robert Mitchell, Attorney at Law, PLLC 1020 N. Washington, Spokane, WA 99201 Ph (509) 327-2224 | Fax (888) 840-6003 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 in the Collection Action.” See, Dkt. #27, at pp. 3 – 4, lines 22 – 2, regarding Defendant’s Exhibit S, concerning a document from Dacumos v. TMCC, et al., 15-2-26288-2, which was filed in TMCC v. Dacumos, 15-2-13622-4 KNT. Emphasis added. In attempt to further obfuscate the truth, TMCC also states: “Plaintiff never appeared in the Collection Action.” See, Dkt. #26, p. 3, line 13. That statement is grossly misleading. All parties and their counsel participated in the state court actions and Ms. Dacumos was represented by counsel in negotiating the settlement that resulted in the dismissal with prejudice of the Collection Action. TMCC’s statements reflect a deliberate attempt to mislead this Court about the parties’ litigation history, the interrelationship of the two cases, and the ultimate resolution of both cases through a global release and settlement agreement. To be certain, there was no justifiable reason for TMCC to attach the document, or assert the misleading statement, in a Motion for Judgment on the Pleadings. The reason TMCC chose to include the document and the misleading language, while simultaneously refusing to submit the parties’ release and settlement agreement, was to convince this Court to limit the scope of this motion to TMCC’s single voluntary dismissal with prejudice and the legal effects of that single dismissal. Therefore, not only is TMCC unable to present valid law to support its narrowly focused theory, but TMCC was less than truthful with this Court about the relevant facts in order to advance the meritless legal argument. Contrary to TMCC’s arguments, after entering the above-referenced agreement, TMCC did not have the right to collect a $13,593 balance from Ms. Dacumos, and TMCC did not have the right to continue reporting the $13,593 balance on her credit report. Even if Dawe or TMCC’s res judicata argument could carry the day, both theories require this Court to completely ignore that the legal claims at issue were in fact resolved through the parties’ release and settlement agreement, and then the lawsuits were dismissed, and then Ms. Case 2:17-cv-00964-RSM Document 29 Filed 11/27/17 Page 15 of 21 PLAINTIFF’S RESPONSE TO TMCC’S MOTION TO DISMISS 16 Law Office of SaraEllen Hutchison, PLLC 2367 Tacoma Avenue South, Tacoma, WA 98402 Ph: (206) 529-5195 | Fax: (877) 485-4893 Robert Mitchell, Attorney at Law, PLLC 1020 N. Washington, Spokane, WA 99201 Ph (509) 327-2224 | Fax (888) 840-6003 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Dacumos was awarded costs and fees as the prevailing party. Moreover, both theories require this Court to ignore that the parties’ agreement provides in relevant part: “No further collection action shall be pursued, and no further lawsuit shall be brought, against Caren Dacumos by TMCC or Patenaude & Felix on the debt that is the subject of this lawsuit.” Given the above, even if it were true that Vountarily dismissing a debt collection lawsuit with prejudice does not extinguish the debt, and the creditor may still collect the debt, the facts of this case extend far beyond a single voluntary dismissal with prejudice and the parties’ release and settlement agreement directly contradicts both legal theories. 4. Credit Reporting is Not a Benign Activity - - It is a Collection Tool. The Fair Debt Collection Practices Act, which proscribes what debt collectors can and cannot do, addresses credit reporting directly, making it unlawful to report that a disputed debt is not disputed. See, e.g., Edeh v. Midland Credit Management, Inc., 748 F. Supp. 2d 1030 (Dist. Minn. 2010) citing Semper v. JBC Legal Group, 2005 WL 2172377 at *4, Case No. 2:04-cv-2240 RSL, Dkt. 74 (W.D. Wash., Sept. 6, 2005) (under 15 U.S.C. §1692e(8), it is unlawful for a debt collector to fail to report a disputed debt as disputed). Although TMCC is an original creditor not subject to the FDCPA, the coercive effect of credit reporting as a collection tool is just the same. In this case, TMCC’s own motion compares TMCC’s right to continue reporting the inflated balance to TMCC’s right to collect the false balance. See, Dkt. #26, at pp. 2 - 3, lines 20 – 2, supra. TMCC continued reporting the false balance, at least in part, as a means to collect the inflated balance. Because the parties’ release and settlement agreement proscribed further debt collection on the account, TMCC should not have been reporting the inflated balance in attempt to collect the erroneous account balance. 5. The Parties’ Release and Settlement Agreement is a “Contract.” The parties’ global release and settlement agreement was designed to resolve all claims against all parties and their counsel, in both lawsuits. The parties’ agreement provided: 1) Case 2:17-cv-00964-RSM Document 29 Filed 11/27/17 Page 16 of 21 PLAINTIFF’S RESPONSE TO TMCC’S MOTION TO DISMISS 17 Law Office of SaraEllen Hutchison, PLLC 2367 Tacoma Avenue South, Tacoma, WA 98402 Ph: (206) 529-5195 | Fax: (877) 485-4893 Robert Mitchell, Attorney at Law, PLLC 1020 N. Washington, Spokane, WA 99201 Ph (509) 327-2224 | Fax (888) 840-6003 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Washington law governs the parties’ agreement; 2) All parties entered a mutual release; 3) TMCC’s counsel paid Ms. Dacumos $5,000.00; 4) TMCC and TMCC’s counsel agreed to cease collection of the underlying account; 5) To that end, TMCC dismissed its lawsuit against Dacumos with prejudice; and 6) Ms. Dacumos filed a motion for prevailing party costs and attorney’s fees. Under the parties’ agreement, TMCC extinguished the debt, TMCC’s counsel paid Ms. Dacumos $5,000.00, and Ms. Dacumos was allowed to file a motion for costs and fees. The parties resolved all claims among and against all parties and their counsel, and both lawsuits were dismissed with prejudice. As indicated by her success in the second lawsuit, Ms. Dacumos held valid claims against TMCC, and/or its counsel. Ms. Dacumos provided valid consideration for the parties’ global release and settlement agreement by waiving her valid claims in exchange for reducing her damages claim in exchange for the reduced payment of $5,000, plus an award of costs and attorney’s fees, and TMCC’s promise to cease all further collection efforts. In return, TMCC and its counsel promised to forever release Ms. Dacumos from liability for the underlying account. The parties’ exchange of consideration formed a valid contract. Nevertheless, TMCC’s own motion admits that it continued reporting the debt as owed on Plaintiff’s consumer credit report because TMCC had every right to collect the debt, non- judicially. TMCC’s reporting of the account in attempt to force payment of the account is a breach of the parties’ release and settlement contract. Therefore, dismissing this case would be tantamount to condoning TMCC’s breach of the parties’ release and settlement contract. // // // // Case 2:17-cv-00964-RSM Document 29 Filed 11/27/17 Page 17 of 21 PLAINTIFF’S RESPONSE TO TMCC’S MOTION TO DISMISS 18 Law Office of SaraEllen Hutchison, PLLC 2367 Tacoma Avenue South, Tacoma, WA 98402 Ph: (206) 529-5195 | Fax: (877) 485-4893 Robert Mitchell, Attorney at Law, PLLC 1020 N. Washington, Spokane, WA 99201 Ph (509) 327-2224 | Fax (888) 840-6003 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 D. IT IS A VIOLATION OF THE FAIR CREDIT REPORTING ACT TO FALSELY VERIFY THE STATUS OF AN ACCOUNT. The Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §1681 et seq., was enacted by Congress “to ensure fair and accurate credit reporting, promote efficiency in the banking system, and protect consumer privacy.” Safeco Ins. Co. of Am. V. Burr, 551 U.S. 47 (2007). The FCRA imposes several duties on businesses that furnish data to the credit reporting agencies. Upon notice from a credit reporting agency that a consumer has disputed information, the furnisher shall, among other things, conduct an investigation with respect to the disputed information, review all relevant information provided by the CRA, and report the results of the investigation to the CRA. 15 U.S.C. §1681s-2(b)(1). This case presents two bases for TMCC’s violation of 15 U.S.C. §1681s-2(b). First, the fact of the dismissal with prejudice in the public record makes TMCC’s credit reporting patently false. Second, the existence of the settlement agreement that TMCC and Plaintiff negotiated is a stand-alone bar to TMCC’s ability to report a balance owed. TMCC’s own collection lawyers negotiated this agreement, so TMCC knows that it is reporting false information every time it verifies to the credit reporting agencies that there is a current balance of anything more than $0.00 on the account. Both the dismissal with prejudice and the settlement agreement negotiated with Ms. Dacumos operate as a bar against any further collection of the account at issue, so every time TMCC reports a balance owed in response to notification of a consumer dispute from a credit reporting agency, TMCC is knowingly and willfully reporting false information in violation of 15 U.S.C. §1681s-2(b). Although a dismissal with prejudice stands by itself as a decision on the merits, even if it did not, the fact that the parties entered a release and settlement contract resolving all claims and agreeing to cease all collection efforts prior to TMCC’s filing the dismissal with prejudice, is dispositive. Credit reporting is collection activity. Edeh, supra. TMCC’s reporting of a Case 2:17-cv-00964-RSM Document 29 Filed 11/27/17 Page 18 of 21 PLAINTIFF’S RESPONSE TO TMCC’S MOTION TO DISMISS 19 Law Office of SaraEllen Hutchison, PLLC 2367 Tacoma Avenue South, Tacoma, WA 98402 Ph: (206) 529-5195 | Fax: (877) 485-4893 Robert Mitchell, Attorney at Law, PLLC 1020 N. Washington, Spokane, WA 99201 Ph (509) 327-2224 | Fax (888) 840-6003 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 balance greater than $0.00 at any time after entering the settlement with Ms. Dacumos is false credit reporting. Repeatedly verifying what TMCC knows to be false after receiving notice of Ms. Dacumos’ disputes from the credit reporting agencies is a willful violation of federal law. Despite the parties’ release and settlement contract, TMCC’s motion argues: “Plaintiff’s claims are entirely premised on the legal theory that because TMCC’s lawsuit against Plaintiff to collect the debt (the ‘Collection Action’) was dismissed with prejudice, the account balance should have been reported as $0.” TMCC is well aware that this statement is patently false. The basis for Plaintiff’s claims are the parties’ release and settlement agreement, Plaintiff’s waiver of claims against TMCC and TMCC’s law firm, and TMCC’s written agreement to cease all further debt collection and discharge the debt, and then dismissing the case with prejudice. Not only did TMCC intentionally mischaracterize the parties’ dispute, TMCC intentionally withheld the parties’ agreement in attempt to mislead the Court into believing this false assertion. TMCC’s citation to Carvalho v. Equifax Information Services, LLC, 629 F.3d 876 (9 th Cir. 2010) is revealing. Carvalho stands for the proposition that the credit reporting agencies are not in a position to investigate a consumer’s legal defenses to an otherwise facially accurate tradeline. Id. at 892. Carvalho does nothing to protect a furnisher that, based on the furnisher’s peculiar legal theory or subjective interpretation of its legal relationship with the consumer, believes it is shielded from liability when it reports a facially inaccurate tradeline that contradicts the public record. Just as the credit reporting agencies are not in a position to dive deep into the consumer’s explanations, the credit reporting agencies are not going to make an inquiry into the furnisher’s reasons for a dismissal with prejudice that not even Washington Courts will make. Case 2:17-cv-00964-RSM Document 29 Filed 11/27/17 Page 19 of 21 PLAINTIFF’S RESPONSE TO TMCC’S MOTION TO DISMISS 20 Law Office of SaraEllen Hutchison, PLLC 2367 Tacoma Avenue South, Tacoma, WA 98402 Ph: (206) 529-5195 | Fax: (877) 485-4893 Robert Mitchell, Attorney at Law, PLLC 1020 N. Washington, Spokane, WA 99201 Ph (509) 327-2224 | Fax (888) 840-6003 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 TMCC’s reliance on cases that permit reporting and/or collection of time-barred debts (TMCC’s Motion, p. 8) are not relevant, because they all depend on TMCC’s false premise that the account at issue is still non-judicially collectible. This Court should disregard them. Given the above, TMCC’s reporting was erroneous because there is just no way to stretch the law to permit TMCC to report that Ms. Dacumos still owes TMCC $13,593 after TMCC entered a release and settlement agreement to cease collection of the $13,593 account, and then dismissed its $13,593 collection lawsuit with prejudice. IV. CONCLUSION For the reasons discussed above, this Court should deny TMCC’s motion to dismiss, or treat this motion as a Motion for Summary Judgment, pursuant to Fed. R. Civ. P. 12(d), and continue the motion, pursuant to Fed. R. Civ. P. 56(d). Dated this 27 th day of November, 2017. Respectfully submitted, S//SaraEllen M. Hutchison SaraEllen M. Hutchison (WSBA # 36137) Law Office of SaraEllen Hutchison, PLLC 2367 Tacoma Avenue South Tacoma, WA 98402 Telephone: (206) 529-5195 Facsimile: (877) 485-4893 Email: saraellen@saraellenhutchison.com S//Robert Mitchell Robert W. Mitchell (WSBA # 37444) Attorney at Law, PLLC 1020 N. Washington Spokane, WA 99201 Telephone: 509-327-2224 Facsimile: 888-840-6003 Email: bobmitchellaw@yahoo.com Case 2:17-cv-00964-RSM Document 29 Filed 11/27/17 Page 20 of 21 PLAINTIFF’S RESPONSE TO TMCC’S MOTION TO DISMISS 21 Law Office of SaraEllen Hutchison, PLLC 2367 Tacoma Avenue South, Tacoma, WA 98402 Ph: (206) 529-5195 | Fax: (877) 485-4893 Robert Mitchell, Attorney at Law, PLLC 1020 N. Washington, Spokane, WA 99201 Ph (509) 327-2224 | Fax (888) 840-6003 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 CERTIFICATE OF SERVICE I hereby certify that on November 27, 2017, the foregoing document was filed via the Court’s CM/ECF system, which will automatically serve and send email notification of such filing to all registered attorneys of record. S//Robert Mitchell ROBERT MITCHELL (WSBA No. 37444) ROBERT MITCHELL ATTORNEY AT LAW, PLLC 1020 N. Washington Spokane, WA 99201 Telephone: 509-327-2224 bobmitchellaw@yahoo.com Case 2:17-cv-00964-RSM Document 29 Filed 11/27/17 Page 21 of 21