Final Response To Uda Debbie

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THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF THURSTON
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WASHINGTON FEDERAL SAVINGS,
)
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Plaintiff,
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vs.
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DEBORAH E. BURGAN AND JOHN DOE )
BURGAN, Husband and Wife, JOHN AND )
JANE DOE, UNKNOWN OCCUPANTS OF )
THE PREMISES,
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Defendants,
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)
Case No.: 10-2-02191-1

DEFENDANTS' RESPONSE TO
PLAINTIFF'S COMPLAINT FOR
UNLAWFUL DETAINER
TRIAL BY JURY DEMANDED
(CLERKS ACTION REQUIRED)
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Plaintiff's named Defendant, Deborah E. Burgan, hereinafter referred to as Defendant
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(for organizational purposes only and is not intended and should not be relied upon as a
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statement of law, fact, acquiescence, or otherwise) as the true and lawful originator, drawer, first
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funds transferor, lien creditor, funder, underwriter, and/or creditor of the funds that were paid for
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14520 Avis Lane SE, Yelm, WA 98597, otherwise recorded as Lot 3 of Large Lot Subdivision
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No. LLS-940862TC, as recorded January 31, 1997 under Thurston County Auditor's File No.
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DEFENDANT'S RESPONSE
TO PLAINTIFF'S COMPLAINT
FOR UNLAWFUL DETAINER
Heather A. Tucci-Jarraf,
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Attorney At Law
8805 N. Harborview Dr., Suite 201
Gig Harbor, WA 98332
+253.509.4597 phone
3072545 and 3072546 (the Property), comes now before this Court, through her Attorney,
Heather Ann Tucci-Jarraf, for peaceful resolution of any and all matters claimed, alleged and/or
asserted by Plaintiff in Plaintiff's Complaint for Unlawful Detainer (Complaint) and Defendant
hereby files her response to said Complaint.
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I. PLAINTIFF'S NAMED PARTIES
Plaintiff Washington Federal Savings (Plaintiff Bank), is the party that filed a Complaint for
Unlawful Detainer (Complaint) in Thurston County Superior Court.
Defendant, Deborah E. Burgan, is the lawful owner and resident of the Property.
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II. RESPONSE TO PLAINTIFF BANK'S ALLEGATIONS

1. Defendant denies Plaintiff Bank's allegation made at section (1), sentence #1 of Plaintiff
Bank's Complaint.
Bank's Complaint.
Bank's Complaint.
Bank's Complaint.
5. Defendant denies Plaintiff Bank's allegation made at section (3) of Plaintiff Bank's
Complaint.
6. Defendant denies Plaintiff Bank's allegation made at section (4) of Plaintiff Bank's
Complaint.
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III. PLAIN STATEMENT OF FACTS
Plaintiff Bank's Prayer for Relief, as stated on pages 2-3 in its Complaint in section (5) (A)-(C),
incorporated herein as if set forth in full, should be denied as a matter of law, matter of fact,
and/or as a matter of public policy based upon Defendant's sworn affidavits, filed concurrently,
attached as Exhibit A and Exhibit B, and incorporated herein as if set forth in full, supporting
pertinent and relevant case law and facts, asserted and alleged as follows:
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IV. GENERAL FACTS AND LAW
7. Defendant re-asserts #1-6, as though set forth in full herein.
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8. RCW 59.12.032 requires that [a]n unlawful detainer action, commenced as a result of a
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trustee's sale under chapter 61.24 RCW, must comply with the requirements of RCW
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61.24.040 and 61.24.060.. See RCW 59.12.032.
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9. RCW 5.40.010, of Evidence Title 5 RCW, declares that pleadings sworn to by either party
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in any case shall not be deemed proof of the facts alleged therein, nor require other or
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greater proof on the part of the adverse party.
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10. A court
may not assume the truth of allegations in a pleading which are contradicted by
affidavit. Data Disc, Inc. v. Systems Tech Assoc., Inc., 557 F.2d 1280 (9th Cir. 1977).
11. Silence
can only be equated with fraud when there is a legal or moral
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duty to speak or where an inquiry left unanswered would be
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intentionally misleading. U.S.v. Tweel, 550 F.2d. 297~ 299 (5th Crr.
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1977), quoting U.S. v. Prudde, 424 F.2d 1021~ 1032 and Carmine v.
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Bowen, 64 A. 932 (1906)
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12. Plaintiff Bank has not provided Defendant and/or this Court with Plaintiff Bank's prior
absolute proof of claim as bona fide purchaser for value of the Property at trustee's sale,
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with full verified and verifiable accounting pursuant to Generally Accepted Accounting
Principles (GAAP) and Federal Accounting Standards (FAS) provided by a competent
witness with firsthand personal knowledge stated under a verifiable sworn and notarized
affidavit as true, correct, and complete with unlimited commercial liability, and,
therefore, showing that it is entitled to summary proceedings under RCW59.12. See
Exhibit A, and RCW 61.24.040(7), 61.24.070(2), 61.24.060(1) and 59.12.032.
absolute proof of claim as beneficiary as purchaser pursuant to the requisites of RCW
61.24.070(2), with full verified and verifiable accounting pursuant to GAAP and FAS
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provided by a competent witness with firsthand personal knowledge stated under a
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verifiable sworn and notarized affidavit as true, correct, and complete with unlimited
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commercial liability, evidencing a debt and amount available for credit available to be
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applied towards a bid for the purchase of the Property at trustee's sale, and, therefore
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showing it is entitled to summary proceedings under RCW59.12. See Exhibit A, and
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RCW 61.24.040(7), 61.24.070(2), 61.24.060(1) and 59.12.032.
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absolute proof of beneficiary status defined in RCW 61.24.005 as the holder of the
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instrument or document evidencing the obligations and/or debt allegedly secured by the
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deed of trust, with full verified and verifiable accounting pursuant to GAAP and FAS
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commercial liability, enabling Plaintiff Bank to request and/or take advantage of the
benefits of applying credit, if any exists, towards a bid as purchaser as beneficiary
allowed by RCW 61.24.070(2), making them a lawful purchaser under RCW 61.24..060,
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entitled to the summary proceedings under RCW 59.12. See Exhibit A, and RCW
61.24.060, 61.24.040(7), 61.24.070(2) and 59.12.032.
15. Plaintiff Bank has not provided Defendant and/or this Court with a sworn affidavit, made
under the penalty of perjury, of Plaintiff Bank's prior absolute proof that Plaintiff Bank
is/was the the true and lawful originator, drawer, first funds transferor, lien creditor,
funder, underwriter, and/or creditor of the funds by full verified and verifiable accounting
pursuant to GAAP and FAS provided by a competent witness with firsthand personal
knowledge stated under a verifiable sworn and notarized affidavit as true, correct, and
complete with unlimited commercial liability, that were/are used to purchase and
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construct the Property in order to establish that Defendant did owe a monetary obligation
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and/or debt that the Plaintiff Bank was entitled to credit towards the bid of the Property
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pursuant to RCW 61.24.070(2) and therefore the lawful purchaser under RCW 61.24.060,
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entitled to the summary proceedings under RCW 59.12. See Exhibits A, and RCW
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61.24.060, 61.24.040(7), 61.24.070(2) and 59.12.032.
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under the penalty of perjury, of Plaintiff Bank's prior absolute proof that Plaintiff Bank
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did make a loan to Defendant, with full verified and verifiable accounting pursuant to
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GAAP and FAS provided by a competent witness with firsthand personal knowledge
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stated under a verifiable sworn and notarized affidavit as true, correct, and complete with
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unlimited commercial liability, that establishes that a credit was available to Plaintiff
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Bank pursuant to RCW 61.24.070(2), that would otherwise render Plaintiff Bank a lawful
purchaser under RCW 61.24.060 entitled to the summary proceedings of RCW 59.12.
See Exhibits A, and RCW 61.24.060, 61.24.040(7), 61.24.070(2) and 59.12.032.
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Attorney At Law
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by the Trustee, Bishop, White & Marshall, P.S. (Trustee), under the penalty of perjury,
of Trustee's prior absolute proof that Trustee did review the terms and conditions of the
Deed of Trust for the Property, the statutes of RCW 61.24, and Plaintiff Bank's prior
absolute proof that Plaintiff did make a loan to Defendant, if any, and that the loan was
secured by the deed of trust for the Property as required by RCW 61.24.040 in order to
lawfully credit any alleged amount towards a bid for purchase of the Property, that would
render Plaintiff Bank a lawful purchaser of the Property at a trustee's sale entitled to
summary proceedings of 59.12, under 61.24.060. See Exhibits A, and RCW 61.24.060,
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61.24.040(7), 61.24.070(2) and 59.12.032.
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by the Trustee, Bishop, White & Marshall, P.S. (Trustee), under the penalty of perjury,
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of Trustee's prior absolute proof that the Trustee did comply with the terms and
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conditions of the Deed of Trust for the Property and the statutes of RCW 61.24 as
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required by RCW 61.24.040 and 61.24.030, as required in order for a trustee to establish
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that Plaintiff Bank is/was a beneficiary, and that the beneficiary was owed an amount, if
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any, that is/was able to be credited and that the credit of said alleged debt for the
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beneficiary towards beneficiary's bid of purchase at a trustee's sale was done, that would
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render Plaintiff Bank a lawful purchaser of the Property at a trustee's sale entitled to
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summary proceedings of 59.12, under 61.24.060. See Exhibit A, and RCW 61.24.060,
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61.24.040(7), 61.24.070(2) and 59.12.032.

19. RCW 61.24.060 declares that the purchaser at the trustee's sale shall be entitled to
possession of the property on the twentieth day following the sale, as against the
borrower and grantor under the deed of trust. See RCW 61.24.060(1).
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20. RCW 61.24.040(7) declares that the purchaser shall forthwith pay the price bid and on
payment the trustee shall execute to the purchaser its deed.
21. RCW 61.24.070(2) requires a bona fide purchaser to pay the trustee in the form of cash,
certified check, cashier's check, money order, or funds received by verified electronic
transfer, or any combination thereof.
22. The
law is well settled that in order to be considered a bona fide purchaser, one must
have purchased the property for value. RCW 61.24.040(7). The beneficiary of a deed
of trust is not a bona fide purchaser. Johnson v. Johnson, 25 Wn.2d 797 (1946).
23. RCW 61.24.070(2) allows a beneficiary to request that any part or all of a monetary
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obligation secured by the deed of trust be credited toward beneficiary's bid for the
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Property.
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24. RCW 61.24.005 defines a Beneficiary as the holder of the instrument or document
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evidencing the obligations secured by the deed of trust, excluding persons holding the
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same as security for a different obligation.
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25. Pursuant to GAAP and FAS, Plaintiff Bank did not loan Defendant money for the
purchase and/or construction of the Property. See Exhibit A.
26. Defendant had/has no legal obligations and/or debts owing to Plaintiff Bank regarding
Property. See Exhibit A.
27. Defendant is/was, at all times, the true and lawful originator, drawer, first funds
transferor, lien creditor, funder, underwriter, and/or creditor of the funds that were/are
used to purchase and construct the Property. See Exhibit A.
28. When
there are properly executed affidavits that are directly conflicting on material
points, it is not possible for a judge to weigh the affidavits in order to resolve disputed
issues. However, in the rare case where the facts put forth in an affidavit are inherently
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incredible, and can be so characterized solely by a reading of the affidavit, the judge has
no basis for a determination of credibility. Data Disc, Inc. v. Systems Tech Assocs., Inc.,
557 F.2d 1280 (9th Cir. 1977).
29. Even if Plaintiff Bank were to subsequently file with this Court a Real Estate Excise Tax
Affidavit, a trustee's deed, a Notice of Trustee's Sale, a Deed of Trust, a Promissory Note
and/or sworn affidavits that Plaintiff Bank was a purchaser, or other declarations, they
are gratuitous at best at this juncture and at the very least prima facie evidence that triable
issues of material fact exist for the determination of a jury.. They would be insufficient to
rebut the points in Defendant's sworn affidavit and would not be prior absolute proof that
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a loan was made to Defendant by Plaintiff Bank pursuant to GAAP, that the loan amount
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still outstanding pursuant to GAAP could and/or was lawfully applied as credit towards a
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beneficiary's bid at trustee's sale, and thus rendering Plaintiff Bank a purchaser entitled to
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summary proceedings provided by RCW 59.12, under RCW 61.24.060.
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30. If a Real Estate Excise Tax Affidavit, a trustee's deed, a Notice of Trustee's Sale, a Deed
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of Trust, a Promissory Note and/or sworn affidavits stipulating that Plaintiff Bank was a
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purchaser, or other declarations, were subsequently submitted by and/or on behalf of
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Plaintiff Bank, in the absence of Plaintiff Bank's prior absolute proof of claim and
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creditor status, with full verified and verifiable accounting pursuant to GAAP and FAS
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commercial liability, Defendant's Sworn Affidavit (See Exhibit A) stands uncontested and
thereby any and all alleged claims by Plaintiff Bank in this matter are inherently invalid
and constitutes prima facie evidence of Plaintiff Bank's bad faith, fraud, attempted fraud,
theft, and/or attempted theft of Defendant's Property and/or assets, which vitiates all
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interactions, claims, charges, contracts, and/or grounds for any cause of action against
Defendant regarding Property. At the very most, they would proof that triable material
issues of fact would exist to be decided by a jury.
31. Furthermore, absent Plaintiff Bank's prior absolute proof, each and every mailing, or
other attempt made by Plaintiff Bank, and/or Bishop, White, Marshall, as trustee and/or
as foreclosure attorney on behalf of Plaintiff Bank, would be a separate and individual
violation of the Fair Debt Collections Practices Act of Washington, RCW 19.16. See the
Sworn Affidavit of Deborah E. Burgan regarding Service/Notice, filed concurrently,
attached as Exhibit B and incorporated herein as if set forth in full.
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32. Furthermore, absent Plaintiff Bank's prior absolute proof, each and every mailing, or
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other attempt made by Plaintiff Bank, and/or Bishop, White, Marshall, as trustee and/or
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as foreclosure attorney on behalf of Plaintiff Bank, would be a separate and individual
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violation of the Consumer Protection Act of Washington, RCW 19.86. See Exhibit B.
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V. PRAYER FOR RELIEF

WHEREFORE, Defendant prays for the following relief
33. Plaintiff
Bank has failed to prove standing by absence of filing prior absolute proof to the
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Defendant and/or this Court that Plaintiff Bank is/was a lawful purchaser of the Property
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at a trustee's sale who is entitled to the summary proceedings provided by RCW 59.12,
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under RCW 61.24.060(1), and it has failed to show that it complied with RCW 61.24.040
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thus not meeting the requirement of RCW 59.12.032 in order to bring forth a complaint
for unlawful detainer, which would otherwise give this Court jurisdiction over the matter.
THERFORE, this Court should find and declare by written order as a matter of law,
matter of fact, and/or matter of public policy, and absent Plaintiff Bank's prior
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absolute proof as required to contest each point of Defendant's Sworn Affidavit, that:
1.) that Plaintiff Bank is/was not a lawful purchaser of Property at trustee's sale, and thus
not entitled to the summary proceedings provided by RCW 59.12 under RCW 61.24.060
and dismiss this case for lack of standing; 2.) that Defendant was/is, at at all times, the
true and lawful originator, drawer, first funds transferor, lien creditor, funder, underwriter,
and/or creditor of the funds that were/are used to purchase and/or construct the Property;
3.) No lawful mortgage existed between Defendant and Plaintiff Bank; 4.) Defendant
has/had no legal obligations and/or debts owing to Plaintiff Bank regarding Property by
absence of Plaintiff Bank's prior absolute proof of claim and creditor status, with full
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verified and verifiable accounting pursuant to GAAP provided by a competent witness
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with firsthand personal knowledge stated under a verifiable sworn and notarized affidavit
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as true, correct, and complete with unlimited commercial liability; 6.) The deed of trust
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for Property, is invalid, from its inception, as a matter of law; 7.) that Defendant did
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not/does not have a debt and or other obligation owning to Plaintiff Bank; 8.) that, absent
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proof that a loan existed pursuant to GAAP, Defendant did not default on any alleged
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obligations and/or debts to Plaintiff Bank; 9.) The foreclosure of Property, was/is
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improper and/or illegal and therefore null and void and/or reversed; 10.) any trustee's
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sale done by Trustee conveying the Property to Plaintiff Bank , was/is improper and/or
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illegal and therefore null and void and/or reversed; 11.) any Trustee's Deed, made by
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Trustee conveying the Property to Plaintiff Bank , was/is improper and/or illegal and
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therefore null and void and/or reversed; 12.) Defendant is/was the lawful owner of
Property; and/or 13.) Plaintiff Bank has no standing and/or valid claim of interest and/or
right to possession of Defendants' Property.
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34. Furthermore, Defendant requests a judgment for Plaintiff Bank to pay all Defendant's
attorney's fees for responding and/or court appearances in this action.
35. For such other relief as the Court deems reasonable and just.
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CLARIFICATIONS
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Headings are only for organizational purposes and are not intended, and should not be
relied upon as law, fact, defenses, assertions, and/or allegations made by Deborah E.
Burgan, through her attorney.
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DEMAND FOR JURY TRIAL
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In the instance where there are disputed matters of fact at issue, Plaintiffs demand trial by
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jury of all matters so triable as a matter of right.
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VERIFICATION
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Deborah E. Burgan, represented by her Attorney, Heather A. Tucci-Jarraf, has read the
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foregoing response and knows the contents thereof.
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Dated:
For and on behalf of Deborah E. Burgan
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_________________________
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Heather A. Tucci-Jarraf
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Attorney at Law,
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Attorney At Law
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WSBA # 30281
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Final Response To Uda Debbie

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Final Response To Uda Debbie

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1

THE SUPERIOR COURT OF THE STATE OF WASHINGTON

IN AND FOR THE COUNTY OF THURSTON

WASHINGTON FEDERAL SAVINGS,

Case No.: 10-2-02191-1

Plaintiff's named Defendant, Deborah E. Burgan, hereinafter referred to as Defendant

hereby files her response to said Complaint.

I. PLAINTIFF'S NAMED PARTIES

Unlawful Detainer (Complaint) in Thurston County Superior Court.

II. RESPONSE TO PLAINTIFF BANK'S ALLEGATIONS

III. PLAIN STATEMENT OF FACTS

IV. GENERAL FACTS AND LAW

7. Defendant re-asserts #1-6, as though set forth in full herein.

61.24.040 and 61.24.060.. See RCW 59.12.032.

greater proof on the part of the adverse party.

can only be equated with fraud when there is a legal or moral

duty to speak or where an inquiry left unanswered would be

Bowen, 64 A. 932 (1906)

Principles (GAAP) and Federal Accounting Standards (FAS) provided by a competent

therefore, showing that it is entitled to summary proceedings under RCW59.12. See

Exhibit A, and RCW 61.24.040(7), 61.24.070(2), 61.24.060(1) and 59.12.032.

absolute proof of claim as beneficiary as purchaser pursuant to the requisites of RCW

provided by a competent witness with firsthand personal knowledge stated under a

showing it is entitled to summary proceedings under RCW59.12. See Exhibit A, and

RCW 61.24.040(7), 61.24.070(2), 61.24.060(1) and 59.12.032.

provided by a competent witness with firsthand personal knowledge stated under a

61.24.060, 61.24.040(7), 61.24.070(2) and 59.12.032.

61.24.060, 61.24.040(7), 61.24.070(2) and 59.12.032.

61.24.040(7), 61.24.070(2) and 59.12.032.

61.24.040(7), 61.24.070(2) and 59.12.032.

transfer, or any combination thereof.

same as security for a different obligation.

557 F.2d 1280 (9th Cir. 1977).

summary proceedings provided by RCW 59.12, under RCW 61.24.060.

purchaser, or other declarations, were subsequently submitted by and/or on behalf of

provided by a competent witness with firsthand personal knowledge stated under a

issues of fact would exist to be decided by a jury.

as foreclosure attorney on behalf of Plaintiff Bank, would be a separate and individual

Sworn Affidavit of Deborah E. Burgan regarding Service/Notice, filed concurrently,

attached as Exhibit B and incorporated herein as if set forth in full.

as foreclosure attorney on behalf of Plaintiff Bank, would be a separate and individual

V. PRAYER FOR RELIEF

verified and verifiable accounting pursuant to GAAP provided by a competent witness

Burgan, through her attorney.

DEMAND FOR JURY TRIAL

jury of all matters so triable as a matter of right.

foregoing response and knows the contents thereof.

For and on behalf of Deborah E. Burgan

8805 N. Harborview Dr., Suite 201

Gig Harbor, WA 98332

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