DKT 7.1 03.04.2013 Opening Brief1

NO.
12-35886

United States Court of Appeals
for the Ninth Circuit

HERBERT BURKART, individually; TANJ A M BURKART, individually and
the marital community thereof and SCOTT E. STAFNE,
Plaintiffs-Appellants,
v.
GLOBAL ADVISORY GROUP, INC., a Washington corporation,
Defendant,
and
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., a Delaware
corporation; BAC HOME LOANS SERVICING, LP, a foreign corporation;
BANK OF AMERICA NA, a national bank; BANK OF AMERICA
CORPORATION, a Delaware corporation; COUNTRYWIDE FINANCIAL
CORPORATION, a Delaware corporation; COUNTRYWIDE HOME LOANS,
INC., a New York corporation; LINDA GREEN DOES 1-10,
Defendants-Appellees.
_____________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF WASHINGTON, SEATTLE, NO. CV-01921-RAJ
HONORABLE RICHARD A. J ONES

BRIEF FOR PLAINTIFFS-APPELLANTS

STAFNE LAW FIRM
Attorneys for Plaintiffs-Appellants
17207 155
th
Avenue NE
Arlington, Washington 98223
(360) 403-8700

Case: 12-35886 03/04/2013 ID: 8536473 DktEntry: 7-1 Page: 1 of 47 (1 of 134)
i
TABLE OF CONTENTS

Page

TABLE OF AUTHORI TI ES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i i i
I . STATEMENT OF J URI SDI CTI ON . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
I I . I SSUES PRESENTED FOR REVI EW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
I I I . REVI EWABI LI TY AND STANDARD OF REVI EW. . . . . . . . . . . . . . . . . . . . 2
I V. STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
V. STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
VI . SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
VI I . ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
A. Thi s Cour t shoul d gr ant r evi ew of t hi s appeal
pur suant t o t he col l at er al or der doct r i ne. . . . . . . . . . . 9
B. The Di st r i ct Cour t s or der r equi r i ng t he
Bur kar t s and t hei r counsel t o consi der an
unpubl i shed deci si on di st i ngui shi ng Washi ngt on
Supr eme Cour t pr ecedent i nf r i nges upon t he
r i ght s and pr ot ect i ons af f or ded t hemby t he
pr i nci pl es of Feder al i smand Dual Sover ei gnt y
i nher ent i n t he Const i t ut i on . . . . . . . . . . . . . . . . . . . . . . . 15
C. The f eder al di st r i ct cour t s or der r equi r i ng
appel l ant s t o consi der an unpubl i shed deci si on
as i f i t wer e par t of Washi ngt on s common l aw
cr eat es f eder al common l aw i n der i vat i on of t he
Uni t ed St at es Const i t ut i on . . . . . . . . . . . . . . . . . . . . . . . . . 22
D. The Guar ant ee Cl ause of t he Uni t ed St at es
Const i t ut i on guar ant ees a r epubl i can f or mof
gover nment t o t he st at es and not f ol l owi ng
st at e l aw as i t has been const r ued by t he
st at e s hi ghest cour t i nhi bi t s Washi ngt on s
r i ght s t o sel f - gover nment by a r epubl i can f or m
of gover nment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
1. What i s a r epubl i can f or mof gover nment . . . . . . . . . 27

ii
2. The Feder al Gover nment s i nst r uct i on,
t hr ough a f eder al j udge, t o consi der a
nonpr ecedent i al Cour t of Appeal s deci si on
t hat at t empt s t o di st i ngui sh t he Washi ngt on
St at e Supr eme Cour t s deci si on i n Bai n,
wher e t he f eder al gover nment had no
const i t ut i onal power t o do so, har ms t he
Const i t ut i on s guar ant ee t o a r epubl i can
f or mof gover nment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

E. Thi s Cour t shoul d cer t i f y t he f ol l owi ng
quest i on ( or some var i at i on t her eof ) t o t he
Washi ngt on Supr eme Cour t f or r evi ew:
Does t he Supr eme Cour t cont empl at e t hat
f eder al di st r i ct cour t s wi l l consi der and
ci t e t o unpubl i shed st at e Cour t of Appeal s
opi ni ons when at t empt i ng t o adj udi cat e t he
meani ng of st at ut es whi ch have not been
r esol ved by t he Supr eme Cour t ?. . . . . . . . . . . . . . . . . 32
VI I I . CONCLUSI ON. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
I X. REQUEST FOR ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

iii
TABLE OF AUTHORITIES
Page(s)
Cases:
Anast asof f v. Uni t ed St at es,
223 F. 3d 898, vacat ed as moot on r eh' g en banc,
235 F. 3d 1054 ( 8t h Ci r . 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Ar i zona v. Uni t ed St at es,
132 S. Ct . 2492, 183 L. Ed. 2d 351 ( 2012) . . . . . . . . . . . . . 15, 16
Bai n v. Met r o. Mor t g. Gr p. ,
175 Wn. 2d 83, 285 P. 3d 34 ( 2012) . . . . . . . . . . . . . . . . . . . . . . passim
Baker v. Car r ,
369 U. S. 186 ( 1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Beat on v. J PMor gan Chase Bank N. A. ,
2012 U. S. Di st . LEXI S 35988. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Bond v. Uni t ed St at es,
___ U. S. ___, 131 S. Ct . 2355,
180 L. Ed. 2d 269 ( 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20
Br odi e v Nor t hwest Tr ust ee Ser vs,
2012 U. S. Di st . LEXI S 139451
( E. D. Wash. Sept . 27, 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 19
Bur f or d v. Sun Oi l Co. ,
319 U. S. 315, 63 S. Ct . 1098, 87 L. Ed. 1424 ( 1943) . . . . . . . 21
Bur gess v. Capi t al One Bank ( USA) , N. A. ,
2010 U. S. Di st . LEXI S 42375. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Chi shol mv. Geor gi a,
2 U. S. ( 2 Dal l . ) 419 ( 1793) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Cobbl edi ck v Uni t ed St at es,
309 U. S. 323, 60 S. Ct . 540, 84 L. Ed. 783 ( 1940) . . . . . . . . . 10
Col eman v. Thompson,
501 U. S. 722, 111 S. Ct . 2546, 115 L. Ed. 2d 640 ( 1991) . . . . . 19
Copl ey Pr ess, I nc. v.
Hi guer a- Guer r er o ( I n r e Copl ey Pr ess, I nc. ) ,
518 F. 3d 1022 ( 9t h Ci r . 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Count y of Lane v. Or egon,
74 U. S. ( 7 Wal l . ) 71 ( 1869) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Di gi t al Equi p. Cor p. v. Deskt op Di r ect , I nc. ,
511 U. S. 863, 114 S. Ct . 1992, 128 L. Ed. 2d 842 ( 1994) . . . 10
iv
Does I t hr u XXI I I v. Advanced Text i l e Cor p. ,
214 F. 3d 1058 ( 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Dwyer v. J . I . Ki sl ak Mor t gage Cor p. ,
103 Wn. App. 542, 13 P. 3d 240 ( 2000) , r evi ew deni ed,
143 Wn. 2d 1024, 29 P. 3d 717 ( 2001) . . . . . . . . . . . . . . . . . . . . . . . . . 6
Er i e Rai l r oad v. Tompki ns,
304 U. S. 64, 58 S. Ct . 817, 82 L. Ed. 1188 ( 1938) . . . . . . . . . 23
Gr ant v. Fi r st Hor i zon Home Loans,
2012 Wash. App. LEXI S 1246. . . . . . . . . . . . . . . . . . . . . . 7, 8, 33, 34
Gr egor y v. Ashcr of t ,
501 U. S. 452, 111 S. Ct . 2395, 115 L. Ed. 2d 410
( 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Hal e v. Wel l pi ni t Sch. Di st . No. 49,
165 Wn. 2d 495, 198 P. 3d 1021 ( 2009) . . . . . . . . . . . . . . . . . . . 12, 22
Har t v. Massanar i ,
266 F. 3d 1155 ( 9t h Ci r . 2001) . . . . . . . . . . . . . . . . . . . . . . 6, 13, 20
Huddl est on v. Dwyer ,
322 U. S. 232, 64 S. Ct . 1015, 88 L. Ed. 1246 ( 1944) . . . . . . . 22
I n r e Duncan,
139 U. S. 449 ( 1891) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 31
Kennet h W. Br ooks Tr ust A v. Pac. Medi a LLC,
111 Wn. App. 393, 44 P. 3d 938 ( 2002) . . . . . . . . . . . . . . . . . . . . . . . 6
Ki t sap Count y Deput y Sher i f f ' s Gui l d v. Ki t sap Count y,
148 Wn. App. 907, 201 P. 3d 396, 2009. . . . . . . . . . . . . . . . . . . . . . . 6
Kl emv. Wash. Mut . Bank,
Supr eme Cour t Cause No. 87105- 1 ( Febr uar y 28, 2013) . . . 17, 33
Kr i enke v. Chase Home Fi n. , LLC,
2007 Wash. App. LEXI S 2668. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Lehman Br os. v. Schei n,
416 U. S. 386, 94 S. Ct . 1741, 40 L. Ed. 215 ( 1974) . 23, 32, 35
Loui si ana Power & Li ght Co. v. Thi bodaux,
360 U. S. 25, 79 S. Ct . 1070, 3 L. Ed. 2d 1058 ( 1959) . . . . . . 21
Massey v. BAC Home Loans Ser vi ci ng LP,
2012 U. S. Di st . LEXI S 154256. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Mi ckel son v. Chase Home Fi n. LLC,
2011 U. S. Di st . LEXI S 131818. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
v
Mi nor v. Happer set t ,
88 U. S. ( 21 Wal l . ) 162 ( 1875) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
New Yor k v. Uni t ed St at es,
505 U. S. 144, 112 S. Ct . 2408, 120 L. Ed. 2d 120
( 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20
Par ent s I nvol ved Cmt y. Schs v. Or der Seat t l e Sch. Di st . ,
294 F. 3d 1085 ( 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 32, 35
Pet er son v. Ci t i bank, N. A. ,
2012 Wash. App. Lexi s 2017
( Wash. Ct . App. Sept . 17, 2012) . . . . . . . . . . . . . . . . . . . . . . . passim
Sal ve Regi na Col l ege v. Russel l ,
499 U. S. 225, 111 S. Ct . 1217, 113 L. Ed. 2d 190
( 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Schr oeder v. Excel si or Mgmt . Gr p. , LLC,
Supr eme Cour t Cause No. 86433- 1 ( Febr uar y 28, 2012) . . . 17, 33
Sel kowi t z v. Li t t on Loan Ser vi ci ng, LP,
2010 U. S. Di st . LEXI S 105086. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6- 7
St . J ohn v. Nw. Tr . Sevr s. , I nc. ,
No. C11- 5382BHS, 2011 WL 4543658, 2011 U. S. Di st .
Lexi s 111690 ( W. D. Wash. Sept . 29, 2011,
Di smi ssal Or der ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
St at e v. Fi t zpat r i ck,
5 Wn. App. 661, 491 P. 2d 262 ( 1971) . . . . . . . . . . . . . . . . . . . . . . . . 5
Texas v. Whi t e,
74 U. S. ( 7 Wal l . ) 700 ( 1869) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Thepvongsa v. Reg' l Tr . Ser vs. Cor p. ,
2011 U. S. Di st . LEXI S 7853. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
U. S. Ter mLi mi t s, I nc. v. Thor nt on,
514 U. S. 779, 115 S. Ct . 1842, 131 L. Ed. 2d 881
( 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Uni t ed St at es v. Lopez,
514 U. S. 549, 115 S. Ct . 1624, 131 L. Ed. 2d 626
( 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20- 21
Uni t ed St at es v. Romer o- Ochoa,
554 F. 3d 833 ( 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Van Si ckl e v. Shanahan,
212 Kan. 426, 511 P. 2d 223 ( 1973) . . . . . . . . . . . . . . . . . . . . . . . . . 29
vi
Vawt er v. Qual i t y Loan Ser v. Cor p. ,
2010 U. S. Di st . LEXI S 138172. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Wi l l v. Hal l ock,
546 U. S. 345, 126 S. Ct . 952, 163 L. Ed. 836 ( 2006) . . . . . . . 11
Wi l son v. Bank of Am. , N. A. ,
2013 U. S. Di st . LEXI S 9814. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Statutes & Other Authorities:
U. S. Const . ar t . I V, 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
28 U. S. C. 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3
Wash. Const . ar t . 4 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Wash. Const . ar t . 4 30( 1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
RCW2. 06 Ch. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 25
RCW2. 06. 040. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
RCW61. 24. 030 ( 7) ( a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
RCW61. 24. 030 ( 8) ( l ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
RCWCh. 2. 60. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
RCWCh. 19. 86. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Wash. Rev. Code 2. 06. 040. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Wash. Rul e of Appel l at e Pr ocedur e 12. 2( d) . . . . . . . . . . . . . . . . . . . . . . . 8
Wash. Rul e of Appel l at e Pr ocedur e 12. 2( e) . . . . . . . . . . . . . . . . . . . . . . . 8
Wash. Rul e of Appel l at e Pr ocedur e 12. 3( d) . . . . . . . . . . . . . . . 9, 24, 34
Wash. Rul e of Appel l at e Pr ocedur e 12. 3( e) . . . . . . . . . . . . . . . . . . . . . . 34
Washi ngt on Gener al Rul e 14. 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 22
Washi ngt on Gener al Rul e 14. 1( a) . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 9, 24
Ni nt h Ci r cui t Rul e 36- 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
FRAP 32. 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 12, 14
Br ut us I , New Yor k J our nal , ( Oct . 18, 1787) , r epr i nt ed i n
13 The Document ar y Hi st or y of t he Rat i f i cat i on of t he
Const i t ut i on and t he Bi l l of Ri ght s 411 ( M. J ensen,
J . Kami nski , G. Sal adi no & R. Lef f l er eds. 1976- 86) . . . . . . 29
3 El l i ot ' s Debat es, 396. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
vii
4 Debat es i n t he Sever al St at e Convent i ons on t he Adopt i on
of t he Feder al Const i t ut i on 328 ( J . El l i ot ed. 1881) . . . . . . 28
Cl evel and, Davi d R. , Over t ur ni ng t he Last St one: The Fi nal
St ep i n Ret ur ni ng Pr ecedent i al St at us t o Al l
Opi ni ons. 10 J . App. Pr ac. & Pr ocess, 61 ( 2009) . . . . . . . . . . . 12
Fi r st I naugur al Addr ess by Pr esi dent Thomas J ef f er son
( Mar . 4, 1801) , r epr i nt ed i n 1 The Founder s'
Const i t ut i on, 140. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
J . Adams, Def ence of t he Const i t ut i ons of Gover nment of
t he Uni t ed St at es ( 1787) , r epr i nt ed i n 1 The
Founder s' Const i t ut i on, 119. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
J . Locke, Second Tr eat i se of Gover nment 149 ( C. B.
Macpher son ed. 1980) ( 6t h ed. London 1764) . . . . . . . . . . . . . . . . 27
J ones Mer r i t t , D. , The Guar ant ee Cl ause and St at e
Aut onomy: Feder al i smFor A Thi r d Cent ur y, 88 Col um.
L. Rev. 1 ( J an. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 26, 27
Let t er f r omBenj ami n Rush t o J ohn Adams, ( J ul y 21, 1789)
r epr i nt ed i n 1 The Founder s' Const i t ut i on 142
( P. Kur l and & R. Ler ner eds. 1987) . . . . . . . . . . . . . . . . . . . . . . . . 29
The Feder al i st No. 10, 62
( J . Madi son) ( J . Cooke ed. 1961) . . . . . . . . . . . . . . . . . . . . . . . . . . 27
The Feder al i st No. 10, 62- 64
( J . Madi son) ( J . Cooke ed. 1961) . . . . . . . . . . . . . . . . . . . . . . . . . 30
( A. Hami l t on) ( J . Cooke ed. 1961) . . . . . . . . . . . . . . . . . . . . . . . . . 28
( A. Hami l t on) ( J . Cooke ed. 1961) . . . . . . . . . . . . . . . . . . . . . . . . . 17
( J . Madi son or A. Hami l t on) ( J . Cooke ed. 1961) . . . . . . . . . . . 28
W. Ever del l , The End of Ki ngs ( 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
1
I. STATEMENT OF JURISDICTION
Thi s Cour t has j ur i sdi ct i on pur suant t o t he col l at er al
or der doct r i ne of 28 U. S. C. 1291.
The Or der di smi ssi ng t he compl ai nt wi t hout pr ej udi ce was
i ssued on Sept ember 28, 2012. A copy t hi s Or der i s at t ached at
pages 3- 14 of Vol ume 1 of t he Excer pt s of Recor d ( Vol . 1 ER) .
The not i ce of appeal r egar di ng t hat or der was t i mel y f i l ed on
Oct ober 25, 2012. Vol ume 2 of t he Excer pt s of Recor d ( Vol . 2
ER) , pp. 17- 18.
The Cour t sua spont e i ssued an Or der di smi ssi ng compl ai nt
wi t hout pr ej udi ce f or f ai l ur e t o pr osecut e on Oct ober 30, 2012.
Vol 1 ER, pp. 1- 2. Appel l ant s t i mel y f i l ed an amended not i ce of
appeal on Oct ober 31, 2012 so as t o i ncl ude t hi s or der i n t hei r
appeal . Vol . 2, ER, pp. 17- 18.
II. ISSUES PRESENTED FOR REVIEW
A. Whet her t he col l at er al or der doct r i ne of 28 U. S. C. 1291
appl i es wher e a f eder al di st r i ct cour t i ssues a deci si on
gr ant i ng a mot i on t o di smi ss wi t hout pr ej udi ce, but di r ect s
t he pl ai nt i f f and hi s at t or ney t o consi der an unpubl i shed
opi ni on of t he Cour t of Appeal s i n pr epar i ng a new
compl ai nt ? ( Shor t Answer YES)
B. Whet her t he Feder al Di st r i ct Cour t er r ed by r equi r i ng
Appel l ant s t o consi der an unpubl i shed Washi ngt on St at e
2
Cour t of Appeal s opi ni on when r ef i l i ng a new compl ai nt
st at i ng a st at e causes of act i on? ( Shor t Answer YES)
C. Whet her t hi s Cour t shoul d cer t i f y t he f ol l owi ng quest i on
( or a var i at i on t her eof ) t o t he Supr eme Cour t of Washi ngt on
f or r esol ut i on:
Does t he Supr eme Cour t cont empl at e t hat f eder al
di st r i ct cour t s wi l l consi der and ci t e t o
unpubl i shed st at e Cour t of Appeal s opi ni ons when
at t empt i ng t o adj udi cat e t he meani ng of st at ut es
whi ch have not been r esol ved by t he Supr eme Cour t ?
( Shor t Answer - YES)
III. REVIEWABILITY AND STANDARD OF REVIEW
Thi s i s an appeal by Bur kar t s and t hei r at t or ney r egar di ng
t he f eder al di st r i ct cour t s or der di smi ssi ng Bur kar t s
compl ai nt wi t hout pr ej udi ce condi t i oned on t hei r f i l i ng anot her
compl ai nt t hat consi der ed an unpubl i shed and nonpr ecedent i al
Cour t of Appeal s deci si on pur por t i ng t o di st i ngui sh a hol di ng by
t he Washi ngt on Supr eme Cour t i n Bai n v. Met r o. Mor t g. Gr p. , 175
Wn. 2d 83, 285 P. 3d 34 ( 2012) .
The bol ded and i t al i ci zed l ast sent ence of t he f ol l owi ng
por t i on of t he Di st r i ct Cour t s deci si on i s t he onl y par t of t he
Di st r i ct Cour t s or der whi ch i s bei ng appeal ed.
The CPA cl ai m i s at l east pl ausi bl y st at ed. Among t he
r easons t hat t he CPA cl ai m i s pl ausi bl e i s t hat t he
Bur kar t s can pl ausi bl y poi nt t o an i nj ur yt hey cont end
3
t hey i ncur r ed l at e f ees and ot her char ges as a r esul t
of Bof A' s mi sconduct i n t he l oan modi f i cat i on pr ocess.
I f t he Bur kar t s' at t empt t o r epl ead t hei r CPA t heor y,
t hey must el i mi nat e t hei r 9- page l i st of al l egat i ons
( 13. 1- 13. 37) , most of whi ch have not hi ng t o do wi t h
t hem, i n f avor of al l egat i ons t hat speci f y what
Def endant s di d t o t hem i n vi ol at i on of t he CPA. They
must also consider Peterson v Citibank, N.A., 2012
Wash App. Lexis 2017 Wash. Ct App. Sept. 17,
2012)(applying Bain and dismissing CPA claim against
MERS).

Vol . 1 ER, p. 10.

The Di st r i ct Cour t s col l at er al or der r equi r i ng Bur kar t s
and t hei r counsel t o f i l e a new compl ai nt consi der i ng Pet er son,
an unpubl i shed and nonpr ecedent i al case, occur r ed sua spont e and
was not addr essed bel ow by any of t he par t i es bef or e t he or der
was r ender ed.
The st andar d of r evi ew f or each i ssue i s st at ed and br i ef ed
at t he begi nni ng of t he ar gument r el at ed t o each i ssue.
Br i ef l y, t he st andar d of r evi ew f or j ur i sdi ct i on under t he
col l at er al or der doct r i ne of 28 U. S. C. 1291 i s de novo. The
st andar d of r evi ew f or t he Di st r i ct Cour t s compl i ance wi t h t he
Const i t ut i on i s al so de novo. The st andar d of r evi ew f or
cer t i f i cat i on t o t he Supr eme Cour t of Washi ngt on i s abuse of
di scr et i on.
IV. STATEMENT OF CASE

I n i t s deci si on, t he cour t condi t i oned Bur khar t s r i ght t o
submi t an amended compl ai nt on t he r equi r ement t hat t hey
consi der an unpubl i shed, nonpr ecedent i al st at e Cour t of Appeal s
4
deci si on. I n t hi s r egar d t he Di st r i ct Cour t or der ed appel l ant s:
must consi der Pet er son v Ci t i bank, N. A. , 2012 Wash App. Lexi s
2017 Wash. Ct App. Sept . 17, 2012) ( appl yi ng Bain and di smi ssi ng
CPA cl ai magai nst MERS) .
1
( Emphasi s Suppl i ed) Vol . 1 ER, p. 10.
V. STATEMENT OF FACTS

The Di st r i ct Cour t or der ed as par t of i t s deci si on
di smi ssi ng pl ai nt i f f Bur kar t s compl ai nt wi t hout pr ej udi ce t hat
Bur kar t and hi s at t or ney must pr epar e a new compl ai nt whi ch t ook
i nt o account an unpubl i shed opi ni on whi ch di st i ngui shed t he
Supr eme Cour t s deci si on i n Bai n. Vol . 1 ER, p. 10. Bai n hel d
t hat MERS syst em Deed of Tr ust Act vi ol at i ons pr esumpt i vel y
vi ol at ed Washi ngt on s Consumer Pr ot ect i on Act . See Bai n, 175
Wn. 2d at 115- 19.
2

1
Shepar d s i dent i f i es t he deci si on bei ng appeal ed as f ol l owi ng
Pet er son. Pet er son, an unpubl i shed deci si on whi ch pur por t s t o
di st i ngui sh Bai n, i s al so ci t ed i n Wi l son v. Bank of Am. , N. A. ,
2013 U. S. Di st . LEXI S 9814
1

2
The Bur khar t s and t hei r counsel bel i eved Pet er son v Ci t i bank,
N. A. , supr a. , ef f ect i vel y evi scer at ed Bai n s CPA hol di ngs by
r easoni ng t hat wher e a bor r ower was i n def aul t t he cause of
t hei r damages was not any unf ai r or decept i ve pr act i ce, but t he
f ai l ur e t o pay t hei r bi l l s. I t di d not even mat t er t o t he Cour t
of Appeal s t hat t he bor r ower s di d not know who t hey may have
owed money t o because t hey owed t he money t o someone. Nor do
t he Pet er sons asser t t hat t her e was no par t y ent i t l ed t o
f or ecl ose on t he pr oper t y. Pet er son v Ci t i bank, N. A. , supr a. ,
at *11- 12. Thi s f act i s not i n t he r ecor d bel ow, but appel l ant s
cont end i s a r easonabl e i nf er ence f r om t hei r r ef usi ng t o compl y
wi t h and appeal of t he Di st r i ct Cour t s or der .
2

5
The f ol l owi ng f act s ar e not i n t he r ecor d bef or e t he
Di st r i ct Cour t as t he i ssue whi ch i s bei ng appeal ed pur suant t o
t he col l at er al or der doct r i ne i s one whi ch di d not ar i se unt i l
t he Di st r i ct Cour t i ssued i t s deci si on. Appel l ant s ask t hi s
Cour t t o t ake j udi ci al not i ce pur suant t o Fed. R. Evi d. 201 of
t he f ol l owi ng f act s whi ch appl y t o t he i ssues now bef or e t hi s
Cour t as a r esul t of t hi s appeal . To t he ext ent t hi s Cour t
decl i nes t o t ake j udi ci al not i ce of t he f ol l owi ng f act s,
appel l ant s r equest t hi s Cour t consi der t he f ol l owi ng as
ar gument .
Unpubl i shed deci si ons ar e not a par t of t he common l aw of
t he St at e of Washi ngt on.
I n enact i ng [ Wash. Rev. Code 2. 06. 040] t he
l egi sl at ur e r ecogni zed t hat opi ni ons whi ch do not have
suf f i ci ent pr ecedent i al val ue t o af f ect t he common l aw
of our st at e shoul d not be publ i shed. To cont i nue t he
publ i cat i on of cases whi ch mer el y r est at e wel l
est abl i shed pr i nci pl es of t he l aw f i l l s up our book
shel ves, compl i cat es l egal r esear ch and wi l l
i nevi t abl y adver sel y af f ect t he comput er i zat i on of t he
case l aw of our st at e.
We t her ef or e hol d t hat unpubl i shed opi ni ons of t he
Cour t of Appeal s wi l l not be consi der ed i n t he Cour t
of Appeal s and shoul d not be consi der ed i n t he t r i al
cour t s. They do not become a par t of t he common l aw of
t he St at e of Washi ngt on.

St at e v. Fi t zpat r i ck, 5 Wn. App. 661, 668, 491 P. 2d 262 ( 1971) .
Washi ngt on Gener al Rul e 14. 1( a) st at es: A party may not
cite as an authority an unpublished opinion of the Court of
Appeals. Unpubl i shed opi ni ons of t he Cour t of Appeal s ar e t hose
6
opi ni ons not publ i shed i n t he Washi ngt on Appel l at e Repor t s.
Wash. Gener al Rul e 14. 1( a) ( emphasi s added)
3
.
At t or neys pr act i ci ng l aw i n Washi ngt on cannot ci t e unpubl i shed
cour t of appeal s deci si ons i n a Washi ngt on cour t . Ki t sap
Count y Deput y Sher i f f ' s Gui l d v. Ki t sap Count y, 148 Wn. App.
907, 911, 201 P. 3d 396, 2009; Kennet h W. Br ooks Tr ust A v. Pac.
Medi a LLC, 111 Wn. App. 393, 44 P. 3d 938 ( 2002) ( i mposi ng $100
sanct i on on at t or ney ci t i ng an unpubl i shed deci si on) ; Dwyer v.
J . I . Ki sl ak Mor t gage Cor p. , 103 Wn. App. 542, 548- 49, 13 P. 3d
240 ( 2000) , review denied, 143 Wn. 2d 1024, 29 P. 3d 717 ( 2001) .
( i mposi ng $500 sanct i on on at t or ney f or ci t i ng an unpubl i shed
deci si on. )
As i s i ndi cat ed by t he Di st r i ct Cour t s or der appeal ed
her e, f eder al di st r i ct cour t j udges si t t i ng i n Washi ngt on
r out i nel y ci t e t o unpubl i shed deci si ons of t he Washi ngt on Cour t
of Appeal s i n at t empt i ng t o di scer n t he meani ng of Washi ngt on
subst ant i ve l aw. See e. g. Kr i enke v. Chase Home Fi n. , LLC, 2007
Wash. App. LEXI S 2668 ( unpubl i shed deci si on Washi ngt on Cour t of
Appeal s deci si on) whi ch has been f ol l owed as i f i t r epr esent ed
Washi ngt on common l aw i n mul t i pl e f eder al cour t deci si ons; t o
wi t : Sel kowi t z v. Li t t on Loan Ser vi ci ng, LP, 2010 U. S. Di st .

3
Thi s Ci r cui t , l i ke t he St at e of Washi ngt on, hel d pr i or t o t he
enact ment of FRAP 32. 1 t hat i t coul d deci de not t o make
pr ecedent i al r ul i ngs and pr ohi bi t ci t at i on t o unpubl i shed
deci si ons. See Har t v. Massanar i , 266 F. 3d 1155, 1179 ( 9t h Ci r .
2001) . See al so i nf r a.
7
LEXI S 105086; Vawt er v. Qual i t y Loan Ser v. Cor p. , 2010 U. S.
Di st . LEXI S 138172; Thepvongsa v. Reg' l Tr . Ser vs. Cor p. , 2011
U. S. Di st . LEXI S 7853; Beat on v. J PMor gan Chase Bank N. A. , 2012
U. S. Di st . LEXI S 35988; Br odi e v. Nor t hwest Tr ust ee Ser vs. , 2012
U. S. Di st . LEXI S 139451; Massey v. BAC Home Loans Ser vi ci ng LP,
2012 U. S. Di st . LEXI S 154256; Bur gess v. Capi t al One Bank
( USA) , N. A. , 2010 U. S. Di st . LEXI S 42375.
Recent l y, sever al Washi ngt on at t or neys have gr own so
concer ned about a f eder al usur pat i on of Washi ngt on St at e s
common l aw r el at ed t o non- j udi ci al f or ecl osur es of r eal pr oper t y
t hey have f i l ed an ami cus br i ef suppor t i ng Washi ngt on Supr eme
Cour t r evi ew of t he unpubl i shed case of Gr ant v. Fi r st Hor i zon
Home Loans, 2012 Wash. App. LEXI S 1246. I n t hei r br i ef
Homeowner s At t or ney asked t he Supr eme Cour t t o adopt as
pr ecedent t he Cour t of Appeal s hol di ng t hat
Under t he deeds of t r ust act ( DTA) , chapt er 61. 25 RCW,
t he t r ust ee must have pr oof t hat t he benef i ci ar y i s
t he owner of any pr omi ssor y not e or ot her obl i gat i on
secur ed by t he deed of t r ust bef or e i ssui ng a not i ce
of t r ust ee' s sal e.
4

4
Thi s unpubl i shed hol di ng i s di r ect l y at odds wi t h Br odi e v.
Nor t hwest Tr ust ee Ser vs. , 2012 U. S. Di st . LEXI S 139451, wher e a
f eder al di st r i ct cour t cl ai med:
4
t he Deed of Tr ust Act ( " DTA" ) does not r equi r e a l ender
t o pr ove owner shi p of t he not e t o t he bor r ower bef or e
i ni t i at i ng f or ecl osur e pr oceedi ngs; r at her , t he DTA
mer el y r equi r es a f or ecl osi ng l ender t o demonst r at e i t s
owner shi p of t he not e t o t he t r ust ee.
4

8
Homeowner s At t or neys al so asked t he Washi ngt on Supr eme
Cour t t o r evi ew of Gr ant s cl ai m t hat hi s case shoul d have been
publ i shed pur suant t o RAP 12. 2( d) and ( e) .
5

VI. SUMMARY OF ARGUMENT

The Tr i al Cour t or der ed t hat : [ t ] hey [ Bur kar t s] must al so
consi der Pet er son v. Ci t i bank, N. A. That opi ni on i s
unpubl i shed, not i nt ended t o be pr ecedent i n Washi ngt on, and
cannot be ci t ed t o Washi ngt on Cour t s. See Gener al Rul e 14. 1. The
di r ect i ve of t he Di st r i ct Cour t was t o pr epar e a compl ai nt based
on a nonpr ecedent i al r ul i ng whi ch Bur kar t s counsel bel i eved was
i ncor r ect l y deci ded. The Feder al Cour t s or der i s consi st ent
wi t h Washi ngt on f eder al di st r i ct cour t s pr ocl i vi t y t o t r eat
unpubl i shed deci si ons const r ui ng t he Deed of Tr ust Act , RCW Ch.
64. 21 ( DTA) , as pr ecedent , r at her t han cer t i f yi ng unr esol ved
i ssues t o t he Washi ngt on Supr eme Cour t .
Under t he doct r i nes, st andar ds, pol i ci es and pr i nci pl es
r el at i ng t o Feder al i sm, t he St at es aut hor i t y t o cr eat e common
l aw i n t hei r own j ur i sdi ct i ons, and t he U. S. Const i t ut i on s
Guar ant ee of a Republ i can f or m of gover nment , Feder al Cour t s

5
By way of f ul l di scl osur e, Bur kar t s at t or ney her e, an appel l ant
her ei n, i s one of t he gr oup Homeowner s At t or neys who f i l ed t he
pr evi ousl y ment i oned ami cus br i ef i n Gr ant and al so f i l ed an
ami cus br i ef i n Bai n. Homeowner s At t or neys chal l enged i n Bai n,
among ot her t hi ngs, t he r at i onal e of f eder al aut hor i t y i n t hi s
t r adi t i onal ar ea of st at e l aw, see 2011 WA. S. Ct . Br i ef s
517238; 2012 S. Ct . Br i ef s Lexi s 36.
5

9
must appl y Washi ngt on s Gener al Rul e 14. 1( a) , whi ch el i mi nat es
unpubl i shed cases f r om Washi ngt on s common l aw, when r esol ut i on
of a case r equi r es t he appl i cat i on of st at e subst ant i ve l aw
r el at ed t o t he t aki ng of r eal pr oper t y.
The f eder al di st r i ct cour t s di r ect i ve t o i gnor e st at e l aw
i mper i l s a subst ant i al publ i c i nt er est and t he par t i cul ar
const i t ut i onal val ues set f or t h i n t he above par agr aph and
descr i bed mor e f ul l y i n Par t s B, C, and D her eof .
Fi nal l y, t o t he ext ent t he appl i cat i on Gener al Rul e 14. 1
( a) i s uncl ear ( and i t may be gi ven t he t ensi on bet ween Wa.
Const . Ar t . 4 Sect i on 30 ( 1) and ( 5) and RCW2. 06. 040 and Wash.
Rul e of Appel l at e Pr ocedur e 12. 3( d) ) t hi s Cour t shoul d cer t i f y
t he i ssue of t he pur pose and r ol e of unpubl i shed deci si ons wi t h
r egar d t o t he devel opment of st at e subst ant i ve l aw t o t he
Washi ngt on Supr eme Cour t pur suant t o RCWCh. 2. 60.
VI I . ARGUMENT

A. This Court should grant review of this appeal pursuant
to the collateral order doctrine.

Det er mi nat i on of col l at er al or der j ur i sdi ct i on i s an i ssue
of l aw whi ch i nvol ves de novo r evi ew. Uni t ed St at es v. Romer o-
Ochoa, 554 F. 3d 833, 835( 2009) .
Under t he col l at er al or der doct r i ne, a l i t i gant may appeal
f r om a nar r ow cl ass of deci si ons t hat do not t er mi nat e t he
l i t i gat i on, but must , in the interest of achieving a healthy
10
legal system, nonet hel ess be t r eat ed as f i nal . Di gi t al Equi p.
Cor p. v. Deskt op Di r ect , I nc. , 511 U. S. 863, 867, 114 S. Ct .
1992; 128 L. Ed. 2d 842 ( 1994) ( quot i ng Cobbl edi ck v Uni t ed
St at es, 309 U. S. 323, 326, 60 S. Ct . 540, 84 L. Ed 783 ( 1940) .
[ Emphasi s Suppl i ed]
To be i mmedi at el y appeal abl e, a col l at er al deci si on " must
concl usi vel y det er mi ne t he di sput ed quest i on, r esol ve an
i mpor t ant i ssue compl et el y separ at e f r om t he mer i t s of t he
act i on, and be ef f ect i vel y unr evi ewabl e on appeal f r om a f i nal
j udgment . " See Copl ey Pr ess, I nc. v. Hi guer a- Guer r er o ( I n r e
Copl ey Pr ess, I nc. ) , 518 F. 3d 1022, 1025 ( 9t h Ci r . 2008) ; Does I
t hr u XXI I I v. Advanced Text i l e Cor p. , 214 F. 3d 1058, 1066- 7
( 2000) .
I n t hi s case t he f i r st f act or i s met because t he or der i n
quest i on concl usi vel y r equi r es Bur kar t and hi s at t or ney t o
consi der an unpubl i shed case as i f i t wer e a par t of
Washi ngt on s common l aw as a condi t i on t o t he f i l i ng of a new
compl ai nt . Mor eover , t he gener al pr act i ce of t he Washi ngt on
f eder al di st r i ct cour t s i s t o t r eat unpubl i shed Cour t of Appeal s
deci si ons as pr ecedent ; not wi t hst andi ng Washi ngt on cour t s have
decl ar ed t hey ar e not and shoul d not be t r eat ed as pr ecedent .
See i nf r a.
The second r equi r ement i s met her e because t he i ssue of
whet her pl ai nt i f f s must consi der Pet er son v. Ci t i bank under t he
11
const i t ut i onal pr ovi si ons addr essed her ei n i n or der t o r e- f i l e
t hei r compl ai nt i s a separ at e i ssue f r om t he causes of act i on
t he Bur khar t s want ed l i t i gat ed i n t hei r l awsui t . Thi s appeal
i nvol ves an or der on i t s f ace t hat di r ect s t hem t o pr epar e a
compl ai nt based on st at e l aw as const r ued by a j udi ci al
pr ecedent whi ch does not exi st . A f eder al r equi r ement t hat
l i t i gant s and t hei r at t or neys r el y on unpubl i shed deci si ons i n
pr epar i ng compl ai nt s asser t i ng st at e causes of act i on i s a
cat egor y of f eder al cour t or der s whi ch mer i t s i mmedi at e
consi der at i on because i t encr oaches upon f eder al i sm, t he st at e s
power t o make common l aw, and t he Const i t ut i on s guar ant ee of a
r epubl i can gover nment . Del ayi ng r evi ew of t hi s cat egor y of case
unt i l t he ent r y of f i nal j udgment woul d i mper i l a subst ant i al
publ i c i nt er est and par t i cul ar val ues of a hi gh or der . Wi l l v
Hal l ock, 546 U. S. 345, 352- 53, 126 S. Ct . 952, 163 L. Ed. 836
( 2006) . See Par t s B, C, and D, i nf r a.
The t hi r d pr ong of t he col l at er al or der doct r i ne r equi r es
det er mi ni ng whet her t he f eder al di st r i ct cour t s or der r equi r i ng
t he consi der at i on of an unpubl i shed opi ni on wi l l be r evi ewabl e
on appeal . Such or der wi l l not be r evi ewabl e on appeal because
at t hat poi nt t he case wi l l have been r esol ved and t he compl ai nt
wi l l have f al l en out of t he case wi t h t he pr epar at i on of t he
f i nal pr et r i al or der .
12
I n addi t i on t o t he i mpor t ant f eder al const i t ut i onal i ssues
i dent i f i ed above and mor e f ul l y di scussed bel ow, t he i mpact of
f eder al cour t s use of nonpr ecedent i al opi ni ons has si gni f i cant
unwant ed and uni nt ended consequences on t he evol ut i on of
Washi ngt on St at e s subst ant i ve l aw because i t i s t he st at e
Supr eme Cour t whi ch ul t i mat el y must const r ue t he meani ng of a
st at e st at ut e. Hal e v. Wel l pi ni t Sch. Di st . No. 49, 165 Wn. 2d
495, 198 P. 3d 1021 ( 2009) .
The ef f ect of unpubl i shed deci si ons has st i r r ed
consi der abl e debat e over t i me. Di sput es about j udi ci al
pr ecedent dat e back t o 1700s. Cl evel and, Davi d R. , Over t ur ni ng
t he Last St one: The Fi nal St ep i n Ret ur ni ng Pr ecedent i al St at us
t o Al l Opi ni ons. 10 J . App. Pr ac. & Pr ocess, 61, 115- 119 ( 2009) .
Thi s appeal r evi si t s a debat e t he f eder al j udi ci ar y most
r ecent l y engaged i n bet ween 2000 and 2006. Thi s appeal r equi r es
t hi s Cour t r evi ew t he debat e t hr ough a r ever se pr i sm whi ch
pl aces ul t i mat e val ue upon Washi ngt on s sover ei gnt y vi s a vi s
t he f eder al cour t s power as par t of t he Nat i onal gover nment t o
appr opr i at el y det er mi ne st at e l aw. I n t hi s cont ext t he nat i onal
gover nment t hr ough t he f eder al cour t s must r espect Washi ngt on s
ef f or t s t o enf or ce a subst ant i vel y i dent i cal r ul e t hi s Cour t
r equi r ed be f ol l owed unt i l t he Uni t ed St at es Supr eme Cour t
enact ed FRAP 32. 1.
13
As t he j udges of t hi s panel mi ght r ecal l i n 2000 t he Ei ght h
Ci r cui t hel d t hat Cour t s of Appeal s had a const i t ut i onal dut y t o
f ol l ow pr ecedent , even i f unpubl i shed. Anast asof f v. Uni t ed
St at es, 223 F. 3d 898, vacat ed as moot on r eh' g en banc, 235 F.
3d 1054 ( 8t h Ci r . , 2000) . Ot her Ci r cui t s, i ncl udi ng t hi s one,
di sagr eed; decl ar i ng t hat t he deci si on t o make pr ecedent i s a
mat t er of j udi ci al pol i cy. See e. g. , Har t v. Massanar i , 266
F. 3d 1155, 1179 ( 9t h Ci r . 2001) . I n r esponse t o t he Ei ght h
Ci r cui t s deci si on t hat even unpubl i shed deci si ons const i t ut e
pr ecedent J udge Kozi nski r esponded:
Unl i ke t he Anastasoff cour t , we ar e unabl e t o f i nd
wi t hi n Ar t i cl e I I I of t he Const i t ut i on a r equi r ement
t hat al l case di sposi t i ons and or der s i ssued by
appel l at e cour t s be bi ndi ng aut hor i t y. On t he
cont r ar y, we believe that an inherent aspect of our
function as Article III judges is managing precedent
to develop a coherent body of circuit law to govern
litigation in our court and the other courts of this
circuit. We agr ee wi t h Anastasoff t hat we- - and al l
cour t s- - must f ol l ow t he l aw. But we do not t hi nk t hat
t hi s means we must al so make bi ndi ng l aw ever y t i me we
i ssue a mer i t s deci si on. The common l aw has l ong
r ecogni zed t hat cer t ai n t ypes of cases do not deser ve
t o be aut hor i t i es, and t hat one important aspect of
the judicial function is separating the cases that
should be precedent from those that should not.
Wi t hout cl ear er gui dance t han t hat of f er ed i n
Anastasoff, we see no const i t ut i onal basi s f or
abdi cat i ng t hi s i mpor t ant aspect of our j udi ci al
r esponsi bi l i t y.

Har t v. Massanar i , 266 F. 3d 1155, 1179 ( 9t h Ci r . 2001) .
I n 2006, t he Uni t ed St at es Supr eme Cour t pr ohi bi t ed f eder al
cour t s of appeal f r om banni ng ci t at i on t o f eder al cour t
14
unpubl i shed deci si ons i ssued af t er J anuar y 1, 2007. See FRAP
32. 1 ( added Apr i l 12, 2006, ef f . Dec. 1, 2006) . The r ul e st i l l
r equi r es t hat cases deci ded bef or e t hat t i me not be ci t ed. I d.
FRAP 32. 1 now st at es:
[a] court may not prohibit or restrict the citation
of f eder al j udi ci al opi ni ons, j udgment s, or ot her
wr i t t en di sposi t i ons t hat have been: ( i ) desi gnat ed as
unpubl i shed, not f or publ i cat i on, non-
pr ecedent i al , not pr ecedent , or t he l i ke; and ( i i )
i ssued on or af t er J anuar y 1, 2007.

FRAP 32. 1 ( emphasi s added) .
Ni nt h Ci r cui t Rul e 36- 3, now st at es:
( a) Not Pr ecedent . Unpubl i shed di sposi t i ons and
or der s of t hi s Cour t ar e not pr ecedent , except when
r el evant under t he doct r i ne of l aw of t he case or
r ul es of cl ai mpr ecl usi on or i ssue pr ecl usi on.

( b) Ci t at i on of Unpubl i shed Di sposi t i ons and Or der s
I ssued on or af t er J anuar y 1, 2007. Unpublished
dispositions and or der s of t hi s Cour t i ssued on or
af t er J anuar y 1, 2007 may be cited to the courts of
this circuit i n accor dance wi t h FRAP 32. 1.

Fed. Rul es of Appel l at e Pr ocedur e Ni nt h Ci r cui t Rul e 36- 3 ( J ul y
1, 2012) ( emphasi s suppl i ed) .
However , because of t he f eder al nat ur e of our gover nment
FRAP 32. 1 and Ni nt h Ci r cui t Rul e 36- 3 do not sol ve t he pr obl em
posed i n t hi s case when a f eder al of f i ci al , i.e. j udge, or der s
st at e pl ai nt i f f s and t hei r at t or ney t o consi der a st at e Cour t of
Appeal s unpubl i shed deci si on whi ch pur por t s t o al t er a cl ear
hol di ng of t he Washi ngt on Supr eme Cour t i n t hei r f avor . Bain,
as t he panel knows, i s a Washi ngt on Supr eme Cour t case
15
const r ui ng Washi ngt on s DTA ( a st at e st at ut e r el at i ng t o t he
nonj udi ci al f or ecl osur e of r eal est at e i n Washi ngt on and whi ch
was enact ed under t he pr ovi si ons of t he Washi ngt on Const i t ut i on)
and Washi ngt on s Consumer Pr ot ect i on Act , RCWCh. 19. 86 ( CPA) .
I n summar y, t he f eder al cour t s or der di smi ssi ng t he
Bur kar t s compl ai nt wi t hout pr ej udi ce t o t he r ef i l i ng of a
compl ai nt t hat consi der s an unpubl i shed and nonpr ecedent i al
r ul i ng di st i ngui shi ng Bai n ( a Washi ngt on Supr eme Cour t deci si on
i n Bur kar t s f avor ) i nvol ves a col l at er al or der whi ch must be
r evi ewed t o mai nt ai n a heal t hy l egal syst em under t he Uni t ed
St at es Const i t ut i on; a l egal syst em i n whi ch t he St at es ar e
gi ven t he power t o cr eat e and const r ue st at e l aw.
B. The District Courts order requiring the Burkarts and their
counsel to consider an unpublished decision distinguishing
Washington Supreme Court precedent infringes upon the rights and
protections afforded them by the principles of Federalism and
Dual Sovereignty inherent in the Constitution.
Feder al i sm, cent r al t o t he const i t ut i onal desi gn, adopt s
t he pr i nci pl e t hat bot h t he Nat i onal and St at e Gover nment s have
el ement s of sover ei gnt y t he ot her i s bound t o r espect . Ar i zona
v. Uni t ed St at es, 132 S. Ct . 2492, 2500, 183 L. Ed. 2d 351
( 2012) . See al so, Gr egor y v. Ashcr of t , 501 U. S. 452, 457, 111 S.
Ct . 2395, 115 L. Ed. 2d 410 ( 1991) ; U. S. Ter m Li mi t s, I nc. v.
Thor nt on, 514 U. S. 779, 838, 115 S. Ct . 1842, 131 L. Ed. 2d 881
( 1995) ( Kennedy, J . , concur r i ng) . Fr om t he exi st ence of t wo
sover ei gns f ol l ows t he possi bi l i t y t hat l aws can be i n conf l i ct
16
or at cr oss- pur poses. Ar i zona v. Uni t ed St at es, 132 S. Ct . at
2500.
J ames Madi son ar gued i n The Feder al i st t hat t he di vi si on of
power bet ween nat i onal and st at e gover nment s woul d check abuses
of gover nment al power . The Feder al i st No. 51, at 351 ( J .
Madi son) ( J . Cooke ed. 1961) . Madi son cont ended t hat " [ i ] n t he
compound r epubl i c of Amer i ca a doubl e secur i t y ar i ses t o t he
r i ght s of t he peopl e. I d. The di f f er ent gover nment s wi l l
cont r oul each ot her , at t he same t i me t hat each wi l l be
cont r oul ed by i t sel f . " I d.
Thomas J ef f er son st at ed si mi l ar bel i ef s i n a l et t er he
wr ot e i n 1816. See J ones Mer r i t t , D. , The Guar ant ee Cl ause and
St at e Aut onomy: Feder al i smFor A Thi r d Cent ur y, 88 Col um. L. Rev
1, 22 ( J an. , 1988) ( i nt er nal quot at i ons and ci t at i ons omi t t ed) .
I n t hat l et t er J ef f er son wr ot e:
[ T] he way t o have good and saf e gover nment i s not t o
t r ust i t al l t o one, but t o di vi de i t among t he many,
di st r i but i ng t o ever y one exact l y t he f unct i ons he i s
compet ent t o . . . . I t i s by di vi di ng and
subdi vi di ng t hese r epubl i cs f r om t he gr eat nat i onal
one down t hr ough al l i t s subor di nat i ons, unt i l i t ends
i n t he admi ni st r at i on of ever y man' s f ar m by hi msel f ;
by pl aci ng under ever y one what hi s own eye may
super i nt end, t hat al l wi l l be done f or t he best . . .
. The el ement ar y r epubl i cs of t he war ds, t he count y
r epubl i cs, t he St at e r epubl i cs, and t he r epubl i c of
t he Uni on, woul d f or m a gr adat i on of aut hor i t i es,
st andi ng each on t he basi s of l aw, hol di ng ever y one
i t s del egat ed shar e of power s, and const i t ut i ng t r ul y
a syst em of f undament al bal ances and checks f or t he
gover nment .
I d.
17
Al exander Hami l t on, coaut hor of The Feder al i st , agr eed
f eder al i sm woul d r est r ai n gover nment al t yr anny. See The
Feder al i st No. 28, at 179 ( A. Hami l t on) ( J . Cooke ed. 1961) .
Hami l t on pr edi ct ed t hat dual sover ei gnt y woul d keep bot h t he
st at e and f eder al gover nment i n check. He not ed t hat , Power
bei ng al most al ways t he r i val of power , t he gener al gover nment
wi l l at al l t i mes st and r eady t o check t he usur pat i ons of t he
st at e gover nment s, and these [state governments] will have the
same disposition towards the general government." I d. at 179.
[ Emphasi s Suppl i ed] Hami l t on wr ot e f ur t her and sai d t hat [i]t
may safely be received as an axiom in our political system that
the state governments will, in all possible contingencies,
afford complete security against invasions of the public liberty
by the national authority." I d. at 179- 80.
Appel l ant homeowner s and t hei r counsel ( an of f i cer of t he
cour t ) compl ai n her e not about t he di smi ssal wi t hout pr ej udi ce
of t hei r compl ai nt , but onl y t he Di st r i ct Cour t s or der t o r e-
wr i t e t hei r compl ai nt based on consi der at i on of a case t hat has
no pr ecedent i al val ue wi t h r egar d t o st at e l aw and r eaches a
r esul t i nconsi st ent wi t h Bai n and ot her r ecent Washi ngt on
Supr eme Cour t r ul i ngs const r ui ng t he CPA. See e. g. Kl em v.
Wash. Mut . Bank, Supr eme Cour t Cause No. 87105- 1 ( Febr uar y 28,
2013) ; Schr oeder v. Excel si or Mgmt . Gr p. , LLC, Supr eme Cour t
Cause No. 86433- 1 ( Febr uar y 28, 2012) ( No ment i on of par t y bei ng
18
i n def aul t t o someone, whoever t hat may be, vi t i at i ng t he r i ght
t o br i ng CPA cl ai ms as i s st at ed i n t he unpubl i shed and
nonpr ecedent i al Pet er son Cour t of Appeal s deci si on. ) Thi s
at t empt by t he f eder al cour t t o f r ame t he pr esent at i on of st at e
l aw i ssues by l i t i gant s and counsel i s a di r ect af f r ont on st at e
sover ei gnt y and st at es j udi ci al power t o cont r ol t he
devel opment of st at e subst ant i ve l aw whi ch of f ends no enumer at ed
power of t he Nat i onal Gover nment .
Whi l e an obj ect i on t o a f eder al cour t s di r ect i nst r uct i on
t o consi der a speci f i c unpubl i shed, nonpr ecedent i al st at e cour t
of appeal s case mi ght seema l i t t l e t hi ng t o t hose wi t h nat i onal
i nt er est s, l i ke f eder al cour t s, nat i onal banks, ser vi cer s, and
st ock mar ket s; i t i s of gr eat concer n t o l ocal peopl e who see
each day f eder al cour t s pur por t i ng t o enf or ce t he DTA. Thi s
concer n i s magni f i ed when Washi ngt on s own Supr eme Cour t f aul t s
t he f eder al di st r i ct cour t s pr evi ous l ong t er m const r uct i on of
t he DTA ( whi ch may have r esul t ed i n t he i nappr opr i at e
nonj udi ci al f or ecl osur e of t ens of t housands of homes i n
Washi ngt on) f or f ai l i ng t o even consi der t he l anguage of t he
DTA.
6
Bai n, 175 Wn. 2d at 109- 10.

6
Even f ol l owi ng Bai n, t her e i s evi dence t hat f eder al cour t s
pr ef er t o f ol l ow t hei r own r ul i ngs; r at her t han t hose enunci at ed
by t he Washi ngt on Supr eme Cour t . For exampl e, i n Bai n a
unani mous Supr eme Cour t f i nds f eder al cour t s r ej ect i on of a
show me t he not e def ense unhel pf ul wher e j udge di d not
meani ngf ul l y consi der t he speci f i c l anguage of t he DTA. See
19
Feder al i smi s mor e t han an exer ci se i n set t i ng t he boundar y
bet ween di f f er ent i nst i t ut i ons of gover nment f or t hei r own
i nt egr i t y. Bond v. Uni t ed St at es, ___ U. S. ___, 131 S. Ct . 2355,
2364, 180 L. Ed. 2d 269 ( 2011) . St at e sover ei gnt y i s not j ust
an end i n i t sel f : ' Rat her , f eder al i sm secur es t o ci t i zens t he
l i ber t i es t hat der i ve f r om t he di f f usi on of sover ei gn power . '
I d. ( Ci t i ng, New Yor k v. Uni t ed St at es, 505 U. S. 144, 181, 112
S. Ct . 2408, 120 L. Ed. 2d 120 ( 1992) ( quot i ng, Col eman v.
Thompson, 501 U. S. 722, 759, 111 S. Ct . 2546, 115 L. Ed. 2d 640
( 1991) ( Bl ackmun, J . , di ssent i ng) ) ) . Feder al i sm, by desi gn,
al so pr ot ect s t he l i ber t y of al l per sons wi t hi n a St at e by
ensur i ng t hat l aws enact ed i n excess of del egat ed gover nment al
power cannot di r ect or cont r ol t hei r act i ons. Bond, at 2364. By
denyi ng any one gover nment compl et e j ur i sdi ct i on over al l t he
concer ns of publ i c l i f e, f eder al i sm pr ot ect s t he l i ber t y of t he
i ndi vi dual f r om ar bi t r ar y power . When gover nment act s i n excess
of i t s l awf ul power s, l i ber t y ( and pr oper t y) ar e at st ake. I d.

Bain, at 109, whi ch r ej ect s St . J ohn V Nw. Tr . Sevr s. , I nc. ,
No. C11- 5382BHS, 2011 WL 4543658, 2011 U. S. Di st . Lexi s
111690( W. D. Wash. Sept . 29, 2011, Di smi ssal Or der ) ( unpubl i shed)
show me t he not e anal ysi s. Nonet hel ess, i n Brodie v Northwest
Trustee Servs, 2012 U. S. Di st . LEXI S 139451 ( E. D. Wash. Sept .
27, 2012) t he f eder al Di st r i ct Cour t r el i es on show me t he
not e def ense i n di smi ssi ng cl ai ms by bor r ower t hat s/ he was
ent i t l ed t o di scl osur e of not e owner under RCW 61. 24. 030 ( 7) ( a)
and ( 8) ( l ) .
6

20
I mpor t ant l y, when, as her e, t he const i t ut i onal st r uct ur e of
our Gover nment t hat pr ot ect s i ndi vi dual l i ber t y ( and pr oper t y)
i s compr omi sed, i ndi vi dual s who suf f er ot her wi se j ust i ci abl e
i nj ur y may obj ect . I d. , at 2365. J ust as i t i s appr opr i at e f or
an i ndi vi dual , i n a pr oper case, t o i nvoke separ at i on- of - power s
or checks- and- bal ances const r ai nt s, so t oo may appel l ant s her e
chal l enge a cour t or der i ssued i n cont r avent i on of
const i t ut i onal pr i nci pl es of f eder al i sm. That cl ai m need not
depend on t he vi car i ous asser t i on of a St at e' s const i t ut i onal
i nt er est s, even i f a St at e' s const i t ut i onal i nt er est s ar e, as
her e, al so i mpl i cat ed. I d. See al so i nf r a.
Fur t her mor e, by desi gn t he pr i nci pl es of l i mi t ed nat i onal
power s and st at e sover ei gnt y ar e i nt er t wi ned. I d. , at 2366.
Whi l e nei t her pr i nci pl e or i gi nat es i n t he Tent h Amendment , bot h
ar e expr essed by i t . I d. I mper mi ssi bl e i nt er f er ence wi t h st at e
sover ei gnt y r el at i ng t o a j udi ci al pol i cy si mi l ar t o one t hat
t hi s Ci r cui t cl ai med f or i t sel f i n Har t v. Massanar i , supr a, i s
not wi t hi n t he enumer at ed power s of t he Nat i onal Gover nment .
The Di st r i ct Cour t s act i on, i . e. or der , exceeds t he Nat i onal
Gover nment ' s enumer at ed power s wi t h r egar d t o i t s own Cour t s and
t her ef or e under mi nes t he sover ei gn i nt er est s of St at es i n
cr eat i ng t hei r common l aw and l aws wi t h r egar d t o i nt er pr et i ng
st at e st at ut es. Cf. Bond, at 2364 ( ci t i ng, New Yor k, 505 U. S.
144, 155- 159, 112 S. Ct . 2408, 120 L. Ed. 2d 120; Uni t ed St at e
21
v. Lopez, 514 U. S. 549, 564, 115 S. Ct . 1624, 131 L. Ed. 2d 626
( 1995) ) . Feder al cour t s have no power t o cr eat e st at e or
f eder al common l aw; yet appear t o be successf ul l y at t empt i ng t o
det er mi ne t he common l aw of Washi ngt on and ot her st at es wi t h
r egar ds t o i nt er est s i n l and; whi ch has gener al l y been conceded
t o be an ar ea of st at e concer n. Loui si ana Power & Li ght Co. v.
Thi bodaux, 360 U. S. 25, 79 S. Ct . 1070, 3 L. Ed. 2d 1058 ( 1959) ;
Cf . Bur f or d v. Sun Oi l Co. , 319 U. S. 315, 63 S. Ct . 1098, 87 L.
Ed. 1424 ( 1943) .
I n summar y, t he pr i nci pl es of f eder al i sm and dual
sover ei gnt y r equi r e t he f eder al cour t s t o f ol l ow st at e l aw wi t h
r egar d t o t he ci t at i on of unpubl i shed st at e Cour t of Appeal s
deci si ons. Ther e i s no enumer at ed power i n t he f eder al
const i t ut i on or i nher ent power i n t he nat i onal gover nment t hat
al l ows f eder al cour t s t o i nvade a st at e pr er ogat i ve as a
sover ei gn t o decl ar e how i t s own common l aw shoul d evol ve.
Wher e, as her e, Washi ngt on has pr ovi ded f eder al cour t s wi t h
r eady access t o t he Supr eme Cour t f or cl ar i f i cat i on of st at e l aw
i ssues, see RCW 2. 06 Ch, f eder al cour t s shoul d not r el y upon
deci si ons whi ch t he st at e Cour t of Appeal s has det er mi ned have
no pr ecedent i al val ue, t o det er mi ne t he meani ng of st at e
st at ut es or char t new ar eas of Washi ngt on common l aw.

22
C. The federal district courts order requiring appellants to
consider an unpublished decision as if it were part of
Washingtons common law creates federal common law in derivation
of the United States Constitution

The appr opr i at eness of a di st r i ct j udge' s or der t o
consi der an unpubl i shed deci si on of t he Washi ngt on Cour t of
Appeal s deci si on di st i ngui shi ng Bai n under t he Const i t ut i on i s a
quest i on of l aw, wi t h r espect t o whi ch t hi s Cour t exer ci ses de
novo r evi ew. Sal ve Regi na Col l ege v. Russel l , 499 U. S. 225, 111
S. Ct . 1217, 113 L. Ed. 2d 190 ( 1991) .
Requi r i ng consi der at i on of unpubl i shed, nonpr ecedent i al
opi ni ons f r om t he Cour t of Appeal s i n Washi ngt on i n
cont r adi ct i on of Washi ngt on Gener al Rul e 14. 1 i s a di r ect
i mposi t i on by t he f eder al gover nment on t he devel opment of
Washi ngt on subst ant i ve l aw. Thi s i s because once t he Washi ngt on
Supr eme Cour t det er mi ned how t he DTA and CPA appl i ed t o MERS
f our par t y deed of t r ust nonj udi ci al f or ecl osur es, t hi s
const r uct i on r el at ed back t o t he t i me of t he st at ut e' s
enact ment . Hal e v. Wel l pi ni t Sch. Di st . No. 49, 165 Wn. 2d at
506.
I t i s not onl y t he r esponsi bi l i t y of l i t i gant s and t hei r
counsel t o r espect t he Washi ngt on Supr eme Cour t s aut hor i t y
wi t hi n t he sover ei gn st at e of Washi ngt on; but al so t hat of al l
f eder al cour t s. See e. g. , Huddl est on v. Dwyer , 322 U. S. 232,
64 S. Ct . 1015, 88 L. Ed. 1246 ( 1944) ( Feder al cour t s ar e bound t o
23
f ol l ow t he deci si ons of t he hi ghest cour t of t he st at e. ) ; Lehman
Br os. v Schei n, 416 U. S. 386, 390- 91, 94 S. Ct . 1741, 40 L. Ed.
215 ( 1974) ( Cer t i f yi ng i ssue of st at e l aw Supr eme Cour t of
Fl or i da f or def i ni t i ve det er mi nat i on of appl i cabl e st at e l aw. )
See al so Er i e Rai l r oad v. Tompki ns, 304 U. S. 64, 78, 58 S. Ct .
817, 82 L. Ed. 1188 ( 1938) .
I n Er i e t he Supr eme Cour t acknowl edges t her e i s no Feder al
common l aw. I d. at 78. Unl ess a mat t er i s gover ned by t he
Feder al Const i t ut i on or by Act s of Congr ess, St at e l aw shoul d be
appl i ed t o t he f act s of a case. I d. Whet her t he l aw of t he St at e
has been decl ar ed by i t s Legi sl at ur e or i t s hi ghest cour t i s not
a mat t er of f eder al concer n. I d. Congr ess has no power t o
decl ar e subst ant i ve r ul es of common l aw appl i cabl e i n a St at e
whet her t hey be l ocal i n t hei r nat ur e or gener al . I d. Even mor e
sal i ent t o t he mat t er at hand i s t hat no clause in the
Constitution purports to confer such a power upon the federal
courts. I d. ( emphasi s suppl i ed) .
Si mi l ar l y, Feder al cour t s, when deci di ng a case based on st at e
l aw, shoul d f ol l ow t he st at e l aw r egar di ng ci t at i on of
unpubl i shed deci si ons i n t he same manner as t hey woul d f ol l ow
any ot her St at e l aw af f ect i ng t he subst ant i ve meani ng of t he
l egi sl at ur e. Under i t s Gener al Rul es, Washi ngt on, whose l aws ar e
t o be const r ued her e, has made a choi ce t o r est r i ct t he
devel opment of i t s common l aw by i t s cour t s t o a consi der at i on
24
of onl y t hose cases wher e a panel of st at e Cour t of Appeal s
J udges det er mi ne t o publ i sh a deci si on under t he f ol l owi ng
cr i t er i a:
( 1) Whet her t he deci si on det er mi nes an unset t l ed or
new quest i on of l aw or const i t ut i onal pr i nci pl e;
( 2) Whet her t he deci si on modi f i es, cl ar i f i es or
r ever ses an est abl i shed pr i nci pl e of l aw;
( 3) Whet her a deci si on i s of gener al publ i c i nt er est
or i mpor t ance; or
( 4) Whet her a case i s i n conf l i ct wi t h a pr i or opi ni on
of t he Cour t of Appeal s.
Wash. Rul es of Appel l at e Pr ocedur e 12. 3( d) .
I f t he panel has not made a det er mi nat i on of pr ecedent i al
val ue, t hen t he case, mat t er or opi ni on i s not t o be ci t ed as
aut hor i t y as t o t he meani ng of st at e l aw. See Wash. Gener al Rul e
14. 1( a) . Her e, a cour t or der i ng pl ai nt i f f s and/ or t hei r at t or ney
t o consi der an unpubl i shed opi ni on f or pur poses of f i l i ng a
compl ai nt al l egi ng Washi ngt on St at e causes of act i on i nvol ves
t he f eder al cour t i n i mper mi ssi bl e devel opment of Feder al Common
Law r el at i ng t o t he st at ut es of a sover ei gn st at e.
I f t he f eder al cour t does not f ol l ow exi st i ng St at e l aw as
det er mi ned by pr ecedent , but can ci t e t o nonpr ecedent i al
opi ni ons t o i nf l uence t he devel opment of St at e l aw, t hen t he
subst ant i ve l aw appl i ed t o a case may di f f er based on t he venue
25
and t he not i ons of a f eder al j udge who has not been el ect ed, as
ar e st at e j udges, about what t he common l aw of Washi ngt on shoul d
be and how Washi ngt on st at ut es ar e const r ued.
At t empt s by f eder al di st r i ct cour t s wi t h j ur i sdi ct i on over
Washi ngt on St at e t o di ct at e t he devel opment of st at e l aw i n t hi s
ar ea i s conf usi ng f or st at e r esi dent s, expensi ve f or st at e
r esi dent s, and cr eat es a pl et hor a of pr obl ems i n t he l i ves of
ever yday homeowner s and t hei r f ami l i es. The evol ut i on of t he
subst ant i ve l aw i nvol vi ng i ssues r el at i ng t o a st at e s pol i cy
i nt er est s i n j udi ci al deci si ons whi ch af f ect l and shoul d not be
done by t he f eder al gover nment t hr ough t hat j udi ci ar y s
cr eat i on of st at e common l aw or i nt er pr et at i on of st at e
st at ut es.
I f st at e l aw i s not cl ear , f eder al di st r i ct j udges shoul d
consi der cer t i f i cat i on t o t he Washi ngt on Supr eme Cour t f or
answer s. See Par ent s I nvol ved Cmt y. Schs v. Or der Seat t l e Sch.
Di st . , 294 F. 3d 1085, 1086 ( 2002) . Feder al cour t s shoul d not l ay
t he bur den of cl ar i f yi ng t he meani ng of nonpr ecedent i al st at e
deci si ons upon t he l i t i gant s and t hei r counsel . I f t he f eder al
di st r i ct cour t her e r eal l y want ed consi der at i on of a t he val ue
of a nonpr ecedent i al , unpubl i shed t hat f eder al cour t shoul d have
cer t i f i ed i t s quest i ons under RCW2. 06 Ch.

26
D. The Guarantee Clause of the United States Constitution
guarantees a republican form of government to the states and not
following state law as it has been construed by the states
highest court inhibits Washingtons rights to self government by
a republican form of government.

U. S. Const . ar t . I V, 4 st at es t hat t he Uni t ed St at es
pl edges t o . . . guar ant ee t o ever y St at e i n t hi s Uni on a
Republ i can For m of Gover nment . . . . The pr eser vat i on of t he
St at es, and t he mai nt enance of t hei r gover nment s, ar e as much
wi t hi n t he desi gn and car e of t he Const i t ut i on as t he
pr eser vat i on of t he Uni on and t he mai nt enance of t he Nat i onal
Gover nment . " Texas v. Whi t e, 74 U. S. ( 7 Wal l . ) 700, 725 ( 1869) .
Each of t he st at es i s " endowed wi t h al l t he f unct i ons essent i al
t o separ at e and i ndependent exi st ence. " I d. ( quot i ng Count y of
Lane v. Or egon, 74 U. S. ( 7 Wal l . ) 71, 76 ( 1869) ) Fur t her , " [ t ] he
Const i t ut i on, i n al l i t s pr ovi si ons, l ooks t o an i ndest r uct i bl e
Uni on, composed of i ndest r uct i bl e St at es. " Texas v. Whi t e, 74
U. S. ( 7 Wal l . ) at 725. The principal role of independent state
governments is to check the power of the federal government.
The most obvi ous meani ng of t he l anguage i n t he guar ant ee
cl ause i s t hat t he Uni t ed St at es pr omi ses t o secur e each of t he
st at es t he aut onomy necessar y t o mai nt ai n a r epubl i can f or m of
gover nment . J ones Mer r i t t , D. , The Guar ant ee Cl ause and St at e
Aut onomy: Feder al i smFor A Thi r d Cent ur y, 88 Col um. L. Rev 1, 22
( J an. , 1988) . The guar ant ee cl ause, t her ef or e, pr ovi des an
27
essent i al const i t ut i onal l i mi t on f eder al i nt er f er ence wi t h
st at e aut onomy. I d. , at 22- 23. Bot h t he l anguage and t he hi st or y
of t he guar ant ee cl ause ar e consi st ent wi t h t hi s i nt er pr et at i on.
I d. , at 23.
1. What is a republican form of government
Wi despr ead agr eement exi st s among schol ar s and j ur i st s
about t he cor e meani ng of r epubl i can gover nment . Si nce at l east
t he 1700s, pol i t i cal t hi nker s have st r essed t hat a r epubl i can
gover nment i s one i n whi ch t he peopl e cont r ol t hei r r ul er s. See,
e. g. , J . Locke, Second Tr eat i se of Gover nment 149 ( C. B.
Macpher son ed. 1980) ( 6t h ed. London 1764) ( t he peopl e r et ai n
t he supr eme power t o al t er l egi sl at i ve act s when t he gover nment
act s cont r ar y t o t he ends f or whi ch gover nment has been
est abl i shed) ; i d. at 222 ( t he power t o choose r epr esent at i ves
i s r eser ved i n t he peopl e) . See gener al l y W. Ever del l , The End
of Ki ngs ( 1983) ( t r aci ng t he hi st or y of t he r epubl i can t r adi t i on
of gover nment f r om i t s ear l y Bi bl i cal and Homer i c r oot s t o t he
pr esent day) .
J ames Madi son aut hor ed t hat a r epubl i c i s " a gover nment
whi ch der i ves al l i t s power s di r ect l y or i ndi r ect l y f r om t he
gr eat body of t he peopl e. " The Feder al i st No. 39, at 251 ( J .
Madi son) ( J . Cooke ed. 1961) ; see al so, The Feder al i st No. 10,
at 62 ( J . Madi son) ( J . Cooke ed. 1961) ( The mai n char act er of a
r epubl i c i s " t he del egat i on of t he Gover nment . . . t o a smal l
28
number of ci t i zens el ect ed by t he r est " ) ; The Feder al i st No. 37,
at 234 ( J . Madi son) ( J . Cooke ed. 1961) ( " The geni us of
Republ i can l i ber t y, seems t o demand on one si de, not onl y t hat
al l power shoul d be der i ved f r om t he peopl e; but , t hat t hose
ent r ust ed wi t h i t shoul d be kept i n dependence on t he peopl e . .
. . " ) .
Al exander Hami l t on acknowl edged t hat t he " f undament al maxi m
of r epubl i can gover nment . . . r equi r es t hat t he sense of t he
maj or i t y shoul d pr evai l . " The Feder al i st No. 22, at 139 ( A.
Hami l t on) ( J . Cooke ed. 1961) ; see al so, The Feder al i st No. 57,
at 384 ( J . Madi son or A. Hami l t on) ( J . Cooke ed. 1961) ( " The
el ect i ve mode of obt ai ni ng r ul er s i s t he char act er i st i c pol i cy
of r epubl i can gover nment . " ) .
Char l es Pi nckney t ol d t he member s of t he r at i f yi ng
convent i on f or Sout h Car ol i na t hat a r epubl i c was a f or m of
gover nment i n whi ch " t he peopl e at l ar ge ei t her col l ect i vel y or
by r epr esent at i on, f or m t he l egi sl at ur e. " 4 Debat es i n t he
Sever al St at e Convent i ons on t he Adopt i on of t he Feder al
Const i t ut i on 328 ( J . El l i ot ed. 1881) ; see al so, 3 El l i ot ' s
Debat es, at 396 ( Pat r i ck Henr y t o r at i f yi ng convent i on of
Vi r gi ni a' s) ( " The del egat i on of power t o an adequat e number of
r epr esent at i ves, and an uni mpeded r ever si on of i t back t o t he
peopl e, at shor t per i ods, f or m t he pr i nci pal t r ai t s of a
r epubl i can gover nment . " ) .
29
Thomas J ef f er son assur ed Congr ess dur i ng hi s f i r st
i naugur al addr ess t hat " absol ut e acqui escence i n t he deci si ons
of t he maj or i t y" i s " t he vi t al pr i nci pl e of r epubl i cs. " Fi r st
I naugur al Addr ess by Pr esi dent Thomas J ef f er son ( Mar . 4, 1801) ,
r epr i nt ed i n, 1 The Founder s' Const i t ut i on, at 140, 141; see
al so, Van Si ckl e v. Shanahan, 212 Kan. 426, 443, 511 P. 2d 223,
237 ( 1973) ( Fr amer s spent l i t t l e t i me di scussi ng " t he el ement s
of a r epubl i can f or m of gover nment " because " t her e exi st ed no
subst ant i al di sagr eement bet ween t he Foundi ng Fat her s as t o t he
r epubl i can concept s upon whi ch t he gover nment was t o be
pat t er ned" ) ; Let t er f r om Benj ami n Rush t o J ohn Adams ( J ul y 21,
1789) ( " [ W] hen I speak of a r epubl i c I mean a gover nment
consi st i ng of t hr ee br anches, and each der i ved at di f f er ent
t i mes and f or di f f er ent per i ods f r omt he PEOPLE" ) , r epr i nt ed i n,
1 The Founder s' Const i t ut i on 142, 138 ( P. Kur l and & R. Ler ner
eds. 1987) ; Br ut us I , New Yor k J our nal , ( Oct . 18, 1787) ( " I n a
f r ee r epubl i c, . . . al l l aws ar e der i ved f r om t he consent of
t he peopl e . . . . " ) , r epr i nt ed i n, 13 The Document ar y Hi st or y
of t he Rat i f i cat i on of t he Const i t ut i on and t he Bi l l of Ri ght s
411, 418 ( M. J ensen, J . Kami nski , G. Sal adi no & R. Lef f l er eds.
1976- 86) ;
Pol i t i cal t heor i st s of t en i dent i f y r epubl i can gover nment
wi t h r epr esent at i ve gover nment . That i s, t he ci t i zens of a
r epubl i c el ect r epr esent at i ves who enact l aws; t hey do not
30
gover n t hr ough popul ar r ef er enda. See, e. g. , The Feder al i st No.
10, at 62- 64 ( J . Madi son) ( J . Cooke ed. 1961) ; J . Adams,
Def ence of t he Const i t ut i ons of Gover nment of t he Uni t ed St at es
( 1787) , r epr i nt ed i n, 1 The Founder s' Const i t ut i on, at 119.
I mpor t ant l y t he use of r epr esent at i ves does not under mi ne t he
f undament al poi nt t hat al l gover nment al power i n a r epubl i c
der i ves f r omt he peopl e.
I n t he begi nni ng of our r epubl i c Supr eme Cour t deci si ons
of f er ed a si mi l ar vi ew of what a r epubl i can gover nment i s. I n
1793, Associ at e J ust i ce Wi l son decl ar ed t hat a " shor t
def i ni t i on" of a r epubl i can gover nment i s const r uct ed on t he
pr i nci pl e t hat t hat t he Supr eme Power r esi des i n t he body of
t he peopl e. " Chi shol m v. Geor gi a, 2 U. S. ( 2 Dal l . ) 419, 457
( 1793) ( opi ni on of Wi l son, J . ) . Al most a cent ur y l at er , a
unani mous Supr eme Cour t decl ar ed t hat " t he di st i ngui shi ng
f eat ur e" of a r epubl i can f or mof gover nment " is the right of the
people to choose t hei r own of f i cer s f or gover nment al
admi ni st r at i on, and pass their own laws. " I n r e Duncan, 139 U. S.
449, 461 ( 1891) ( emphasi s suppl i ed) ; see al so, Mi nor v.
Happer set t , 88 U. S. ( 21 Wal l . ) 162, 175- 76 ( 1875) ( t he per vasi ve
pat t er n of popul ar par t i ci pat i on i n al l st at e gover nment s
exi st i ng at t he t i me t he Const i t ut i on was adopt ed pr ovi des
" unmi st akabl e evi dence of what was r epubl i can i n f or m, wi t hi n
t he meani ng of t hat t er mas empl oyed i n t he Const i t ut i on" ) .
31
Fur t her , t he Supr eme Cour t agr eed when i t r est at ed " [ a]
di st i ngui shi ng f eat ur e of [ a r epubl i can f or m] of gover nment i s
t hat t he peopl e . . . have t he r i ght t o choose t hei r own
of f i ci al s f or gover nment al af f ai r s and enact t hei r own l aws
pur suant t o t he l egi sl at i ve power r eposed i n r epr esent at i ve
bodi es. " Baker v. Car r , 369 U. S. 186, 222, ( 1962) ( Dougl as, J . ,
concur r i ng) ( ci t i ng, I n r e Duncan, 139 U. S. 449, 461, 11 S. Ct .
573; 35 L. Ed. 219 ( 1890) ) .
2. The Federal Governments instruction, through a federal
judge, to consider a nonprecedential Court of Appeals decision
that attempts to distinguish the Washington State Supreme
Courts decision in Bain, where the federal government had no
constitutional power to do so, harms the Constituions guarantee
to a republican form of government.

I n t hi s case a f eder al di st r i ct cour t , deci di ng an i ssue of
st at e l aw, must f ol l ow st at e l aw f or al l par t s of t he deci si on
maki ng pr ocess i ncl udi ng r evi ewi ng t he i ni t i al compl ai nt .
Fai l ur e t o do so i nt er f er es wi t h t he r epubl i can f or m of
gover nment t hat Washi ngt on st at e i s guar ant eed by t he Uni t ed
St at es const i t ut i on. Thi s i s because t he st at e of f i ci al s and
j udges who have made t he l aws r egar di ng t he ci t at i on of
unpubl i shed cases ar e el ect ed by t he peopl e of Washi ngt on.
Feder al J udges ar e not el ect ed by t he peopl e of Washi ngt on. I f
an unel ect ed Feder al J udge, or der s a ci t i zen and hi s l awyer t o
not f ol l ow val i d l aws enact ed t hr ough pr ocesses det er mi ned by a
r epubl i can f or m of gover nment , t hen such or der i nf r i nges upon
32
t he const i t ut i onal r i ght and guar ant ee t o cer t ai n l aws f r ee f r om
Feder al i nf l uence.
E. This Court should certify the following question (or some
variation thereof) to the Washington Supreme Court for review:
Does the Supreme Court contemplate that federal
district courts will consider and cite to unpublished
state Court of Appeals opinions when attempting to
adjudicate the meaning of statutes which have not been
resolved by the Supreme Court?

Whi l e al l f eder al cour t s must consi der t he appr opr i at eness
of cer t i f yi ng i ssues of st at e l aw t o t he st at e s hi ghest cour t
f or r esol ut i on, t he ul t i mat e di scr et i on t o do so r est s wi t hi n
t he sound di scr et i on of t he f eder al cour t . Lehman Br os. v
Schei n, 416 U. S. 386, 390- 91, 94 S. Ct . 1741, 40 L. Ed. 215
( 1974) ; Par ent s I nvol ved Cmt y. Schs v. Or der Seat t l e Sch. Di st . ,
294 F. 3d 1085, 1086 ( 2002) .
Feder al cour t s wer e ver y sl ow i n cer t i f yi ng i ssues ar i si ng
pur suant t o t he DTA and CPA t o t he Washi ngt on Supr eme Cour t . As
t he Washi ngt on Supr eme Cour t not ed i n Bai n t he f eder al cour t s
anal ysi s of Washi ngt on s DTA was unhel pf ul because i t s j udges
di d not under t ake any meani ngf ul anal ysi s of t he DTA st at ut e.
See Bai n, 175 Wn. 2d at 105- 06 & 109.
Bai n has not been embr aced by f eder al cour t s or st at e
7

cour t s of appeal . Shepar ds i ndi cat es i t has onl y been f ol l owed

7
Shepar d s r epor t s t hat i n Mi ckel son v. Chase Home Fi n. LLC,
2011 U. S. Di st . LEXI S 131818 one f eder al Di st r i ct Cour t t ook t he
unusual st ep of cr i t i ci zi ng t he Supr eme Cour t s r ul i ng i n Bai n
33
5 t i mes. Two of t hese cases wer e deci si ons handed down by t he
Supr eme Cour t i t sel f on Febr uar y 28, 2013 i n Kl em, supr a, and
Schr oeder , supr a. St r angel y, anot her case r epor t ed as f ol l owi ng
Bai n was t he deci si on bel ow, whi ch al so embr aced Pet er son, whi ch
was one of t he f i ve cases Shepar ds r epor t s as di st i ngui shi ng
Bai n. I n any event , r evi ew of t he cases ci t i ng Bai n does not
suggest t hat f eder al cour t s have been pr one t o f ol l ow i t i n most
of t he 20 Washi ngt on f eder al di st r i ct cour t s whi ch have ci t ed
i t .
As pr evi ousl y st at ed, Homeowner s At t or neys ar e a gr oup of
at t or neys who f ol l ow f or ecl osur e i ssues and f i l ed an ami cus
br i ef ur gi ng t he Washi ngt on Supr eme Cour t t o accept r evi ew i n
Gr ant v Hor i zon Loans, supr a. I n t hat br i ef , t hi s at t or ney
gr oup ar gued:
Homeowner s At t or neys ar e concer ned t hat Bain i s
not pr oper l y bei ng appl i ed as pr ecedent by Washi ngt on
Cour t s and Feder al Di st r i ct Cour t s l ocat ed i n
Washi ngt on. See e.g. Burkart v Mortgage Elec.
Registration Sys., 2012 U. S. Di st . Lexi s 1404794 ( W. D.
Wash. Sept ember 28, 2012) . See also Brodie v
Northwest Trustee Servs, 2012 U. S. Di st . LEXI S 139451
( E. D. Wash. Sept . 27, 2012) . This problem is
exacerbated by decisions construing first impression
issues, like those involved here, being deemed not
precedential by the COA as such unpublished
decisions are later being cited by U.S. District
courts as being representative of Washingtons common
law. [ ci t at i ons omi t t ed] . ( Emphasi s Suppl i ed)

bef or e i t was handed down and t hen ar guabl y deci ded not t o
f ol l ow i t . Mi ckel son i s cur r ent l y on appeal t o t hi s Cour t .
34

I n Gr ant Homeowner s At t or neys asked t he Supr eme Cour t t o
r evi ew t he Cour t of Appeal s deci si on not t o publ i sh i t s
deci si on as i t r esol ved mat t er s of f i r st i mpr essi on. Homeowner s
At t or neys ar gued t he Cour t s deci si on not t o publ i sh i n Gr ant
f aci al l y vi ol at ed RAP 12. 3( d) , supr a.
The pr obl ems appel l ant s f ace i n t hi s case r esul t i ng f r om
t he f eder al gover nment di r ect i ng t hem t o consi der unpubl i shed
deci si ons ar e made wor se by t he f act t hat Cour t s of Appeal do
not r out i nel y publ i sh deci si ons whi ch r esol ve f i r st i mpr essi on
l egal i ssues even t hough t hey appear i nst r uct ed t o do so by RAP
12. 3( d) and ( e) . Thus, t o t he ext ent t he Cour t of Appeal s i s
deci di ng f i r st i mpr essi on i ssues of st at e l aw wi t hout t aki ng t he
t i me t o det er mi ne how t he r esol ut i on shoul d af f ect peopl e as
pr ecedent t hey abdi cat e t he const r uct i on of st at e st at ut es t o
t he Washi ngt on Supr eme Cour t . Thi s i s pr obl emat i c t o
f eder al i sm, common l aw, and guar ant ee cl ause i ssues i dent i f i ed
above.
Gi ven t he par adoxi cal nat ur e of t he pr obl ems and t he
supr emacy of t he Washi ngt on Supr eme Cour t t o r esol ve t he
pr ocedur es by whi ch t he st at e s subst ant i ve l aw shoul d be
const r ued, i t makes sense t o ask t he Washi ngt on Supr eme Cour t t o
r ul e wi t h r egar d t o t he r ol e unpubl i shed, nonpr ecedent i al
deci si ons shoul d pl ay wi t h r egar d t o t he evol ut i on of Washi ngt on
35
common l aw by f eder al cour t s. Lehman Br os. v Schei n, sur pa. ;
Par ent s I nvol ved Cmt y. Schs v. Or der Seat t l e Sch. Di st . , supr a
at 1086 ( 2002) ( [ W] e have an obl i gat i on t o consi der whet her
novel st at e- l aw quest i ons shoul d be cer t i f i ed - and we have been
admoni shed i n t he past f or f ai l i ng t o do so. )
VIII. CONCLUSION

Thi s Cour t shoul d gr ant r evi ew of t he or der di smi ssi ng t he
Bur kar t s compl ai nt wi t hout pr ej udi ce under t he col l at er al
or der doct r i ne.
Thi s Cour t shoul d hol d t hat t he Di st r i ct Cour t s or der
vi ol at ed t he pr i nci pl es of f eder al i sm, Washi ngt on s sover ei gnt y
wi t h r egar d t o t he cr eat i on of i t s own common l aw, and t he
Guar ant ee Cl ause of t he Uni t ed St at es Const i t ut i on.
Thi s Cour t shoul d cer t i f y t he i ssue as t o how Feder al
Di st r i ct Cour t s shoul d t r eat unpubl i shed nonpr ecedent i al
opi ni ons of t he Cour t of Appeal s when t r yi ng t o di scer n t he
meani ng of Washi ngt on subst ant i ve l aw.
IX. REQUEST FOR ORAL ARGUMENT

Appellant Requests Oral Argument.

36
DATED March 4, 2013

STAFNE LAW FIRM

By:/s/Scott E. Stafne
Scott E. Stafne
Attorneys for Appellants

By:/s/ Joshua B. Trumbull
Joshua B. Trumbull

37
Certificate of Compliance with typeface and length limitations,
FRAP 28.1 & 32(a)(7)

Pur suant t o Rul e 32( a) ( 7) ( C) of t he Feder al Rul es of Appel l at e
Pr ocedur e, t he f or egoi ng br i ef i s i n 12- Poi nt Cour i er New
monot ype spaced and cont ai ns 8, 060 wor ds and t hus i s i n
compl i ance wi t h t he t ype- vol ume l i mi t at i on set f or t h i n Rul e
32( a) ( 7) ( B) of t he Feder al Rul es of Appel l at e Pr ocedur e.
DATED March 4, 2013

STAFNE LAW FIRM

By:/s/Scott E. Stafne
Scott E. Stafne

By:/s/ Joshua B. Trumbull
Joshua B. Trumbull

STATEMENT OF RELATED CASES

Appel l ant s ar e unawar e of any r el at ed cases pendi ng i n t hi s
Cour t .
CERTIFICATE OF SERVICE
I her eby cer t i f y t hat on Mar ch 4, 2013, I el ect r oni cal l y
f i l ed t he f or egoi ng wi t h t he Cl er k of t he Cour t f or t he Uni t ed
St at es Cour t of Appeal s f or t he Ni nt h Ci r cui t by usi ng t he
appel l at e CM/ ECF syst em.
I cer t i f y t hat al l par t i ci pant s i n t he case ar e r egi st er ed
CM/ ECF user s and t hat ser vi ce wi l l be accompl i shed by t he

/ s/ Si mone Ci nt r on
Si mone Ci nt r on

NO. 12-35886


v.
Defendant,
and
_____________________________

EXCERPTS OF RECORD
Volume 1 of 2 (Pages 1 to 14)

STAFNE LAW FIRM
17207 155
th
Avenue NE
(360) 403-8700

TABLE OF CONTENTS

District Court
Docket Entry
Description
Volume 1 of 2
Page
22 Order Dismissing Complaint for Failure to Prosecute, filed
October 30, 2012 ................................................................................... 1
18 Order Dismissing Complaint, filed September 28, 2012 ....................... 3
Volume 2 of 2
23 Amended Notice of Appeal, filed October 31, 2012 ............................. 15
20 Notice of Appeal, filed October 25, 2012 .............................................. 17
10 Amended Complaint, filed December 16, 2011 .................................... 19
Appendix 1 to Complaint .......................................................... 70
District Court Docket Entries ............................................................... 76

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Case 2:11-cv-01921-RAJ Document 22 Filed 10/30/12 Page 1 of 2
HONORABLE RICHARD A. JONES
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
HERBERT BURKART, et al.,
Plaintiffs,
CASE NO. Cll-1921RAJ
v. ORDER
MORTGAGE ELECTRONIC
12 REGISTRATION SYSTEMS, INC., et al.,
13 Defendants.
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On September 28, the court granted Defendants' motion to dismiss Plaintiffs'
complaint, but granted Plaintiffs leave to file an amended complaint. The court's order
did not grant final relief on any aspect of Plaintiffs' claims. The order concluded with
instructions for Plaintiffs to file an amended complaint by October 26,2012, or the court
would dismiss the case without prejudice for failure to prosecute.
On October 25, Plaintiffs filed a notice of appeal. Although a notice of appeal
ordinarily divests the district court of jurisdiction, that general rule does not apply where
a purported appeal is from an order that is not appealable. Estate of Conners v.
O'Connor, 6 F.3d 656,658 (9th Cir. 1993). An order dismissing a complaint with leave
to amend is not appealable. WMXTechs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir.
1997).
ORDER-l
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Plaintiffs have not filed an amended complaint in accordance with the court's
September 28 order. The court accordingly dismisses this case without prejudice for
failure to prosecute.
DATED this 30th day of October, 2012.
ORDER-2
D
The Honorable Richard A. Jones
United States District Court Judge
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HONORABLE RICHARD A. JONES
AT SEATTLE
HERBERT BURKART, et ai.,
Plaintiffs,
v.
MORTGAGE ELECTRONIC
CASE NO. C11-1921RAJ
ORDER
12 REGISTRATION SYSTEMS, INC., et aI.,
13 Defendants.
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I. INTRODUCTION
This matter comes before the court on Defendants' motion to dismiss Plaintiffs'
complaint. Dkt. # 11. Although Plaintiffs requested oral argument, the court finds oral
argument unnecessary in light of its disposition today. For the reasons stated below, the
court GRANTS the motion to dismiss, but grants Plaintiffs leave to amend their
complaint in accordance with this order. Plaintiffs must file their amended complaint no
later than October 26,2012.
II. BACKGROUND
The court describes the facts underlying this case as Plaintiffs allege them in their
operative complaint. Dkt. # 10. The court uses bare '11" symbols to cite their complaint
and "Ex." to cite the exhibits they attached to it.
In February 2007, Plaintiffs Herbert and Tanya Burkart borrowed $600,000 to
purchase or refinance a home on Camano Island in Washington. They borrowed the
ORDER-I
D
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1 money from Global Advisory Group Inc. ("Global"), and signed a note reflecting their
2 agreement to repay Global at an adjustable interest rate initially set at 6.125%. Ex. 1. As
3 with most residential property transactions in Washington, Global secured the note with a
4 deed of trust. Like many deeds of trust in Washington, the Burkarts' deed of trust named
5 Mortgage Electronic Registration Systems, Inc. ("MERS"), as the beneficiary. Ex. 2.
6 Not long after the Burkarts signed the note, they learned that either the note itself
7 or the loan servicing rights had passed to Countrywide. , 4.8. Countrywide was once a
8 collection of entities in the business of making and servicing home loans. Bank of
9 America, N.A., or perhaps one of its subsidiaries, acquired Countrywide in 2008,
10 assuming responsibility for its loans. For purposes of this order, the court will refer
11 collectively to the Countrywide and Bank of America entities as "BofA".! The Burkarts
12 make little effort to distinguish between them, and the court discerns no difference that is
13 material to this order.
14 In October 2008, the value of the Burkarts' home dropped and they called BofA to
15 request a loan modification. 4.13. They assert that a BofA representative advised them
16 that BofA could not modify their loan unless they missed payments, and advised them to
17 skip payments in order to qualify for a loan modification. , 4.1. The Burkarts complied.
18 BofA negotiated a loan modification with them, but also moved to declare their loan in
19 default. 4.14 & Appx. 1. By August 20, 2009, BofA had issued a notice that it was
20 exercising its "acceleration" right under the note-demanding immediate payment of the
21 outstanding principal on the loan. But just seven days later, BofA offered the Burkarts a
22 loan modification.
23 Unfortunately, the loan modification would have increased the Burkarts' monthly
24 payment obligation. They declined to accept it, and entered another round of
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1 For the record, the Countrywide entities are Countrywide Financial Corporation and
Countrywide Home Loans, Inc.; the Bank of America entities are BAC Home Loans Servicing,
LP, Bank of America Corporation, and Bank of America, N.A.
ORDER-2
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negotiations with BofA. 4.15 & Appx. 2. While negotiations were ongoing, BofA
issued another acceleration notice in December 2009. By May 2010, BofA offered
another loan modification. Again, the payments were higher than the Burkarts preferred,
but they agreed to the loan modification in June 2010. By mid-2011; the Burkarts had
again fallen behind in payments. 4.17. BofA issued another acceleration notice in
September 2011. 4.18. Throughout the Burkarts' lengthy negotiations with BofA, they
incurred late charges and other fees in addition to the principal and interest on the note.
The Burkarts sued in Island County Superior Court In October 2011. They
initially sued Global, MERS, BofA (three Bank of America entities and two Countrywide
entities), and a host of unnamed individual defendants who allegedly had some role in
these events.
2
Defendants removed the case here, invoking the court's diversity
jurisdiction. Defendants contended that Global, the only Washington resident among
them, had been fraudulently joined. The Burkarts voluntarily dismissed their claims
against Global. The parties agreed to permit the Burkarts to file an amended complaint.
The result of the parties' agreement was a 56-page complaint (including two
"appendixes" with additional allegations) that incorporated more than 400 pages of
exhibits. Defendants now move to dismiss that complaint
III. ANALYSIS
Defendants invoke Fed. R. Civ. P. l2(b)(6), which permits a court to dismiss a
complaint for failure to state a claim. The rule requires the court to assume the truth of
the complaint's factual allegations and credit all reasonable inferences arising from its
allegations. Sanders v. Brown, 504 F.3d 903,910 (9th Cir. 2007). The plaintiff must
point to factual allegations that "state a claim to relief that is plausible on its face." Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 568 (2007). If the plaintiff succeeds, the complaint
avoids dismissal if there is "any set of facts consistent with the allegations in the
2 So far as the record reveals, the Burkarts have never served any individual defendant. None of
them have appeared in this action.
ORDER-3
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1 complaint" that would entitle the plaintiff to relief. Id. at 563; Ashcroft v. Iqbal, 556 U.S.
2 662,679 (2009) ("When there are well-pleaded factual allegations, a court should assume
3 their veracity and then determine whether they plausibly give rise to an entitlement to
4 relief."). The court typically cannot consider evidence beyond the four comers of the
5 complaint, although it may rely on a document to which the complaint refers ifthe
6 document is central to the party's claims and its authenticity is not in question. Marder v.
7 Lopez, 450 F.3d 445,448 (9th Cir. 2006). The court may also consider evidence subject
8 to judicial notice. United States v. Ritchie, 342 F.3d 903,908 (9th Cir. 2003).
9 Defendants make a concerted effort to decipher the Burkarts' complaint in an
10 effort to show that it does not plausibly allege any claim upon which the court can grant
11 relief. They succeed in some respects and fall short in others, but that is more the result
12 of the Burkarts' muddled pleading than anything else. The trouble with the Burkarts'
13 complaint is not merely that it fails to plausibly allege claims upon which the court can
14 grant relief, it is that no reasonable attorney could understand most of the claims the
15 Burkarts are attempting to allege. Although the complaint suffers from implausibility, it
16 suffers at least as much from incomprehensibility. The Federal Rules of Civil Procedure
17 require a "short and plain statement of the claim showing that the pleader is entitled to
18 relief .... " Fed. R. Civ. P. 8(a)(2). The Burkarts' complaint does not meet this standard.
19 The only other court in this District to address a similar lawsuit from the Burkarts'
20 counsel has also struggled with counsel's "[s]hotgun-style pleadings." See Mickelson v.
21 Chase Home Finance LLC, No. ll-1445M1P, (Dkt. # 58) at 11 (Apr. 16,2012 order
22 granting motion to dismiss). In Mickelson, the court decried counsel's "sprawling" and
23 "hard-to-follow" complaint, pointed out "unintelligible" allegations, and dismissed
24 several claims where counsel's pleadings made the court "unable to comprehend the[ir]
25 nature." Id. at 3-4, 9-11. Counsel is beginning to compile an unenviable track record,
26 one that the court hopes will soon improve.
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ORDER-4
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1 As the court now explains, it will permit the Burkarts to file an amended
2 complaint that cures the ailments from which their current complaint suffers. Despite the
3 complaint's defects, the court cannot rule out the possibility that the Burkarts can state
4 valid claims arising from the facts they allege. This is particularly true in light of the
5 Washington Supreme Court's recent decision in Bain v. Metro. Mortgage Group, Inc.,
6 No. 86206-1,2012 Wash. LEXIS 578 (Wash. Aug. 16,2012). Bain rejects or at least
7 seriously undermines many of the arguments Defendants raised in their motion to dismiss
8 as to the lawful role of MERS in Washington deeds of trust.
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A. Rain Disposes of Defendants' Claim that MERS Can Lawfully Act as the
Beneficiary in the Burkarts' Deed of Trust.
In Bain, the court held that the decades-old practice of naming MERS as the
beneficiary in Washington deeds of trust did not comply with the Washington Deed of
Trust Act (RCW Ch. 61.24). A deed of trust provides security for a lender by conveying
equitable title to the borrower's property to a trustee who holds the title in trust for the
benefit of the lender. Bain, 2012 Wash. LEXIS 578, at *9. Should the borrower fail to
make payments, the lender-beneficiary can inform the trustee, who then has the power to
initiate a non-judicial sale of the property for the benefit of the lender-beneficiary. Id. at
10. Indeed, it is this "power of sale" without a court's supervision that necessitates the
Deed of Trust Act's numerous protections for borrowers. Id.
The typical deed of trust names the borrower as the grantor, the lender (and holder
of the note evidencing the loans) as the beneficiary, and a third party as the trustee. Bain,
2012 Wash. LEXIS 578, at *9. In this arrangement, the lender-beneficiary is often called
the "beneficial owner" of the property. The Burkarts' deed of trust, like the deed at issue
in Bain, named MERS as the beneficiary, even though the lender (Global) remained the
party holding the note. Ex. 2. The purpose of this arrangement is to facilitate the transfer
of the benefits of the note (like the right to receive payments and the right to service the
loan) along with the beneficial ownership interest. If the original lender sells the loan or
ORDER-5
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1 its servicing rights to another party, MERS tracks that sale. If the borrower defaults On
2 the loan, the deed of trust purports to give MERS the right, as the "nominee" of the
3 lender as well any successor to the lender, to appoint a successor trustee.
3
That trustee
4 can then, after complying with the Deed of Trust Act, complete a non-judicial sale of the
5 property, more commonly known as a foreclosure.
6 In Bain, the court held that RCW 61.24.005(2), which defines "beneficiary" as
7 "the holder of the instrument or document evidencing the obligations secured by the deed
8 of trust," means that a party that does not hold the note (like MERS) cannot be the
9 beneficiary ofa deed of trust. Bain, 2012 Wash. LEXIS 578 at *41. The court grounded
10 its holding in the plain language of the Deed of Trust Act, but also considered and
11 rejected several attempts to avoid the statute. It rejected the notion that the parties could
12 modify the Deed of Trust Act by contract. Id. at 37. And although the Bain court would
13 not have prevented MERS from acting as the agent for a lender-beneficiary, it held that in
14 the cases before it, MERS could not point to any principal who had authorized it to act as
15 its agent. Id. at *33-35.
16 For the most part, however, the Bain court did not determine the legal effect of a
17 deed of trust that unlawfully purported to name MERS as its beneficiary. The court
18 considered several possibilities: that MERS could cure any defect simply by assigning its
19 interests to the lender or whoever currently holds the note, that the deed of trust be
20 rescinded, that the deed of trust be declared void or unenforceable and the borrower have
21 the right to quiet title, or that a court declare an equitable mortgage in favor of the note
22 holder. Bain, 2012 Wash. LEXIS 578 at *41-48. Although the court gave hints as to its
23 views on several of those options, it concluded that the legal effect of the improper
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3 In many transactions, including the Burkarts', the deed of trust names a title insurance company
or other third party as the trustee with the understanding that the initial trustee will be replaced
by a successor should it become necessary to exercise the power of sale.
ORDER-6
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Case 2: ll-cv-01921-RAJ Document 18 Filed 09/28/12 Page 7 of 12
designation of MERS as a beneficiary would depend on what had happened to the note in
each case.
The Bain court did conclude, however, that claiming to be the beneficiary on a
deed of trust was a deceptive act within the meaning of the Washington Consumer
Protection Act (RCW Ch. 19.86, ("CPA")). Bain, 2012 Wash. LEXIS 578 at *56.
Whether a homeowner has a viable CPA claim, however, depends on (among other
things) whether it can prove it suffered an injury as a result of MERS' s deceptive
conduct. Id. at *54-56.
Much of Defendants' motion to dismiss relies on the contention that MERS may
lawfully serve as a beneficiary. Bain has dispensed with that contention. But the
Burkarts' complaint is deficient for reasons that have nothing to do with MERS 's status
in their deed of trust. Before deciding how Bain impacts their dispute with MERS and
BofA, the court will require them to replead their claims.
B. The Burkarts Must Replead Their Claims.
There are at least two sets of facts in the Burkarts' complaint that might serve as
the foundation for claims upon which the court could grant relief. First, they contend that
BofA representatives misled them during the process of attempting to modify their loan.
Second, they signed a deed of trust that unlawfully named MERS as the beneficiary.
The claims that the Burkarts raise based on BofA's misconduct in the loan
modification process invoke the Washington Consumer Loan Act (RCW Ch. 31.04,
"CLA"), the Fair Debt Collection Practices Act (15 U.S.C. 1692-1692p, "FDCPA"),
and the CPA. The FDCP A claim fails as a matter of law, because no BofA entity meets
the Act's definition of "debt collector." 15 U.S.C. 1692a(6). The CLA claim fails as to
at least some of the BofA entities, because that Act does not apply to banks. RCW
31.04.025(2)(a). If the Burkarts wish to attempt to state a CLA claim when they
replead, they should include allegations that make it plausible to conclude that the CLA
ORDER-7
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I applies to at least one Defendant. The CPA claim is at least plausibly stated. Among the
2 reasons that the CPA claim is plausible is that the Burkarts can plausibly point to an
3 injury-they contend they incurred late fees and other charges as a result of BofA's
4 misconduct in the loan modification process. If the Burkarts' attempt to replead their
5 CPA theory, they must eliminate their 9-page list of allegations ~ ~ 13.1-13.37), most of
6 which have nothing to do with them, in favor of allegations that specify what Defendants
7 did to them in violation of the CPA. They must also consider Peterson v. eitibank, NA.,
8 No. 67177-4-1,2012 Wash. App. LEXIS 2197 (Wash. Ct. App. Sept. 17,2012) (applying
9 Bain and dismissing CPA claim against MERS).
10 As to claims based on the defective deed of trust, it is much more difficult to
11 understand how the Burkarts have been injured. They concede that they are obligated to
12 repay their loan to whoever lawfully holds their note. Their complaint does not suggest
13 that anyone is attempting to foreclose on their home. They do not suggest that MERS has
14 done anything as the purported beneficiary of the deed of trust to harm them. If the
15 Burkarts want to plead one or more claims based on MERS' s improper designation as the
16 beneficiary in their deed of trust, they must provide sufficient allegations to establish that
17 they have been injured. Their complaint repeatedly fails to do so. Instead, it invents new
18 causes of action that state no injury and request no remedy. The Burkarts' first "cause of
19 action" is an excellent example. They name it "The MERS Deed of Trust Is Not a Valid
20 Security for Global Advisory Group's Promissory Note." ~ IV.A.4 This is not a cause of
21 action, it is a legal conclusion. Without an allegation of injury or a remedy, it states no
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4 The Burkarts' complaint makes numerous allegations that would matter only if they had sued
Global, the entity that made them the loan. They repeatedly claim that they were deceived into
taking out their loan in the first place. They allege that Global somehow impaired the note or the
deed of trust when it "securitized" the loan by making it part of a pool of other loans used to
secure other investment vehicles. The Burkarts have made no allegation that would make MERS
or BofA liable for anything Global did. If the Burkarts believe that Global is liable to them, they
ought to sue Global. And if the Burkarts have a valid claim based on securitization, they have
now twice failed to adequately plead it. Mickelson at 10 (stating that the court was "unable to
find any intelligible CPA violation" in a theory based on securitization).
ORDER-8
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1 claim upon which the court can grant relief. The same is true of the Burkarts' "cause of
2 action" that they name "The MERS Deed of Trust Boilerplate Agreement Is Not
3 Consistent With Washington's Deed of Trust Act ... " IV.B. Again, this is not a cause
4 of action, it is a legal conclusion (albeit one that is now among the holdings of Bain). See
5 also Mickelson at 9 (finding claims "nothing more than legal conclusions unsupported by
6 factual allegations"). Without an allegation of injury or a suggestion of a remedy, that
7 legal conclusion is not a claim upon which the court can grant relief. And the Burkarts
8 fare no better with the cause of action they name "The Promissory Note and Deed of
9 Trust Are Unconscionable and Unenforceable." IV.E.
10 One of the few recognizable causes of action in the complaint is a claim for breach
11 of contract. IV.D. Here, the Burkarts claim that Defendants breached the promissory
12 note and deed of trust, and violated the duty of good faith and fair dealing inherent in
13 those contracts. But the note requires the Burkarts to make payments that they
14 admittedly did not make, and permits the lender or its successors to declare a default.
15 The note does not require anyone to agree to modify it, much less to do so in good faith.
16 If a Defendant breached the note or a duty arising from the note, the Burkarts make no
17 plausible allegation to illustrate that breach. The same is true of the deed of trust. If a
18 defendant breached it, the Burkarts' allegations do not plausibly explain how.
19 The Burkarts' attempts to state cause of action for racketeering and criminal
20 profiteering suffer from a different set of problems. When the Burkarts replead their
21 claims, they must focus on the harm that they suffered. Too much of their complaint is
22 an irrelevant excursion into the subprime mortgage market crash that precipitated a
23 broader crash in the housing market. Whatever the validity of their beliefs as to the role
24 ofMERS and banks like BofA in these nationwide events, the Burkarts' task in pleading
25 their case is to explain how they were harmed by the actions of the Defendants they have
26 sued. It does not matter, for purposes of this lawsuit, how other people were allegedly
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injured. The Burkarts do not help their case by attaching hundreds of pages of
complaints from eight different lawsuits in other states, then incorporating the allegations
of those complaints by reference. When they file a new complaint, they will not
incorporate any other complaint by reference. They will also eliminate invitations that
the court read law review articles or "white papers" discussing the mortgage crisis. They
will eliminate "appendixes" which serve only to make their complaint less readable.
Again, their task is to provide a short and plain statement of their claims and the relief to
which they are entitled.
The Burkarts' apparent purpose in making lengthy allegations about conduct that
has little to do with them is to label MERS and BofA as criminal enterprises via the
Racketeer Influenced Corrupt Organizations Act (18 U.S.c. 1961-1968) and the
Washington Criminal Profiteering Act (RCW Ch. 9A.82). The Burkarts fall well short of
stating a claim under either law. They neither properly plead predicate acts nor do they
properly identify criminal enterprises. Putting that aside, each of these claims raises
multiple allegations of fraud, and the Burkarts do not come close to satisfying Federal
Rule of Civil Procedure 9(b), which requires them to plead fraud with specificity.
The Burkarts sprinkle their complaint liberally with conclusory accusations of
fraud, but they never explain how they were defrauded. Fraud requires, at a minimum, an
knowingly false statement intended to reduce a plaintiffs reliance, along with the
plaintiffs actual reliance on the statement to his detriment. Stiley v. Block, 925 P.2d 194,
204 (Wash. 1996). So when the Burkarts complain, for example, that unnamed BofA
agents engaged in "fraudulent robo-signing tactics," they are merely blustering. ,-r 4.7.3
They do not explain how they relied on a robo-signed document to their detriment. When
the Burkarts accuse BofA of defrauding them by acting as the beneficiary on the deed of
trust (,-r 7.13), they make no plausible allegation that BofA knew that it could not serve as
the beneficiary, or knew that it had no right to demand loan payments from them. The
ORDER-lO
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same is true of their allegation that any Defendant who claims a beneficial interest under
their deed of trust has defrauded them. 7.22. And the Burkarts do themselves no favors
by accusing Global (a non-party) of engaging in "securities fraud" by securitizing their
loan, 6.9, where they do not even begin to make plausible allegations of securities fraud
under federal or Washington law.
Finally, the Burkarts make a claim to quiet title in their property. The Bain court
took a dim view of a quiet title claim in similar circumstances. Id. at 43-44. If the
Burkarts mean to allege that the court can declare their deed of trust invalid, thus
rendering the note unsecured, they ought to say so specifically. Again, the Burkarts
should have no difficulty in the wake of Bain in pointing out legal defects in their deed of
trust. The question is what remedy the law affords them.
The court does not suggest that its review of the complaints' defects is
comprehensive, but the court nonetheless expects a comprehensive overhaul of the
complaint. The Burkarts have at least plausible allegations of wrongdoing, although it is
easy to lose sight of them among the numerous irrelevant, implausible, and
incomprehensible allegations. They also have a deed of trust that does not comply with
Washington law. But to state a claim upon which the court can grant relief, the Burkarts
must assert their own injuries and then state recognizable causes of action that seek an
appropriate remedy for those injuries.
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IV. CONCLUSION
For the reasons previously stated, the court GRANTS Defendants' motion to
dismiss (Dkt. # 11) but grants the Burkarts leave to amend their complaint in accordance
with this order. The Burkarts must file their amended complaint no later than October
26,2012. If they do not file an amended complaint by that date, the court will dismiss
this action without prejudice for failure to prosecute.
DATED this 28th day of September, 2012.
ORDER-12
United States District Court Judge
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NO. 12-35886


v.
Defendant,
and
_____________________________

EXCERPTS OF RECORD
Volume 2 of 2 (Pages 15 to 82)

STAFNE LAW FIRM
17207 155
th
Avenue NE
(360) 403-8700

TABLE OF CONTENTS

District Court
Docket Entry
Description
Volume 1 of 2
Page
22 Order Dismissing Complaint for Failure to Prosecute, filed
October 30, 2012 ................................................................................... 1
18 Order Dismissing Complaint, filed September 28, 2012 ....................... 3
Volume 2 of 2
23 Amended Notice of Appeal, filed October 31, 2012 ............................. 15
20 Notice of Appeal, filed October 25, 2012 .............................................. 17
10 Amended Complaint, filed December 16, 2011 .................................... 19
District Court Docket Entries ............................................................... 76

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AT SEATTLE
HERBERT BURKART, et aI., NO. 2:11-cv-01921 RAJ
AMENDED NOTICE OF CNIL
APPEAL
Plaintiffs,
vs.
12 MORTGAGE ELECTRONIC
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REGISTRATION SYSTEMS, INC. et aLI
Defendants.
Notice is hereby given that Plaintiffs, Herbert Burkart and Tanja Burkart; and, Scott E.
Stafne of Stafue Law Finn hereby amend their civil appeal to the United States Court of
Appeals for the Ninth Circuit to include the attached Order Dismissing Case For Failure to
Prosecute, Docket No. 22 entered in this action on October 30, 2012.
DATED this 31st day of October, 2012 at Arlington, Washington.
NOTICE OF CIVIL APPEAL - 1
o
STAFNE LAW FIRM
s/ Scott E. Stafue
Scott E. Stafue, WSBA #6964
Stafue Law Finn
239 N. Olympic Ave.
Arlington, W A 98223
Phone: (360) 403-8700
Fax: (360) 386-4005
scott.stafue@stafuelawfinn.com
STAFNE LAW FIRM
239 NORTH OLYMPIC AVENUE
ARLINGTON, WA 98223
TEL.
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I hereby certify that on October 31st, 2012, I caused to be presented the foregoing with the
Clerk of the Court for filing and uploading to the CMlECF system which will send notification
of such filing to the following individuals:
John S. Devlin, III: devlinj@lanepowell.com
Andrew Gordon Yates; yatesa@lanepowell.com
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sl Scott E. Stafne
Scott E. Stafue, WSBA #6964
Stafue Law Finn
STAFNE LAW FIRM
ARLINGTON, WA 98223
TEL. 36D.403.B700
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Case 2: ll-cv-01921-RAJ Document 20 Filed 10/25/12 Page 1 of 2
AT SEATTLE
HERBERT BURKART, et aI.,
Plaintiffs,
vs,
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC., et al.,
Defendants.
NO. 2: ll-cv-01921 RAJ
NOTICE OF CIVIL APPEAL
Notice is hereby given that Plaintiffs, Herbert Burkart and Tanja Burkart; and, Scott E.
Stafne of Stafne Law Firm appeal to the United States Court of Appeals for the Ninth Circuit
from: Order on Motion to Dismiss, Docket No. 18 entered in this action on September 28,
2012.
DATED this 25th day of October, 2012 at Arlington, Washington.
D
STAFNE LAW FIRM
sf Scott E. Stafne
Scott E. Stafne, WSBA #6964
Stafne Law Firm
239 N. Olympic Ave.
Phone: (360) 403-8700
Fax: (360) 386-4005
scott.stafne@stafnelawfirm.com
STAFNE LAW FIRM
ARLINGTON, WA 98U3
TEL,360.403.8700
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I hereby certify that on October 25th, 2012, I caused to be presented the foregoing with the
Clerk of the Court for filing and uploading to the CMIECF system which will send notification
of such filing to the following individuals:
John S. Devlin, III: devlinj@lanepowell.com
Andrew Gordon Yates: yatesa@lanepowell.com
D
s/ Scott E. Stafne
Scott E. Stafne, WSBA #6964
Stafne Law Firm
STAFNE LAW FIRM
ARLINGTON. WA 98223
TEL. 360.403.8700
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THE HON. RICHARD A. JONES
FOR THE WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
HERBERT BURKART, individually,
T ANJA M. BURKART, individually and
the marital community thereof,
Plaintiffs,
v.
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC., a
Delaware corporation; LINDA GREEN
DOES 1-10, unknown persons; BAC
HOME LOANS SERVICING, LP, a
foreign corporation; BANK OF
AMERICA, N.A., a national bank;
BANK OF AMERICA CORPORATION,
a Delaware corporation;
COUNTRYWIDE FINANCIAL
CORPORATION, a Delaware
corporation; COUNTRYWIDE HOME
LOANS, INC, a New York corporation,
Defendants.
NO. 2:11-cv-01921-RAJ
FEDERAL COMPLAINT FOR
DAMAGES, DECLARATORY,
INJUNCTNE RELIEF AND TO
QUIET TITLE
DEMAND FOR JURY
I. NATURE OF ACTION
1.1. On or about February 27, 2007, Plaintiffs HERBERT BURKART and TANYA M.
BURKART ("Burkarts") signed a Promissory Note with Global Advisory Group, Inc. d/b/a
COMPLAINT - I
D
STAFNE LAW FIRM
239 NOIUH OLYMPIA AVENUE
ARLINGTON. WA 9Sll3
TeL. 360.403.8700 'STAFMELAw.'k .... eo ...
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Mortgage Advisory Group (Exhibit 1) ("Global Advisory"). On that same date the Burkarts
signed a Deed of Trust in favor of defendant Mortgage Electronic Registration System, Inc.
more commonly known as MERS
1
or MERSCORP as security for the loan evidenced by
Exhibit 1. (Burkarts' Deed of Trust is attached hereto as Exhibit 2).
1.2. The real property, which is the subject of MERS Deed of Trust at issue in this
lawsuit (Exhibit 2), is commonly known as: 127 Glacier Peak Drive, Camano Island, WA
98282, assessors tax parcel no. S6263-00-00018-0, legal description of:
LOT 18, OF CAMANO HILLS P.R.D. 001190 DIVISION NO.1,
ACCORDING TO THE PLAT THEREOF RECORDED IN VOLUME 1 OF
PLANNED RESIDENTIAL DEVELOPMENTS, PAGES 19-26,
INCLUSIVE, RECORDS OF ISLAND COUNTY, WASHINGTON.
(hereafter referred to as the "Burkart's Property").
A. Securitization practice renders Deed of Trust
unenforceable by the Defendants
1.3. As was the practice at that time, shortly after February 27, 2007, the Burkarts'
Promissory Note was securitized and sold to investors as part of a multi-purpose scheme. As
I What is MERS?
MERS is a private corporation that administers the MERS System, a national electronic
registry that tracks the transfer of ownership interests and servicing rights in mortgage loans.
Through the MERS System, !tIERS becomes the mortgagee of record for participating
members through assignment of the members' interests to MERS. MERS is listed as the
grantee in the official records maintained at county register of deeds offices. The lenders
retain the promissory n o t e . ~ as well as the servicing rights to the mortgages. The lenders can
then sell these interests to investors without having to record the transaction in the public
record. MERS is compensated for its services through fees charged to participating MERS
members. [ .. .it has been argued that] In attempting to circumvent the statutory registration
requirement for notice, MERS creates a system in which the public has no notice of who holds
the obligation on a mortgage.
Mortgage Elec. Reg. Sys .. Inc. v. Nebraska Depart. of Banking, 270 Neb. 529, 530, 704 N.W.2d 784 (2005).
MERS is a provider of online databases and purports to "eliminate paper assignments". At the time this
complaint was filed, the legality of MERS's is currently on review in our State Supreme Court. See Ball v.
Metropolitan Mortgage Group Inc .. et aI., Supreme Court No. 86206-1; see also, Selkowitz v. Litton Loan
Servicing, LP, et aI., Supreme Court No. 86207-9.
COMPLAINT - 2
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239 NORTH OLYMPIA AVENUE
ARLINGTON. WA 98223
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Case 2: 11-cv-01921-RAJ Document 10 Filed 12/16/11 Page 3 of 57
are more fully set forth herein, Burkarts allege that the actions taken to securitize the
Burkarts' mortgage caused the MERS Deed of Trust to become void, invalid and
unenforceable.
B. Who or what entity is the holder in due course of the promissory note?
1.4. As was also the practice at the time, the rights to the Global Advisory's promise of
payments stemming from Burkart's Note was severed and transferred one or more times to
different parties. Burkarts admit they signed Exhibit 1 and will by abide by its terms if and
when they, or Defendants, can locate, and this Court can declare, the current owner or holder-
in-due-course of the Global Advisory Promissory Note.
C. Practices part of illicit scheme and enterprise by mortgage lending, securitization,
servicing and foreclosure industries.
1.5. Burkarts allege that Defendants, along with many others persons and entities in the
residential real estate lending, servicing, documentation, securitization, and foreclosure
industries, operated an enterprise-in-fact which engaged in unlawful practices in many of their
dealings with the Burkarts and most other homeowners in the United States and Washington
State. These activities and enterprises were and are in violation of a myriad of federal statutes,
Washington statutes, common law causes of action, equitable doctrines, and predicate acts
under RIC0
2
and Washington's Criminal Profiteering Act, as will be more fully set forth
herein.
1.6. The Burkarts allege that from approximately 2004 until today, these
23 aforementioned industries were, and still are, engaged in a broad range of unfair, deceptive,
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2 Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. 1962 et. al.
COMPLAlNT - 3
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ARLINGTON, WA 98223
TEe. 3 6 0 ~ 0 3 8 7 0 0 InAfNELAWflRM,COM
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and criminal practices that have injured U.S. and Washington consumers, including the
2
Burkarts.
3 1.7. Taken together and separately, Defendants' practices have resulted in an explosion
4
of foreclosures in the United States. These foreclosures have had a devastating impact on
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homeowners, communities, and the economy; stripping homeowners of their assets (including
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those who do not have loans originated or serviced by Defendants, but whose property values
7
8
have fallen dramatically), dislocating families, blighting neighborhoods, and deeply
9
disrupting the housing markets. See, e.g., Ctr. for Responsible Lending, The Cost of Bad
10 Lending in Nevada (Sept. 7, 2010), http://www.responsiblelending.orglmortgage-
11 lendingltools-resources/factsheetsl (last visited Oct. 24, 2011) (select "Washington")
12
(estimating total loss of home equity wealth in Washington due to nearby foreclosures at 19.5
13
billion for 2009-2012); (select "Nevada") (estimating total loss of home equity wealth in
14
Nevada due to nearby foreclosures at $54.4 billion for 2009-2012); (select "Florida")
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(estimating total loss of home equity wealth in Florida due to nearby foreclosures at $331.3
17
billion for 2009-2012).
18
1.8. Burkarts and others have been injured by the toxic home lending practices
19 identified above, as well as, by other acts or failures to act, as are more fully set forth herein.
3
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3 The allegations set forth in this section of the complaint, particularly with regard 10 the unfair and deceptive
practices alleged are supported by 1.) Complaint on behalf of Federal Housing Finance Agency as Conservator
for the Federal Mortgage Association and Federal Home Loan Mortgage Corporation (hereafter FHF A)
v. Bank of America Corporation (filed September 2,2011); (attached as exhibit 3) Complaints on behalf of
FHFA against: Ally Financial Inc. flk/a GMAC, LLC, Barclays Bank PLC, Countrywide Financial
Corporation, Credit Suisse Holdings (USA), Inc., Deutsche Bank AG, First Horizon National Corporation,
Goldman Sachs & Co., HSBC North America Holdings, Inc., G.E. Electric, Merrill Lynch & Co.; First Franklin
Financial Corp.; Morgan Stanley; Nomura Holding America Inc.; The Royal Bank of Scotland Group PLC; 1.P.
Morgan Chase, and Societe Generale (filed on September 2,2010) (Not attached as exhibits, but available upon
request; Complaint in State of Washington v. Countrywide Financial Corporation. et. aI., Superior Court of
Thurston County, Cause no. 09-2-01690-6 (attached as exhibit 4); Complaint in State of Washington v Recon
Trust, King County Superior Court No. 11-2-26867-5; (attached as exhibit 5); Second amended complaint in
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ARLINGTON. WA 98223
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1.9. In summary, Burkarts seek adjudication as to the ownership of the Global Advisory
Promissory Note. Burkarts do not agree that the rights to enforce the MERS Deed of Trust,
upon default of this promissory note, are held by any of these Defendants. Burkarts ask this
Court to declare that Burkart's real property is not subject to the MERS deed of trust for the
reasons stated herein. Further, Burkarts ask this Court to declare Defendants had no right to
demand payments from Burkarts upon threat of foreclosure based on the MERS deed of trust.
1.10. And, Burkarts also ask this Court to grant all legal and equitable relief to which
they may be entitled.
II. THE PARTIES
2.1. Plaintiff(s) Burkarts are residents of the State of Washington.
2.2. Defendant MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.
(hereafter referred to as "MERS") is incorporated under the laws of Delaware. Under the
MERS Deed of Trust, MERS purports to be the Grantee, the beneficiary and (if necessary) the
legal owner of the MERS Deed of Trust (Exhibit 2).
2.3.
Each of the following additional Defendants, either on their own or through their
relationship with the other named Defendants, engaged in an associated-in-fact enterprise
with MERS and other members of the industry whereby they claimed to have ownership,
servicing, and foreclosure rights under Wash. Rev. Code 61.24 et. seq. when in fact these
Defendants did not and do not have any such rights. Defendants used these claims to threaten
State of Nevada y. Bank of America Co[poration, et. a!. (attached as exhibit 6); Complaint in American Home
Mortgage Servicing, Inc, v .. Lender Processing Servicell. Inc., and Doc", LtC (attached as exhibit 7); Complaint
in Commonwealth of Massachusetts v. Bank of America, 11-4363 (attached as Exhibit 8); Delaware v. MERS,
(attached as Exhibit 9).
COMPLAINT - 5
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ARLINGTON. WA 98223
TEL. 360.403.8100 'STAFNELAWFIRM.COM
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and extort money and perfonnances from the Burkarts to which these Defendants were not
legally entitled.
2.4. Defendant BAC HOME LOANS SERVICING, LP (hereafter "BAC Home Loans")
is a "Servicer" and a debt collector as defined by 15 U.S.C. 1692 et. seq. Based on
infonnation and belief, Burkarts allege that at the time the original state court complaint in
this action was served on BAC Home Loans, BAC Homes Loans was a Texas Corporation
with its principal place of business in Texas, which was merged, on July 1,2011, with Bank
of America, N.A. or at some point became a wholly owned subsidiary of Bank of America,
N.A. Based on infonnation and belief, BAC Home Loans was doing business in the State of
Washington. Burkarts have other knowledge and belief that BAC Home Loans now claims its
principle place of business is 4500 Park Granada, in Calabasas, California 91302.
2.5. Defendant BANK OF AMERICA, N.A. ("BofA BANK"), is a national bank, with
its principal place of business located in Charlotte, North Carolina. BofA BANK is a wholly-
owned subsidiary of Bank of America Corporation. BofA BANK is the parent of BAC Home
Loans. At all times material to this Complaint, BOfA BANK was doing business in Island
County, Washington.
2.6. Defendant BANK OF AMERICA CORPORATION ("BofA CORP") is a foreign
corporation that is incorporated in Delaware, with its principal place of business located in
Charlotte, North Carolina. At aU times material to this Complaint, BOfA CORP was doing
business in Island County, Washington. BofA CORP is the parent corporation of BofA Bank
and a successor in interest to Countrywide Financial. Defendants BofA CORP, BofA BANK,
BAC Home Loans and their agents, subsidiaries are hereafter collectively referred to as "Bank
of America."
COMPLAINT - 6
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ARLINGTON, WA 98223
TEL. 3 6 0 ~ 0 3 8 7 0 0 ISTA'''ELAW.'RM.COH
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2.7. Defendant COUNTRYWIDE FINANCIAL CORPORATION is a Delaware
Corporation and thrift holding company doing business in Washington.
2.8. Defendant COUNTRYWIDE HOME LOANS, INC. is a New York corporation,
which was a wholly owned subsidiary of Countrywide Financial Corporation, licensed to do
business in Washington, and was a licensed mortgage banking organization.
2.9. Defendants COUNTRYWIDE FINANCIAL CORPORATION and
COUNTRYWIDE HOME LOANS, INC (collectively referred to as "Countrywide") were
acquired by Bank of America in 2008.
2.9.1. On July 1, 2008, Bank of America completed its purchase of Countrywide in
an all-stock transaction that Bank of America described as a merger. Former
Countrywide shareholders were compensated with shares of a Bank of America
subsidiary that was created solely for this transaction.
2.9.2. Since Countrywide'S acquisition, Bank of America has taken over servicing
loans previously serviced by Countrywide, along with its own servicing portfolio.
Former Countrywide customers now use Bank of America customer service resources,
including Bank of America service centers and website (to which they are redirected
from Countrywide's website). Former Countrywide customers, like the Burkarts, receive
mortgage statements from Bank of America, pay their mortgage payments to Bank of
America, and apply to Bank of America if they wish to modify their mortgages. The
combined mortgage lending operations of Bank of America and Countrywide, including
Countrywide's branch network and originating platform now operate under the name
Bank of America Home Loans. On information and belief, the servicing operations of
Bank of America and Countrywide became Defendant BAC Home Loans Servicing, LP.
COMPLAINT - 7
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STAFNE LAW FIRM
ARLINGTON. WA 98223
TEL. /STAFNELAWFIRM.COM
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2.9.3. As part of the merger, Bank of America assumed Countrywide's liabilities.
2
For example, Bank of America agreed on Countrywide's behalf, to modifY certain
3 Countrywide home loans as a part of an $8.4 billion consumer fraud settlement with the
4
state attorney general.
5
2.9.4. Countrywide was completely integrated into Bank of America and has
6
virtually ceased to exist; i.e.: in November 2008, Countrywide's assets were transferred
7
to Bank of America and Countrywide's assets and liabilities are reported on Bank of
8
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America's financial statements.
10
2.10. Based on infonnation and belief Burkarts allege that Defendants LINDA GREEN
11
DOEs 1-10
4
are unknown persons acting as robo-signers, i.e., persons who were acting
12
without authority and/or sufficient personal knowledge of transactions to notarize or transact a
13
legal transaction related to the Note and/or Deed of Trust LINDA GREEN DOEs 1-10 are
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expected to be identified during discovery.
15
2.11.
The banking industry defendants and MERS have been the target of numerous
16
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lawsuits occurring as a result of a pattern of activities. In perfonning their CR 11 duties,
18 Burkarts Counsel has researched many law review artic1es
5
, white papers
6
, cases?, and on-
19
20 4 Linda Green is the name of a fictitious bank officer who was represented to have signed numerous legal
documents necessary for foreclosure of thousands of homes. CBS 60 Minutes exposed that the signatures relied
21 upon by courts in awarding to banks were forged by someone claiming to be Linda Green and then notarized by
persons who were not notaries.
22 5 See e.g., Mary Spector, Debts, Defaults and Details: Exploring the Impact of Debt C.ollectlon Litigation on
Consumers and Courts, 6 Va. L. & Bus. Rev. 257 (Fall 2011); Peter Linzer & Donna L. Huffman, Restitution
23 RoUout: The Restatement (Third) of Restitution & Unjust Enrichment: Uniust Impoverishment: Using
Restitution Reasoning in Todey's Mortgage Crisis, 68 Wash & Lee L. Rev. 949 (Fall 2011); David P. Weber,
24 The Magic of the Mortgage Electronic Registration Svstem: It Is and It Isntt, 85 Am. Bankr. L.J. 239 (Summer
2011); Timothy A. Froehle, Standing in the Wake of the Foreelosure Crisis: Why Procedural Requirements M
25 Necessary To Prevent Further Loss to Homeovmers, 96 Iowa L. Rev. 1719 (July 2011); Christopher J. DeCosta,
US Bank v. Ibanez; nle Mortgage Industrv's Documentation Practices in Focus, 55 B.RI. 23 (Spring 2011);
Nolan Robinson, The Case Against Allowing Mortgage Electronic Registration Systems, Inc. (MERS) to Initiate
Foreclosure Proceedings, 32 Cardozo L. Rev. 1621 (March 2011).
COMPLAINT - 8
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ARLINGTON, WA 98223
TEL. 360 . 03.8700 ISTAFNflAWFIRM.COM
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going litigation. This complaint is based, in part, on that research and specifically on several
ongoing complaints filed by government officials against the Defendants cited herein. These
complaints, which are attached as Exhibits hereto and incorporated by reference herein,
include:
Exhibit 3: Complaint in Federal National Mortgage Association and Federal Home Loan
Mortgage Corporation (hereafter FHFA) v. Bank of America Corporation, U.S. Dist. ct.
S.D.N.Y. No ll-CV-6195 (filed September 2, 2011);
Exhibit 4: Complaint in State of Washington v. Countrywide Financial Corporation, et.
al., Super. Ct. Wash. (Thurston County), No. 09-2-01690-6 (July 10, 2009);
Exhibit 5: Complaint in State of Washington v. Recon Trust, Super. Ct. Wash. (King
County), No. 11-2-26867-5 (August 5, 2011);
Exhibit 6: Second Amended Complaint in State of Nevada v. Bank of America
Corporation, et. al., Dist. Ct. Nev. No. A-10-6315557-B (December 17,2010);
Exhibit 7: Complaint in American Home Mortgage Servicing, Inc. v. Lender Processing
Services, Inc., and Docx, LLC, U.S. Dist. Ct. Tex. No. 11-10440 (August 23,2011);
Exhibit 8: Complaint in Massachusetts v. Bank of America. Commw. Ct. Mass. No. 11-
4363 (December 1,2011);
Exhibit 9: Complaint in State of Delaware v. MERS, Ch. Del. [Case No. Forthcoming]
(October 27,2011); and,
6 Elizabeth Renuart, Property Title Problems in Non-Judicial Foreclosure States: The Ibanez Time Bomb?
Albany Law School Research Paper No. 38 of2011-2012. Available at http://papers.ssm.com!so13/papers.cfm?
abstracUd= 1968504 (last visited Dec. 16, 2011); Roy Oppenheim & Jaqueline Trask, Black Magic of
Trusts: How Mortgage-Backed Securitization Pmcess is Hurting Banking Industry's Abilitv to
Foreclose, Providing Best Offense for a Foreclosure Defense Oppenheim Law at http://www.oppenheimlaw.com
Ipress-releases.php?new_id=110 (last visited Dec. 16.,2011).
7 The legitimacy of MERS as a beneficiary in Washington is an open in Washington. See Note 1 Supra.
Burkarts' case raises many legal issues which will not be resolved in the issue raised in Bain and Selkowitz
cases. It is important to note (although most courts do not) that there many variations of boilerplate mortgage
and deed of trust forms involving MERS as the forms have evolved over time. While older cases tended to
rubberstamp non-judicial foreclosures, there has been a trend recently to look more closely at the facts of each
case before allowing homeowners to be dispossessed of their homes. See e.g .. U.S. Bank National Ass'n v.
ibanez.458 Mass. 631, 941 N.E.2d 40 (Mass. 201 H; Bevilacqua v. Rodigucz, 460 Mass. 762,955 N.E.2d 884
(Mass. 2011); Pasillas v. HSBC Bank United States, 255 P.3d 1281 (Nev. 2011); c.f., Zecevic v. United States
Bank Nat'l Ass'n. 2011 N.H. Super. LEXIS 51 (N.H. Super. Ct. 2011).
COMPLAINT - 9
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ARLINGTON, WA 98223
TEL. l60.403.8700 ISTAFNELAWFlRM.COM
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Exhibit 10: Complaint filed in Dallas County Texas v. MERSCORP, INC., et. al., CC-l1-
06571-E (September 20, 2011).
II. JURISDICITION
3.1. Defendants have removed this case to Federal Court based on alleged diversity. As
Burkarts have dismissed Global Advisory Group, Inc., a Washington corporation, as a
defendant the Burkarts agree this Court has diversity jurisdiction. 28 U.S.C. 1332. This
Court also has federal question jurisdiction pursuant to Burkarts new claims invoking federal
laws. 28 U.S.C. 1331. Venue is appropriate in the state of Washington as this case involves
real property located in the State of Washington and Defendants have chosen to remove this
action pursuant to the venue of this Court.
3.2. The Burkarts have chosen to submit this complaint because, in part, federal
pleading standards differ from the pleading standards used in Washington Courts.
III. STATEMENT OF FACTS
4.1. Burkarts incorporate all preceding paragraphs of this complaint as if they were set
forth herein.
A. Factual Allegations Related to Burkarts' Note and Deed of Trust
i. Origination of Note and Deed of Trust.
4.2. On or about February 2007, Burkarts sought a loan from Global Advisory. Global
Advisory advised andlor encouraged the Burkarts to intentionally withhold certain
information related to their income, debts and/or other financials while applying for a stated
income loan, to result in approval of the loan. Defendants Countrywide were aware that loan
originators and borrowers, like Global Advisory and Burkarts, were being advised to
exaggerate or misstate information on loan applications in order for the originator to make a
loan, which Countywide could acquire, and then buy and sell on secondary markets.
COMPLAINT - 10
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STAFNE LAW FIRM
ARLINGTON. WA 98223
TEL. l4lM03.1I100 In", .,ElAWF1R14.CO"
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4.3. On February 22, 2007, Burkarts signed an "Interest Only ADJUSTABLE RATE
NOTE" (exhibit 1), with a principal of $600,000, 6.125% introductory rate, and initial
monthly payments set at $3,062.50.
4.4. On information and belief, the type of loan offered andlor marketed to the Burkarts
by defendant Global Advisory Group was done so because: (1) it generated artificially lower
monthly payments, which allowed Lender to reach less financially stable customers, and
increase the Lender's loan volume; (2) it allowed the Lender and its successors or assigns to
charge consumers higher fees; andlor, (3) it included features that generated a higher rate of
return in the MERS secondary market for what were alleged to be "mortgage backed
securities" (MBS).
4.5. The MERS Deed of Trust (exhibit 2) was executed on February 22, 2007 as
security for the payment of the Global Advisory Note (exhibit 1).
ii. Transfer of Note and/or Deed of Trust
4.6. On information and belief, MERS never possessed or owned Global Advisory's
Note (exhibit 1).
4.7. On information and belief, MERS was established on or about 1993 by members of
the mortgage banking industry so as to create a centralized document custodial system
through which mortgages can be easily transferred between members without having to
record or pay county filing fees for such assignments. MERS' database system was used by
one or more MERS Members as a secondary market which transacted full or partial interest
transfers of interests in the Burkarts' Note andl or Deed of Trust without any notice ever being
provided to the Burkarts, the public, or otber parties with interest in the Note andlor MERS
Deed of Trust.
COMPLAINT - II
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STAFNE LAW FIRM
ARLINGTON, WA 98223
TEL. 360 .. 403.8100 ISTAfNELAWFIRM.CQ,..
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4.7.1. Based on infonnation and belief the Burkarts' MERS Deed of Trust (exhibit
2) went into the MERS database system for various purposes. One purpose was to
conceal transactions of beneficial and contingent interests in the Burkarts' Property8.
4.7.2. The Burkarts' Note, and other notes, were traded by two or more unknown
entities who gathered an unknown number of notes together into pools to create a
mortgage backed security; one or more unknown entities were appointed to serve as
trustees of the Burkarts' pool which included the Burkarts; and one or more unknown
entities underwrote the sale of that security to investors who purchased certificates or
shares of the investment. Figure 1 is provided for demonstrative purposes illustrating
MERS transactions. It is also attached hereto as exhibit 11.
Figure 1
8 Another purpose fur MERS was to avoid state recordation laws and fees. See e.g., Dallas Complaint against
MERS (Exhibit 10) and State of Delaware Complaint against MERS (Exhibit 9).
COMPLAINT - 12
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4.7.3. Based on information and belief each of the Defendants participated in the
2
various types of transactions identified by Figure 1 through the use of fraudulent robo-
3 signing tactics by Defendants Linda Green Does 1-10.
9
4
4.7.4. Based on infonnation and belief, the Burkarts' pool was marketed,
5
represented, andlor sold to investors pursuant to the premise, among others, that the
6
notes were secured by agreements that allow servicers, like the Defendants, to
7
foreclose on homes if money was not paid to servicers.
8
9
4.7.5. None of the Defendants own the Global Advisory Promissory Note in their
10
own right or were entitled to collect the proceeds of the note.
11 4.7.6. None of the Defendants are entitled to foreclose on Burkarts' property based
12
on the MERS deed of trust.
13
4.8. Shortly after execution of the Deed of Trust, Burkarts were told that their loan
14
and/or the servicing rights were transferred to Defendants Countrywide.
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4.9. Subsequently, the Notes servicing rights were purportedly transferred to BAC
17
Home Loans Servicing, LP.
18
4.10. On information and belief, MERS is not an agent for each person with a full or
19 partial interest in either the Note or Deed of Trust.
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4.11. Based on information and belief the Note was never properly endorsed by Global
Advisory to some or all subsequent holders of the instrument. In the alternative, on
infonnation and belief, any signature in support of the transfer of the Note was made by
9 As previously explained the term robo-signing describes the process of the mass production of false, forged,
and/or not appropriately authenticated legal documents related to home foreclosures and other legal matters
having to do with the lending practices identified in this complaint. Robo-signing also includes notary fraud
wherein the notaries notarize the affidavits and signatures of so-called robo-signers before or after the robo-
signers actually submit affidavits and sign documents.
COMPLAINT - 13
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ARLINGTON, WA 98223
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Defendants Linda Green Does 1-10 who endorsed many documents without authority or
sufficient knowledge of the transaction.
iii. Servicing Related to Burkart's Deed of Trust.
4.12. The unfair and deceptive practice of promising homeowner's modification of their
loans, while at the same time moving toward or threatening to foreclose on a home is known
as "dual tracking".
4.13. In 2008, the Burkarts witnessed the housing market crash and realized that their
home was worth much less than the loan's balance. The Burkarts contacted Defendants
Countrywide in October 2008 to seek a loan modification.
4.13.1. Burkarts were advised by Defendant Countrywide Home Loans, Inc. that a
third party identified only as the Investor would not qualify the Burkarts for a
modification unless they became delinquent on the payments being made on the Note.
4.13.2. Burkarts questioned the Countrywide Defendants' advice of stopping
payments, but were told the Investor would not consider a loan modification unless,
and until, the borrower was 90 days late in paying a mortgage.
4.13.3. Following Defendants advice, the Burkarts did not make three monthly
payments and accrued arrears, fines, fees and additional costs.
4.14. Burkarts then made numerous unsuccessful attempts using Defendants
Countrywide and Bank of America to obtain a loan modification. Burkarts assert these
Defendants took actions consistent with "dual tracking" the Burkarts. The Burkarts allege
these actions also constitute predicate acts and/or deceptive and unfair practices in a trade or
business. These actions included, but are not limited to those listed in Appendix 1 to this
Complaint, which is attached hereto and incorporated herein as 4.14.1 to 4.14.10 by reference.
COMPLAINT - 14
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STAFNE LAW FIRM
ARLINGTON. WA 98223
TEL. 360.403.8700 ISTAFNELAWFIRH.COH
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4.15. Based on information and belief, and in furtherance of its scheme, Bank of America
Defendants acted erratically in offering and denying the Burkarts loan modifications,
threatening foreclosure to compel acceptance of unsustainable modifications, and continued to
dual track the Burkarts. These continued actions included, but are not limited to those listed in
Appendix 2 to this Complaint, which is attached hereto and incorporated herein as 4.15.1 to
4. I 5.12 by reference.
4.16. Throughout 2009 and 2010, Bank of America Defendants and Countrywide
Defendants placed the Burkarts payments into a suspense account and did not apply the
payments to the principal. Burkarts were under the belief that such payments were being
applied to the obligation and frequently represented this belief to the Bank of America
Defendants. On information and belief, and in furtherance of its scheme, the Bank of America
Defendants withheld and/or concealed the payments being held in suspension. This practice
benefited the Defendants to the detriment of the Burkarts. After Burkarts found out about the
suspended account, they requested a payment history. It took three requests and several weeks
before the Burkarts received a reply.
iv. Notice of Intent to Accelerate
4.17. As expected, Burkarts could not afford to make continuing payments under the
modification.
4.18.
On September 18, 2011, the Burkarts received a Notice of Intent to Accelerate from
Bank of America notifYing them they (the Defendant Bank of America) would commence
with foreclosure.
COMPLAIl'.I- 15
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STAFNE LAW FIRM
239 NOR.TH OLYMPIA AVENUE
ARliNGTON. VVA 98223
TEL. 360.403.8700 ISTAFNELAWFIR"'.COM
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B. Factual Allegations Related to Defendants Conduct as an Enterprise
2
5.1. Bmkarts re-allege paragraphs 1.1 through 4.18 above as if set forth more fully
3 herein.
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5.2. Burkarts allege that from approximately 2004 until today, the Defendants named
herein together with other persons and entities in the home residential lending, securitization,
servicing, collections, and foreclosure industry, engaged in a broad range of unfair, deceptive,
and criminal practices that have injured consumers, including the Burkarts personally. These
practices include:
5.2.1. misleading marketing and sales techniques to convince persons, including the
Burkarts, to take out risky loans;
5.2.2. structuring mortgage loans that relied on deceptive terms and underwriting to
artificially lower Burkarts and other borrowers' initial loan payments;
5.2.3. employing the use of substantively and procedurally unconscionable
agreements in order to threaten the Burkarts and other homeowners, or facilitate non-
judicial foreclosures of homeowners' residences;
5.2.4. failing to follow Washington Statutes, and in particular Wash. Rev. Code
61.24. et. seq. in drafting, transacting, or enforcing the Burkarts and other borrowers'
notes andlor deeds of trust;
5.2.5. severing indivisible interests in and between the Burkarts' and other
borrowers' notes andlor deeds of trust; 10
10 While still working its way through Washington courts, bifurcation of the note or obligation instrument from
mortgage or deed of trust interest has been analyzed by other jurisdictions:
The practical effect of splitting the deed of trust from the promissory note is to make it
impossible for the holder of the note to foreclose, unless the holder of the deed of trust is the
COMPLAINT - 16
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STAFNE LAW FIRM
ARLINGTON, WA 98123
TEL. 360.403 .8700 /STAFNELAWFIRM.COM
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5.2.6. breaching material provisions of the plaintiffs and other borrowers' deeds of
trust and/or notes;
5.2.7. misrepresenting to investors of mortgage-backed securities the characteristics
of the mortgage, and therefore the riskiness, and fallacious financial figures for the
security's asset pool, including the Burkarts' pool;
5.2.8. taking undisclosed kickbacks from inflated insurance payments borrowers and
the Burkarts were required to pay under the note and/or deed of trust;
5.2.9. utilizing MERS11 as a centralized document custodial system through which
mortgages can be easily transferred between members without having to record or pay
county filing fees for such assignments;
5.2.10. preventing borrowers including the Burkarts, and other parties, from knowing
the identity of those beneficiaries who were the holders of notes purportedly secured
by deeds of trust, excluding those notes which were held for other purposes;
agent of the holder of the note. [Citation omitted.] Without the agency relationship, the person
holding only the note lacks the power to foreclose in the event of default. The person holding
only the deed of trust will never experience default because only the holder of the note is
entitled to payment of the underlying obligation. [Citation omitted.] The mortgage loan
becomes ineffectual when the note holder did not also hold the deed of trust.
Landmark National Bank v. Kesler, 216 P.3d 158, 289 Kan. 528 (Kan. 2009) (Citing Bellistri v. Ocwen Loan
Servicing, LLC, 284 S.W.3d 619,623-24 (Mo. App. 2009). Bellistri found that because MERS never held the
promissory note, its assignment of the deed of trust to Ocwen separate from the note had no force. Bellistri. 284
S.W.3d at 623-24; see e.g., U.S. Bank National Association v. Christine Kimball, 2011 Vt. 81 (Vt. 2011); J.,
Mortgage Electronic RegL"tration Systems. llle. v. Nebraska Dcp't of Banking and Finance, 704 N.W.2d 784,
270 Neb. 529 (Neb. 2005); see also, U.S. Bank Natl. Assn. v. Ibanez, 458 Mass. 637, 941 N.E. 40 (2011); In re
Schwartz, No. 06-42476-MSH (U.S. Bankruptcy Ct. D. Mass. Central Division, April 7, 2011)("the fact that it
had possession of the mortgage instrument did not render Deutsche the mortgagee and thus it lacked the power
to sell the property"); MERS v. Saunders, 2010 ME 79 (Maine 20 1 O)(MERS is not in fact a mortgagee).
11 The legality of the MERS System is currently on review in our State Supreme Court. Bain v. Metropolitan
Mortgage Group InC., et. a1. Supreme Court No. 86206-1; Selkowitz v. Litton Loan Servicing, LP, et. a1.,
Supreme Court No. 86207-9.
COMPLAINT - 17
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STAFNE LAW FIRM
AAUNGTON, WA 98213
Tel. 360.403.6700 ISTAFNELAWFIRM.COM
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Case 2:11-cv-01921-RAJ Document 10 Filed 12116/11 Page 18 of 57
5.2.11. promising consumers that their loans could be modified and/or offering to
accommodate reasonable modifications, when they had no intention to perform or
accommodate the modification and/or had undisclosed fiduciary duties to other parties
which they knew or should have known would interfere with modification;
5.2.12. promising consumers that their initial "trial" modification would be made
permanent if and when they made the required payments on those plans, but then
failing to convert those modifications and keeping additional monies collected for the
trial program;
5.2.13. assuring consumers that their homes would not be foreclosed while their
requests for modifications were pending when in fact the non-judicial foreclosure was
scheduled and proceeding forward;
5.2.14. initiating or threatening foreclosures without the deed of trust's power to
transfer the grantor's real property;
5.2.15. purporting to be in possession and holders in due course of consumers
negotiable instruments, including the Burkart's note, when in fact they are not;
5.2.16. purporting to have full beneficial interest Deeds of Trust, when in fact they do
not;
5.2.17. engaging in "robo-signing" practices; 12
12 Thc term "robo-signing" describes the robotic process of the mass production of false and forged execution of
mortgage assignments, endorsement's, satisfactions, affidavits, and other legal documents related to mortgage
foreclosures and legal matters being created by persons without knowledge of the facts being attested to. It also
includes accusations of notary fraud wherein the notaries notarize the affidavits and signatures of so-called robo-
signers before or after the robo-signers actually submit affidavits and sign documents. Robo-signing of
documents began in the late 1990s and continues today.
COMPLAINT - 18
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STAFNE LAW fIRM
ARLINGTON, WA 98223
Tn . tnAfNfi.AWfJA,M'O"
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5.2.18. misrepresenting the eligibility criteria for modifications and providing
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consumers with inaccurate and deceptive reasons for denying their requests for
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modifications;
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5.2.19. notifying consumers or credit reporting agencies that consumers were in
5
default when they were not; and
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5.2.20. offering modifications on one set of terms, but then providing them with
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agreements on different terms, or misrepresenting that consumers have been approved
8
for modifications.
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5.3. The Burkarts, like many others, have been injured by the toxic home lending
11 practices identified above, as well as, by other acts or failures to act described with greater
12
specificity below.
13
IV. CAUSES OF ACTION
14
A. THE MERS DEED OF TRUST IS NOT A VALID SECURITY FOR GLOBAL
15 ADVISORY GROUP'S PROMISSORY NOTE
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6.1. Burkarts re-allege paragraphs 1.1 through 5.3 above as if set forth more fully
herein.
6.2. There is no evidence that Global Advisory Group endorsed the Note to anyone. If it
Global Advisory Group did endorse the note, there is no proof that the deed of trust was
properly assigned to the new purported holder-in-due-course, commonly referred to by
Defendants as "Investor".
6.3. On information and belief, the Global Advisory loan was registered on the SEC as
a Real Estate Mortgage Investment Conduit (REMIC) Trust and became a Special Purpose
Vehicle (SPY) for the purpose of tax exemption.
COMPLAINT - 19
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STAFNE LAW FIRM
ARLINGTON. WA 98223
TEL. 360.403.8700 ISTAFNELAWFIRM.COM
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6.4. REMICs are investment vehicles that hold commercial and residential mortgages in
2
trust and issues securities representing an undivided interest in these mortgages.
3
6.5. Normally, the Trustee of a Trust has the power and responsibility to administer the
4 assets of the Trust but in the case of a REMIC no such power exists.
5
6.6.
Once the REMIC containing Burkarts' loan was formed, the loan was converted
6
into a security owned by thousands of shareholders throughout the world and was traded on
7
Wall Street.
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6.7. At that point, the state of Global Advisory Group's loan changed and was
10
converted forevermore into a stock.
11 6.8.
Once Global Advisory Group's loan was securitized and converted the loan, it
12
forever lost its security.
13
6.9. Since the loan was sold and securitized into stock, Global Advisory Group could
14
not and cannot claim that it owns the loan. This particular practice is often referred to as
15
"Double Dipping" and is an obvious and more common form of securities fraud.
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6.10.
A negotiable instrument can only be in one of two states after undergoing
18 securitization, not both at the same time. It can either be a loan or a stock.
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6.11. Once the instrument is traded as a stock, it is forever a stock and therefore
regulated, as this loan was, by the SEC.
6.12. The Promissory Note, by conversion into stock, was extinguished as a
collateralized asset and therefore the Deed of Trust secures absolutely nothing and cannot be
assigned and used for purposes of foreclosing upon the Burkarts' home. Exhibit 9: Delaware
v. MERS, 25:32-92:192.
COMPLAINT - 20
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STAFNE LAW FIRM
ARliNGTON, WA 96223
TEL, 360,403.8100 /STAFNELAWFIRM.COM
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6.13. Since Defendant Global Advisory sold the loan, which became an REMIC, it
2
forever lost the ability to enforce, control or otherwise foreclose on Burkart's Property,
3 including the right to assign the Mortgage or endorse the Note.
4
6.14.
If the trustee owned the note it would be taxed on the interest earned from the Note.
5
If the REMIC owned the Note it would have a tax liability. To avoid double taxation, under
6
Internal Revenue Code 860, the loan was put into an SPV so that only shareholders are taxed
7
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and therefore are the real parties in interest. By distributing the tax liabilities to the
9
shareholders, the REMIC has also distributed the parties in interest.
10
6.15. A promissory note is only enforceable in its whole entirety and the shareholders
11 own the subject Note, while not one of them can foreclose on Burkarts' Property.
12
6.16. The asset of the REMIC was registered and traded as a part of a security and as
13
such cannot be traded out and is permanently attached and converted into stock preventing the
14
Note from being assigned and securitized again and again. To do so would constitute
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securities fraud.
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6.17. After securitization, the Note cannot be re-attached to the Mortgage through
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6.18. Under the UCC, as adopted in Washington, the Promissory Note is a one-of-a-kind
instrument and any assignment must be a permanent fixture onto the original Note much like
a check.
6.19. On information and belief, there is no endorsement on the original Note; and all of
the above mentioned Defendants are not owed any money by the Burkarts based on Global
Advisory Group's Promissory Note.
COMPLATh"'T - 21
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STAFNE LAW FIRM
ARLINGTON. WA 98123
TEL. 3 6 0 ~ 0 3 8 7 0 0 /STAFNELAWFIRH.COM
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B. THE MERS DEED OF TRUST BOILERPLATE AGREEMENT IS NOT
CONSISTENT WITH WASHINGTON'S DEED OF TRUST ACT AND DEFENDANTS
HAVE FAILED TO SUBSTANTIALLY COMPLY WITH EITHER THE MERS DEED
OF TRUST OR THE DEED OF TRUST STATUTE
herein.
7.2. Under Washington law, a deed of trust is a security agreement involving three
parties: (i) the borrower or grantor; (ii) the lender or beneficiary; and (iii) the trustee. See
Wash. Rev. Code 61.24.005(2), (3), (6), & (13).
7.3. Under Washington law the requirements of the Deed of Trust Act are to be strictly
construed and followed.
7.4. Washington's Deed of Trust Statute defines "Beneficiary" to mean "the holder of
the instrument or document evidencing the obligations secured by the deed of trust, excluding
persons holding the same as security for a different obligation." Wash. Rev. Code 61.24.005
7.5. A REMIC owns the note for purposes of pooling indebtedness, not for securing
payments pursuant to MERS Deed of Trust.
7.6. Under the terms of Washington's statute the trustee named in the Deed of Trust is
given the legal title to the grantor's real property. By correlation, "the beneficiary" of the
Deed of Trust holds an equitable interest in the title to the grantor's real property. The
Washington legislature defines beneficiary "as the holder of the instrument or document
evidence the obligations secured by the deed oftrust...." Wash. Rev. Code 61.24.005. lfthe
grantor of the deed of trust does not make his payments on time the beneficiary can instruct
the Trustee named in the deed of trust to foreclose on the title pursuant to the tenns of the
deed of trust statute.
COMPLAINT - 22
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STAFNE LAW FIRM
239 NORTH OLYMPIA AYENUE
ARUNGTON. WA 98223
TEL. 360.403.8700 fSTAFNELAWFIRM.COM
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7.7. The Burkarts' Deed of Trust contains Boilerplate language associated with a
"WASHINGTON--Single Family FannieMae/FreddyMac Unifonn Instrument-MERS Fonn
3048 1101 (02/01107)" (MERS Deed of Trust). This language was designed by Defendants
and others as part of an associated in-fact enterprise so as to be inconsistent with the will of
the Washington legislature and Executive Branch as expressed in the provisions of Wash.
Rev. Code 61.24 et. seq. The purposes of Defendants' association-in-fact enterprise were to,
and are, among other things: a.) defraud the Burkarts into believing they owed monies to one
or more of the Defendants; b.) defraud the Burkarts into believing that the Defendants and
their agents had the legal right to foreclose on their home (when no defendant or their agent
owned the note and/or the deed of trust and which is not a requirement of Chapter 64.21
RCW); c.) defraud the Burkarts into believing that tbe Defendants had any such right to
foreclosure pursuant to Wash. Rev. Code 61.24 et. seq.; d.) defraud the Burkarts into
believing that one or more of the Defendants had the legal right to modify the terms of the
Global Advisory Note (when this note was not owned by any of the Defendants);
and, e.) defraud the Burkarts with regard to the use of instrumentalities of the United States
(mail and wire) on more than three occasions by ways set forth herein.
7.8.
Instead offollowing the provisions of Wash. Rev. Code 61.24 et. seq., the MERS
Deed of Trust purports to give legal interest of the security agreement to MERS. In this
regard, Burkarts' Deed of Trust states:
Borrower understands and agrees that MERS holds only legal title to the
interests granted by Borrower in this Security Instrument, but, if necessary to
comply with law or custom, MERS (as nominee for Lender and Lender's
successors and assigns) has the right: to exercise any or all of those interests,
including, but not limited to, the right to foreclose and sell the property; and to
take any action required of Lender including, but not limited to, releasing and
canceling this Security Instrument.
COMPLAINT - 23
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ARLINGTON, WA 98223
TEL. JSTAFNELAWFIRM.COM
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7.9. The MERS Deed of Trust also purports to give beneficial interest as indicated in
the Deed of Trust to MERS:
The beneficiary of this Security Instrument is MERS (solely as nominee for
Lender and Lender's successors and assigns) and the successors and assigns of
MERS. This Security Instrument secures to Lender: (i) the repayment of the'
Loan, and all renewals, extensions and modifications of the Note; and (ii) the
performance of the Borrower's covenants and agreements under this Security
Instrument and the Note.
7.10. When a party owns both legal and equitable title to property, that person has full
ownership of the property. By claiming legal and equitable title to the ownership of the Deed
of Trust, MERS owns the deed oftrust, but since it has no interest in Global Advisory's Note,
it has no right to any moneys owed on that Note. In this regard the MERS Deed of Trust is a
nullity.
7.11. The legislature never intended MERS, or anyone who never held a promissory note
for a separate security agreement, to be a holder or assignee of the Note secured by the Deed
of Trust. This provision of the boiler plate MERS deed of trust, naming MERS as the
beneficiary was intended to, and did facilitate, extorting money to be paid by the Burkarts, to
Defendants.
7.12. Because MERS never possessed the promissory note which is a condition
precedent to be a "beneficiary" under Washington's statutory definition, MERS cannot be the
beneficiary under Washington Law. By attempting to make MERS the beneficiary in
contravention of the Deed of Trust Statute and to facilitate foreclosures, MERS and
Defendants waived the security the legislature intended to provide for the holder of the Note
under Washington's Deed of Trust Statute.
- 24
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ARLINGTON, WA 982ZJ
TEL. ISTAFNELAWFfRI'1.COH
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7.13. Defendants defrauded Burkarts by claiming that one, or more of them, was a
beneficiary on the note after it was securitized while claiming to be owed money as the holder
of a void deed of trust.
7.14. Defendants used MERS to prevent the Burkarts from knowing at anyone time who
owned the Global Advisory Group note and for various criminal activities.
7.15. The MERS Deed of Trust expressly states that the Burkarts would be given notice
of the purported sale which took place inside MERS:
7.16.
The Note or a partial interest in the Note (together with this Security
Instrument) can be sold one or more times without prior notice to Borrower.
A sale might result in a change of the entity (known as the "Loan Servicer")
that collects Periodic obligations under the Note, this Security Instrument, and
Applicable Law. There also might be changes of the Loan Servicer unrelated to
a sale of the Note. [emphasis supplied].
The MERS Deed of Trust is deceptive and unfair because on a more likely than
not basis it has no discernible meaning to a consumer nor is it's meaning understandable by
those trained in the law. The Burkarts assert that the provision giving MERS both beneficial
and equitable ownership, is against public policy and violates the Deed of Trust Statute
because it purports to give MERS both legal and beneficial ownership of the security
agreement without regard to the circumstances of who holds the note; thereby giving total
power over foreclosure of the Burkarts' home to MERS andlor the servicer, not the
beneficiary contemplated by the Deed of Trust Act.
7.17. As previously stated, Burkarts' Deed of Trust defined MERS as "the beneficiary"
pursuant to a Deed of Trust written to comply with Wash. Rev. Code 61.24 et. seq., without
regard to whether MERS held the Note. This was an intentional act not to comply with Wash.
Rev. Code 61.24 et. seq.
COMPLAINT - 25
The MERS document attempts to impose many of the
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STAFNE LAW FIRM
239 NORTH OlYMPIA AVENUE
ARLINGTON, WA 98223
TEL. 360.403.8700 /STAFNELAWFIRM,COM
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beneficiary's privileges and responsibilities upon of the original Lender, Global Advisory
Group, and in most cases does not provide that these responsibilities shall follow to successor
or assigns.
7.18.
The failure to write the Deed of Trust as per the tenus of the Washington's Deed of
Trust Statute makes the Burkarts' Deed of Trust incomprehensible and therefor
unenforceable.
7.19. Any assignment of the beneficial interest from MERS is, or was, invalid under
Washington law.
7.20. Burkarts allege the Defendants failed to follow the required statutory procedure and
provisions in the MERS deed of trust when transferring a full or partial interest in the
Burkarts' deed of trust in the MERS secondary market.
7.21.
Any partial beneficial interest transfers render the Deed of Trust unenforceable.
7.22. On information and belief, any claim that MERS or any of the Defendants owns
full beneficial interest assigned from MERS is fraudulent, unfair and deceptive.
7.23. In support of Burkarts' claims in this Section Burkarts rely on the complaint of the
Massachusetts v. MERS (Exhibit 8) Section A-I, pp. 4 - 8. In this regard Burkarts would note
that, like Washington, Massachusetts is a title state which has a similar non-judicial
foreclosure process.
7.24. For purposes of establishing predicate acts pursuant to RICO and the Washington
Criminal Profiteering Act regarding the type of illegal operations set forth in this section,
Burkarts rely on their own experiences as well as those alleged in the Massachusetts
complaint at paragraphs 92 - 97 regarding the property located at 62 Fairfield Street, Revere,
COMPLAINT - 26
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Massachusetts as well as 272-274 Main Street, Oxford Massachusetts as alleged at paragraphs
98 - 102 Exhibit 8.
C. SERVICING VIOLATIONS
herein.
8.2. By statute "Individual servicing a mortgage loan" means:
a person on behalf of a lender or servicer licensed by this state, who collects or
receives payments including payments of principal, interest, escrow amounts,
and other amounts due, on existing obligations due and owing to the licensed
lender or servicer for a residential mortgage loan when the borrower is in
default, or in reasonably foreseeable likelihood of default, working with the
borrower and the licensed lender or servicer, collects data and makes decisions
necessary to modify either temporarily or permanently certain terms of those
obligations, or otherwise finalizing collection through the foreclosure process.
Wash. Rev. Code 31.04.015.
8.3.
8.4.
"Loan Servicer" and its role are defined in Burkarts' Deed of Trust as follows:
The Note or a partial interest in the Note (together with this Security
Instrument) can be sold one or more times without prior notice to Borrower. A
sale might result in a change in the entity (known as the "Loan Servicer") that
collects Periodic obligations under the Note, this Security Instrument, and
Applicable Law. There also might be changes of the Loan Servicer unrelated to
a sale of the Note.
Burkarts allege that there is no presently identifiable beneficiary to their Deed of
Trust agreement (exhibit 1) as the term "beneficiary" is defined under Washington's Deed of
Trust statute. This, and the actions of Bank of America Defendants and Countrywide
Defendants, prevented and continue to prevent, the Burkarts from negotiating or mediating a
modification of any Note secured by the Deed of Trust with the true beneficiary to the extent
any such beneficiary exists.
COMPLAINT - 27
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ARLINGTON, WA 98223
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8.5. Defendants Bank of America and/or Countrywide misrepresented to the Burkarts
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the terms and the process for obtaining modification requests and whether or when the
3
Burkarts were approved for such programs. Such misrepresentations caused the Burkarts
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much hann as will be shown at trial.
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8.6. The Defendants use of dual tracking, robo-signing, threats of foreclosure,
6
suspension of payments, and promises of modifications to obtain money from the Burkarts,
7
constituted an unfair or deceptive practice, andlor one or more violations andlor anticipated
8
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violations of Wash. Rev. Code 9A.82.010(4) because they had no authority to modify
10
Burkarts' debt and intended to commence a foreclosure; and misrepresented their ability to
11 provide a modification.
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8.7.
The Defendants threats of foreclosure to secure an unsustainable modification,
13
acquiring fees and additional security in the Burkarts' property constituted an unfair and
14
deceptive practice, andlor one or more violations andlor anticipated violations of the Wash.
15
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Rev. Code 9A.82.010(4) because they had no authority to modify Burkarts' debt and
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misrepresented their ability to provide such modification.
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8.8. The Defendants' communication and customer service systems deliberately
19 delayed, impeded andlor prevented contact with note holders and frustrated the Burkarts'
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good faith attempts to seek modification or forbearance from the actual note holder and
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constituted an unfair or deceptive practice, andlor one or more violations andlor anticipated
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violations of the Wash. Rev. Code 9A.82.010(4).
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8.9. Burkarts also incorporate herein, portions of the following complaints which
25 establish that Defendants herein have engaged in similar activities andlor continuing predicate
COMPLAINT - 28
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acts. See e.g., Exhibit 8: Massachusetts v. Bank of America, Suffolk County 11-4363; pp.
28:124 -34:143; 50:223-53:254.
D. BREACH OF CONTRACT
herein.
9.2. Each defendant named as a party to exhibits 1 and 2 and their successors and
assigns to these agreements, owed the Burkarts a duty of good faith with regard to their
contracts with the Burkarts.
9.3.
Each defendant named as a party to exhibits 1 and 2 and their successors and
assigns to these agreements violated that duty by engaging in those practices set forth under
paragraph 5.2 which were ongoing, but undisclosed, to the Burkarts and other borrowers like
them.
9.4. Burkarts have been injured by breaches of the implied duty of good faith owed to
Burkarts pursuant to the Note and Deed of Trust agreements by Defendants in an amount
which will be proved with regard to each defendant.
10.1.
herein.
10.2.
E. THE PROMISSORY NOTE AND DEED OF TRUST ARE
UNCONSCIONABLE AND UNENFORCEABLE
Burkarts re-allege paragraphs 1.1 through 9.4 above as if set forth more fully
Burkarts had no bargaining power with regard to the "uniform" provisions of an
23 "interest-only period adjustable rate" Note offered by the Lender. Burkarts allege the
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Adjustable Rate Note Agreement was procedurally unconscionable because: a.) the loan did
not require documentation; b.) the terms of the Note predisposed the Note to result in
COMPLAINT - 29
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delinquencies and default; c.) the tenns of the Note were incomprehensible to a layman in
many regards, particularly with regard to the tenn "lender" and "lenders" rights and to the
Notes' relationship with the security agreement and the lenders intention to securitize the
Note; and d.) by reason of each of the industry practices set forth in paragraph 1.4 which
were ongoing, but undisclosed, to the Burkarts and other borrowers like them.
10.3. Burkarts had no bargaining power with regard to the "uniform" or "non-uniform"
provisions of the Deed of Trust offered by the Lender. Burkarts allege the Deed of Trust was
procedurally unconscionable because a.) the Deed of Trust fails in many material respects to
comply with the Deed of Trust Statute; b.) the Deed of Trust is against public policy because
it is designed to facilitate mass foreclosures of notes that were purposely predisposed to cause
consumer defaults; and c.) by reason of each of the industry practices set forth under
previously which were ongoing, but undisclosed, to the Burkarts and other borrowers like
them.
lOA. The Note and Deed of Trust are substantively unconscionable because they are part
of an unfair and deceptive practice and constitute RICO and criminal profiteering enterprises
which were designed to make profits for the Defendants through criminal profiteering.
10.5. Unconscionable and illegal contracts violate Washington's consumer protection
act. See State v. Kaiser, 161 Wash. App. 705 (2011); see also, State v. Ralph Williams N.W.
Chrysler Plymouth, 87 Wash. 2d 298,553 P.2d 423 (1976).
F. CRIMINAL PROFITEERING
herein.
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11.2.
11.3.
mean:
11.4.
mean:
11.5.
Wash. Rev. Code 9A.S2.100(1)(a) provides:
A person who sustains injury to his or her person, business, or property by an
act of criminal profiteering that is part of a pattern of criminal profiteering
activity, or [***] or by a violation of RCW 9A.82.060 or 9A.82.0S0 may file
an action in superior court for the recovery of damages and the costs of the
suit, including reasonable investigative and attorney's fees.
Wash. Rev. Code 9A.82.010(4) defines "pattern of criminal profiteering" to
any act, including any anticipatory or completed offense, committed for
financial gain, that is chargeable or indictable under the laws of the state in
which the act occurred and, if the act occurred in a state other than this state,
would be chargeable or indictable under the laws of this state had the act
occurred in this state and punishable as a felony and by imprisonment for more
than one year, regardless of whether the act is charged or indicted, as any of
the following: [certain specifically defmed predicate acts, which Burkarts
assert each of the following Defendants committed in concert with an intent to
deprive so as to deprive Burkarts and others property and services.]
Wash. Rev. Code 9A.82.010 (12) defines "pattern of criminal profiteering" to
"Pattern of criminal profiteering activity" means engaging in at least three acts
of criminal profiteering, one of which occurred after July 1, 1985, and the last
of which occurred within five years, excluding any period of imprisonment,
after the commission of the earliest act of criminal profiteering. In order to
constitute a pattern, the three acts must have the same or similar intent, results,
accomplices, principals, victims, or methods of commission, or be otherwise
interrelated by distinguishing characteristics including a nexus to the same
enterprise, and must not be isolated events. [***]
Wash. Rev. Code 9A.82.060 provides:
(1) A person commits the offense of leading organized cnme by:
(a) Intentionally organizing, managing, directing, supervising, or financing any
three or more persons with the intent to engage in a pattern of criminal
profiteering activity; [***]
COMPLAINT - 31
STAFNE LAW FIRM
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ARLINGTON. WA 98223
TEL.l60.-40J.8700 /STAFNELAWFIRM.COM
Case: 12-35886 03/04/2013 ID: 8536473 DktEntry: 7-3 Page: 37 of 71(100 of 134)
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11.6. MERS did intentionally ORGANIZE, MANAGE, DIRECT, SUPERVISE AND
2
FINANCE three (3) or more persons, to-wit: Global Advisory Group, Defendants
3 COUNTRYWIDE HOME LOANS, INC., COUNTRYWIDE FINANCIAL
4 CORPORATION, COUNTRYWIDE HOME LOANS, INC, BAC HOME LOANS
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SERVICING, LP, B of A BANK and BAC Home Loans and 3 or more of its employees and
agents, including Linda Green Does, all of whom during the time material to this Complaint,
engaged in or intended to engage in criminal profiteering activity, to wit: Forgery, as defined
in Wash. Rev. Code 9A.60.020 and .030; Theft, as defined in Wash. Rev. Code
9A.56.030, .040, .060 and .080; Extortion, as defined in Wash. Rev. Code 9A.56.120 and
130; and fraud, misrepresentation, and deception, as defined in Wash. Rev. Code
19.144.080; and/or conduct which would be punishable of the laws of another state to wit:
Texas, see exhibit 10.
11.7. Defendants BAC HOME LOANS SERVICING, LP, "BofA BANK", and Bank of
America Corporation did intentionally ORGANIZE, MANAGE, DIRECT, SUPERVISE
AND FINANCE three (3) or more persons, to-wit: BAC Home Loans employees and agents,
Countrywide Defendants' employees and agents, 3 or more agents of MERS Luke Gowda,
Rosa Diaz, Corina Hemendez Dyson, Latreece, Christine, Ladona, Linda, Monique, Koiwa,
Milton, Illiana Morales, Roberta Martel, Lottie, Bryce Marshal, Dorothy, Nadja Artis, and
other agents, employees, and Linda Green Does who will be identified through discovery to
engage in criminal profiteering activity, to wit: Forgery, as defined in WASH. REV. CODE
9A.60.020 and .030; Theft, as defined in Wash. Rev. Code 9A.56.030, .040, .060 and .080;
Extortion, as defined in Wash. Rev. Code 9A.56.120 and 130; and fraud, misrepresentation,
COMPLAINT - 32
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and deception, as defined in Wash. Rev. Code 19.144.080; andlor conduct which would be
2
punishable of the laws of another state to wit: Texas, see exhibit 10.
3
i. ENTERPRISE
4
11.8. An "enterprise" includes any individual, sole proprietorship, partnership,
5
corporation, business trust, or other profit or nonprofit legal entity, and includes any union,
6
association, or group of individuals associated in fact although not a legal entity, and both
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illicit and licit enterprises and governmental and nongovernmental entities.
8
9
11.9. Each of the Defendants participated in association, in concert, and associated "in
10
fact" to conduct the loan origination, document recordation, securitization, servicing, and
11 foreclosure enterprises that have injured and continue to injure Burkarts. The nature of the
12
activities conducted by these enterprises is set forth herein and in the attaclunents to this
13
complaint.
14
ii. PREDICATE ACTS
15
1.MERS
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11.10. Burkarts allege MERS committed those predicate acts described in Exhibit 10 to
18 this complaint and incorporated herein by reference. Exhibit 10 is a complaint filed by Dallas
19 County against MERS for the reasons stated therein. Dallas County's complaint, at
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paragraphs 71 - 79; 89 - 99; and 103 - 104 alleges that MERS filed over 250,000 false
documents (i.e. predicate acts of forgery in Dallas County alone) which were intended to,
among other things; avoid the payment of taxes when the mortgages/deed of trusts changed
ownership inside MERS. See also, Exhibit 11, Delaware v. MERS.
11.11. MERS participated in the filing of a deed of trust securing the obligation on
Burkarts' Property on or about January 27, 2007. The Deed of Trust purports MERS to be a
COMPLAINT - 33
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beneficiary and legal owner of that deed of trust. To the extent such statements were intended
to imply to the Burkarts (and others) that MERS had an enforceable interest under Ch. 61.24
Wash. Rev. Code such filings were false, deceptive, and constituted forgery (a predicate act)
pursuant to Wash. Rev. Code 9A.60.020. The alleged forgery was committed to avoid
paying County filing fees for subsequent transfers of the deed of trust inside MERS, as well
as, to prevent the Burkarts from gaining knowledge regarding the actual holder of the note at
any particular time. See, e.g., Washington v. Soderholm, 68 Wash. App. 363, 842 P.2d 1039
(1993).
2. Bank of America Defendants
11.12. Burkarts allege Defendants Bank of America Defendants committed those
predicate acts identified in Exhibit 3 to this complaint. See also, Exhibit 8: Massachusetts v
Bank of America; Exhibit 6: State of Nevada v. Bank of America Corporation, et. al.;
Exhibit 10: Dallas v. MERS.
11.13. Defendants' threats to extort money from the Burkarts and threats to foreclose on
their home, and other borrowers homes, when Defendants have intentionally failed to comply
with the Deed of Trust Act and have no ownership interest in the Global Advisory Group
Note, constitutes a "pattern of criminal profiteering activity" as that term is defined by Wash.
Rev. Code 9A.82.010 (12),
11.14. Based on information and belief, Burkarts allege that the Defendants have engaged
in many more than three predicate acts, within the last three years. These predicate acts
constitute and threaten long term criminal activity by Defendants against the Burkarts and
others.
COMPLAINT - 34
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11.15. Defendants associated together while making threats to foreclose and initiating
foreclosures on Burkarts' home, and upon other homes owned by persons similarly situated to
the Burkarts, when they know or should have known that they have not complied with the
Deed of Trust Act. This conduct constitutes "criminal profiteering" within the meaning of
Wash. Rev. Code 9A.82.010
11.16. Wash. Rev. Code 9A.82.l00 (1) (a) provides:
12.1.
(l)(a) A person who sustains injury to his or her person, business, or property
by an act of criminal profiteering that is part of a pattern of criminal profiteering
activity, or by an offense defined in RCW 9A.40.l 00, or by a violation of
RCW 9A.82.060 or 9A.82.080 may file an action in superior court for the
recovery of damages and the costs of the suit, including reasonable investigative
and attorney's fees.
G. RACKETEERING
The Burkarts reallaege the foregoing paragraphs above.
12.2. Defendant received income, directly or indirectly, from a pattern of racketeering
activity, and used or invested directly or indirectly, part of such income in the acquisition of
an interest in, or the establishment of, or the operation of, one or more enterprises engaged in
commerce.
12.3. Defendant's actions entitle plaintiffs to redress under the provisions of the
Racketeer Influenced and Corrupt Organizations Act, 18 U.s.C 1961 et seq., specifically
18 U.S.C. 1964(c), because:
a. The defendant conducted or participated, directly or indirectly, in the conduct of the
affairs of an enterprise through a pattern of racketeering activity, in violation of 18 U.S.C.
1962(c); and
COMPLAINT - 35
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b. The activities engaged in by defendant constituted a "pattern of racketeering
activity" as that term is defined in 18 U.S.C. 1961(5), as set forth herein and below.
12.4. As a direct and proximate result of defendant's racketeering activity, plaintiffs have
been damaged by the racketeering activity of defendant in the amounts which will be proved
at trial.
12.5. Since the mid-nineties MERS, the Bank of America Defendants, the Countrywide
Defendants and others have engaged in an associated-in-fact enterprise amongst themselves
and others to avoid the recording of titles and interests in real estate in long established land
recordation systems established by state and local governments. In addition to avoiding laws
relating to state recordation and filing fees another purpose of this enterprise was and is to
allow for the securitization of mortgages so as to make them a liquid source of revenue for
persons and entities, like Defendants who participate in the associated-in-fact enterprise.
Another intent and effect of this associated-in-fact enterprise is to make it virtually impossible
for a debtor to determine who owns the Note which is supposedly tied to the security interest
in the buyer's home until after a foreclosure has been institutcd. Servicers profit by their
securities fraud and prevention of direct access between consumers and investors because
their interest is in preserving the illegal profits of their associated-in-fact enterprise.
Consumers and investors would be able to work out a better dea1
13
if the middlemen didn't
take their illegal cut.
13 The balded part of the Court's opinion in In Re Dolbe acknowledges that often it is those enterprise entities
which have deceived both investors and consumers that gain by keeping those parties from dealing with one
another to ameliorate losses created by racketeering.
Specifically, an inability to coherently prove ownership is both endemic to the industry,
and a common problem. Ameriquest, 609 F.3d at 9; see also, e.g., U.S. Bank Nat'! Ass'n v.
Ibanez, 458 Mass. 637, 941 N.E.2d 40 (2011) Bank Nat'l Ass'n v. Ibanez, 458 Mass. 637, 941
COMPLAINT - 36
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ARLINGTON. WA 98223
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12.6. The predicate acts Burkarts allege, with regard to the Bank Of America and
2
Countrywide Defendants, include each call and letter referenced in Appendix 1 and 2. These
3 communications were made via interstate wire 18 U.S.C. 1343 and mail 18 U.S.C. 1341
4
and were fraudulent to the extent they purported Bank of America was willing to work with
5
Burkarts in modifying the amount of their payment to a lower amount. Bank of America's
6
predicate acts also included the security fraud identified in Exhibit 3 to this complaint. The
7
Predicate acts also include those identified under the Criminal Profiteering Act Cause of
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Action set forth above.
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12.7. Burkarts were injured as a result of such fraud because Countrywide and Bank of
11 America sold the Global Advisory loan secured by the MERS deed of trust as: 1.)
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N.E.2d 40 (2011) (holding US Bank did not sufficiently demonstrate it held title to a mortgage
under Massachusetts law prior to foreclosure where US Bank alleged it received title pursuant
to a trust agreement and did not provide the trust agreement but, instead, provided an unsigned
offer of mortgage-backed securities to potential investors that did not specifically identify the
mortgage in question).
The Court's finding here is consistent with the findings of the academics and reporters who
note this pattern of behavior is common in the mortgage industry. Studies have shown that
mortgage holders and servicers routinely file inaccurate claims, some of which may not be
lawful. See Katherine Porter, Misbehavior and Mistake in Bankruptcy Mortgage Claims, 87
Tex. L. Rev. 121, 123-24 (2008); Andrew J. Kazakes, Developments in the Law: the Home
Mortgage Crisis, 43 Loy. L.A. L. Rev. 1383, 1430 (2010) (citing David Streitfeld. Bank of
America to Freeze Foreclosure Cases, N.Y. Times, Oct. 2, 2010, at BI) (reporting that after
revelation of Porter's study several Banks froze foreclosures); Eric Dash, A Paperwork Fiasco,
N.Y. Times, Oct. 24, 2010, at WK5 (reporting the repeal of the initial freeze and the problems
banks faced in clearing up foreclosure paperwork). The Inspector General overseeing the
recent financial crisis has studied this issue and concluded: Anecdotal evidence of [loan
servicers'] failures [have] been well chronicled. From the repeated loss of borrower
paperwork, to blatant failure to follow program standards, to unnecessary delays that
severely harm borrowers while benefiting servicers themselves, stories of servicer
negligence and misconduct are legion, and ... they too often have financial interests that
don't align with those of either borrowers or investors.
Doble v. Deutsche Bank Nat'! Trust Co. an re Doble), 2011 Bankr. LEXIS 1449,20-22 (Bankr. S.D. Cal. Apr.
14, 2011)(citing to Office of the Special Inspector General for the Troubled Asset Relief Program, Quarterly
Report to Congress 12 (Jan. 26, 2011), available at http://www.sigtarp.gov/ (last visited Dec. 4, 2011) (follow
link for "Quarterly Report to Congress").
COMPLAINT - 37
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ARLINGTON. WA 98223
TEL. 360.403.8700 ISTAFNELAWFIRM.COM
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being more creditworthy than it was, and 2.) based on the premise that the MERS deed of
trust was more than a nullity under Washington law.
12.8. Although Ninth Circuit law does not require an ascertainable or required structure
to show an association in fact, there was such a structure in this case which was designed to
achieve common purposes. As is outlined herein Defendants and others became members of
MERS for a number of illegal purposes, including, but not limited to: evading state and local
laws relating to real estate recordation and payment of fees related thereto; securities fraud;
extortion of payments from homeowners based on threats to foreclose on home owners
houses, which were based in numerous cases on forged documents.
12.9.
MERS and Bank of America continue to be in this associated-in-fact enterprise
engaging in the same illegal activities which have been ongoing at all material times and
which continue to injure Burkarts and others now and likely into the future.
12.10. Plaintiffs have been injured in their businesses and properties by reason of one or
more RICO violations by defendant. 18 U.S.C. 1964.
12.11. As a result of the defendant's activities alleged above, plaintiffs have suffered
damages in such an amount as will be proved at trial Plaintiffs are entitled to recover threefold
damages and their reasonable attorney fees and costs of suit under the provisions of 18 U.S.C.
1964(c).
H. CONSUMER PROTECTION ACT
13.1. Burkarts re-allege and incorporate herein paragraph 1.1 - 12.11.
13.2. Burkarts incorporate herein the facts set forth at Exhibit 9: Complaint State of
Delaware v. MERS, pp. 1:1 - 10:17; 11:23-18;
COMPLATh'T - 38
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i. UNFAIR AND DECEPTIVE PRACTICES
AFFECTING THE PUBLIC INTEREST
13.3. Defendant MERS committed unfair and deceptive trade practices affecting the
public interest, by hiding the identity of the true mortgage holder from homeowners, other
stake holders, and the public.
13.4. Burkarts incorporate herein paragraphs 39 - 44 of Exhibit 9: State of Delaware v.
7 MERS.
8
13.5. Defendants commited deceptive trade practices by operating MER through its
9
members' employees, who MERS appoints as its corporate officers so that such employees
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may act on MER8' behalf.
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13.6. Burkarts incorporate herein paragraphs 45 . 50 of Exhibit 9: State of Delaware v.
12
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MERS, except that where the State of Delaware alleges acts or omissions in violation of
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Delaware statutory law, Burkarts allege for purposes of the complaint that such acts and
15 omissions constitute unfair and deceptive practices affecting the public interest under
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Washington's Consumer Protection Act.
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13.7. The failure to ensure the proper transfer of mortgage loan documentation to the
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securitization trusts results in the failure of the securitization to own the loans upon which
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securitizations purport to foreclose and this constitutes an unfair and deceptive trade or
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practice affecting the public interest.
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13.8. Burkarts incorporate herein paragraphs 51 54 of Exhibit 9: State of Delaware v.
23 MERS,
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COMPLAINT - 39
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TEL. 360.-4D3.8700 /STAFHELAWFIRM.COM
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13.9. Defendants committed, and continue to commit, deceptive trade practices by
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assigning or foreclosing on mortgages for which MERS did not possess authority to act
3 because the mortgage loan was never properly transferred to the purported beneficial owner.
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Delaware statutory law, Burkarts alleges for purposes of the complaint that such acts and
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omissions constitute unfair and deceptive practices affecting the public interest under
9
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13.11. The entry and management of data in the MERS system is not controlled by
11 MERS, but rather by those MERS members, such as the other Defendants who are identified
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as owners or servicers in the MERS system. This constitutes an unfair or deceptive trade
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practice which affects the public interest.
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MERS.
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13.13. Defendants commit deceptive practices by purporting to act as an agents without
18 knowing the identity of the MERS' principal and not knowing whether MERS acted within
19 the scope of its agency.
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13.14. Burkarts incorporate herein paragraphs 65-66 of Exhibit 9: State of Delaware v.
COMPLAINT - 40
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13.15. Defendants committed deceptive trade practices by creating and failing to ensure
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the integrity of a systematically important, yet inherently, mortgage database that creates
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confusion and inappropriate assignments and allows for improper foreclosure of mortgages.
4
13.16. Burkarts incorporate herein paragraphs 67-85 of Exhibit 9: State of Delaware v.
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13.17. Defendants commit deceptive trade practices by encouraging and inducing reliance
11 on the MERS system when MERS knows the system is unreliable and by allowing its
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members to cause MERS to act beyond the scope of its authority in reliance on such
13
unreliable data.
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13.19. Defendants commit deceptive trade practices by encouraging and inducing reliance
on the MERS system when MERS and Defendants know the system is unreliable and by
allowing its members to act beyond the scope of its authority in reliance on such unreliable
data.
COMPLAINT - 41
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13.21. Defendants commit deceptive trade practices by assigning mortgages without
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authority to do so where MERS purports to act for the wrong entity.
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Burkarts incorporate herein paragraphs 95 - 106 of Exhibit 9: State of Delaware v. 13.22.
7
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11 Washington's Consumer Protection Act.
12
13.23. Defendants committed and continue to commit deceptive practices by assigning
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mortgages for foreclosures and by foreclosing on mortgages, in each case at the behest of the
14
entity shown in the MERS System without authority to do so from the actual owner of the
15
note.
16
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13.24. Burkarts incorporate herein paragraphs 107 - 109 of Exhibit 9: State of Delaware
18 v. MERS, except that where the State of Delaware alleges acts or omissions in violation of
19 Delaware statutory law, Burkarts alleges for purposes of the complaint that such acts and
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13.25. Defendants committed deceptive practices by initiating foreclosures in the name of
MERS in contravention of MERS' rules and without appropriate controls to ensure the
foreclosures were prosecuted by the actual note holder.
COMPLAINT - 42
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ARUNGTON. WA 98223
TEL 360.40].B700 fSTAFNELAWF'RM.COM
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13.26.
Burkarts incorporate herein paragraphs 110 - 115 of Exhibit 9: St!!te of Delaware
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v. MERS, except that where the State of Delaware alleges acts or omissions in violation of
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13.27.
Defendants committed deceptive trade practices by initiating foreclosure actions
while hiding the real party in interest, thus preventing homeowners from ascertaining who
such party was, from challenging whether such party had a right to pursue the foreclosure and
from raising a potential defense that may otherwise have been available.
13.28.
Burkarts incorporate herein paragraphs 110 - 115 of Exhibit 9: State of Delaware
13.29. Defendants committed deceptive trade practices by initiating foreclosure actions
while hiding the real parties in interest, thus preventing homeowners from ascertaining who
such party was, from challenging whether such party had a right to pursue the foreclosure, and
from raising potential defenses that may otherwise not be known or become known.
13.30. Burkarts incorporate herein paragraphs 110 - 115 of Exhibit 9: State of Delaware
COMPLAINT - 43
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13.31.
Burkarts incorporate herein paragraphs 116 - 127 of Exhibit 9: State of Delaware
13.32. In addition to the foregoing allegations against all of the Defendants who
participated in the MERS system Burkarts also allege Defendants Bank of America and
Countrywide (including Defendant BAC Home Loans) harmed the Burkarts by engaging in
the following unfair and deceptive practices in connection with their trade or business; those
practices included, but were not limited to:
13.32.1. purchasing debt which it knew resulted from misleading marketing and sales
techniques to convince the Burkarts, and other persons to take out these risky loans;
13.32.2. misrepresenting to investors the characteristics and therefore the riskiness of
the mortgages they sold them;
13.32.3. failing to follow Washington's Deed of Trust Act;
13.32.4. employing the use of substantively and procedurally unconscionable
agreements in order to facilitate non-judicial foreclosures of the Burkarts' home and
other homeowners' homes;
13.32.5 deceptively and unfairly utilizing defendant MERS in such a way as to
prevent borrowers from knowing the identity of those persons who were the true
beneficiaries of deed of trusts pursuant to Washington's Deed of Trust Act thereby
preventing any interaction between homeowners and the holders of their notes;
COMPLAINT - 44
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STAFNE LAW FIRM
ARLINGTON, WA 98223
TEL. 360.403.87QO ISTAFNELAWFIRM.COM
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13.32.6. engaging in and/or participating with regard to "robo-signing" practices,
which include, but are not limited to, forging the signatures of other persons; forging the
notarization of documents; and, having persons sign documents who do not have the
authority and/or training to do so;
13.32.7. falsely promising Burkarts and other consumers that their loans could be
modified and that loan servicers and beneficiaries under the deed of trust security
agreement would make reasonable attempts to accommodate modifications which would
reduce their monthly payments;
13.32.8. falsely promising Burkarts, and other consumers, that their initial, trial
modification would be made permanent if and when they made the required payments on
those plans, but then failing to convert those modifications and keeping these additional
monies;
13.32.9. falsely assuring Burkarts that their home would not be foreclosed homes while
their requests for modifications were pending, either by: selling their loans to companies
with servicers which specialized in foreclosures, or sending foreclosure notices,
scheduling auction dates, and even selling consumers' homes while they waited for the
unreachable "beneficiary's" modification decisions;
13.32.10. mis-representing the eligibility criteria for modifications and providing
consumers with inaccurate and deceptive reasons for denying their requests for
modifications;
13.32.11. offering modifications on one set of terms, but then providing consumers,
including the Burkarts, with modification agreements on different terms, and/or
COMPLAlNT - 45
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STAFNE LAW FIRM
ARUNGTON. WA 98223
TEL 360.403.B100 ISTAFNELAWF1RM.C:OM
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misrepresenting that consumers were approved for modifications or meeting the
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modification program requirements when they were not.
3 13.32.12. Participating in criminal profiteering pursuant to Wash. Rev. Code 9A.82,
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et. seq.
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13.33. MERS and Defendants committed unfair and deceptive practices by contractually
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defining MERS as a beneficiary under the Washington Deed of Trust Act in order to facilitate
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mass foreclosures and fraud when; by statute, the beneficiary of a Deed of Trust is statutorily
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defined to be the person who holds the note.
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13.34. These and other alleged unfair and deceptive practices alleged in this complaint by
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13.35. The unfair and deceptive trade practices described above violated the public
interest for the reasons stated in the attached decision by Judge Coughenour attached hereto as
Exhibit 11 and incorporated by reference. See Bain v. OneWest Bank, F.S.B., 2011 U.S. Dist.
LEXIS 26318 (U.S. Dist. W.D. Wash., Mar. 15,2011).
13.36. Because MERS was contractually defined as a beneficiary in a manner that was
contrary to the statutory definition of "beneficiary", Wash. Rev. Code 61.24.050 (2), the
instant deed of trust is void and any attempt to foreclose thereon constitutes a per se violation
of the Consumer Protection Act. See Wash. Rev. Code 61.24.135.
13.37. Burkarts have been proximately damaged and injured in their business affairs by
these unfair and deceptive practices because these practices caused the Burkarts to expend
resources to avert an unlawful foreclosure, to pay sums which were not owed, to accrue fines
and fees, to sign a modification not in their best interest, and prevented Burkarts from
COMPLAINT - 46
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STAFNE LAW FIRM
ARLINGTON. WA 98223
TEL. ]60.403.8700 I.TAFNELAWFIRH.C:OH
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identifying the real beneficiary note holder and negotiate a mutually beneficial arrangement to
avoid foreclosure.
I. FAIR DEBT COLLECTION ACT
14.1.
Burkarts re-allege paragraphs 1.1 through 13.37 above as if set forth more fully
herein.
14.2. Burkarts acknowledge they owe a debt to the true Global Advisory note owner of
attached hereto as Exhibit 1. However, Burkarts deny that they owe any debt as a result of
the MERS deed of trust because it was never written nor intended to secure the Global
Advisory Note, but was intended to be sold as a part of a mortgage backed security. The
MERS deed of trust is invalid for this reason and such other reasons as have been previously
stated herein.
14.3.
Burkarts deny that any of the Defendants hold or are acting as agents for the holder
of the note. If this is not the case, then Defendants should come forward and produce the
Global Advisory Note and MERS deed of trust or follow the requirements set forth by the law
to validate a note which has been lost.
[I]n the case of suit on the note, presentment of the note or satisfactory proof
that it has been lost or destroyed are essential elements of the because the
instrument itself is the exclusive grounds for the cause of action
Union Sav. Bank v. Cassing, 691 S.W.2d 513, 514, 41 V.C.C. Rep. Servo (Callaghan) 135
(Mo. Ct. App. 1985) (emphasis supplied).
14.4. Burkarts assert that only the true owner of the Global Advisory note can enforce
that debt. Burkarts claim that none of the Defendants own that note or are entitled to enforce
that note.
COMPLADIT - 47
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STAFNE LAW FIRM
ARliNGTON. WA 98223
TEL. 360.403.8700 iSTAFNELAWFIRM.COM
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14.5. As none ofthe Countrywide or Bank of American Defendants or defendant MERS
owed the Global Advisory each was a debt collector within the meaning of 15 U.S.C.
1692A to the extent they purported to be collecting payments on the note. Alternatively, to the
extent these same Defendants were purporting to collect on the MERS deed of trust itself they
were debt collectors within the meaning of 15 U.S.C. 1692A(6)(F) only to the extent the
MERS deed of trust was something other than a nullity.
14.6. Defendants violated 15 U.S.C. 1692D, which states:
14.7.
A debt collector may not engage in any conduct the natural consequence of
which is to harass, oppress, or abuse any person in connection with the
collection of a debt. Without limiting the general application of the foregoing,
the following conduct is a violation of this section:
(1) The use or threat of use of violence or other criminal means to harm the
physical person, reputation, or property of any person. [***]
Defendants threat and use of the non-judicial process to foreclose on Burkarts'
property, while at the same time offering to modify the deed of trust (with little or no
authority to modify the note) based only on Global Advisory's deed of trust threatened the use
of a criminal means (see above) to foreclose illegally on Burkarts' Property.
14.8. Defendants violated 15 U.S.C. 1692E, which states in pertinent part:
A debt collector may not use any false, deceptive, or misleading representation
or means in connection with the collection of any debt. Without limiting the
general application of the foregoing, the following conduct is a violation of this
section:
[***]
(4) The representation or implication that nonpayment of any debt will result in
the arrest or imprisonment of any person or the seizure, garnishment,
attachment, or sale of any property or wages of any person unless such action
is lawful and the debt collector or creditor intends to take such action.
[***]
(10) The use of any false representation or deceptive means to collect or
attempt to collect any debt or to obtain information concerning a consumer.
COMPLAINT - 48 STAFNE LAW FIRM
ARLINGTON. WA 98223
TEL. 360.403.8700 ISTAFNELAWF"M.COM
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14.9. Defendants had no legal right to use the MERS Deed of Trust alone as a basis for
threatening to foreclose and foreclosing on Burkarts' Property.
14.10.
14.11.
Defendants violated 15 U.S.C. 1692f, which states in pertinent part:
A debt collector may not use unfair or unconscionable means to collect or
attempt to collect any debt. Without limiting the general application of the
foregoing, the following conduct is a violation of this section:
(1) The collection of any amount (including any interest, fee, charge, or
expense incidental to the principal obligation) unless such amount is expressly
authorized by the agreement creating the debt or permitted by law.
[***]
(6) Taking or threatening to take any nonjudicial action to effect
dispossession or disablement of property ~
CA) there is no present right to possession of the property claimed as
collateral through an enforceable security interest;
Defendants violated the above provisions by imposing fees authorized by the Deed
of Trust agreement upon Burkarts, when the Deed of Trust agreement was unenforceable
because of the absence of the negotiable instrument which it was originally intended to
secure.
14.12. Defendants also committed an unfair practice by threatening non-judicial
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14.13. Burkarts request relief pursuant to 15 U.S.C. t692k for Defendants violations of
the Fair Debt Collection Act.
J. QUIET TITLE
15.1. Burkarts re-allege para!:,'Taphs 1.1 through 14.13 above as if set forth more fully
herein.
COMPLAINf - 49
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STAFNE LAW FIRM
ARLINGTON. WA 98223
TEL. 360.403.8700 ISTAFNELAWF'RH.COM
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15.2. The interests of Defendants are subordinate to the interests of Burkarts and title
should be quieted in Burkarts as to all Defendants herein.
15.3. Burkarts are entitled to judgment quieting title as to the ownership of the above
described property set forth in paragraph 1.2 above as against the above Defendants but not
any holder in due course unless Burkarts have defenses against such holder.
K. REQUESTS FOR DECLARATORY RELIEF
herein.
16.2. This is an action for declaratory relief which is being brought pursuant to
applicable law to declare that the MERS deed of trust which secures the Global Advisory
Group promissory note is against public policy and violates the Deed of Trust statute, Wash.
Rev. Code 64.21 et. seq.
16.3. This is an action against persons who have threatened foreclosure against Burkarts
but who refuse to provide any proof of a debt which is owed by Burkarts to them or that any
debt which might be owed is secured by the MERS Deed of Trust.
16.4. Burkarts have no adequate or alternative remedy at law with reference to the relief
requested herein.
WHEREFORE, Burkarts requests the court adjudge and declare:
The Burkarts' Deed of Trust in this case violates the Deed of Trust Act, violates public
policy, is substantively unconscionable, procedurally unconscionable, and is invalid,
void and unenforceable as security to enforce the promissory note;
COMPLAINT - 50
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STAFNE LAW FIRM
ARLINGTON, WA 98223
T ~ L l!lllA03.B700ISTAfNRAWFr ..... COM
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AND,
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All interests claimed by any defendant in this lawsuit in Burkarts' homestead property be
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quieted and of no effect;
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L. INJUNCTIVE RELIEF
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16.5. Plaintiff reserves the right to seek equitable relief should it become necessary.
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M. DAMAGES AND EQUITABLE RELIEF
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WHEREFORE, Burkarts pray for all such legal and equitable remedies to which they may be
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entitled, including but not limited to: an order quieting title against Defendants; compensatory
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damages, exemplary damages, attorney fees, penalties and all other relief allowed for under
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the CPA, Criminal Profiteering Act, RICO, and Fair Debt Collection Act, as well attorney
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fees and costs allowed pursuant to any other statutes and/or contracts, statutory attorney fees
15 and costs, and injunctive relief to restrain Defendants' pattern of criminal profiteering
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activity.
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DATED this 16th day of December, 2011.
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19 Respectfully submitted,
20 ST AFNE LAW FIRM
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COMPLAINT - 51
lsi Scott E. Stafne ______ _
Scott E. Stafne, WSBA 6964
Andrew Krawczyk, WSBA 42982
Stafne Law Finn
239 N. Olympic Avenue
(360) 403-8700
Scott.stafne@stafnelawfirm.com
Attorneys for Burkarts
D
STAFNE LAW FIRM
ARLINGTON. WA 98223
TEL. 360.403.8700 ISTAPNHAwF'RM.eoM
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Appendix 1
4.14.1. On or about February, 24 2009, Burkarts called the Defendants Countrywide.
Defendant's customer service representative "Luke Gowda" told the Burkarts to provide 2
months of bank statements, a pay stub and hardship letter to see if they could become eligible
for a modification program; and told the Burkarts Defendant Countrywide would contact
them by the end of March to see if they qualify. Burkarts faxed the infonnation to the number
provided on March 5th, and were not contacted at the end of March.
4.14.2. On or about March 31,2009, Defendants contacted Defendants to find out whether
they were eligible and why they had not heard back. Defendants' customer service
representative "Rosa Diaz" claimed they never received the paperwork. Burkarts faxed the
paperwork two more times. Defendants representative stated that "Corina Hernendez" will
work on the Burkarts' account, that it would take 90 to 120 business days to be approved, and
said that the Burkarts would not be allowed to contact Ms. Hernendez at all, but to call
customer service back every other week to check progress. Defendant told the Burkarts to
make a payment so Countrywide did not foreclose.
4.14.3. On or about Apri14, 2009, Burkarts paid $3,660.43 to avoid foreclosure.
19 4.14.4. On or about April 7, 2009, Burkarts talked with customer service representatives
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"Dyson" and "Latreece" regarding their modification. The Defendants representatives
claimed that one of the Plaintiff's social security numbers was incorrect on one page, and to
fax the paperwork to fix it.
4.14.5. On or about Apri122, 2009, Defendant Countrywide'S representative "Christine",
claimed that the Burkarts had been declined for a modification and that the Burkarts now owe
the Defendants approximately $14,000. The representative could not provide any infonnation
APPENDIX 1 - 1
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2
on why the Burkarts had been declined nor could she transfer the Burkarts to an agent who
could tell them why.
3 4.14.6. On or about May 4, 2009, Defendant "Ladona" of Defendant Bank of America
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stated the Burkarts owed $17,737.27 and encouraged them to make a payment so the
foreclosure was not initiated. Burkarts subsequently sent a $3,700.00 payment.
4.14.7. On or about May 14,2009, Burkarts talked with Defendant Bank of America's
representative "Linda" who confirmed receipt of payment. Burkarts told the representative
that they were given bad advice by Countrywide to stop payments to qualify for a
modification program, and that they will continue to make payments due; but did not have
S 14,000 to catch up payments and pay their fees. Burkarts asked the Defendants waive the
fees and perform a modification.
4.14.8. Burkarts never received a monthly statement from the Defendants for June, 2009.
Burkarts mailed a check for $4000.00. On or about June 8, 2009, Burkarts talked with
"Sonia" representative for Defendants. The representative stated that monthly statements are
not sent when an account is in review and that Defendant Bank of America was still
reviewing the modification. She then stated that the Defendant wanted additional information
faxed, including documents already in the Defendants possession.
4.14.9. In August, 2009, Burkarts received a letter stating their modification has been
canceled. On or about August 17,2009, Burkarts called Defendant Bank of America, whose
representative "Monique" said that her computer screen said no cancelation had occurred and
the modification was "still open" but they needed additional information. Monique also stated
that the Burkarts were 8 payments behind, but only owed $13,278.70.
4.14.10. On August 20, 2009, a notice of intent to accelerate was sent to the Burkarts.
APPENDIX 1 - 2
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Appendix 2
4.15.1. On or about August 27, 2009, Defendants sent a letter to the Burkarts stating "your
loan modification has been approved" adding $32,966.13 to the principal and stating the
Burkarts modified payment would be $3,828.70. Payment before this modification would
have been $3,062.50 per month on a 5 year ann, an increase of $766.20 per month.
4.15.2. On or about September 4,2009, Burkarts talked with "Koiwa" and "Milton"
representatives for defendant Bank of America about the modification being unreasonable.
The representatives stated that if the Burkarts did not respond to the modification they could
apply for another one later.
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America, to request a modification; representative "llliana Morales" stated she would email
her supervisor asking for a modification.
4.15.4. On or about November 13, 2009, Defendant Bank of America's representative
"Roberta Martel" stated that a modification had been approved and documents were being
sent out.
4.15.5. On or about December 2,2009, Defendant Bank of America's representative
"Lottie" informed the Burkarts that their modification had been denied. Later that day, the
Plaintiff Herbert Burkart went to Bank of America's Smokey Point branch for assistance in
figuring out the status of the modification. The branch assistant manager reached a "Bryce
Marshall", who claimed to work for Bank of America and told the Plaintiffit would take 90
days for a response and to provide Bank of America with pay stubs, bank statements, hardship
letter, and tax returns by fax. Bryce told the Plaintiff his direct line was (818) 251-1764 and to
call that number. Plaintiff faxed the information.
APPENDIX 2- I
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4.15.6. A December, 2009, notice to accelerate was sent to the Burkarts stating that they
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should pay by January 7, 2010 or the Defendants would initiate foreclosure.
3 4.15.7. On or about December 15, 2009, the Burkarts called (818) 251-1764, and found out
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that the number was for the collection agency "Clayton Small Kain and Winer" and no one by
the name of "Bryce Marshall" worked for them. The Burkarts then called Defendant Bank of
America, who said to keep making payments and that it was a waiting game for the negotiator
to provide a modification.
4.15.8. On or about December 28,2009, defendant BAC Home Loans mailed an
"important message" stating the Burkarts were:
eligible for a program which provides a variety of options to help, including:
Possible 5 year interest rate freeze or reduction[;] Interest-only payment for a
ten (10) yearperiod[;] Elimination of the negative amortization feature on your
loan (To understand negative amortization; please see the important terms in
this document)[; and,] Assistance with past due amounts [***] The enclosed
modification agreement fixes your interest rate at 6.125% and result in a new
monthly payment amount of $4,526.36.
The message attached documents which purported to require agreement of the terms by
January 27,2010 and a new interest payment of$3,881.14.
18 4.15.9. On or about January 14,2010, Burkarts called Defendants Bank of America to
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explain their financial situation and inquire why they offered an unsustainable modification
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and explain that the calculation of amount owed was incorrect on the modification.
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Defendants' representatives stated this was the final and best offer.
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4.15.10. On or about March 18,2010, the Burkarts called Defendants Bank of America, and
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speaking to representative 'Dorothy" inquired what the qualifying ratios were for a
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modification. Dorothy explained some of the ratios, gave what the Defendant had on file for
the Burkarts, and that "N adja Artis" was the negotiator for the modification.
APPENDIX 2- 2
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4.15.11. On or about March 29, 201 0, Burkarts resubmitted paperwork for a loan
modification. In subsequent conversations additional information was requested.
3 .15.12. On or about May 28, 20lO, Defendants Bank of America sent the Burkarts an
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"Important Message About Your Loan" stating the loan modification has been approved, with
a $4,526.72 initial payment due and $3,877 .54 monthly payment of principal and interest at a
6.125% interest rate. Burkarts called the Defendants Bank of America to find out why they
were not being offered an affordable payment based on the ratios they provided. The
Defendants representative stated this was a final offer and to sign it or they would foreclose.
To prevent loss of their residence, Burkarts signed the modification and sent it to the
Defendants on or about June 17,2010.
APPENDIX 2- 3
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2
DECLARATION OF SERVICE
3
4 I, Carl D. Alvarado, hereby certify that on December 16, 2011, I electronically filed the
foregoing with the Clerk of the Court using the CMlECF system which will send notification
5 of such filing to the following:
6 John S. Devlin, III
1420 Fifth Ave.
7 Suite 4100
Seattle, WA 98101-2338
8 (206) 223-7000
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Email: devlinj@lanepowell.com
Andrew Gordon Yates
1420 Fifth Ave.
Suite 4100
Seattle, WA 98101-2338
(206) 223-7000
Email: yatesa@lanepowell.com
14 and I hereby certify that I have mailed by United States Postal Service the document to the
following non CMlECF participants: nla
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DECLARATION OF SERVICE 1
STAFNE LAW FIRM
lsi Carl D. Alvarado
Carl D. Alvarado
cal varado@stafnelawfinn.com
D
STAFNE LAW FIRM
ARLINGTON, WA 98223
TEL. 360 03.8100 ISTAFNELAWFIAH@AoL.COM
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U.S. District Court
United States District Court for the Western District of Washington (Seattle)
CIVIL DOCKET FOR CASE #: 2:11-cv-01921-RAJ
Burkart et al v. Global Advisory Group, Inc. et al
Assigned to: Judge Richard A Jones
Case in other court: Island County Superior Court, 11-
00002-00901-1
Cause: 28:1332 Diversity
Plaintiff
Date Filed: 11116/2011
Date Tenninated: 10/30/2012
Jury Demand: Plaintiff
Nature of Suit: 190 Contract: Other
Jurisdiction: Diversity
Herbert Burkart
individually
represented by Scott E Stafne
STAFNE LAW FIRM
Plaintiff
Tanja M. Burkart
individually and the marital
community thereof
V.
Defendant
Global Advisory Group, Inc.
a Washington corporation
TERMINATED: /2/16/2011
ARLINGTON, W A 98223
360-403-8700
Email: stafuelawfinn@aol.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Andrew John Krawczyk
STAFNE LAW FIRM
ARLINGTON, W A 98223
360-403-8700
Email: andrew@stafnelawfinn.com
TERMINATED: 1010312012
represented by Scott E Stafne
D
(See above for address)
LEAD ATTORNEY
Andrew John Krawczyk
TERMINATED: 10103120/2
77
Defendant
Mortgage Electronic Registration
Systems, Inc.
a Delaware corporation
Defendant
Linda Green
Defendant
Does 1-10
unknown persons
Defendant
BAC Home Loans Servicing, LP
a foreign corporation
Defendant
Bank of America NA
a national bank
represented by John S Devlin, III
LANE POWELL PC (SEA)
1420 FIFTH AVE
STE4100
SEATTLE, WA 98101-2338
206-223-7000
Fax: FAX 223-7107
Email: devlinj@lanepowell.com
LEAD ATTORNEY
Andrew Gordon Yates
LANE POWELL PC (SEA)
1420 FIFTH AVE
STE4100
SEATTLE, WA 98101-2338
206-223-7000
Email: yatesa@lanepowell.com
LEAD ATTORNEY
Andrew Gordon Yates
D
LEAD ATTORNEY
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Defendant
Bank of America Corporation
Defendant
Countrywide Finaucial
Corporation
Defendant
Countrywide Home Loans, Inc.
a New York corporation
Defendant
Linda Green Does 1-10
Date Filed # Docket Text
Andrew Gordon Yates
LEAD ATTORNEY
Andrew Gordon Yates
LEAD ATTORNEY
Andrew Gordon Yates
LEAD ATTORNEY
Andrew Gordon Yates
11116/2011 1 NOTICE OF REMOVAL from Island County Superior Court, case number
11-2-00901-1; (Receipt # 0981-2624429), filed by Countrywide Home
Loans, Inc., Countrywide Financial Corporation, Mortgage Electronic
Registration Systems, Inc., BAC Home Loans Servicing, LP, Bank of
America Corporation, Bank of America, N.A .. (Attachments: # 1 Civil
D
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,
,
Cover Sheet)(Yates, Andrew) (Entered: 11116/2011)
: 11/16/2011 2 DECLARATION OF ANDREW G. YATES re 1 Notice of Removal, by
Defendants BAC Home Loans Servicing, LP, Bank of America
Corporation, Bank of America, N.A., Countrywide Financial Corporation,
Countrywide Home Loans, Inc., Mortgage Electronic Registration Systems,
Inc .. (Attachments: # 1 Exhibit A-F, p. 5-94)(Yates, Andrew) (Entered:
i
11116/2011)
, 11116/2011
1
NOTICE TO ALL ADVERSE PARTIES OF REMOVAL TO FEDERAL
COURTre 1 Notice of Removal, ; filed by Defendants BAC Home Loans
Servicing, LP, Bank of America Corporation, Bank of America, N.A.,
Countrywide Financial Corporation, Countrywide Home Loans, Inc.,
Mortgage Electronic Registration Systems, Inc .. (Attachments: # 1 Exhibit
Notice of Removal, # 2 Exhibit Notice to Clerk of Removal to Federal
Court)(Yates, Andrew) (Entered: 11116/2011)
; 11116/2011
1
CORPORATE DISCLOSURE STATEMENT identifying Corporate Parent
Bank of America Corporation for BAC Home Loans Servicing, LP, Bank of
America Corporation, Bank of America, N.A., Countrywide Financial
Corporation, Countrywide Home Loans, Inc.; Corporate Parent
MERSCORP, Inc. for Mortgage Electronic Registration Systems, Inc .. Filed
,
pursuant to Fed.R.Civ.P 7.1.. (Yates, Andrew) (Entered: 11/16/2011)
: 11117/2011 Judge Richard A Jones added. (RE) (Entered: 11/17/2011)
, 1111712011

LETTER from Clerk to counsel re receipt of case from Island County
Superior Court and advising of W A WD case number and judge assignment.
(RE) (Entered: 11117/2011)
11117/2011 Q PRAECIPE to attach document Declaration of Andrew G.
Yates re 2 Declaration (non motion), Declaration (non motion) by
Defendants BAC Home Loans Servicing, LP, Bank of America
Countrywide Home Loans, Inc., Mortgage Electronic Registration Systems,
Inc .. (Attachments: # 1 Declaration of Andrew G. Yates)(Yates, Andrew)
I (Entered: 11117/2011)
11/30/2011
1
VERIFICATION OF STATE COURT RECORDS re 1 Notice of Removal,
by Defendants BAC Home Loans Servicing, LP, Bank of America
Countrywide Home Loans, Inc .. (Attachments: # 1 Exhibit A-E p. 4-
27)(Yates, Andrew) (Entered: 11130/2011)
-
11130/2011

STIPULATION AND PROPOSED ORDER TO EXTEND DEADLINE
FOR DEFENDANTS' RESPONSE TO PLAINTIFF'S COMPLAINTby
parties. (Yates, Andrew) (Entered: 11130/2011)
12/0112011 I No party need answer Plaintiffs' complaint. Per the stipulation (Dkt. # ) of i
D
80
i
;
l 12/15/2011
1211612011
01117/2012
01/20/2012
01125/2012
02/06/2012
Plaintiffs and most of the Defendants, Plaintiffs will file an amended
complaint no later than December 7,2011, and answers will be due within
30 days of date of service of amended complaint. (JJ) (Entered: 12/0112011)
.2
ORDER REGARDING INITIAL DISCLOSURES, JOINT STATUS
REPORT AND EARLY SETTLEMENT. FRCP 26fConference Deadline
is 116/2012, Initial Disclosure Deadline is 1113/2012, Joint Status Report
due by 1120/2012, by Judge Richard A. Jones. (VE) (Entered: 12/15/2011)
10 AMENDED COMPLAINT against defendant(s) BAC Home Loans
Servicing, LP, Bank of America Corporation, Bank of America, N.A.,
Countrywide Financial Corporation, Countrywide Home Loans, Inc.,
Mortgage Electronic Registration Systems, Inc., Linda Green Does 1-10
with JURY DEMAND, filed by Herbert Burkart, Tanja M. Burkart.
(Attachments: # 1 Certificate of Service Certificate of Service, # 2. Exhibit
Exhibit 1, # J Exhibit Exhibit 2, # 1 Exhibit Exhibit 3 Part 1, # Exhibit
Exhibit 3 Part 2, # Q Exhibit Exhibit 4, # 1 Exhibit Exhibit 5, # Exhibit
Exhibit 6, # .2 Exhibit Exhibit 7, # 10 Exhibit Exhibit 8, # 11 Exhibit
Exhibit 9 Part 1, # 12 Exhibit Exhibit 9 Part 2, # U Exhibit Exhibit 10,
# 11 Exhibit Exhibit ll)(Stafne, Scott) (Entered: 12/16/2011)
11
MOTION to Dismiss Pursuant to Fed R. Civ. P. 12(B)(6) and Supporting
Memorandum by Defendants BAC Home Loans Servicing, LP, Bank of
America Corporation, Bank of America NA, Countrywide Financial
Corporation, Countrywide Home Loans, Inc .. (Attachments: # 1 Proposed
Order) Noting Date 2/10/2012, (Yates, Andrew) (Entered: 01117/2012)
12 JOINT STATUS REPORT signed by all parties estimated Trial Days: 10.
I Filed by Plaintiffs Herbert Burkart, Tanja M. Burkart. (Attachments:
# 1 Certificate of Service )(Stafne, Scott) (Entered: 01120/2012)
U i MINUTE ORDER SETTING TRIAL DATE AND RELATED DATES.
Length of Trial: 10 days. JURY TRIAL is set for 3/4/2013 at 9:00 AM in
Courtroom 13106 before Judge Richard A. Jones. Joinder of Parties due by
4/13/2012, Amended Pleadings due by 9/5/2012, Expert Witness
DisclosurelReports under FRCP 26(a)(2) due by 9/5/2012, Discovery
completed by 1115/2012, Dispositive motions due by 1214/2012, Settlement
conference to be held by 113/2013,39.1 mediation to be completed by
2/4/2013 Motions in Limine due b 2/4/2013 Pretrial Order due b , y, Y
2/19/2013, Trial briefs, proposed jury instructions, proposed voir dire,
agreed neutral statement of the case, and trial exhibits to be submitted by
2/25/2013, by Judge Richard A. Jones. (VE) (Entered: 0112512012)
RESPONSE, by Plaintiffs Herbert Burkart, Tanja M. Burkart,
to 11 MOTION to Dismiss Pursuant to Fed. R. Civ. P. 12(B)(6) and
Supporting Memorandum MOTION to DismissPursuant to Fed R. Civ. P.
12(B)(6) and Supporting Memorandum. Oral Argument Requested.
(Attachments: # 1 Exhibit Exhibit 1, Response to Motion to
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81
Dismiss)(Stafue, Scott) (Entered: 02/06/2012)
REPLY, filed by Defendants BAC Home Loans Servicing, LP, Bank of
America Corporation, Bank of America NA, Countrywide Financial
Corporation, Countrywide Home Loans, Inc., Mortgage Electronic
Registration Systems, Inc., TO RESPONSE to 11 MOTION to
Dismiss Pursuant to Fed. R. Civ. P. 12(B)(6) and Supporting
Memorandum MOTION to DismissPursuant to Fed. R. Civ. P. 12(B)(6)
and Supporting Memorandum (Yates, Andrew) (Entered: 02110/2012)

03/06/2012 12 SUPPLEMENT re 14 Response to Motion, by Plaintiffs Herbert Burkart,
Tanja M. Burkart. (Attaclunents: # 1 Exhibit Exhibit 1, Notice of
Supplemental Authority)(Stafne, Scott) (Entered: 03/06/2012)
03/19/2012 11 RESPONSE by Defendant Bank of America NA re 16 Supplement. (Yates,
Andrew) (Entered: 03/19/2012)
. 09/28/2012 ORDER granting 11 Motion to Dismiss by Judge Richard A Jones.
Plaintiffs must file amended complaint in accordance with order no later
than October 26,2012. (JJ) (Entered: 09/28/2012)
10103/2012 OF WITHDRAWAL OF COUNSEL: Attorney Andrew John
for Plaintiffs Herbert Burkart, Tanja M. Burkart. (Krawczyk,
(Entered: 10/0312012)

: 10/25/2012 OF APPEAL(12-35886) to Ninth Circuit re Order on Motion
... by Plaintiffs Herbert Burkart, Tanja M. Burkart. Filing Fee $455,
number 0981-2993300. (Stafne, Scott) Modified on 10/29/2012;
case number (LMK). (Entered: 10/25/2012)
.... .. .... - ....
10/26/2012 ORDER (12-35886) as to 20 Notice of Appeal, filed by
.................................... { .. .. cL
Tanja M. Burkart, Herbert Burkart: The schedule is set as follows:
Mediation Questionnaire due on 11102/2012. Appellants Herbert Burkart
and Tanja M Burkart opening brief due 02/04/2013. Appellees BAC Home
Loans Servicing, LP, Bank of America Corporation, Bank of America NA,
Countrywide Financial Corporation, Countrywide Home Loans, Inc., Linda
Green Does 1-10 and Mortgage Electronic Registration Systems, Inc.
answering brief due 03/04/2013. Appellant's optional reply brief is due 14
days after service of the answering brief. (LMK) (Entered: 10129/2012)
10/30/2012 ORDER by Judge Richard A Jones. Plaintiffs have not filed an amended
complaint in accordance with the court's September 28 order. The court
accordingly dismisses this case without prejudice for failure to prosecute.
(CL) (Entered: 10/30/2012)
..... ...... - .... ....... ..... ...... ............... ...... ..... - ......... ... ,
10/3112012 23 AMENDED Notice of Appeal as to 20 Notice of Appeal, by Plaintiffs
Herbert Burkart, Tanja M. Burkart. (Stafne, Scott) (Entered: 10/31/2012)
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PACER Service Center
Transaction Receipt
02/28/2013 11:04:33
l-cv-O 1921-RAJ
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f i l ed t he f or egoi ng wi t h t he Cl er k of t he Cour t f or t he Uni t ed
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DKT 7.1 03.04.2013 Opening Brief1

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