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Yohannes v. Olympic Collection Inc.

United States District Court, W.D. Washington, Seattle

October 11, 2019

AKLILU YOHANNES, Plaintiff,
v.
OLYMPIC COLLECTION INC. et al., Defendants.

          ORDER ON MOTIONS FOR SUMMARY JUDGMENT AND DECLARATORY JUDGMENT

          Robert S. Lasnik United States District Judge

         This matter comes before the Court on the motions for summary judgment filed by defendants Olympic Collection Inc. (“OCI”), see Dkt. #104, Norman L. Martin, see Dkt. #105, Susan Cable, see Dkt. #106, and Farooq Ansari, see Dkt. #107; plaintiff Aklilu Yohannes' “Motion for Partial Summary Judgment”, see Dkt. #112, and “Motion for Declaratory Judgment”, see Dkt. #115; defendants' “Motion for Protective Order, Relief from a Deadline, and Attorney Fees Pursuant to 28 U.S.C. § 1927”, see Dkt. #117; and plaintiff's responsive “Cross Motion for Protective Order.” Dkt. #122. As the latter two concern plaintiff's motions for partial summary judgment and declaratory judgment, the Court deals with all seven motions in a single order.

         BACKGROUND

         A. Treatment at Baker Dental

         Plaintiff received dental treatment from Baker Dental Implants and Periodontics (“Baker Dental”) in late 2002. Dkt. #121-2 (Yohannes Decl. II) at ¶ 1. David A. Baker, DDS, MSD owned Baker Dental. Plaintiff does not have any records showing that he made payments to Baker Dental. Dkt. #108-1 (Yohannes Dep.) at 49:13-18. He did not contact his insurance company to determine how much they had paid. Id. at 50:2-23. In December 2005, Baker Dental was sold to Dr. Jung Song. Id. at 7. The responsibility to collect any remaining debts was transferred to Dr. Song, who “was entitled to a fee or percentage for any of these collections.” Id. at 10.

         Defendants produced an Assignment of Claims for Collection dated February 14, 2006, that assigned Baker Dental's claim for $389.03 against plaintiff to OCI. Ex. 1, Dkt. #110-1. The “Assigned Date” is January 3, 2006. Id.; see Ex.4, Dkt. #112-4 (Martin Dep.) at 18:15-17. This was received by OCI on February 21, 2006. Ex. 4, Dkt. #110-1 at 12; see Dkt. #112-5 (Ansari Dep.) at 76:7-13. Plaintiff disputes the authenticity of this document, arguing that the name and contact information for the Financial Coordinator is not included, and that Baker Dental was no longer in business in Edmonds, Washington on February 14, 2006, and therefore could not have assigned any of its claims. Dkt. #32 (Am. Compl.) at ¶¶ 63-64. Plaintiff was not present when the document was created and does not know how it came into the possession of OCI. Yohannes Dep. at 51:1-13. Baker Dental stated in response to plaintiff's Request for Production No. 2 on March 29, 2019 that no contractual agreements with OCI were available. Dkt. #112-2 at 8. Dr. Song also stated that he was “unaware of any documents or records responsive” to plaintiff's request for contractual agreements with OCI. Ex. 3, Dkt. #112-3 at 2.[1]

         B. Snohomish County Lawsuit filed by OCI

         In early 2006, OCI obtained Baker Dental's Patient Information form for plaintiff, which listed his address as 13619 Mukilteo Speedway D5-2, Lynnwood, Washington, and his employer as CTS. Ex. 1, Dkt. #112-1 at 2; see Ex. 2, Dkt. #110-1. Around January 5, 2006, OCI sought location information for plaintiff and obtained the same address of 13619 Mukilteo Speedway D5-2, Lynnwood, Washington. Ex. 1, Dkt. #112-1 at 3; see Ex. 4, Dkt. #110-1; see Dkt. #110 (Ansari Decl.) at ¶ 4. On January 6, 2006, OCI sent a letter to plaintiff demanding payment for a debt owed to Baker Dental with a principal amount of $389.03. Id. at 5. Plaintiff responded on January 25, 2006, disputing the debt. Id. at 6-7; see Dkt. #32-3 at 3. He also telephoned OCI and disputed the debt and the interest in OCI's demand letter. Id. at 8. On January 31, 2006, plaintiff requested that OCI verify the debt. Ex. 4, Dkt. #110-1 at 12. OCI sent the verification to plaintiff the next day. Id. In February 2006, OCI changed plaintiff's address in their system to 4920 94th Street, SW, Mukilteo, Washington. Id. On March 1, 2006, OCI filed a complaint against plaintiff in the Snohomish County District Court, seeking payment of the principal amount of $389.03, interest to the date of filing in the amount of $122.53 plus accumulated interest to the date of judgment, the filing fee in the amount of $53, reasonable or statutory attorney's fees in the amount of $200, and an estimated service fee in the amount of $35, for a total amount of at least $799.56. Dkt. #32-2 at 4; see Ex. 1, Dkt. #109-1. The lawsuit was filed by Martin. Dkt. #109 (Martin Decl.) at ¶ 2.

         A Declaration of Service was filed on March 27, 2006, by Registered Process Server Isaac Delys. Dkt. #32-2 at 5. This Declaration states that Delys served plaintiff with the summons and complaint on March 26, 2006 at 11905 Highway 99, Everett, in Snohomish County. Id. Plaintiff claims that he was not served, and that the Declaration is defective. Am. Compl. at ¶¶ 61, 76. He testified that the description of himself in the Declaration was inaccurate because he is “outside the height and weight range that [the process server] specified.” Yohannes Dep. at 72:6-7; see Ex. 8, Dkt. #112-8 (Yohannes Decl.) at ¶¶ 10-11. He stated that everything else was accurate. Id. at 72:23-73:10. A document from Precise Courier describing the service states that the process server could not get into plaintiff's apartment complex, so he called plaintiff and made an appointment to meet him at a Wendy's located at 11905 Highway 99, Everett, Washington. Dkt. #108-2; see Yohannes Dep. at 75:4-76:20. Plaintiff confirmed that the phone number was his. Id. at 68:15-16.

         C. Default Judgment against Plaintiff

         Plaintiff did not answer the complaint, and in April 2006, OCI filed a motion for default judgment. Martin Decl. at ¶ 4; see Ex. 3, Dkt. #109-1. Martin reviewed the ledger to check the prejudgment interest calculations and the accuracy of the principal amount. Martin Decl. at ¶ 4. The motion states that plaintiff resides at 11905 Highway 99, Everett, Washington. Ex. 3, Dkt. #109-1. That was the address for the Wendy's where plaintiff was served and is not his residential address. This was an error. Ansari Dep. at 62:15-63:13. On May 1, 2006, the Snohomish County District Court entered default judgment (“the Judgment”) against plaintiff. Martin Decl. at ¶ 5. The Judgment has not been vacated. Id.; see Yohannes Dep. at 79:13-80:1. It expired on May 1, 2016. Martin Decl. at ¶ 9. OCI served a Writ of Garnishment on the Boeing Company in June 2006. Ex. 1, Dkt. #112-1 at 26. Between 2004 and 2011, plaintiff was employed with CTS and assigned contract work with Boeing. Yohannes Decl. at ¶ 12. Between 2011 and 2013, he was employed with CTS and assigned contract work with Gulfstream Aerospace in Savannah, Georgia. Id. at ¶ 13. In August 2006, following a telephone inquiry by OCI, the Boeing payroll department informed OCI that “it was possible that [plaintiff] was a contract employee.” Id. at 37. Boeing also indicated that it did not have a record of employment for plaintiff. Id. at 38. OCI informed Boeing that it was required to file an Answer to the Writ of Garnishment. Id. at 38-39.

         On September 27, 2006, OCI received a fax message with Boeing's First and Only Answer to the Writ of Garnishment, stating again that it had no record of employment for plaintiff. Id. at 44-45; see Dkt. #50 at 33. OCI tried to obtain location information for plaintiff from Boeing. Id. at 46. In March 2014, OCI tried to obtain location information for plaintiff from CTS. Id. at 47-48. CTS informed Boeing that plaintiff's last date of employment with CTS was May 2013. Id. at 48.

         On September 27, 2015, OCI determined that plaintiff worked for the United States Department of Transportation. Id. In the same month, on September 17, 2015, one of OCI's employees noted in plaintiff's Debtor History Report that the Judgment was due to expire on May 1, 2016. Ex. 4, Dkt. #110-1 at 19. In November 2015, OCI caused a Writ of Garnishment to be served on Boeing. Ex. 1, Dkt. #112-1 at 49; see Dkt. #50 at 36-38. On February 15, 2016, Martin signed a Writ of Garnishment for Continuing Lien on Earnings directed to the United States Department of Interior (“DOI”), which handles payroll services for several federal agencies, including the Federal Aviation Administration within the U.S. Department of Transportation. Dkt #112 at 55-57; see Dkt. #112 at 6; see Martin Decl. at ¶ 9; see Dkt. #32-2 at 7-9. “The year was improperly stated as 2015 because of a typographical error.” Martin Decl. at ¶ 9. At the time of his signature, “there was time to have obtained garnishment funds well before the expiration of the judgment, assuming the writ was filed and served properly.” Id. Plaintiff concedes that the judgment had not expired as of the date that the Writ of Garnishment was issued, i.e., February 15, 2015. Yohannes Dep. at 81:16-82:23.

         The DOI filed a First Answer to Writ of Garnishment for Continuing Lien on Earnings in April 2016. Dkt. #32-2 at 10-12. Plaintiff was issued two checks by his employer in May. Yohannes Dep. at 95:23-96:12. The first check, in the amount of $623.71, was garnished. OCI received it on May 20, 2016 and deposited it. Id. at 94:1-7, 96:2-5, 98:3-15; see Ex. 1, Dkt. #112-1 at 73-74. OCI received the second check around June 10, 2016, in the amount of $673.72. Id. at 82. This was not deposited. Id. It was returned directly to the DOI. Id.

         D. Failure to Renew Judgment

         The garnishment was still in progress when the Writ expired on May 1, 2016. Martin Decl. at ¶ 9. OCI has a Legal Department Training Manual (“the Manual”) that lists the steps for renewing a judgment. Ex. 8, Dkt. #110-1; see Ansari Decl. at ¶ 8. In 2009, OCI hired Kayla Brown. Ansari Decl. at ¶ 8. On September 17, 2015, plaintiff's file was transferred from Ansari to Brown. Id. at ¶ 9. During the fall and winter of 2015, Brown was “having health issues and personal problems.” Id. at ¶ 10. According to Ansari, her “inattention to [plaintiff's] file resulted in her failure to take the necessary steps to renew the judgment.” Id. Ansari states that OCI had no intention not to renew the judgment. Id. Plaintiff testified that he became aware of the Judgment at the end of April in 2016. Yohannes Dep. at 79:6-16. He did not take any steps to have it set aside. Id. at 79:17-20.

         On May 5, 2016, Ansari sent an email to Brown stating that it was too late to renew the Judgment and that he was not sure if they would “get everything” on the first garnishment. Ex. 4, Dkt. #110-1 at 21; see Ansari Dep. at 163:15-22. Brown responded on the same day, stating that she would “have to ask [Martin] - garn[ishment] was filed OK so there should be a way to extend it, as garn[ishment] is still running.” Id. at 164:23-165:2; see Ex. 4, Dkt. #110-1 at 21; see Ex. 1, Dkt. #112-1 at 62; see Ex. 4, Dkt. #110-1 at 21. On the same day, OCI received a call from plaintiff requesting information about the Judgment. Ex. 1, Dkt. #112-1 at 63-64. Cable spoke with plaintiff. Ansari Decl. at ¶ 11. OCI did not inform plaintiff that the Judgment had expired. Ex. 1, Dkt. #112-1 at 64. On May 12, 2016, Brown sent an email to Cable that stated, “Could you maybe, possibly ask [Martin] if we can extend the [Judgment] after it has expired? Garn[ishment] was filed 04/06/2016 [and] [Judgment] filed 05/01/2006 (Garn[ishment] is running, may need to release).” Ex. 4, Dkt. #110-1 at 21-22; see Ansari Dep. at 165:3-16.

         Cable testified that on May 16, 2016, she wrote, “Per Lee[2] [Martin], we have to release the judgment because the judgment expired prior to completions, and so we are not entitled to enter the JOA as no judgment is in force.” Ex. 6, Dkt. #112-6 (Cable Dep.) at 15:14-18; see Martin Dep. at 46:8-21; see Ansari Dep. at 166:3-9. An email on May 16, 2016 states that OCI should have caught the error before the garnishment went out and that it is “normally good about tracking when a judgment would need to be renewed”. Ex. 4, Dkt. #110-1 at 22. At some point, Cable called the Snohomish County District Court. Cable Dep. at 16:8-11. On May 20, 2016, she wrote that she “called Lee [Martin], told him what the court said. Since there is no case law and the court has one view, [] Lee said we are fine.” Id. at 16:22-25. Accordingly, Cable put in, “Since garn[ishment] release was not sent, we do not have to file the release. Let the garn[ishment] run.” Id. at 17:1-3.

         E. Release of Writ of Garnishment

         A note in plaintiff's Debtor History on May 24, 2016, states that the garnishment must be released and refunded and that it “could result in a lawsuit against [OCI] quite easily.” Ex. 4, Dkt. #110-1 at 24. Martin authorized OCI to use his signature stamp on Writ of Release documents so that they could be prepared and filed or delivered immediately. Ansari Decl. at ¶ 12. The Writ of Release for plaintiff's account was prepared on May 24, 2016. Martin Decl. at ¶¶ 9-10; see Ex. 4, Dkt. #109-1. Martin stated that the Writ of Release “is the only pleading on which certain persons at [OCI] are authorized to use [his] signature stamp.” Id. at ¶ 11; see Cable Dep. at 10:25-11:5. The Writ of Release is dated May 24, 2016, and stamped May 26, 2016. Yohannes Dep. at 93:7-25.

         The amount of $623.71 was refunded to him in the same month. Id. at 96:6-97:3, 98:16- 17. On May 24, 2016, Ansari sent a letter to plaintiff enclosing the Writ of Release and a check for the $623.72 received on the garnishment on May 20, 2016. Ex. 6, Dkt. #110-1. The letter also states that the Release was sent to plaintiff's employer. Id. Plaintiff deposited OCI's check on June 27, 2016. Id. at 99:8-100:3. Plaintiff testified that OCI did not actually obtain any money from him. Id. at 15:8-11. Ansari sent another letter on June 20, 2016, enclosing the Writ of Release, a deletion request to plaintiff's credit bureau, and a copy of the letter dated May 24, 2016. Ex. 7, Dkt. #110-1. It states that OCI has not kept any funds on the matter and is not attempting to collect on it. Id.

         F. Cable's Communications with DOI

         Prior to the execution of the Writ of Release, Cable states that she received calls from Steve Burpee, an employee at the DOI, on May 18, 10216. Dkt. #111 (Cable Decl.) at ¶ 4. Burpee was “communicating about the garnishment of [plaintiff], and his objection thereto.” Id. Plaintiff alleges that Cable represented herself as an attorney to the DOI. Yohannes Dep. at 25:8-10. He did not personally hear this alleged misrepresentation. Id. at 25:11-26:1, 29:7-12. He refers instead to an email sent to him by Steve Burpee on May 18, 2016, which states, “After conversations with Susan Cable … legal manager, [OCI], it has been determined that the garnishment is legal and will continue to be enforced.” Dkt. #49-1 at 2.

         G. Procedural History

         Plaintiff filed his initial complaint on March 31, 2017. Dkt. #1. He filed an Amended Complaint on December 29, 2017. Dkt. #32. He brings eleven causes of action. Count 1 asserts that defendants made false or misleading representations. Am. Compl. at ¶¶ 125-127; see 15 U.S.C. § 1692e(10). Count 2 asserts that defendants impermissibly impersonated an attorney. Am. Compl. at ¶¶ 128-133; see 15 U.S.C. § 1692e(3). Count 3 asserts that OCI, Ansari and Cable impermissibly communicated with third parties in connection with the collection of plaintiff's debt. Am. Compl. at ¶¶ 134-137; see 15 U.S.C. § 1692c(b). Count 4 asserts that defendants engaged in the unauthorized practice of law. Am. Compl. at ¶¶ 138-143; see 15 U.S.C. § 1692e(9). Count 5 asserts that defendants collected and attempted to collect unauthorized amounts from plaintiff. Am. Compl. at ¶¶ ...


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