United States District Court, W.D. Washington, Seattle
ORDER ON MOTIONS FOR SUMMARY JUDGMENT AND DECLARATORY
S. Lasnik United States District Judge
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.
Treatment at Baker Dental
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.
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.
Snohomish County Lawsuit filed by OCI
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.
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.
Default Judgment against 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
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.
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.
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.
Failure to Renew Judgment
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
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.
testified that on May 16, 2016, she wrote, “Per
[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.
Release of Writ of Garnishment
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.
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.
Cable's Communications with DOI
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
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