US District Court for Eastern Texas - USA ex rel, Brook Jackson v. Ventavia Research Group - recently unsealed qui tam action against vaccine entities: Pfizer Inc., Icon PLC, and Ventavia Research Group, LLC

Case 1:21-cv-00008-MJT Document 16 Filed 02/10/22 Page 1 of 2 PageID #: 694 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS BEAUMONT DIVISION UNITED STATES OF AMERICA, ex rel. Brook Jackson, Plaintiff, v. VENTAVIA RESEARCH GROUP, LLC; PFIZER, INC.; ICON, PLC, Defendants. § § § § § § § § § § § CIVIL ACTION NO. 1:21-CV-00008 JUDGE MICHAEL J. TRUNCALE ORDER The Court has received the Government’s Notice of Election to Decline Intervention. [Dkt. 13]. The Government (also referred to as “United States”) having declined to intervene in this action pursuant to the False Claims Act, 31 U.S.C. § 3730(b)(4)(B), the Court rules as follows: It is ORDERED as follows: 1. the complaint be unsealed and served upon the Defendants by the Relator; 2. all other contents of the Court’s file in this action remain under seal and not be made public or served upon the Defendants, except for this Order and the Government’s Notice of Election to Decline Intervention, which the Relator will serve upon the Defendants only after service of the Complaint; 3. the seal be lifted as to all other matters occurring in this matter after the date of this Order; 4. the Parties shall serve all pleadings and motions filed in this action, including supporting memoranda, upon the United States, as provided for in 31 U.S.C. § 3730(c)(3). The United States may order any deposition transcripts and is entitled to intervene in this action, for good cause, at any time; 5. all Parties shall serve all notices of appeal upon the United States; 6. all orders of this Court shall be sent to the United States; and that Case 1:21-cv-00008-MJT Document 16 Filed 02/10/22 Page 2 of 2 PageID #: 695 7. should the Relator or the Defendants propose that this action be dismissed, settled, or otherwise discontinued, the Court will solicit the written consent of the United States before ruling or granting its approval. SIGNED this 10th day of February, 2022. ____________________________ Michael J. Truncale United States District Judge 2 Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 1 of 81 PageID #: 6 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS BEAUMONT DIVISION UNITED STATES OF AMERICA ex rel. Brook Jackson, Plaintiff, v. VENTAVIA RESEARCH GROUP, LLC; PFIZER INC.; ICON PLC, Defendants. § § § § § § § § § § § § § § § § § RELATOR BROOK JACKSON’S ORIGINAL COMPLAINT FOR VIOLATIONS OF THE FEDERAL FALSE CLAIMS ACT FILED UNDER SEAL PURSUANT TO 31 U.S.C. § 3730(b)(2) CASE NO. ________________ DO NOT PUT ON PACER DO NOT PLACE IN PRESS BOX JURY TRIAL DEMANDED RELATOR BROOK JACKSON’S ORIGINAL COMPLAINT Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 2 of 81 PageID #: 7 TABLE OF CONTENTS I. Introduction to Case .............................................................................................................1 II. Jurisdiction and Venue .........................................................................................................5 III. Government Plaintiff ...........................................................................................................5 IV. Introduction to Relator Brook Jackson ................................................................................5 V. A. Relator’s Background ..............................................................................................5 B. Original Source and Disclosures............................................................................10 Defendants .........................................................................................................................11 A. Pfizer Inc. ...............................................................................................................11 B. Icon PLC ................................................................................................................12 C. Ventavia Research Group, LLC .............................................................................12 VI. Respondeat Superior and Vicarious Liability ....................................................................13 VII. Statutory and Factual Background .....................................................................................13 A. COVID-19 Vaccine Development .........................................................................13 B. FDA Clinical Trial Regulations .............................................................................14 C. The BioNTech-Pfizer COVID-19 Vaccine ............................................................17 1. Background and Development of BNT162b2 ...........................................17 2. Clinical Trial Overview .............................................................................18 3. Clinical Trial Protocol................................................................................20 a. Inclusion and Exclusion Criteria....................................................20 b. Blinding..........................................................................................21 c. Temperature Control ......................................................................21 d. Informed Consent...........................................................................22 ii Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 3 of 81 PageID #: 8 4. D. VIII. e. Administration ...............................................................................22 f. Safety and Monitoring ...................................................................23 g. Legal and Regulatory Compliance.................................................24 h. Adherence to Protocol....................................................................24 i. Accuracy of Data ...........................................................................25 BNT162b2 Product Manual .......................................................................25 a. Additional Blinding Precautions ....................................................26 b. Temperature Excursions ................................................................27 c. Dose Preparation ............................................................................27 d. Injection .........................................................................................28 e. Monitoring .....................................................................................28 Contract at Issue.....................................................................................................29 1. Background ................................................................................................29 2. FAR Compliance .......................................................................................30 3. FAR Certification.......................................................................................30 Defendants’ Fraud on the Government ..............................................................................31 A. Violation of Clinical Trial Protocol .......................................................................31 1. Inclusion and Exclusion Criteria................................................................31 2. Blinding......................................................................................................34 3. Temperature Control ..................................................................................37 4. Informed Consent.......................................................................................37 5. Dose Preparation ........................................................................................39 6. Administration ...........................................................................................39 iii Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 4 of 81 PageID #: 9 IX. X. Safety and Patient Monitoring ...................................................................41 8. Accuracy and Completeness of Data .........................................................44 9. Adherence to Protocol................................................................................47 10. Privacy Law Compliance ...........................................................................50 B. Violation of FDA Regulations ...............................................................................51 C. Violation of FAR ...................................................................................................52 D. Ongoing Monitoring Concerns ..............................................................................53 E. Safety and Ethical Issues .......................................................................................53 Retaliation Against Relator ................................................................................................54 A. Relator begins her efforts to stop fraud against the United States .........................56 B. Relator photographs violations ..............................................................................57 C. Relator recommends pausing clinical trial enrollment ..........................................60 D. Ventavia management falsely accuses Relator of violating patient confidentiality ........................................................................................................63 E. Ventavia terminates Relator the next day ..............................................................64 Actionable Conduct by Defendants ...................................................................................66 A. XI. 7. False Claims Act ....................................................................................................66 1. Applicable Law ..........................................................................................66 2. Defendants’ Violations of the False Claims Act........................................67 a. Presentation of False Claims: 31 U.S.C. § 3729(a)(1)(A) .............67 b. Making or Using False Records or Statements to Cause Claims to be Paid: 31 U.S.C. § 3729(a)(1)(B) ...............................69 c. Retaliation: 31 U.S.C. § 3730(h) ...................................................70 Causes of Action ................................................................................................................71 iv Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 5 of 81 PageID #: 10 A. Count I – Presentation of False and/or Fraudulent Claims (31 U.S.C. § 3730(a)(1)(A))........................................................................................................71 B. Count II – Making or Using False Records or Statements Material to False and/or Fraudulent Claims (31 U.S.C. § 3730(a)(1)(B)) .........................................71 C. Count III – Retaliation (31 U.S.C. § 3730(h)) .......................................................73 XII. Index of Exhibits ................................................................................................................74 XIII. Demand for Jury Trial........................................................................................................75 v Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 6 of 81 PageID #: 11 1. Plaintiff/Relator Brook Jackson (“Jackson” or “Relator”) brings this action pursuant to the False Claims Act, 31 U.S.C. §§ 3729–3732, and seeks to recover all damages, penalties, and other remedies established by the False Claims Act on behalf of the United States of America and on her own behalf. Relator would respectfully show the following: I. 2. INTRODUCTION TO CASE Developing a safe and effective vaccine against the novel Coronavirus (“COVID- 19”) was a matter of urgency. But that urgency does not excuse cutting corners in clinical trials, wasting taxpayer dollars, violating federal regulations, and possibly endangering Americans’ health. Defendants Pfizer Inc., Icon PLC, and Ventavia Research Group, LLC (collectively, “Defendants”) conducted a clinical trial to test one of the COVID-19 vaccine candidates. In the race to secure billions in federal funding and become the first to market, Defendants deliberately withheld crucial information from the United States that calls the safety and efficacy of their vaccine into question. Namely, Defendants concealed violations of both their clinical trial protocol and federal regulations, including falsification of clinical trial documents. Due to Defendants’ scheme, millions of Americans have received a misbranded vaccination which is potentially not as effective as represented. The vaccine’s U.S. Food and Drug Administration (“FDA”) authorization resulted from a deeply flawed clinical trial that violated FDA regulations. Defendants have profited from the COVID-19 pandemic at the expense of the United States and its citizens by abusing the scientific process. 3. BioNTech SE (“BioNTech”) and Defendant Pfizer Inc. (“Pfizer”) co-developed a messenger RNA vaccine against COVID-19. After a reportedly successful Phase 1 clinical trial, Pfizer entered into a contract with the United States Department of Defense (“DoD”), under which DoD would purchase 100 million doses of the vaccine for $1.95 billion following FDA approval -1- Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 7 of 81 PageID #: 12 or Emergency Use Authorization (“EUA”). Pfizer and BioNTech became co-sponsors of Phase 2 and 3 clinical trials for their vaccine, aiming for FDA approval or EUA status. 4. Pfizer delegated management of the clinical trial to subcontractor Defendant Icon PLC (“Icon”), an Irish clinical research organization. Icon was tasked with oversight of over 160 test sites worldwide, ensuring trial protocol compliance, and ensuring reporting of required information. This includes oversight of Serious Adverse Event (“SAE”) reporting, which is required by the trial protocol and federal regulations. Pfizer remained responsible for managing and quality checking all data for the entire clinical trial, per the trial’s protocol. 5. Defendant Ventavia Research Group, LLC (“Ventavia”) was contracted by Pfizer to provide three Phase 3 test sites for the vaccine trial in Houston, Fort Worth, and Keller, Texas. Ventavia ultimately enrolled about 1,500 clinical trial patients. Ventavia employed Relator Jackson as a Regional Director. She was tasked with overseeing site management, patient enrollment, quality assurance completion, event reporting, corrective action plan creation, communication with management, and staff training completion at the Keller and Fort Worth sites. 6. Pfizer, aiming for the title of “first successful COVID-19 vaccine,” pushed Ventavia to enroll as many patients as possible in the vaccine trial as quickly as possible. Ventavia was compensated by Pfizer mainly on a per-patient basis—up to a weekly limit—and rushed to enroll as many clinical trial participants as possible per week. Ventavia’s race to maximize payment and over-booking of patients resulted in sloppy and fraudulent documentation practices, poor clinical trial protocol compliance, and little oversight. Pfizer and Icon turned a blind eye to Ventavia’s misconduct, despite numerous warning signs. -2- Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 8 of 81 PageID #: 13 7. Ventavia’s trial protocol and regulatory violations were so widespread, in fact, that Relator observed them on a near-daily basis during her brief employment period. For example, Relator observed: • • • • • • • • • • • • • fabrication and falsification of blood draw information, vital signs, signatures and other essential clinical trial data; enrollment and injection of ineligible clinical trial participants, including Ventavia employees’ family members; failure to timely remove ineligible patients’ data from the trial; failure to maintain temperature control for the vaccine at issue; failure to monitor patients after injection as required by the trial protocol; principal investigator oversight failures; use of unqualified and untrained personnel as vaccinators and laboratory personnel; failure to maintain the “blind” as required, which is essential to the credibility and validity of the observer-blinded clinical trial; ethical violations, such as failure to secure informed consent and giving patients unapproved compensation; improper injection of the vaccine (i.e., by over-diluting vaccine concentrate or using the wrong needle size); failure to ensure that trial site staff were properly trained as required by good clinical practices; safety and confidentiality issues, including HIPAA violations; and other violations of the clinical trial protocol, FDA regulations, and Federal Acquisition Regulations and their DoD supplements. 8. Ventavia failed to report the majority of its clinical trial protocol and regulatory violations to Pfizer or the external Institutional Review Board. Issues were improperly documented or hidden away in “notes to the file,” and not corrected. 9. Icon and Pfizer communicated with each trial site to monitor compliance, but failed to follow up on missing information, ignored “red flags” of trial protocol violations and false data, and failed to exclude ineligible participants from the trial data. In Pfizer’s rush to be the “first,” it failed to address violations that compromised its entire clinical trial, including those raised by Relator. This resulted in Pfizer withholding material information from the United States, and submitting false data and records in its clinical trial results. -3- Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 9 of 81 PageID #: 14 10. Relator reported many of the violations she observed to Ventavia management, who allowed the majority of violations to continue unabated. Defendant Ventavia harassed Relator and terminated her in retaliation for her reports of and efforts to stop fraud against the United States DoD. Relator also reported her concerns to Pfizer after termination, yet Pfizer elected to press on, expanding its trial to include even more participants. 11. Although Relator’s experience with test sites is limited to Texas, Pfizer and Icon’s oversight failures and fraudulent misconduct vis-a-vis Ventavia bring the entire Pfizer-BioNTech clinical trial into question. It is likely that similar fraud occurred at clinical trial sites managed by other subcontractors of Pfizer. 12. The FDA issued EUA for the Pfizer-BioNTech vaccine on December 11, 2020. The EUA is based in part on Defendants’ falsified clinical trial results and concealment of key information. As a result, DoD has now purchased misbranded vaccines from Defendant Pfizer, relying on Defendants’ fraudulent misrepresentations that the vaccine trial was properly conducted. Had DoD known of Defendants’ clinical trial protocol violations, fraudulent conduct, and regulatory violations, it would not have purchased the vaccines. 13. Defendants’ fraudulent scheme caused DoD to pay billions that it would not have paid had it known that the safety and efficacy of the vaccine at issue was not properly proven. At worst, the vaccine could be far less effective than represented, and DoD has purchased something that will not protect the public from COVID-19 as effectively as claimed. At best, the vaccine is effective, but Defendants have profited from the COVID-19 pandemic by lying to the United States, violating federal regulations, and failing to uphold the integrity of the scientific process. -4- Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 10 of 81 PageID #: 15 II. 14. JURISDICTION AND VENUE Jurisdiction and venue are proper in the Eastern District of Texas pursuant to 31 U.S.C. § 3732(a) because Relator’s claims seek remedies on behalf of the United States for multiple violations of 31 U.S.C. §§ 3729–3732 in Texas by Defendants that damaged the United States government. 15. Defendants Pfizer, Inc. and Ventavia do business in Texas and are registered with the Texas Secretary of State. 16. Defendant Icon PLC conducts continuous and systematic business in Texas. It maintains corporate offices in San Antonio and Sugar Land, Texas, and employs hundreds of Texans statewide, including in this District. Icon PLC also oversees and manages clinical trial sites in Texas and in this District. 17. Defendants are therefore subject to general and specific personal jurisdiction pursuant to 31 U.S.C. § 3732(a) and 28 U.S.C. § 1367. III. 18. The Government Plaintiff in this lawsuit is the United States of America. IV. A. GOVERNMENT PLAINTIFF INTRODUCTION TO RELATOR BROOK JACKSON Relator’s Background 19. Relator Brook Jackson (“Relator” or “Jackson”) has worked in the clinical trials field for over eighteen years. She is a Clinical Research Auditor and Certified Clinical Research Professional. Before working for Defendant Ventavia Research Group, LLC (“Ventavia”), Jackson served as the Director of Operations for a multi-state clinical trial company. Second only to the CEO, she oversaw legal and regulatory compliance, adherence to good clinical practices, submission of required documentation, and business development across the company. -5- Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 11 of 81 PageID #: 16 20. Because Relator’s prior position required a great deal of travel, she decided to leave that company and begin working for Ventavia. Relator began her employment with Ventavia on September 8, 2020 as a Regional Director. 21. As Regional Director, Relator oversaw site managers, patient recruitment success, training completion, quality assurance completion, enforcement of communication paths, and growth plans at her assigned test sites. Relator’s job duties also included daily and weekly communication with the site operations managers of her assigned test sites and Ventavia’s leadership team. Relator was responsible for the duties above at two of Ventavia’s three test sites for the clinical trial at issue, located in Fort Worth and Keller, Texas. 22. Relator’s direct supervisor during her employment with Ventavia was Director of Operations Marnie Fisher (“Fisher”). Her other superiors were Ventavia’s Executive Directors Olivia Ray (“Ray”) and Kristie Raney (“Raney”) and the Chief Operating Officer, Mercedes Livingston (“Livingston”). 23. Beginning on September 8, 2020, Relator reported on a near-daily basis to Fisher and Livingston that patient safety and the integrity of the Pfizer-BioNTech vaccine trial was at risk, via telephone, conversation, and e-mail. Relator discussed virtually all of the clinical trial protocol and FDA regulatory violations she witnessed with Livingston, Ray, Raney, and Fisher, including, but not limited to: (1) enrollment and injection of ineligible trial participants; (2) falsification of data, poor recordkeeping, and the deficiency of Ventavia’s documentation “quality control”; (3) deficiencies in and failure to obtain informed consent from trial participants; (4) adverse event capture and reporting; (5) failure to preserve blinding; (6) vaccine dilution errors; (7) failure to list all staff on delegation logs; (8) principal investigator oversight; (9) reporting temperature excursions; (10) patient safety issues, such as not keeping epinephrine dose -6- Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 12 of 81 PageID #: 17 information in patient charts; (11) failure to secure and record staff training required by clinical research standards; (12) use of unqualified staff as vaccinators; (13) use of biohazard bags for needle disposal; and (14) failure to properly monitor patients post-injection. 24. In general, every time that Relator raised concerns about safety or Ventavia’s clinical trial protocol compliance with Fisher, she was told to e-mail Fisher about the issue or make a list of affected patients. Many of the identified issues were systemic, and Relator did not always have access to information required to make the lists Fisher requested. Relator did as Fisher requested to the extent that she was able, but the identified problems were never addressed. 25. Relator also reported some clinical trial protocol violations to the Fort Worth Principal Investigator, Dr. Mark Koch. In particular, Relator discussed Ventavia’s practice of “quality checking” patient source documents long after the fact and issues of missing documentation. Dr. Koch acknowledged that Ventavia needed to “clean up” the problems before starting any new clinical trials. 26. Ventavia was required to scan or enter all data from clinical trial participants’ source documents into the “Complion” Clinical Trial Management System database, so that it could be passed on to Icon and Pfizer. Ventavia “quality checked” all source documents before scanning or uploading them. In Ventavia’s scramble to enroll as many participants as possible, quality checking and uploading fell behind schedule. Relator observed that the “back log” of documents to be quality checked often lacked key information, such as patient or doctor signatures and blood draw times. Relator also observed that Ventavia’s quality checking process was performed by unqualified personnel not listed on delegation logs, and often involved falsification of missing data. Relator reported her concerns to Ventavia management, who was more concerned with “catching up” on quality checking than actually solving the problem. -7- Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 13 of 81 PageID #: 18 27. On September 16, 2020, Relator examined some of the biohazard disposal bags at Ventavia’s Fort Worth site. Relator discovered that used needles had been disposed of in the bags. Biohazard bags are not puncture-proof, so this presented a serious risk to employees’ safety. That same night, Relator photographed ongoing HIPAA violations. Relator also documented that product cartons and patient randomization numbers from the BioNTech-Pfizer vaccine trial had been left in public view in a preparation area, potentially unblinding all Ventavia staff at the site and some patients as well. Relator shared her photographs from September 16 with Livingston and Fisher via text message or e-mail. 28. On September 17, 2020, in her daily phone call with Ray, Raney, Fisher, Livingston, and Houston Regional Director Lovica “Kandy” Downs (“Downs”), Relator brought up virtually all of the protocol and regulatory violations she had witnessed to date, as well as Ventavia’s HIPAA violations. Relator explained that the FDA would likely issue warning letters against Ventavia if it visited or audited the trial sites. She recommended that Ventavia immediately stop enrollment in the Pfizer-BioNTech clinical trial. 29. Ventavia shortly thereafter decided to pause enrollment in order to catch up on “quality checking” source documents. Ventavia was not up-front with Pfizer and Icon about the reasons for the enrollment pause (sloppy documentation that violated the clinical trial protocol). Ventavia elected to schedule patients for several weeks later rather than truly and completely pause enrollment. See Ex. 1, Text Messages with Ray and Others, at 6, 9–10. Raney directed employees not to cancel any patients already “on their way” to test sites because “that might piss them off and they can call the news, etc[.]” Ex. 1, at 11. 30. During the enrollment pause, Ventavia’s “quality checking” not only failed to correct documentation violations but also involved falsification of missing or inconsistent data. -8- Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 14 of 81 PageID #: 19 Relator even personally observed employees falsifying source document data (i.e., by changing blood pressure readings). In short, Ventavia’s “quality checking” failed to prevent or stop fraud on the United States DoD. 31. On September 23, 2020, Relator e-mailed Ray, Fisher, Raney, Downs, Livingston, and Director of Quality Control William Jones (“Jones”) to report ongoing serious issues with Ventavia’s “quality checking.” See Ex. 2, E-mail Chain with Ray and Others (Sept. 23, 2020). Relator noted, for example, that multiple patients had not received their second dose of the vaccine in the required window of nineteen to twenty-three days, and that Ventavia had not truthfully recorded the delay. Id. Due to the seriousness of these violations, Relator stated, “I might be in a little bit of shock.” Ex. 2, at 1. 32. On the evening of September 24, 2020, Relator met with Fisher and Jones. See Ex. 3, Transcript of September 24, 2020 Meeting Recording. The meeting was arranged to discuss Relator’s photographic documentation of safety issues, HIPAA violations, and unblinding from September 16. The meeting quickly escalated into harassment. Fisher questioned repeatedly why Relator took the photographs and falsely accused Relator of removing patient source documents from another Ventavia location. Jones stated that Ventavia had not “even finished quantifying the number of errors” because “it’s something new every day.” Ex. 3, at 12. He acknowledged that the problems were “not just in one site” either, and stated “we’re gonna get some kind of letter of information at least, when the FDA gets here. Know it.” Id. 33. Relator specifically referenced FDA regulatory violations in her September 24 conversation with Fisher and Jones. She told Fisher and Jones that if they did not see what she saw when quality checking patients’ source documents, then they needed to “get on Google” and search for FDA warning letters. Ex. 3, at 14. Relator also reported to Fisher and Jones that Raney -9- Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 15 of 81 PageID #: 20 and Ray had acknowledged that Ventavia did not have the staff or patient room capacity to handle the number of clinical trial participants being seen every day. 34. On the following morning, Relator called the FDA’s hotline to report the clinical trial protocol violations and patient safety concerns she witnessed. Relator was terminated from her position at Ventavia that same day—September 25, 2020—under the pretext that she was “not a good fit.” Relator had never been formally disciplined or reported for any failure regarding her job performance. 35. After Relator was terminated, she called Ventavia’s contact at Pfizer and gave a general overview of her concerns about unblinding, principal investigator oversight, and patient safety in the Pfizer-BioNTech vaccine trial. She also informed Pfizer that she had contacted the FDA. 36. Almost immediately after Relator was terminated (the next business day), Ventavia lifted the enrollment “pause” and resumed the push to enroll as many clinical trial participants per week as possible. Given the amount of quality checking left to be performed when Relator was terminated, Relator estimates that Ventavia had neither completed quality checking nor remedied its ongoing violations by the time it resumed enrollment. 37. Ventavia retaliated against Relator in response to her reports of, and efforts to stop, fraud against the United States DoD resulting from the Pfizer-BioNTech COVID-19 vaccine trial. B. Original Source and Disclosures 38. There are no bars to recovery under 31 U.S.C. § 3730(e), and, or in the alternative, Relator is an original source as defined therein. Relator has direct and independent knowledge of the information on which she bases her allegations. To the extent that any allegations or transactions herein have been publicly disclosed, Relator has independent knowledge that - 10 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 16 of 81 PageID #: 21 materially adds to any publicly disclosed allegations or transactions and has provided this information to the United States and DoD prior to filing a complaint by serving a voluntary prefiling disclosure statement. 39. Relator will submit an original disclosure statement, as well as substantially all material evidence and information, to the Attorney General of the United States, Department of Justice, and United States Attorney for the Eastern District of Texas contemporaneously with the service of this Original Complaint. V. A. DEFENDANTS Pfizer Inc. 40. Pfizer Inc. (“Pfizer”) is a Delaware corporation headquartered at 235 East 42nd Street, New York, New York 10017-5703. It maintains an office in this District at 1301 Solana Boulevard, Westlake, Texas 76262. Pfizer, together with BioNTech, developed the vaccine at issue and co-sponsors the clinical trial at issue. 41. Pfizer is publicly-traded on the New York Stock Exchange under the ticker symbol 42. The United States Department of Defense has contracted with Pfizer to purchase “PFE.” 200 million doses of the vaccine at issue after FDA approval, for a total cost of $3.9 billion. 43. Pfizer is currently subject to a Corporate Integrity Agreement with the Office of the Inspector General of the U.S. Department of Health and Human Services, dated May 23, 2018. 1 44. Pfizer may be served through its registered agent, CT Corporation System, at 1999 Bryan Street, Suite 900, Dallas, Texas 75201. 1 Available at https://oig.hhs.gov/fraud/cia/agreements/Pfizer_Inc_05232018.pdf - 11 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 17 of 81 PageID #: 22 B. Icon PLC 45. Icon PLC (“Icon”) is an Irish company headquartered in Dublin. Icon conducts extensive business in the United States and Texas, including at its offices in Sugar Land and San Antonio, Texas. Icon has hundreds of employees in Texas, including in this District, and oversees and manages clinical trials statewide. 46. Icon is publicly-traded on the NASDAQ stock exchange under the ticker symbol “ICLR.” 47. Defendant Pfizer subcontracted Icon to manage the clinical trial at issue. Icon oversaw more than 160 test sites worldwide, and was tasked with ensuring clinical trial protocol compliance and required information reporting. 48. Icon may be served at South County Business Park, Leopardstown, Dublin 18, Ireland. C. Ventavia Research Group, LLC 49. Ventavia Research Group, LLC (“Ventavia”) is a Texas limited liability company headquartered at 1307 Eighth Avenue, Suite 202, Fort Worth, Texas 76104. Ventavia operates ten test sites in Texas, some of which are located in this District. Three of Ventavia’s test sites—in Keller, Fort Worth, and Houston—participated in the vaccine trial at issue. 50. Ventavia secured its contract to operate three test sites for the Pfizer-BioNTech vaccine trial through its contracting agent Platinum Research Network, LLC, and was paid directly by Defendant Pfizer for that work. Pfizer compensated Ventavia mainly on a per-patient basis, with additional amounts paid per Serious Adverse Event reported and for activities like training. 51. Ventavia recorded all key participant and clinical trial information in “source documents” made available to Pfizer and Icon after entry or upload. - 12 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 18 of 81 PageID #: 23 52. Ventavia may be served through its registered agent, Registered Agents Solutions Inc., at 1701 Directors Boulevard, Suite 300, Austin, Texas 78744. VI. 53. RESPONDEAT SUPERIOR AND VICARIOUS LIABILITY Any and all acts alleged herein to have been committed by Defendants were committed by officers, directors, employees, representatives, or agents, who at all times acted on behalf of Defendants and within the course and scope of their employment, or by corporate predecessors to whom successive liability applies. VII. A. STATUTORY AND FACTUAL BACKGROUND COVID-19 Vaccine Development 54. On May 15, 2020, the White House announced Operation Warp Speed (“OWS”), a partnership between the United States Department of Health and Human Services (“HHS”) and the United States Department of Defense (“DoD”). 55. OWS aimed to begin delivery of 300 million doses of FDA-authorized COVID-19 vaccines by January of 2021. HHS, Fact Sheet: Explaining Operation Warp Speed (Nov. 30, 2020). 2 OWS coordinates with and expands existing HHS programs, including the National Institutes of Health’s Accelerating COVID-19 Therapeutic Interventions and Vaccines (“ACTIV”) partnership. Id. 56. OWS’s main initiative has been contracting with pharmaceutical companies to fund clinical trials of or purchase promising COVID-19 vaccine candidates. Purchases only occur after those vaccine candidates secure approval or Emergency Use Authorization from the United States Food and Drug Administration (“FDA”). The vaccine at issue is part of one such contract, explained further infra. 2 https://www.hhs.gov/coronavirus/explaining-operation-warp-speed/index.html. - 13 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 19 of 81 PageID #: 24 B. FDA Clinical Trial Regulations 57. The FDA promulgates regulations applicable to all clinical trials of new drugs like the vaccine at issue. See 21 C.F.R. §§ 312.1 et seq. These regulations apply with equal force to COVID-19 vaccine trials, despite their accelerated nature and the pandemic emergency. See 42 U.S.C. § 247d-6d(c)(5)(C)(i). 58. Clinical trial sponsors like Pfizer must submit an Investigational New Drug Application (“IND”) before commencing the trial. See 21 C.F.R. § 312.23(a). An example IND (Form FDA-1571) is attached hereto as Exhibit 4. In the IND, the sponsor commits to conduct the trial “in accordance with all [] applicable regulatory requirements.” 21 C.F.R. § 312.23(a)(v); Ex. 4, Form FDA-1571, at 2. The IND form warns clinical trial sponsors that making a “willfully false statement is a criminal offense.” Ex. 4, at 2. 59. Clinical trial sponsors must utilize an Institutional Review Board (“IRB”) for initial and continuing review and approval of the clinical trial. See 21 C.F.R. § 312.23(a)(iv). The sponsor must report “all changes in the research activity” to the IRB, along with “all unanticipated problems involving risk to human subjects or others.” 21 C.F.R. § 312.66. The sponsor must assure that it “will not make any changes to research without IRB approval, except where necessary to eliminate apparent immediate hazards to human subjects.” Id. (emphasis added). 60. The sponsor must promptly investigate “all safety information it receives” and follow up on any adverse reactions. 21 C.F.R. § 312.32(d)(1). The sponsor must also review all safety and effectiveness information reported by contract investigators (i.e., clinical trial sites). The sponsor must notify the FDA of potential serious risks and adverse reactions. See 21 C.F.R. § 312.32(c). - 14 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 20 of 81 PageID #: 25 61. If a study sponsor utilizes contract investigators for its clinical trial (like how Pfizer contracted with Icon and Ventavia here), it must ensure that the investigator is qualified, provide the investigator with the information needed to properly conduct a clinical trial, ensure proper monitoring of the trial, ensure that the trial complies with the IND and clinical trial protocol, and ensure “that FDA and all participating investigators are promptly informed of significant new adverse effects or risks” with respect to the drug under investigation. 21 C.F.R. § 312.50. 62. The sponsor must obtain a signed Form FDA-1572 from each contract investigator. 21 C.F.R. § 312.53(c). In Form FDA-1572, each investigator certifies, in relevant part, that it: (a) Will conduct the study(ies) in accordance with the relevant, current protocol(s) and will only make changes in a protocol after notifying the sponsor, except when necessary to protect the safety, the rights, or welfare of subjects; (b) Will comply with all requirements regarding the obligations of clinical investigators and all other pertinent requirements in [21 C.F.R. part 312]; (c) Will personally conduct or supervise the described investigation(s); (d) Will inform any potential subjects that the drugs are being used for investigational purposes and will ensure that the requirements relating to obtaining informed consent (21 CFR part 50) and institutional review board review and approval (21 CFR part 56) are met; (e) Will report to the sponsor adverse experiences that occur in the course of the investigation(s) in accordance with § 312.64; . . . [and] (g) Will ensure that all associates, colleagues, and employees assisting in the conduct of the study(ies) are informed about their obligations in meeting the above commitments. 21 C.F.R. § 312.53(c)(vi); see also Ex. 5, Form FDA-1572. Each contract investigator also commits in Form FDA-1572 to promptly report to the IRB “all changes in the research activity and all unanticipated problems involving risks to human subjects or others[.]” 21 C.F.R. § 312.53(c)(vii). The contract investigators further commit to not making any research changes without IRB approval “except where necessary to eliminate apparent immediate hazards to the human subjects.” Id. The Form warns contract investigators that a “willfully false statement is a criminal offense.” Ex. 5, at 2. - 15 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 21 of 81 PageID #: 26 63. The sponsor must monitor its contract investigators’ progress and compliance with the clinical trial protocol, IND, and all applicable regulations. See 21 C.F.R. §§ 312.50, 312.56. “A sponsor who discovers that an investigator is not complying” with those requirements “shall promptly either secure compliance or discontinue shipments of the investigational new drug to the investigator and end the investigator’s participation in the [clinical trial].” 21 C.F.R. § 312.56(b). Contract investigators are bound by the same regulations as the sponsor, to the same degree, with regard to any obligation the sponsor delegates to them. See 21 C.F.R. § 312.52. 64. Thus, in the clinical trial at issue, all Defendants are bound by FDA regulations and “subject to the same regulatory action . . . for failure to comply[.]” 21 C.F.R. § 312.52(b). Failure to comply with FDA regulations or submission of false information to the trial sponsor or FDA can disqualify a company from conducting future clinical trials. See 21 C.F.R. § 312.70(b). 65. Contract investigators are obligated to “furnish all reports to the sponsor.” 21 C.F.R. § 312.64(a). The sponsor “is responsible for collecting and evaluating the results obtained.” Id. 66. Contract investigators must maintain adequate records of drug dispensation, “including dates, quantity, and use by subjects.” 21 C.F.R. § 312.62(a). They must also keep “adequate and accurate case histories” for all study participants which “record all observations and other data pertinent to the investigation[.]” 21 C.F.R. § 312.62(b). 67. Informed consent must be obtained and documented for every participant in the clinical trial. See 21 C.F.R. §§ 50.27(a), 312.60, 312.62(b). The investigator must document “that informed consent was obtained prior to participation in the study.” 21 C.F.R. § 312.62(b) (emphasis added). - 16 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 22 of 81 PageID #: 27 68. The clinical trial drug (here, the vaccine at issue) shall only be given to subjects under an investigator or sub-investigator’s personal supervision. See 21 C.F.R. § 312.61. It shall not be given to any person not authorized to receive it. Id. 69. Contract investigators must immediately report any Serious Adverse Event (“SAE”) to the sponsor, “whether or not considered drug related, . . . and must include an assessment of whether there is a reasonable possibility that the drug caused the event.” 21 C.F.R. § 312.64(b). Nonserious adverse events must also be reported to the sponsor. Id. 70. SAEs have the potential to pause clinical trials if sufficiently serious. See 21 C.F.R. § 312.44. In fact, two of Pfizer’s competitors in the COVID-19 vaccine race—Astra Zeneca and Johnson & Johnson—had to pause their own clinical trials when participants developed unexplained illnesses. C. The BioNTech-Pfizer COVID-19 Vaccine 1. Background and Development of BNT162b2 71. BNT162b2, the vaccine at issue, is a biologic vaccine co-developed by BioNTech and Defendant Pfizer which is based on a platform of nucleoside-modified messenger RNA (“mRNA”). 72. Most conventional vaccines are based on weakened strains of the virus at issue. Those vaccines essentially “teach” the body how to fight the weakened virus, resulting in production of antigens to combat future infection. 73. BNT162b2, in contrast, is based on mRNA—molecules of genetic material—from the novel Coronavirus. The vaccine causes the body’s cells to produce viral proteins, and the body then produces an immune response. In this way, the body is “taught” how to fight the virus’s proteins, rather than a weakened version of the virus itself. One purported advantage of mRNA - 17 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 23 of 81 PageID #: 28 vaccines is that there is no risk of infection because they do not contain the actual virus—just parts of its genetic material. 74. One drawback of mRNA vaccines like BNT162b2—and one reason that they are not widespread—is that they must be stored at more controlled temperatures than conventional vaccines. BNT162b2 specifically must be stored in medical-grade freezers at –112°F to –76°F. It may also be shipped and stored short-term in a specialized cooler with dry ice (solid carbon dioxide) for up to ten days unopened. 75. Because BNT162b2 is stored at such low temperatures, it must be thawed before use. The placebo used in the BNT162b2 clinical trial does not require such thaw time. In order to preserve patient blinding in the BNT162b2 clinical trial, waiting times for both the vaccine and placebo are standardized at thirty minutes or more, and the syringe is covered by an opaque label during injection. See Ex. 6, BNT162b2 Product Manual, at 34, 48–49. 2. Clinical Trial Overview 76. Clinical trials of new drugs are divided into three phases under FDA regulations. See 21 C.F.R. § 312.21. Phase 1 trials typically evaluate the “metabolism and pharmacologic actions of the drug in humans, the side effects associated with increasing doses, and, if possible, . . . gain early evidence on effectiveness.” 21 C.F.R. § 312.21(a)(1). Phase 2 includes the controlled clinical studies conducted to evaluate the effectiveness of the drug for a particular indication or indications in patients with the disease or condition under study and to determine the common short-term side effects and risks associated with the drug. Phase 2 studies are typically well controlled, closely monitored, and conducted in a relatively small number of patients, usually involving no more than several hundred subjects. 21 C.F.R. § 312.21(b). Next, Phase 3 trials are “performed after preliminary evidence suggesting effectiveness of the drug has been obtained, and are intended to gather the additional information about effectiveness and safety that is needed to evaluate the overall benefit-risk relationship of the - 18 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 24 of 81 PageID #: 29 drug and to provide an adequate basis for physician labeling.” 21 C.F.R. § 312.21(c). Phase 3 trials “usually include from several hundred to several thousand subjects.” Id. 77. Phase 1 of the trial at issue concluded in the summer of 2020. It involved 195 United States participants aged eighteen to fifty-five. Several different doses were tested, and the most successful, called “BNT162b2,” was advanced to Phase 2 and 3 testing. See Edward E. Walsh et al., Safety & Immunogenicity of 2 RNA-Based COVID-19 Vaccine Candidates, New England Journal of Medicine (Oct. 14, 2020). 3 78. In Phase 2 and 3 of the trial, the vaccine at issue was administered as an intramuscular injection. The clinical trial protocol requires that it be administered in two doses separated by nineteen to twenty-three days. Ex. 7, Clinical Trial Protocol, at 88; Ex. 6, BNT162b2 Product Manual, at 45. 79. Pfizer expanded the trial to HIV-positive individuals, those with Hepatitis B and C, and sixteen- and seventeen-year-olds in September of 2020, adding 14,000 new participants worldwide. Pfizer again expanded the trial to young teenagers (aged twelve to fifteen) on October 12, 2020, adding approximately 4,400 more participants. 80. A total of 43,998 participants were enrolled in Phase 3 of the trial at issue, per Pfizer’s reporting on clinicaltrials.gov. 4 Approximately 1,500 of those were enrolled at Defendant Ventavia’s facilities. Defendant Ventavia recruited study participants via advertising, contacting local business and organizations, and features in local news media. Patients were paid for participation in the study. 3 https://www.nejm.org/doi/10.1056/NEJMoa2027906?url_ver=Z39.882003&rfr_id=ori:rid:crossref.org&rfr_dat=cr_pub%20%200pubmed. 4 https://clinicaltrials.gov/ct2/show/study/NCT04368728. - 19 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 25 of 81 PageID #: 30 81. Pfizer and BioNTech announced the completion of Phase 3 on November 18, 2020. Ex. 8, Pfizer Press Release, at 2. Pfizer applied for EUA for BNT162b2 on November 20, 2020. The FDA granted EUA on December 11, 2020. 5 3. Clinical Trial Protocol 82. Pfizer has publicized its clinical trial protocol on the Internet, and it is attached hereto as Exhibit 7. The protocol portions most relevant to this matter are summarized below. a. Inclusion and Exclusion Criteria 83. The trial at issue is randomized, placebo-controlled, and observer-blinded. See Ex. 7, Clinical Trial Protocol, at 1. By the end of Phase 3, the trial included healthy individuals, aged twelve to eighty-five, at risk of acquiring COVID-19, who are capable of informed consent and willing and able to comply with scheduled visits, vaccination plan, laboratory tests, and study procedures. See Ex. 7, at 40–41. Individuals with certain pre-existing conditions or history are excluded, including pregnant and breastfeeding women and people with a history of severe vaccine reactions. See Ex. 7, at 41–43. 84. The study also excludes “[i]nvestigator site staff or Pfizer/BioNTech employees directly involved in the conduct of the study, site staff otherwise supervised by the investigator, and their respective family members.” Ex. 7, at 43. 85. Participants who have already begun the study must be withdrawn if they deviate from the protocol, lose their eligibility, or take certain medications. See Ex. 7, at 50–53. Participants who become pregnant after receiving the first dose of the vaccine, for example, must withdraw from the study. See Ex. 7, at 65. 5 Press Release, FDA, FDA Takes Key Action in Fight Against COVID-19 By Issuing Emergency Use Authorization for First COVID-19 Vaccine (Dec. 11, 2020), https://www.fda.gov/news-events/pressannouncements/fda-takes-key-action-fight-against-covid-19-issuing-emergency-use-authorization-first-covid-19. - 20 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 26 of 81 PageID #: 31 86. All participants’ eligibility screening evaluations must be reviewed “to confirm that potential participants meet all eligibility criteria.” Ex. 7, at 55. Ventavia was required to “maintain a screening log to record details of all participants screened and to confirm eligibility or record reasons for screening failure, as applicable.” Id. 87. Each participant’s full date of birth must be collected in order to facilitate evaluation of immune response and safety by age. Ex. 7, at 54. b. Blinding 88. The study is observer-blinded. Ex. 7, at 1. The physical appearance of the vaccine and placebo differ, so blinding the person administering the vaccine is not possible. See Ex. 7, at 36. The patient receiving the vaccine, study coordinator, and other site staff are blinded. See Ex. 7, at 36, 48–49. 89. At the test site level, the only people who should be unblinded are those administering the injection. See Ex. 7, at 36, 48–49. Nobody involved in “evaluation of any study participants” should be unblinded. Ex. 7, at 49. c. Temperature Control 90. The investigator must confirm that all vaccine doses received have been transported and stored under “appropriate temperature conditions[,]” and that “any discrepancies are reported and resolved before use of the study intervention.” Ex. 7, at 47. 91. The vaccines must be stored in “a secure, environmentally controlled, and monitored” area in accordance with the product manual, as described further infra. Id. Daily maximum and minimum temperatures must be recorded for all storage locations and those records must be made available upon request. See id. - 21 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 27 of 81 PageID #: 32 92. Any deviations from recommended temperature, called “temperature excursions,” must be reported to Pfizer upon discovery, “along with any actions taken.” Ex. 7, at 47. The vaccines subject to the excursion must be quarantined from others and not used unless Pfizer subsequently provides permission. See id. d. Informed Consent 93. As with all clinical drug trials, the participant must provide informed consent. The protocol for the trial at issue requires obtaining signed and dated informed consent documentation prior to performing any study-specific procedures, including administration of the vaccine. See Ex. 7, at 54, 117. e. Administration 94. Before administration of the vaccine, study participants receive a clinical assessment “to establish a baseline.” Ex. 7, at 58. The participant’s medical history and observations from any physical examination must be documented and submitted to Pfizer. See id. 95. Women of childbearing potential must undergo a pregnancy test before receiving the vaccine or placebo. See Ex. 7, at 23, 65, 96. Only participants enrolled in the study may receive the vaccine, and only authorized site staff may administer it. Ex. 7, at 47. 97. Study participants must receive the vaccine “under medical supervision.” Ex. 7, at 50. The date and time of injection must be recorded. Id. 98. Participants must receive their second injection nineteen to twenty-three days after the first. See Ex. 7, at 23, 88. - 22 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 28 of 81 PageID #: 33 f. Safety and Monitoring 99. All adverse events in the first thirty minutes after injection must be documented in an Adverse Event Case Report Form. See Ex. 7, at 58, 86, 89. 100. Participants use an electronic diary (“e-diary”) application to record any adverse events and use of any antipyretic (fever-reducing) medication. See Ex. 7, at 58–59. E-diary data is periodically transmitted directly to Pfizer and Icon. See Ex. 7, at 59. 101. After participants report any ongoing local reactions, systemic events, or use of antipyretic medication, the investigator must obtain and document end dates for those events. See Ex. 7, at 59–60. 102. Serious adverse events (“SAEs”) must be reported to Pfizer within twenty-four hours. Ex. 7, at 66. Under no circumstances should they be reported later. Id. Any update to SAE information must be reported to Pfizer within twenty-four hours of it becoming available. Id. Any non-serious adverse events must be reported and documented on Case Report Forms submitted to Pfizer. See id. Site investigators are responsible for pursuing and obtaining “adequate information both to determine the outcome and to assess whether the event” is serious “or caused the participant to discontinue the study intervention.” Ex. 7, at 65. 103. Follow-up on adverse events must continue until the event resolves or stabilizes at a level acceptable to the investigator and concurred with by Pfizer. Id. Follow-up information must include enough detail to allow for complete medical assessment and independent determination of possible causality. Ex. 7, at 67. 104. If any participant is confirmed to have been injected while pregnant or breastfeeding, Pfizer must be notified within twenty-four hours. See Ex. 7, at 67–68. The same - 23 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 29 of 81 PageID #: 34 applies to pregnancy in partners of clinical trial participants. Id. The investigator must conduct follow-up on the pregnancy and its outcome and keep Pfizer updated. See Ex. 7, at 68–69. g. Legal and Regulatory Compliance 105. The protocol emphasizes that investigators must notify Pfizer of SAEs “so that legal obligations and ethical responsibilities towards the safety of participants and the safety of [the vaccine] under clinical investigation are met.” Ex. 7, at 67. The protocol notes that Pfizer “has a legal responsibility to notify” the government about the safety of the vaccine under investigation, and “will comply with country-specific regulatory requirements relating to safety reporting to the appropriate regulatory authority . . . and investigators.” Id. 106. The protocol also states that the study will be conducted in accordance with all applicable laws and regulations, including privacy laws. Ex. 7, at 116. 107. Ventavia is responsible for oversight of the study at their sites and adherence to FDA regulations found in Title 21 of the Code of Federal Regulations. See id. h. Adherence to Protocol 108. Adherence to the trial protocol “is essential and required for study conduct.” Ex. 7, at 54. “Protocol waivers or exemptions are not allowed.” Id. Thus, as noted previously, participants who deviate from the protocol must be excluded. 109. The protocol also requires that the clinical trial adhere to “ICH GCP”—Good Clinical Practices established by the International Council for Harmonization. See Ex. 7, at 116, 138–39. 110. Any failure to provide a test or procedure required by the protocol must be documented, alongside any corrective or preventive actions taken by the administrator, and Pfizer’s safety team must be informed. See Ex. 7, at 55. - 24 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 30 of 81 PageID #: 35 111. Site investigators must inform Pfizer immediately if they know of any new information which might influence the evaluation of the benefits and risks of the vaccine at issue. Ex. 7, at 116. They must also immediately inform Pfizer of any serious breaches of the study protocol or ICH GCP. Id. 112. Pfizer may close a study site early for any reason, including when the site investigator fails to comply with the study protocol. See Ex. 7, at 121. i. 113. Accuracy of Data Site investigators must maintain accurate source documentation supporting all information entered into electronic Case Report Forms submitted to Pfizer. See Ex. 7, at 119–21. If source documents differ from any information in the Case Report Form, the discrepancy must be explained. Ex. 7, at 120. 114. Site investigators must verify that data entries are accurate and correct by signing the Case Report Forms transmitted to Pfizer. Ex. 7, at 119. 115. Pfizer or Icon is responsible for data management of the study, “including quality checking of the data.” Ex. 7, at 120. 4. BNT162b2 Product Manual 116. The product manual for BNT162b2—attached hereto as Exhibit 6—provides specifics as to how the vaccine and placebo should be stored and administered. These specifics supersede storage conditions set out in the clinical trial protocol, and provide additional guidance for temperature excursions and use. See Ex. 7, Clinical Trial Protocol, at 47–48, 52, 80, 86, 88. Thus, noncompliance with the product manual is equivalent to noncompliance with BNT162b2’s clinical trial protocol. - 25 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 31 of 81 PageID #: 36 a. Additional Blinding Precautions 117. The patient, study coordinator, and other test site staff are blinded, as previously noted. The vaccinator is not. “Blinded personnel should not have access to the container IDs” for the vaccine. Ex. 6, Product Manual, at 23. “Only the site staff who will be dispensing, preparing, and administering the [vaccine] are unblinded and can have this access.” Id. 118. Occluding labels are applied to the syringe barrel in order to mask its contents and preserve blinding. See Ex. 6, at 49–50. Patients are also instructed to look away during injection. See Ex. 6, at 50. 119. Each prepared BNT162b2 syringe expires six hours after preparation. Ex. 6, at 49. To preserve the blind, both the vaccine and placebo are given the same expiration date and time. Id. 120. Sites must have a process in place for maintaining the study blind, including ensuring that vials, dilution material, and dosing syringes “are shielded from the view of BLINDED study staff and the participant during dose preparation, dispensing, transportation, administration, and disposal.” Ex. 6, at 49. The site should “ensure that the study blind was maintained and that the [BNT162b2] cartons, preparation records, syringes, and disposal of used supplies were carefully handled prior to and after administration.” Id. The site must document for each participant whether the blind was maintained. See Ex. 6, at 50. 121. Pfizer must be notified of any potential unblinding, and further enrollment and injection must stop immediately: if the study drug is not stored, handled, or administered according to the protocol and/or relevant site documentation to adequately maintain the blind. The site must provide details of the incident or any protocol deviations and[] assist in resolving the issue and/or determining corrective actions to take. - 26 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 32 of 81 PageID #: 37 If the blind is broken or potentially broken, unblinded staff must contact [Pfizer] immediately. Do not administer or dispense the study drug to any participant and do not randomize a new participant until the Sponsor provides further instructions. Ex. 6, at 43. b. Temperature Excursions 122. BNT162b2 must be protected from light and stored at -112°F to -76°F in its original packaging prior to use in dose preparation. See Ex. 6, at 36, 40. 123. BNT162b2 is shipped in a specialized container with dry ice (solid carbon dioxide). Ex. 6, at 36. The shipping containers used in the clinical trial included a monitoring device that triggered an alarm if the acceptable temperature range for the product was exceeded. See Ex. 6, at 36, 38. 124. If any deviation in temperature for BNT162b2 shipments outside of the accepted range occurs, the product must be segregated and the excursion must be reported to Pfizer. See id.; Ex. 7, Clinical Trial Protocol, at 47. Pfizer then notifies the site if the product is acceptable for use despite the excursion. See Ex. 6, at 38. 125. The same process must be followed if there is any lapse in temperature monitoring or even when the site is not sure if there has been a temperature excursion. See Ex. 6, at 40. c. Dose Preparation 126. BNT162b2 is shipped as a frozen concentrate, which is thawed for approximately 30 minutes and diluted with sodium chloride (saline) solution before injection. Ex. 6, at 47. “Only clinical site personnel who are appropriately trained on the procedures” in the product manual may prepare and administer BNT162b2. Ex. 6, at 46. 127. The doses must be allowed to reach room temperature before administration. Ex. 6, at 48. Preparation time is standardized at thirty minutes or more in order to avoid unblinding, - 27 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 33 of 81 PageID #: 38 since the placebo has no thaw time. See Ex. 6, at 47–49, 53, 56, 60, 72, 76; Ex. 9, E-mail Chain with Downs and Others (Sept. 18, 2020), at 2. d. Injection 128. Participants are injected using a 1” or 1.5” needle, depending on their body weight. Ex. 6, at 51. A 5/8” needle may also be used for participants weighing less than 130 pounds if the skin is stretched tightly. Id. The 1” needle size is appropriate for all participants except males over 260 pounds and females over 200 pounds, for whom a 1.5” needle is required. See id. 129. Only “an appropriately qualified and experienced member of the study staff” may prepare and administer the vaccine or placebo. Ex. 6, at 44, 72, 75, 78. The product manual specifies that this must be a “nurse, physician’s assistant, nurse practitioner, pharmacy assistant/technician, or pharmacist[,] as allowed by local, state, and institutional guidance.” Id. 130. The vaccine is injected into the deltoid muscle of the participant’s non-dominant arm. Ex. 6, at 44. 131. Any error in dispensing the vaccine that may cause or lead to patient harm while in the site’s control must be reported to Pfizer and Icon immediately. Ex. 6, at 62. e. Monitoring 132. “Blinded site staff must observe” clinical trial participants after injection “for at least 30 minutes” to monitor “for any acute reactions.” Ex. 6, at 44; see also Ex. 6, at 61. Reactions must be recorded in source documents, on an adverse event reporting form, and also as an SAE if necessary. Ex. 6, at 44. - 28 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 34 of 81 PageID #: 39 D. Contract at Issue 1. Background 133. On July 21 2020, the United States DoD entered into the contract at issue with Defendant Pfizer, through Advanced Technology International (“ATI”). See Ex. 10, Pfizer-DoD Contract, at 1. 134. DoD likely used ATI as its intermediary in order to simplify the contracting process and avoid possible delay resulting from typical procurement processes. Despite the use of an intermediary, the United States has clearly stated that the contract is between itself and Pfizer. See Ex. 10, Pfizer-DoD Contract, at 1, 2; Press Release, HHS, U.S. Government Engages Pfizer to Produce Millions of Doses of COVID-19 Vaccine (July 22, 2020). 6 135. Under the contract, DoD purchased 100 million doses of the vaccine at issue, with the option to purchase up to 500 million more doses later. See Ex. 10, at 11–12, 17. DoD contracted to pay Pfizer $1.95 billion for the vaccines ($19.50 per dose) after FDA approval or Emergency Use Authorization (“EUA”). See Ex. 10, at 1, 17. 136. The clinical trial at issue, which was privately-funded, aimed to secure FDA approval or EUA of the vaccine by the end of 2020, resulting in DoD’s purchase of the vaccine and payment to Pfizer under the contract. See Ex. 10, at 5, 6. 137. Pfizer delegated some management of the clinical trial at issue to Defendants Icon and Ventavia, as previously explained. 138. Under the contract, Pfizer sends monthly invoices to DoD at $19.50 per dose for each delivery of vaccines, which are paid within thirty days. See Ex. 10, at 17. 6 https://www.hhs.gov/about/news/2020/07/22/us-government-engages-pfizer-produce-millions-doses-covid-19vaccine.html. - 29 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 35 of 81 PageID #: 40 139. In late December of 2020, DoD exercised a contractual option to purchase 100 million more doses of the vaccine for $1.95 billion. Thus, the contract’s total value is now $3.9 billion. 2. FAR Compliance 140. In performing under the contract at issue, Pfizer must comply with Federal Acquisition Regulations (“FAR”), including but not limited to the provisions discussed below. See 42 C.F.R. §§ 3.1004(a), 52-203.13; Ex. 4, Form FDA-1571, at 2; Ex. 7, Clinical Trial Protocol, at 116. 141. FAR 52.203-13 contains the Contractor Code of Business Ethics and Conduct. In relevant part, that regulation requires Pfizer to maintain a code of ethics and conduct, exercise due diligence to prevent criminal conduct, and disclose any credible evidence that a subcontractor (including Icon and Ventavia) has committed a False Claims Act violation. 48 C.F.R. § 52.20313(b). This regulation also requires Pfizer to maintain an “internal control system” with procedures in place to detect fraud and improper conduct “in connection with Government contracts.” 48 C.F.R. § 52-203.13(c)(2). Pfizer must include the Contractor Code of Business Ethics and Conduct in any subcontract with a performance period over 120 days. 48 C.F.R. § 52203(13)(d)(1). 142. FAR 42.202(e)(2) requires Pfizer to manage all of its subcontracts. See 48 C.F.R. § 42-202(e)(2). Pfizer was therefore required to monitor Ventavia and Icon’s performance and ensure that they complied with the clinical trial protocol. Id. 3. FAR Certification 143. Federal Acquisition Regulation 52.232-32 requires Pfizer to certify the following, in relevant part, in any request for payment under the contract: - 30 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 36 of 81 PageID #: 41 I certify to the best of my knowledge and belief that(1) This request for performance-based payment is true and correct; this request (and attachments) has been prepared from the books and records of the Contractor, in accordance with the contract and the instructions of the Contracting Officer[.] 48 C.F.R. § 52.232-32(m). VIII. DEFENDANTS’ FRAUD ON THE GOVERNMENT 144. Defendants’ conduct in the clinical trial at issue violates its own stated protocols, FDA regulations, and FAR, as described further below. Defendants fraudulently misrepresented their regulatory and protocol compliance to the United States and submitted false data in support of the clinical trial at issue. A. Violation of Clinical Trial Protocol 145. Relator observed noncompliance with virtually every aforementioned provision of the clinical trial protocol at issue, as explained further below. 146. Every violation of the clinical trial protocol is a violation of the False Claims Act. Defendants represented to the United States in FDA forms 1571 and 1572 that they would abide by the protocol. See Ex. 4, Form FDA-1571; Ex. 5, Form FDA-1572. Defendants’ regulatory noncompliance rendered Pfizer’s later claims for payment fraudulent. 147. Additionally, the clinical trial protocol is a false record material to Pfizer’s claims for payment. Pfizer submitted the protocol to the United States alongside its IND. Defendants’ protocol noncompliance rendered the protocol false, and DoD would not have paid for the vaccines if it had known of Defendants’ widespread noncompliance with the submitted protocol. 1. Inclusion and Exclusion Criteria 148. Ventavia enrolled and injected ineligible clinical trial participants. 149. Pregnant individuals are ineligible, and the trial protocol contains multiple layers of safeguards to prevent administration of the vaccine or placebo to them. See Ex. 7, Clinical Trial - 31 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 37 of 81 PageID #: 42 Protocol, at 42, 44, 52, 65, 73, 86, 88, 132–35. Women of childbearing potential (“WOCBPs”) and their partners must provide information about and use certain methods of contraception. See Ex. 7, at 44, 73, 86, 88, 132–35. WOCBPs also undergo a pregnancy test at every vaccination appointment during the trial, as previously noted. 150. Due to Ventavia’s carelessness and rush to enroll and inject as many patients as possible, however, pregnant women appear to have been enrolled in the clinical trial and injected with the vaccine or placebo. See Ex. 12, E-mail Chain with Raney (Sept. 17, 2020), at 3, 5–6 (describing injection of pregnant patient after a positive pregnancy test). Ventavia did not report all clinical trial participants’ pregnancies to Pfizer and Icon as required. See Ex. 7, at 67–68, 128 (required reporting protocol). 151. Women who have undergone a tubal ligation may still become pregnant. The clinical trial protocol does not list tubal ligation as an accepted contraception method. See Ex. 7, at 134. As a result, Ventavia was required to ensure that these women provided other contraception information and that pregnancy tests were administered before injection with BNT162b2 or placebo. Ventavia instead treated these women as non-WOCBPs, violating the clinical trial protocol. See Ex. 11, Ventavia’s Quality Control Findings, at 3 (Subject 1018, seen at Keller site, had tubal ligation, but pregnancy test was not given). Ventavia’s violations in this regard would be obvious from the source documents. Pfizer and Icon ignored these red flags and kept the ineligible participants’ data in the clinical trial. 152. Ventavia’s recklessness also resulted in other ineligible participants being enrolled and injected. The errors were not timely “caught” or corrected, due to Ventavia’s recklessness and long-delayed “quality control” of source documents. - 32 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 38 of 81 PageID #: 43 153. For example, Subject 11281302 was enrolled and injected before routine laboratory work and a nasal swab COVID-19 test. The subject also did not give informed consent until after injection. If this subject was COVID-19 positive, that would have rendered him or her ineligible. Furthermore, the failure to obtain informed consent is itself a protocol, regulatory, and ethical violation. When “quality checking” this subject’s documents, furthermore, Ventavia edited a question about why injection preceded informed consent, transforming it into a comment that the informed consent time was incorrect: - 33 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 39 of 81 PageID #: 44 Ventavia subsequently would have “corrected” this patient’s records to hide the informed consent and ineligibility violations, creating false source documents. 154. Relator also observed that Ventavia employees and their family members were enrolled in the clinical trial, in direct breach of the protocol, creating a serious conflict of interest. 2. Blinding 155. The clinical trial at issue is observer-blinded. At each study site, only those administering the vaccine and placebo are unblinded. See Ex. 7, at 47–49. Thus, the only unblinded people at Ventavia’s study sites should have been those vaccinating patients: Kandy Downs, Nadia Martinez, Jailyn Reyes, and Cordy Henslin. However, Ventavia’s recklessness in product and document handling led to more people becoming unblinded—including Relator, Fisher, and Fort Worth Site Operations Manager Jennifer “Jen” Vasilio. More people were likely unblinded as well, since the conduct described below had the potential to unblind patients and anyone working at Ventavia’s Fort Worth and Keller locations. 156. On September 16, 2020 Relator photographed BNT162b2 vaccine boxes left out in the open at Ventavia’s Fort Worth location, and later sent her photos to management. These boxes were marked as such and bore numbers that allow determination of whether a patient received a placebo or the Pfizer-BioNTech vaccine. This type of unblinding incident had occurred before at least once. See Ex. 13, Unblinding E-mail Chain (Sept. 22, 2020), at 1 (describing a similar incident witnessed one month prior by Downs). Neither unblinding was ever reported to Pfizer. Instead, Fisher directed Relator and others to discipline the responsible employees. Id. 157. On or around September 14, 2020, Ventavia discovered that randomization confirmation pages had improperly been placed in every patient’s chart. These pages unblind the reader by revealing whether or not the patient received a placebo, and had been in place since the - 34 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 40 of 81 PageID #: 45 beginning of Ventavia’s involvement in the Pfizer-BioNTech trial. Approximately 1,200 patients’ charts were affected, compromising the integrity of the trial. Ventavia subsequently removed or “lined through” (crossed out) this information, but it had been visible and accessible to all employees and patients for over two months. Ventavia did not report this issue to Pfizer or Icon, instead placing Notes to File (“NTFs”) in patients’ charts, dated September 17, 2020 and stating: This Note to File serves as notification that confirmation printouts of research participant drug assignments will not be placed within participant charts for study C4591001. Inclusion of the drug assignment confirmation will disclose drug dosage information contraindicated for study blinding. It is for this purpose that the confirmation of drug assignment is located in Complion within the unblinded binder. This note to file addresses IMPALA drug assignment confirmation requested in study source document versions 1 through 5. An update [to] the source document removing this requirement has been created in follow-up to this Note to File. Ex. 14, NTF on Randomization, at 1. The NTFs are not viewable by Pfizer or Icon until the end of the clinical trial. The NTF on randomization, furthermore, does not show that patients and staff could have been unblinded; it simply states that randomization documents should not be in patients’ charts. See id. However, Pfizer was alerted to the issue via a “red flag” e-mail chain from September 14–18, 2020, sent to Dr. Arturo Alfaro of Pfizer. Downs asked Alfaro to confirm that randomization forms should not be given to blinded staff, and Alfaro concurred. See Ex. 15, E-mail Chain with Downs and Alfaro, at 1–2. Pfizer should have realized that Downs’ inquiry could indicate that the unblinding had already occurred. To Relator’s knowledge, Pfizer never followed up on the issue or removed affected patients’ data from the clinical trial, resulting in fraud on the United States DoD. 158. Ventavia’s unblinded vaccinators also carelessly forwarded and shared communications marked “UNBLINDING”—intended only for unblinded staff—to staff who should have been blinded. For example, on September 15, 2020, Recruitment Specialist Cordy - 35 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 41 of 81 PageID #: 46 Henslin forwarded such an e-mail to Relator. Ex. 16, E-mail Chain with Henslin, at 1. The e-mail was originally sent by Icon to Henslin, and contained subject numbers, placebo dosing information, and other data that unblinded Relator. See Ex. 16, at 1–4. 159. During her employment, Relator observed that the Pfizer-BioNTech vaccine containers were stored in a manner that could unblind Ventavia staff and patients. Specifically, the vaccines for all vaccine trials at Ventavia were stored together, and the vaccines for this trial were labeled with each patient’s subject identification number after randomization. The vaccines are often left outside of cabinets while thawing, exposing that unblinding information to all in the vicinity. The vaccine preparation area is accessible by any staff member and even visible by patients—especially when patients were placed in hallways for “observation” after injection. To provide an illustration, if an employee was blinded for the trial at issue, but unblinded on another trial, she would be able to see patients’ IDs and drug assignment for the trial at issue every time she went to the vaccine preparation area—becoming unblinded. 160. When Relator joined Ventavia, she was given lists of action items that predated her employment. Based on that documentation, inadvertent unblinding was also an issue at Ventavia’s Keller location. 161. The above conduct constituted reportable violations of the clinical trial protocol which compromised the integrity of the entire study and should have been reported to Pfizer and Icon, per the protocol. See Ex. 7, at 54–55, 116. However, when Relator reported unblinding concerns to Ventavia management, for example, she was instructed to “write up” Fort Worth’s vaccinators for discipline. Management appeared more concerned with punishing employees than investigating the extent of the unblinding. Unblinding incidents were never reported to Pfizer during Relator’s employment, and were documented only in NTFs. - 36 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 42 of 81 PageID #: 47 3. Temperature Control 162. Ventavia, in violation of temperature control requirements in the clinical trial protocol and product manual, did not report all temperature excursions to Pfizer, and did not always properly segregate vaccines affected by excursions. 163. For example, around September 11, 2020, a freezer at Ventavia’s Keller location was unplugged and moved, resulting in a temperature excursion. The excursion was reported to Pfizer late, in violation of the protocol’s requirement that excursions be reported as soon as discovered. The Fort Worth site also had unreported temperature excursions. 4. Informed Consent 164. Ventavia performed screening and injected clinical trial patients prior to obtaining informed consent, in direct violation of the clinical trial protocol. See Ex. 7, at 54, 117. 165. For example, on July 30, 2020, Ventavia recorded identical informed consent and vital sign collection times for Subject 1001 at Keller—an impossibility. Ex. 11, Ventavia’s Quality Control Findings, at 1 (“[informed consent form] time same as [vital signs] Rest”). Relator observed that this often was due to vital signs being taken during or before the informed consent process. She also observed that the issue was often corrected during “quality control” by falsifying the time of vital signs to several minutes after informed consent. This is likely what was done to “correct” Subject 11281001’s source documents. Similar issues were observed for the following clinical trial participants, and were likely corrected via falsification: Subject Number 1004 1007 1010 1011 1013 1083 1087 Site Keller Keller Keller Keller Keller Keller Keller Visit Type Eligibility Screening Eligibility Screening Unspecified Unspecified Unspecified Unspecified Unspecified - 37 - Date of Visit July 30, 2020 July 30, 2020 July 30, 2020 July 30, 2020 July 30, 2020 Aug. 11, 2020 Aug. 11, 2020 Reflected in Ex. 11, at 1 Ex. 11, at 2 Ex. 11, at 2 Ex. 11, at 2 Ex. 11, at 2 Ex. 11, at 5 Ex. 11, at 5 Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 43 of 81 PageID #: 48 Subject Number 1088 1090 11281007 11281010 11281011 11281012 166. Site Keller Keller Fort Worth Fort Worth Fort Worth Fort Worth Visit Type Unspecified Unspecified First Injection First Injection First Injection First Injection Date of Visit Aug. 12, 2020 Aug. 12, 2020 July 31, 2020 July 31, 2020 July 31, 2020 July 31, 2020 Reflected in Ex. 11, at 5 Ex. 11, at 5 Ex. 11, at 12 Ex. 11, at 13 Ex. 11, at 13 Ex. 11, at 14 This issue was also observed as a recurring problem by Fisher on September 21, 2020. See Ex. 17, Fisher’s List of Deficiencies, at 2–3 (describing ongoing informed consent timing errors and need for correction). 167. To give another example, on August 5, 2020, Subject 11281035’s progress notes were written prior to execution of informed consent. See Ex. 11, Ventavia’s Quality Control Findings, at 3. 168. A Ventavia-internal quality assurance checklist circulated by Livingston on September 22, 2020 documenting common documentation errors at Ventavia noted that the incorrect version of the informed consent form was often used, informed consent forms sometimes had “obvious mismatch[es]” in signatures (indicating possible forgery of patient signatures), and other problems. Ex. 18, Common Quality Assurance Findings Checklist, at 1. 169. Ventavia likely falsified informed consent times in order to hide these protocol deviations from Pfizer and Icon. However, Pfizer and Icon had access to the original source documents in many cases, imparting constructive knowledge of informed consent time discrepancies. See Ex. 19, E-mail Chain with Icon (Sept. 21, 2020), at 1, 3, 4–5 (noting informed consent date errors). Pfizer also received e-mails from Ventavia indicating past informed consent protocol violations. See Ex. 20, Informed Consent E-mail Chain with Alfaro and Others (Sept. 24, 2020). Had Pfizer reviewed data as required, it would have noticed this issue and removed these patients’ data from the clinical trial, but it did not. - 38 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 44 of 81 PageID #: 49 170. Ventavia never reported its informed consent violations to the IRB overseeing the clinical trial. 5. Dose Preparation 171. Ventavia routinely rushed preparation of BNT162b2 frozen concentrate, in violation of the clinical trial protocol and resulting in potential unblinding of clinical trial participants. Livingston directed employees to hold the frozen concentrate in their hand to thaw it faster than the mandated thirty minutes. See Ex. 6, Product Manual, at 47, 53, 56, 72, 76; Ex. 9, E-mail Chain with Downs and Others, at 1–2, 4; Ex. 21, Daily Status Updates E-mail Chain, at 51–53. Ventavia did this to maximize the number of patients injected per day and their per-patient payments from Pfizer. 172. Ventavia was also using an outdated product manual that set a thaw time of twenty, rather than thirty minutes. See Ex. 9, at 4. Pfizer notified Ventavia of this in August of 2020, and was placed on notice that Ventavia was likely deviating from thaw time protocols. See id. The issue persisted, however. On September 21, 2020, Fisher listed injection wait times of less than thirty minutes as a consistent issue, finally suggesting protocol deviation reporting and resolution with an NTF. See Ex. 17, Fisher’s List of Deficiencies, at 2. However, to Relator’s knowledge, Pfizer never removed the affected patients’ data from the clinical trial. 6. Administration 173. Ventavia, in violation of the clinical trial protocol, used improperly-trained vaccinators. Cordelia “Cordy” Henslin (“Henslin”), a medical assistant, was qualified to vaccinate, but was trained over the telephone instead of in-person. And, that training did not occur until after Henslin had already started giving BNT162b2 to patients in the Pfizer-BioNTech trial. - 39 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 45 of 81 PageID #: 50 174. Issues with Henslin were discussed via e-mail. Ray noted on August 28 that she was uncomfortable with Henslin being “the only unblinded vaccinator for this trial” at her site, and asked for a more experienced person to give training. Ex. 21, Daily Status Updates E-mail Chain, at 29. Raney replied: “I actually feel like this was brought up a few weeks ago…that [Henslin] had no training and has very little oversight [because] she is the unblinded.” Ex. 21, at 28. Raney expressed concern that “something bad is going to happen with” Henslin unless she was trained. Ex. 21, at 29. On August 31, 2020, Downs acknowledged via e-mail that Henslin had finally been trained but over the telephone, and only later “rechecked when onsite.” Ex. 21, at 27. 175. Additionally, other vaccinators were unqualified to administer BNT162b2. Nadia Martinez, an office assistant at the Fort Worth site, who had no medical certifications or background, acted as an unblinded vaccinator in the Pfizer-BioNTech trial. See Ex. 22, E-mail Chain with Fisher, Raney, and Others (Sept. 9, 2020), at 2. Ventavia was seeing so many patients that the qualified vaccinator at that site, Jailyn Reyes, was unable to perform all vaccinations. See id.; Ex. 23, E-mail Chain with Livingston, Vasilio, and Others, at 2 (“Nadia is now doing all the vaccines for the COVID trial, to eliminate this from Jailyn’s plate, occasionally if Nadia is behind or not in office, then Jailyn will jump in to vaccinate”). 176. Many clinical trial participants were given their second injection outside of the protocol-mandated nineteen to twenty-three day window. Relator and others reported this to Ventavia staff multiple times. See, e.g., Ex. 1, Text Messages with Ray and Others (Sept. 17, 2020), at 1 (noting injection “OOW”, meaning out of window); Ex. 2, E-mail Chain with Ray and Others (Sept. 23, 2020), at 1 (noting “visits that are out of window”); Ex. 18, Common Quality Assurance Findings Checklist, at 1. Ventavia never reported this violation to Pfizer or Icon, but it - 40 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 46 of 81 PageID #: 51 would have been obvious from the source documents. However, Pfizer and Icon, to Relator’s knowledge, never removed these patients from the clinical trial data. 177. Multiple clinical trial participants were injected with the wrong needle size for their body weight and sex, in violation of the clinical trial protocol. For example, on August 7, 2020, Subject 11281072 was injected with the wrong size needle at Ventavia’s Fort Worth site. See Ex. 11, Ventavia’s Quality Control Findings, at 24. The same issue recurred for Subjects 11281054, 11281050, 11281047, 11281040, 11281039 at the Fort Worth site. See Ex. 11, at 21–24. Ventavia also did not record needle size for multiple participants, meaning that more patients could also have been injected with the wrong needle size. See Ex. 11, at 17, 19, 20, 24. If this issue was not concealed via needle size falsification by Ventavia, then Pfizer and Icon had constructive notice of it via the source documents, and violated regulations by not removing these patients from the clinical trial data. 178. Ventavia also improperly diluted the concentrated BNT162b2 vaccine and did not document that failure. At least four times, Ventavia employees used too much sodium chloride solution for dilution (1.7 mL versus 1.2 mL). Defendant Icon noticed the issue and informed Ventavia. Ventavia falsely told Icon that the discrepancy was due to a transcription error. See Ex. 16, E-mail Chain with Henslin (Sept. 15, 2020), at 2. 7. Safety and Patient Monitoring 179. In violation of the clinical trial protocol, clinical trial participants were not monitored under medical supervision for thirty minutes after injection. See Ex. 6, Product Manual, at 44, 61; Ex. 7, Clinical Trial Protocol, at 50. Ventavia’s Fort Worth site, for example, had only five examination rooms. To see as many patients as possible per day, patients were instructed to wait in a hallway for thirty minutes after injection. A Ventavia receptionist or non-medically- - 41 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 47 of 81 PageID #: 52 qualified employee periodically “checked on” the patients and asked if they were “OK.” This does not rise to the level of thirty minutes of “medical supervision” required by the protocol. Ex. 7, Clinical Trial Protocol, at 50; see also Ex. 6, at 44. Furthermore, the period of supervision was frequently less than thirty minutes. See Ex. 1, Text Messages with Ray and Others (Sept. 17, 2020), at 1. 180. Ventavia’s lack of patient monitoring was reported to management by Relator and by multiple employees, and acknowledged as a recurring issue. See, e.g., Ex. 1, Text Messages with Ray and Others (Sept. 17, 2020), at 1; Ex. 24, Mercedes Livingston’s List of Common Errors (Sept. 22, 2020), at 2. Pfizer was put on notice of Ventavia’s patient monitoring violations by Relator in an anonymous post-termination telephone call to Dr. Arturo Alfaro. 181. In a September 22, 2020 list of common errors in documentation and protocol compliance, Director of Operations Mercedes Livingston acknowledged that “Patients[’] location during 30 minute waiting period” after injection was an issue, and that she would train employees accordingly. Ex. 24, at 2. Livingston instructed employees as follows: • • • Be in the waiting area where the receptionist can see the patients If in the hallway, a staff member needs to be in the hallway with a work station Patients need to be brought back into a room for 30-minute post observation period. Ex. 24, at 2 (emphasis added). Relator observed that Ventavia’s monitoring practices did not change despite Livingston’s stated plan, and that non-medical personnel were still performing “observation.” 182. Ventavia management perceived its patient monitoring practices as sufficient and questioned whether patient safety was really at risk. As Jones and Fisher told Relator at a September 24, 2020 meeting: - 42 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 48 of 81 PageID #: 53 BROOK JACKSON: Okay, if we’re gonna talk about just the safety, the safety of the patient component, they know that they don’t have the rooms to manage the number of patients [for] their recruitment goals that they’re putting for these sites. MARNIE [FISHER]: That’s – WILLIAM JONES: So what would be your recommendation? As the expert? BROOK JACKSON: As the expert – you just – MARNIE [FISHER]: Hold that thought. And, what are you seeing that has led to that’s a safety issue – . . . That you’ve seen, that’s gonna be a [FDA] warning letter? That’s what I mean. That detail. So we can target – BROOK JACKSON: But nobody would ever know if we were putting patients in the hallway and they weren’t being monitored. But – MARNIE: But they are, they are being checked on. See that’s what I mean, like, they are. BROOK JACKSON: Marnie, no, they’re not. MARNIE: They are! Because I see them out there. When I’m coming and going, I’m seeing people out there all the time. They are but, now, do we have it documented? That’s where I would say, “Okay…” That’s what I mean by go find – okay, that’s a concern. Are we documenting it? Is it clear? So we can speak to that. Ex. 3, Transcript of September 24, 2020 Meeting Recording, at 27–28 (emphasis added). 183. Ventavia also failed to report all adverse events and Serious Adverse Events (“SAEs”) to Pfizer and Icon in the clinical trial at issue. 184. On September 17, for example, Raney e-mailed Relator, Ray, Downs, Fisher, and Livingston about issues with not reporting SAEs to Pfizer and Icon. See Ex. 12, E-mail Chain with Raney, at 1–2. Ventavia was actually paid by Pfizer per SAE reported, making the failure all the more puzzling. See Ex. 12, at 1. 185. In a September 21, 2020 e-mail to Livingston, Downs, Relator, and Jones documenting ongoing issues, Fisher noted that adverse events “are not being reported correctly or - 43 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 49 of 81 PageID #: 54 at all[.]” Ex. 17, Fisher’s List of Deficiencies, at 1 (emphasis added). Fisher claimed that the problem was due to conflicting information from Pfizer, but emphasized that Ventavia “should follow the protocol as to how we read it and record any [adverse events] ASAP[.]” Ex. 17, at 1. 186. Pfizer and Icon had constructive notice of this issue because they had access to clinical trial participants’ “electronic diary” entries, which recorded any symptoms experienced after vaccination. Pfizer and Icon could have seen that Ventavia was not reporting all of these diary entries as adverse events, as they were required to. 8. Accuracy and Completeness of Data 187. Ventavia maintained careless and sloppy documentation practices during the Pfizer-BioNTech trial, violating the clinical trial protocol’s requirement that sites maintain accurate source documents supporting all information submitted to Pfizer, and verify the accuracy of all data entry. See Ex. 7, Clinical Trial Protocol, at 119–21. Ventavia even falsified some patient data to cover protocol violations or missing data. Pfizer and Icon, despite obvious warning signs of documentation failures in the source documents and its communications with Ventavia, turned a blind eye to the fraud and, to Relator’s knowledge, did not remove affected patients’ data from the clinical trial. By doing so, Pfizer and Icon violated their responsibility to quality check all study data. See Ex. 7, Clinical Trial Protocol, at 120. 188. Ventavia’s over-enrollment of patients and rush to see as many as possible per week took its toll on documentation. Data was often missing, and as previously mentioned, ineligible patients were sometimes enrolled and injected. See, e.g., Ex. 2, E-mail Chain with Ray and Others (Sept. 23, 2020), at 1 (reporting “missing charts” to Ventavia management). 189. Ventavia’s most egregious data and documentation failure relates to blood samples. Patients’ blood is used to establish a baseline prior to injection with the vaccine or placebo. Any - 44 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 50 of 81 PageID #: 55 failure in timely processing or recording data from the first sample affects the baseline, which could hide subsequent changes (and possible side effects) of the vaccine that could be slow to develop. For example, white blood cell counts are a key metric and a defective baseline would affect future readings. Furthermore, blood is used to measure immune response, in other words, whether the vaccine actually works against COVID-19. Any errors in blood draw data or processing go to the heart of the clinical trial—effectiveness of BNT162b2. 190. An example blood draw log from Ventavia’s Fort Worth location is attached hereto as Exhibit 25. The document shows egregious data falsification and blood processing failures that call into question the validity of all Ventavia patients’ data for the clinical trial. The document reveals: • The time that plasma samples were frozen was altered to hide delayed freezing. See Ex. 25, Blood Draw Data, at 1. Freeze times are completely missing for some subjects. See Ex. 25, at 5, 10, 18. • The time of centrifuge insertion was altered to disguise noncompliance with required clotting times (at least thirty minutes), required centrifuge times (at least fifteen minutes), or processing delays. See Ex. 25, at 4, 7, 18. • One patient’s blood did not clot, but a clot time was recorded anyway. See Ex. 25, at 4. • No clot time or centrifuge insertion time was recorded for some patients. See Ex. 25, at 7, 8, 18. • Blood draw times are missing for some patients. See Ex. 25, at 15, 18, 19, 20. • A clot time of 309 minutes is listed for Subject 11281013 at a post-injection monitoring visit (visit 3). Ex. 25, at 1. Per Relator, the responsible employee left the lab and the blood sample sat unattended, resulting in a very long clot time being recorded. The patient should have been brought back to Ventavia for a re-draw, but that was never done. • Clot times of exactly thirty minutes are recorded for “strings” of over twenty patients in a row—a strong indicator of falsified data. See Ex. 25, at 13–18, 24–28. - 45 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 51 of 81 PageID #: 56 191. The above violations are so obvious from the source documents that Pfizer and Icon had constructive notice of Ventavia’s fraud. Icon also directly questioned missing blood collection and processing times on September 21, 2020 in an e-mail to Fisher, Downs, Relator, and others. See Ex. 19, E-mail Chain with Icon, at 1. Yet, to Relator’s knowledge, Pfizer and Icon never removed affected patients from the clinical trial data. 192. Ventavia “quality checked” patients’ source documents after seeing each patient, to make sure information was consistent with protocol, was not omitted, and matched up with electronically-entered information. However, due to Ventavia’s push to maximize enrollment and consequent revenue, “quality control” quickly fell behind its scheduled twenty-four hour window. 193. Ventavia eventually brought in employees’ friends and family members on weekends to help “catch up” on quality control. These temporary employees were not listed on delegation logs. Furthermore, some of the temporary employees were also clinical trial participants—a serious conflict of interest. 194. Relator observed that quality control personnel were not fixing deficiencies in documentation. She personally observed employees change data during “quality checking.” For example, in late September of 2020, she observed employee Thea Sonnier (“Sonnier”) change blood pressure readings in source documents, apparently fabricating new numbers. Sonnier was one of the lead employees for “quality checking” and her practices would have been followed by other employees at Ventavia. 195. Ventavia management was well aware of serious documentation issues—including falsification of data—as far back as August 13, 2020. On that day, Fisher sent a company-wide email emphasizing the importance of filling out source documents “real-time.” Ex. 26, Source Documentation E-mail Chain, at 1. Fisher noted that if data was completed after-the-fact: - 46 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 52 of 81 PageID #: 57 the time has passed so data or assessments have been forgotten, source may already have been scanned in, signatures were missed[,] and now the investigator is not available to sign. This results in deviations, queries, and overall will jeopardize the integrity of the data and ultimately our reputation and future access to studies and thus revenue coming in. Ex. 26, at 2 (emphasis added). Nevertheless, falsification of data and incomplete documentation persisted at Ventavia, and was never completely remedied. One month later, Fisher forwarded her August 13 e-mail to Downs and Relator, noting that sites were still falling behind on documentation. See Ex. 26, at 1. 196. Ventavia also failed to document improper dilution of the frozen BNT162b2 vaccine concentrate. Defendant Icon noticed the issue and informed Ventavia. Ventavia falsely told Icon that the discrepancy was due to a transcription error. See Ex. 16, E-mail Chain with Henslin (Sept. 15, 2020), at 2. 197. For months, Ventavia sites did not properly track when clinical trial participants developed symptoms of COVID-19. Ventavia created a symptom log in August, but no sites used it until Downs circulated the log on September 24, 2020. See Ex. 27, Symptom Log E-mail Chain and Attachment (Sept. 24, 2020), at 1. The issue was documented in an NTF but Pfizer and Icon were not notified. Nevertheless, Pfizer had constructive knowledge of this failure via the NTF, and should have excluded affected patients from its trial data. 9. Adherence to Protocol 198. Defendants were required to adhere to Pfizer’s clinical trial protocol, but did not. In addition to the protocol violations listed supra, Defendants also violated the clinical trial protocol in the following ways. - 47 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 53 of 81 PageID #: 58 199. Ventavia did not consistently use up-to-date versions of the clinical trial protocol or BNT162b2 product manual as they were required to. See Ex. 9, E-mail Chain with Downs and Others, at 4; Ex. 17, Marnie Fisher’s List of Deficiencies (Sept. 21, 2020), at 1. 200. Clinical trial participants were, per the protocol, to be examined/enrolled one at a time. Ventavia, however, cancelled single patients’ appointments in favor of married couples or groups of friends who sought to participate in the trial. See Ex. 28, List of Action Items, at 14. In Ventavia’s view, groups could be scheduled and seen at the same time, maximizing the number of patients (and Ventavia’s payments) per day. However, seeing groups could potentially unblind patients, could violate privacy laws, and violated the clinical trial’s 1:1 randomization protocol. This practice would be apparent to Pfizer and Icon from overlapping times in the source documents. Pfizer and Icon thus ignored obvious red flags of noncompliance. 201. Ventavia also did not maintain adequate principal investigator oversight. Dr. Mark Koch, the principal investigator at Ventavia’s Fort Worth location, signed records for patients he did not personally or adequately examine. Sub-investigator physicians or other medical staff examined patients instead, and Dr. Koch “signed off” on the records. This issue was noted, for example, during a “quality check” of Subject 11281278’s first injection visit at Ventavia’s Fort Worth site, but never reported to Pfizer or Icon: The document signed by Dr. Koch constitutes a false record because he did not actually examine the patient. The same issue affected Subject 11281378’s first injection visit as well: - 48 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 54 of 81 PageID #: 59 202. To provide another example, no principal investigator signed records of Subject 1031’s screening visit on August 5, 2020. See Ex. 11, Ventavia’s Quality Control Findings, at 3. Per Relator, this indicates that there was no principal investigator oversight for that subject’s visit. 203. This issue occurred because Ventavia was seeing too many clinical trial participants per day. Principal investigator and sub-investigator physicians had their own medical practices to oversee and could not stay at Ventavia test sites all day. Some investigator physicians even went back and forth from their own offices to Ventavia multiple times per day. 204. The Houston site’s principal investigator, Dr. Van Tran, wanted to close his medical practice during certain times, effectively setting aside scheduled “blocks” to examine clinical trial participants at Ventavia. On August 15, 2020, Raney told Downs, Ray, Fisher, Livingston, and another employee that Dr. Tran’s plan was not acceptable because the Houston site would not be able to “hit” its cap of forty patients per week, maximizing its payments from Pfizer. See Ex. 21, Daily Status Updates E-mail Chain, at 55–56. Raney wrote: I understand that [Dr.] Tran had a different plan due to his patients and practice, but we can't allow that kind of stuff to impact a high‐enrolling study. I know you brought this up on our call last week, but I didn't fully grasp the impact. In the future, if you need to detour off of my recruitment guidance, I need you to seek approval first before you agree or put anything into action. You brought the detour up really quickly on our call and it was already in place when you told me about it, so it was a little too late for me to say no (though I now realize I should have). The direction was to see the 40 patients within the first 2.5 days...so that when Pfizer did increase their [weekly] cap, we'd be the first ones approved for additional drug[s] (and I did clearly explain my strategy and the rationale behind it when I gave my direction). And now, Pfizer is planning to increase their drug and [Houston] didn't hit their 40 in the first week. Honestly, that's unacceptable. I need you to figure out how 9 patients will be randomized on Monday. - 49 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 55 of 81 PageID #: 60 Ex. 21, at 56. Raney’s directive exemplifies the focus on quick enrollment over protocol compliance, and could have resulted in inadequate oversight by Dr. Tran at the Houston site. 205. Ventavia also did not report many clinical trial protocol deviations to Pfizer and Icon. The issues, as previously noted, were often buried in “notes to the file” if they were reported at all. Fisher acknowledged this as an ongoing issue on September 21, 2020, noting that she was “not sure” if deviation reports were “getting completed or not[.]” Ex. 17, Fisher’s List of Deficiencies, at 3. 10. Privacy Law Compliance 206. Defendant Ventavia’s Fort Worth location mishandled clinical trial participants’ protected health information, in violation of the Health Insurance Portability and Accountability Act (“HIPAA”) and clinical trial protocol. 207. For example, on September 16, 2020, Relator observed that a wall calendar posted near a reception area visible to all staff and patients contained patients’ names, phone numbers, and health information (as a method of reminding staff to follow up with patients). Both medical and non-medical staff could see this information. That same day, Relator also observed that patient files had been left out unattended in an area where they were visible to non-medical staff. 208. On September 21, Fisher documented common findings during document “quality checking” and noted that Ventavia’s test sites were inconsistent in safeguarding patients’ protected health information, describing, for example, “patient folders out on counters in the clinic and face[] up with names visible[.]” Ex. 17, Fisher’s List of Deficiencies (Sept. 21, 2020), at 1. 209. Ventavia employees at all three test sites regularly utilized the smartphone and computer application “Slack” for communication, including patients’ names and identification numbers. Slack is not secure or HIPAA-compliant. - 50 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 56 of 81 PageID #: 61 210. Ventavia’s HIPAA violations are a violation of the clinical trial protocol, which requires compliance with all “applicable privacy laws.” Ex. 7, at 116. B. Violation of FDA Regulations 211. Defendants’ clinical trial also violated FDA regulations, as explained further below. As noted previously, Icon and Ventavia are bound by FDA regulations to the same extent and degree as Pfizer. See 21 C.F.R. §§ 312.50, 312.52, 312.56; Ex. 7, at 116. 212. Defendants violated FDA regulations regarding IRB oversight and reporting when they failed to report additional clinical trial participant compensation, failure to follow clinical trial protocols, and informed consent violations to the clinical trial’s IRB. See 21 C.F.R. §§ 312.66, 312.53(c). 213. Defendants violated FDA regulations when they failed to investigate and report all adverse event information received in the clinical trial at issue, and failed to notify the FDA of all potential serious risks and adverse reactions. See 21 C.F.R. §§ 312.32, 312.50. Defendants Ventavia and Icon violated 21 C.F.R. § 312.64(b) when they failed to immediately report all adverse events to Pfizer. 214. Defendant Pfizer violated 21 C.F.R. § 312.50 and 21 C.F.R. § 312.56 when it failed to properly oversee Defendants Ventavia and Icon and failed to ensure that they complied with the clinical trial protocol. 215. Defendants Pfizer and Icon also violated FDA regulations when they learned of Defendant Ventavia’s regulatory and protocol violations and elected not to “promptly . . . secure compliance” or “discontinue shipments of [BNT162b2] and end [Ventavia’s] participation” in the clinical trial. 21 C.F.R. § 312.56(b). - 51 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 57 of 81 PageID #: 62 216. Ventavia and Icon violated 21 C.F.R. § 312.64 by failing to furnish all required reports to Pfizer, including but not limited to reports of adverse events, temperature excursions, and clinical trial protocol deviations. 217. Defendant Ventavia violated 21 C.F.R. § 312.62 by failing to maintain adequate and accurate records of BNT162b2 dispensation and clinical trial participants’ case histories. 218. Defendants violated FDA regulations by failing to obtain and document informed consent for every patient prior to clinical trial participation. See 21 C.F.R. §§ 50.27(a), 312.60, 312.62(b). 219. Defendant Ventavia violated FDA regulations by giving BNT162b2 to subjects not under the personal supervision of the principal investigators or sub-investigators at its clinical trial sites. See 21 C.F.R. § 312.61. 220. Defendant Ventavia violated 21 C.F.R. § 312.61 by administering BNT162b2 to ineligible clinical trial participants and to Ventavia employees and their family members. 221. Defendants’ violations of FDA regulations constitute a violation of the clinical trial protocol as well. See Ex. 7, Clinical Trial Protocol, at 116 (requiring compliance with all applicable laws and regulations). 222. Defendants violations of FDA regulations rendered their certifications and representations of compliance in Pfizer’s claims for payment, the clinical trial protocol, Form FDA-1571, and Form FDA-1572 false. C. Violation of FAR 223. As previously noted, Defendant Pfizer is required to comply with FAR. Defendant Pfizer did not maintain due diligence to detect and did not disclose Defendants’ violations of the - 52 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 58 of 81 PageID #: 63 False Claims Act to DoD. Defendant Pfizer has, as a result, breached its contract with DoD and violated federal regulations. See 48 C.F.R. § 52.023-13. 224. Additionally, Pfizer did not monitor its subcontractors, Icon and Ventavia, as it was required to do by FAR 42-202(e)(2). See 48 C.F.R. § 42-202(e)(2). D. Ongoing Monitoring Concerns 225. Enrollment in the trial at issue has closed (except for twelve- to fifteen-year-olds) and only required ongoing patient monitoring is still taking place. The fraud alleged herein also affects this ongoing monitoring. Due to Defendants’ aforementioned fraudulent practices, data from ongoing monitoring (including possible new adverse events) may be falsified or concealed, preventing material information about BNT162b2 from reaching the United States. E. Safety and Ethical Issues 226. Relator observed fundamental safety risks to study participants and Ventavia employees, over and above those which violate the clinical trial protocol. She also observed breaches of ethical standards required in clinical trials. 227. On September 16, Relator observed used needles placed in biohazard bags instead of sharps containers. The bags are not puncture-proof, so Ventavia employees were directly put at risk of injury or infection during bag handling and disposal. 228. Ventavia internally requires every patient’s chart to contain dosage ranges for epinephrine based weight, age, and other factors. Epinephrine is used to counter anaphylaxis if a patient has an allergic reaction to a vaccine. Relator observed and reported to Ventavia management that the protocol was not being followed. The deficiency could lead staff to incorrectly guess the correct epinephrine dosage in an emergency, putting patients’ safety and lives - 53 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 59 of 81 PageID #: 64 at risk. Relator reported this issue to Ventavia supervisors verbally and via e-mail, including on September 23 and 24, 2020. The issue was not remedied, to Relator’s knowledge. 229. To adhere to industry-standard “Good Clinical Practices,” Ventavia trial site employees were required to undergo training in biologics handling, occupational safety and health, and other areas. Relator strove to ensure that all employees underwent and reported their training, but was terminated before this task was complete. To Relator’s knowledge, Ventavia never provided all employees with all required training. 230. Ventavia and other trial sites for the Pfizer-BioNTech trial must get IRB approval for all compensation paid to clinical trial participants. Ventavia, however, routinely gave participants gift cards as a “customer service” initiative, to apologize for long patient wait times. For example, on August 17, 2020, Ray directed Fisher and Downs as follows: Let your [Site Operations Managers] know that sometimes we need to use kindness to deal with difficult patients (purchase lunch, a coffee, small gift card, apologize, etc.) Make it right when they are in the office, don’t wait until they leave upset and go write reviews or report us to the IRB, FDA. Customer service is everything. Ex. 28, List of Action Items, at 13 (emphasis added). Providing gift cards to clinical trial participants constitutes additional patient compensation not approved by the IRB and is a breach of ethical obligations. 231. Ventavia did not report any of the above misconduct to the IRB or Pfizer. IX. 232. RETALIATION AGAINST RELATOR Defendant Ventavia Research Group, LLC (“Ventavia”) retaliated against Relator in response to her reports of, and efforts to stop, Defendants’ fraud against the United States DoD. 233. Relator began her employment with Ventavia on September 8, 2020 as a Regional Director. - 54 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 60 of 81 PageID #: 65 234. As Regional Director, Relator oversaw site managers, patient recruitment success, training completion, quality assurance completion, enforcement of communication paths, and growth plans at her assigned test sites. These duties included ensuring that Serious Adverse Event (“SAE”) reports were timely submitted, and that her assigned sites created corrective action plans to address protocol deviations. Relator’s job duties also included daily and weekly communication with the site operations managers of her assigned test sites and Ventavia’s leadership team. 235. Relator was responsible for the duties above at two of Ventavia’s three test sites for the clinical trial at issue, located in Fort Worth and Keller, Texas. The third site involved, in Houston, was overseen by another Regional Director and managed by Lovica “Kandy” Downs. The Fort Worth site was managed by Jennifer Vasilio and the Keller site was managed by Katie Benitez. 236. The principal investigators for the three sites at issue are medical doctors: Mark Koch, M.D. (“Dr. Koch”) in Fort Worth, Gregory Fuller, M.D. in Keller, and Van Tran, M.D. in Houston. The doctors are not employees of Ventavia; they serve as principal investigators in addition to practicing medicine elsewhere. Ventavia and the principal investigators were paid by Pfizer for supervision of the study on a per-patient basis, with additional funds paid per SAE reported and for activities such as training. 237. Relator’s direct supervisor during her employment with Ventavia was Director of Operations Marnie Fisher (“Fisher”). Her other superiors were Ventavia’s Executive Directors Olivia Ray (“Ray”) and Kristie Raney (“Raney”) and the Chief Operating Officer, Mercedes Livingston (“Livingston”). - 55 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 61 of 81 PageID #: 66 A. Relator begins her efforts to stop fraud on the United States Department of Defense. 238. Beginning on September 8, 2020, Relator reported on a near-daily basis to Fisher and Livingston that patient safety and the integrity of the Pfizer-BioNTech vaccine trial was at risk, via telephone, conversation, and e-mail. Relator discussed virtually all of the clinical trial protocol and FDA regulatory violations she witnessed with Livingston, Raney, and Fisher, including, but not limited to: (1) enrollment and injection of ineligible trial participants; (2) falsification of data, poor recordkeeping, and the deficiency of Ventavia’s documentation “quality control”; (3) deficiencies in and failure to obtain informed consent from trial participants; (4) adverse event and SAE capture and reporting; (5) failure to preserve blinding; (6) vaccine dilution errors; (7) failure to list all staff on delegation logs; (8) principal investigator oversight; (9) reporting temperature excursions; (10) patient safety issues, such as not keeping epinephrine dose information in patient charts; (11) failure to secure and record staff training required by clinical research standards; (12) use of unqualified staff as vaccinators; (13) use of biohazard bags for needle disposal; and (14) failure to properly monitor patients post-injection. 239. In general, every time that Relator raised concerns about safety or Ventavia’s clinical trial protocol compliance with Fisher, she was told to e-mail Fisher about the issue or make a list of affected patients. Many of the identified issues were systemic, and Relator did not have access to information required to make the lists Fisher requested. Relator did as Fisher requested to the extent that she was able, but the identified problems were never addressed. See Ex. 3, Transcript of Sept. 24 Meeting (discussing, in part, Relator’s prior reports of protocol violations). 240. Relator also reported some clinical trial protocol violations to the Fort Worth Principal Investigator, Dr. Koch. In particular, Relator discussed Ventavia’s practice of “quality checking” patient source documents after the fact and issues of missing documentation. Dr. Koch - 56 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 62 of 81 PageID #: 67 acknowledged that Ventavia needed to “clean up” the problems before starting any new clinical trials. 241. Ventavia was required to scan or enter all data from clinical trial participants’ source documents into its Clinical Trial Management System Database, so that it could be passed on to Icon and Pfizer. Ventavia “quality checked” all source documents before scanning or uploading them. In Ventavia’s scramble to enroll as many participants as possible per week and maximize revenue, quality checking and uploading fell behind schedule. Relator observed that the “back log” of documents to be quality checked often lacked key information, such as patient or doctor signatures and blood draw times. Relator also observed that Ventavia’s quality checking process was performed by unqualified personnel not listed on delegation logs, and often involved falsification of missing data. Relator reported her concerns to Ventavia management, who seemed more concerned with “catching up” on quality checking than preventing fraud. 242. On September 15, 2020, Relator reported to Fisher that some patient charts had never been sent to Pfizer, were needed “urgently,” and had not been quality checked. See Ex. 29, Text Messages with Fisher, at 1. 243. Relator called Ventavia’s contact at Pfizer for the trial at issue, Dr. Arturo Alfaro (“Dr. Alfaro”) on September 14 and 16 to discuss protocol violations, but was unable to reach him. B. Relator photographs violations. 244. On September 16, 2020, Relator examined some of the biohazard disposal bags at Ventavia’s Fort Worth site. She had been asked to monitor this issue because Ventavia was charged by weight for disposal of the bags, and non-biohazard items were sometimes improperly placed there. Relator discovered that used needles had been disposed of in the bags: - 57 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 63 of 81 PageID #: 68 See also Ex. 3, Transcript of September 24 Meeting Recording, at 1–2. Biohazard bags are not puncture-proof, so this presented a serious risk to employees’ safety. 245. That same night, Relator photographed ongoing HIPAA violations. Ventavia kept a calendar of patients to follow up with in public view in a reception area. The calendar contained patients’ names and information. Similarly, patient records were left out in public view. Relator also documented that product cartons and patient randomization numbers from the BioNTechPfizer vaccine trial had been left in public view in a preparation area, potentially unblinding all Ventavia staff at the site and some patients as well: - 58 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 64 of 81 PageID #: 69 - 59 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 65 of 81 PageID #: 70 246. Relator shared her photographs from September 16 with Livingston and Fisher via text message or e-mail. The following day, she reported an identical biohazard bag issue at the Keller site to the same people. C. Relator recommends pausing clinical trial enrollment. 247. On September 17, 2020, Relator spoke to Downs and Ventavia’s Quality Control Director William Jones (“Jones”) via telephone. Relator asked both for their opinion about what would happen if the FDA audited Ventavia. Both Downs and Jones responded the same way— afraid that Ventavia would receive warning letters or be asked to discontinue trial enrollment. 248. Later that day, in her daily phone call with Ray, Raney, Fisher, Downs, and Livingston, Relator brought up virtually all of the protocol and regulatory violations she had witnessed to date, as well as Ventavia’s HIPAA violations. Relator explained that the FDA would likely issue warning letters against Ventavia if it visited or audited the trial sites. She recommended that Ventavia immediately stop enrollment in the Pfizer-BioNTech clinical trial. 249. Ray directed Relator and others to conduct FDA trainings, in preparation for a possible future site visit or audit by the FDA. See Ex. 28, List of Action Items, at 1; Ex. 1, Text Messages with Ray and Others (Sept. 17, 2020), at 1. Ventavia also decided to pause enrollment in order to catch up on “quality checking” source documents. Id. 250. Later on September 17, Relator responded to a group text message including Ray, Downs, Raney, Livingston, and Fisher. See Ex. 1, at 2. First, Relator passed on the concerns of Fort Worth Site Operations Manager Jennifer Vasilio regarding documentation and patient observation protocol violations, patients being injected outside of the nineteen to twenty-three day “window,” and HIPAA violations. Ex. 1, at 1. Second, Relator expressed her concerns about Ventavia’s “quality checking” (QC): - 60 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 66 of 81 PageID #: 71 I would like us to create a solid monitoring plan . . . I don’t think it is as simple as pulling a chart and looking for missing check boxes or missing initial in a header/footer which I have been seeing a lot of when I have QC’d the QC’er. We need to be able to reconcile time of [vaccine] prep and admin[istration], for example. This cannot be done by everyone who is QC’ing to ensure we do maintain the blind. This is one reason I think we need to carefully consider what we are looking at especially if we are approaching this from the perspective of an FDA auditor, which I 100% think we should be. . . . I would have liked the opportunity to discuss this with [the principal investigators, Drs. Fuller and Koch] individually and I still would. Ex. 1, Text Messages with Ray and Others (Sept. 17, 2020), at 2. The “reconcil[ing]” Relator discussed showed that vaccine preparation and administration times were not compliant with the clinical trial protocol. Id. 251. Ventavia was not up-front with Pfizer and Icon about the reasons for the enrollment pause (sloppy documentation that violated the clinical trial protocol). In a text message conversation on September 17, Raney instructed Ventavia employees how to respond to any questions from Pfizer about the pause. She told them to “make it like it’s no big deal” and that the pause resulted from Ventavia was “being responsible by considering we have a certain bandwidth and these visits on top [of] each other has hit our bandwidth.” Ex. 1, at 10. Raney also directed employees to falsely tell patients that Ventavia was not enrolling because “we met our company capacity[.]” Ex. 1, at 6. Ventavia was also not up-front with its Houston principal investigator, Dr. Van Tran, regarding the reason for the pause. Downs was directed to convey to Dr. Tran that the pause was due to Ventavia being “at capacity” and not wanting “to overd[o] it.” Ex. 1, at 9. 252. Ventavia ultimately elected to schedule patients for several weeks later rather than truly and completely pause enrollment. See Ex. 1, at 6, 9–10. Raney directed employees not to cancel any patients already “on their way” to test sites because “that might piss them off and they - 61 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 67 of 81 PageID #: 72 can call the news, etc[.]” Ex. 1, at 11. Livingston responded, “if [patients] were scheduled far enough out[,] cancel[,] but if they are there then see them.” Id. Downs responded that she would not cancel patients in Houston. See id. 253. During the enrollment pause, Ventavia’s “quality checking” not only failed to correct documentation violations but also involved falsification of missing or inconsistent data. Ventavia hired employees’ friends and family members on a temporary basis to perform quality checking who were not adequately trained. Relator even personally observed employees falsifying source document data (i.e., by changing blood pressure readings). Relator also noticed that information was often completely obscured when changed, rather than “lining through” (which preserves legibility of the original text). In short, Ventavia’s “quality checking” failed to prevent or stop fraud on the United States DoD. 254. On September 23, 2020, Relator e-mailed Ray, Fisher, Raney, Downs, Jones, and Livingston to report ongoing serious issues with Ventavia’s “quality checking.” See Ex. 2, E-mail Chain with Ray and Others (Sept. 23, 2020). Relator noted, among other issues: • There were 100 outstanding queries from Icon about missing or inconsistent data which were up to twenty-eight days old. See Ex. 2, at 1. • Scheduling errors resulted in multiple patients receiving their second injection outside of the required nineteen to twenty-three day window. Ventavia was not truthfully recording the vaccine delay for these patients, and due to the oversight, Pfizer and Icon could not discover that these patients were vaccinated outside of the permissible window. Id. • Quality checking caused large delays. Relator found a twenty-one-day-old patient chart that had not been entered into the Electronic Data Capture system to send to Icon and Pfizer. That information should have been entered within twenty-four hours. Id. • Some patient charts and laboratory specimens were missing. Id. - 62 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 68 of 81 PageID #: 73 Due to the seriousness of these violations, Relator noted that she “might be in a little bit of shock.” Ex. 2, at 1. 255. On September 23, 2020, Relator e-mailed Livingston to report that Ventavia’s emergency response protocol for allergic reactions was not being followed. Ventavia internally required every patient’s chart to contain appropriate dosage ranges (based on age, weight, etc.) for epinephrine in the event of anaphylaxis. The patients’ charts did not contain this information. No action was taken to correct this during Relator’s employment. D. Ventavia management falsely accuses Relator of violating patient confidentiality. 256. On the evening of September 24, 2020, Relator met with Fisher and Jones. See Ex. 3, Transcript of September 24, 2020 Meeting Recording. The meeting was arranged to discuss Relator’s photographic documentation of safety issues, HIPAA violations, and unblinding from September 16. The meeting quickly escalated into harassment. Fisher questioned repeatedly why Relator took the photographs and falsely accused Relator of removing patient source documents from another Ventavia location. Id. 257. Fisher reiterated her instructions to provide specific patient names which, as noted previously, was not always possible. See Ex. 3, at 4, 18, 20, 22. Fisher and Jones gave contradictory instructions, telling Relator to fix violations once identified but also noting that Ventavia cannot correct all violations, and has to pick and choose what to address. See, e.g., Ex. 3, at 12, 15, 27. Jones stated that Ventavia had not “even finished quantifying the number of errors” because “it’s something new every day.” Ex. 3, at 12. He acknowledged that the problems were “not just in one site” either, and stated “we’re gonna get some kind of letter of information at least, when the FDA gets here. Know it.” Id. - 63 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 69 of 81 PageID #: 74 258. When Relator discussed her unblinding documentation, Fisher appeared more concerned with punishing the employees responsible for the unblinding incident than preventing the issue in the future. See Ex. 3, at 2, 3; see also Ex. 13, Unblinding E-mail Chain (Sept. 22, 2020), at 1 (instructing employees to discipline those responsible for unblinding incident). 259. Relator specifically referenced FDA regulatory violations in her conversation with Fisher and Jones. See Ex. 3, Transcript of September 24, 2020 Meeting Recording, at 14. She told Fisher and Jones that if they did not see what she saw when quality checking patients’ source documents, then they needed to “get on Google” and search for FDA warning letters. Ex. 3, at 14. 260. Relator reported hearing Raney and Ray acknowledge via telephone that Ventavia did not have the staff or patient room capacity to handle the number of clinical trial participants being seen every day. Ex. 3, at 15. Relator questioned whether Raney and Ray truly prioritized patient safety. See id. Fisher questioned whether placing patients in the hallway for “monitoring” after injection was actually a safety risk. Id. 261. Relator also discussed with Jones and Fisher that Downs had previously reported many of the same violations and safety risks that Relator had. See Ex. 3, at 21, 23–24. Fisher claimed that Ventavia addressed Downs’ concerns, but clearly the same issues had recurred, or else Relator would not have spotted them. See Ex. 3, at 24. E. Ventavia terminates Relator the next day. 262. On the following morning, Relator called the FDA’s hotline to report the clinical trial protocol violations and patient safety concerns she witnessed. 263. Relator was terminated from her position at Ventavia that same day—September 25, 2020. Relator was never formally disciplined or reported for any failure regarding her job performance until the day that she was terminated. - 64 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 70 of 81 PageID #: 75 264. Relator was harassed and terminated by Defendant Ventavia as a direct consequence of her reports of and efforts to stop fraud against the United States DoD. 265. After Relator was terminated, she called Dr. Alfaro at Pfizer and gave a general overview of her concerns about unblinding, principal investigator oversight, and patient safety in the Pfizer-BioNTech vaccine trial. She also informed Dr. Alfaro that she had contacted the FDA. Relator did not identify herself or discuss any specific trial sites, concerned that doing so might adversely affect a future retaliation action. 266. Not long after her termination, the FDA contacted Relator and spoke to her for several hours regarding the violations she witnessed at Ventavia. 267. Almost immediately after Relator was terminated (the next business day), Ventavia lifted the enrollment “pause” and resumed the push to enroll as many clinical trial participants per week as possible. Given the amount of “quality control” left to be performed when Relator was terminated, Relator estimates that Ventavia had neither completed quality checking nor remedied its ongoing violations by the time it resumed enrollment. 268. Relator’s termination is but one example of a pattern and practice of retaliatory terminations by Defendant Ventavia. Ventavia’s prior Fort Worth Site Operations Manager Michelle Gaines was terminated in August of 2020 for reporting and trying to stop protocol noncompliance and regulatory violations in other clinical trials. - 65 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 71 of 81 PageID #: 76 X. A. ACTIONABLE CONDUCT BY DEFENDANTS False Claims Act 1. Applicable Law 269. This is an action to recover damages and civil penalties on behalf of the United States and Relator Jackson arising from the false and/or fraudulent statements, claims, and acts that Defendants made in violation of the False Claims Act, 31 U.S.C. §§ 3729–3732. 270. For conduct occurring on or after May 20, 2009, the FCA provides, in relevant part, that any person who: (A) knowingly presents, or causes to be presented, a false and/or fraudulent claim for payment or approval; [or] (B) knowingly makes, uses, or causes to be made or used, a false record or statement material to a false and/or fraudulent claim[,] 31 U.S.C. § 3729(a)(1), is liable to the United States for a civil penalty of not less than $11,665 and not more than the applicable regulatory maximum for each such claim, plus three times the amount of damages sustained by the Government because of the false and/or fraudulent claim. See 31 U.S.C. § 3729(a)(1); 28 C.F.R. § 85.5. 271. The FCA defines “claim” as: (A) mean[ing] any request or demand, whether under a contract or otherwise, for money or property and whether or not the United States has title to the money or property, that-(i) is presented to an officer, employee, or agent of the United States; or (ii) is made to a contractor, grantee, or other recipient, if the money or property is to be spent or used on the Government’s behalf or to advance a Government program or interest, and if the United States Government-(I) provides or has provided any portion of the money or property requested or demanded; or - 66 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 72 of 81 PageID #: 77 (II) will reimburse such contractor, grantee, or other recipient for any portion of the money or property which is requested or demanded. . . . 31 U.S.C. §3729(b)(2). 272. The FCA allows any person having knowledge of a false and/or fraudulent claim against the Government to bring an action in federal district court for himself and for the United States, and to share in any recovery, as authorized by 31 U.S.C. § 3730. 273. Based on these provisions, Relator Jackson seeks damages and civil penalties arising from Defendants’ violations of the False Claims Act. 2. Defendants’ Violations of the False Claims Act a. 274. Presentation of False Claims (31 U.S.C. § 3729(a)(1)(A)) From 2020 to the present, Defendants knowingly presented, or caused the presentment of, false and/or fraudulent claims for payment or approval to the United States. Pfizer’s claims for payment to DoD were rendered false and/or fraudulent by express and implied false certifications. 275. First, when Defendant Pfizer submitted its clinical trial protocol to the United States in connection with its contract, it represented that the clinical trial would comply with all applicable laws and regulations. Defendants violated FAR and multiple FDA regulations when conducting the clinical trial, rendering this certification false. 276. Second, Defendant Pfizer’s IND for the vaccine and clinical trial at issue warned that making a “willfully false statement is a criminal offense.” Ex. 4, Form FDA-1571, at 2. Defendants rendered Pfizer’s acknowledgement of this warning false by submitting false data to the FDA. - 67 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 73 of 81 PageID #: 78 277. Third, Defendants Ventavia and Icon certified in Form FDA-1572, submitted to Pfizer and the United States, that they would: (1) conduct the trial in accordance with the protocol and FDA regulations; (2) obey informed consent and IRB reporting requirements; (3) report adverse events; (4) ensure that all “associates, colleagues, and employees assisting in” the trial were “informed about their obligations”; and (5) make no changes to the trial without IRB approval. B, Form FDA-1572; 21 C.F.R. § 312.53(c)(vi). Ventavia and Icon acknowledged when submitting Form FDA-1572 that making willfully false statements is a crime. See Ex. 5, at 2. This acknowledgement and certification was rendered false by Ventavia and Icon’s violations of the clinical trial protocol, FDA regulations, and fraudulent conduct described supra. 278. Fourth, Defendant Pfizer certified in its claims for payment that they were true and correct, prepared from Pfizer’s books and records, and in accordance with the Pfizer-DoD contract. See 48 C.F.R. § 52.232-32(m). This certification was rendered false by Defendants’ submission of false data and violation of FDA regulations and FAR, and by the other fraudulent conduct described supra. 279. Defendants’ fraudulent schemes transform these certifications into false certifications, rendering Defendant Pfizer’s claims for payment to DoD false and/or fraudulent. 280. By creating and carrying out their fraudulent schemes, Defendants knowingly and repeatedly violated Section 3729(a)(1)(A) of the False Claims Act. 281. Defendants’ knowing submission, or causation of submission, of false and/or fraudulent claims had the potential to influence the government’s payment decision and was material to the government’s decision to pay the claims. 282. Defendants’ violations of the applicable statutes and regulations, and misrepresentations regarding their compliance, were material, because they went to the very - 68 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 74 of 81 PageID #: 79 essence of the bargain for which the United States DoD contracted. Had the United States DoD known of Defendants’ fraudulent non-compliance, which resulted in the submission of ineligible false and/or fraudulent claims for reimbursement, it would not have paid the claims. 283. Defendants’ presentment, or causation of presentment, of false and/or fraudulent claims to the United States DoD was a foreseeable factor in DoD’s loss and a consequence of Defendants’ schemes. By virtue of Defendants’ actions, the United States DoD has suffered actual damages and is entitled to recover treble damages plus a civil monetary penalty for each false and/or fraudulent claim. b. 284. Making or Using False Records or Statements to Cause Claims to be Paid (31 U.S.C. § 3729(a)(1)(B)) From 2020 to the present, Defendants knowingly made, used, or caused to be made or used, false records or statements that were material to false and/or fraudulent claims paid or approved by the United States DoD. These false records or statements include the clinical trial protocol Pfizer submitted to the United States and the falsified source documents and data behind Defendants’ trial results and EUA application. 285. By creating and carrying out their fraudulent schemes, Defendants knowingly and repeatedly violated Section 3729(a)(1)(B) of the False Claims Act. 286. Defendants’ false records were material to Pfizer’s claims for payment for the vaccine at issue. The United States DoD would not have paid Pfizer if it knew that the clinical trial protocol was not complied with by Defendants, because the protocol violations call the integrity and validity of both the entire clinical trial and Pfizer’s EUA into question. 287. Defendants’ false records also went to the very essence of the bargain the United States contracted for. DoD contracted to purchase vaccines found effective by a valid clinical trial conducted according to the protocol submitted by Pfizer. The integrity of the entire clinical trial - 69 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 75 of 81 PageID #: 80 was compromised by the trial protocol violations, false source documents, and the false data that resulted, which calls the vaccine’s EUA into question. Had the United States DoD known of Defendants’ false records, it would not have paid Pfizer. 288. Defendants’ use, or causation of use, of material false records was a foreseeable factor in the United States DoD’s loss and a consequence of Defendants’ schemes. By virtue of Defendants’ actions, the United States DoD has suffered actual damages and is entitled to recover treble damages plus a civil monetary penalty for each false and/or fraudulent claim. c. 289. Retaliation (31 U.S.C. § 3730(h)) Section 3730(h) of Title 31 of the United States Code defines whistleblower protection under the False Claims Act as follows: (1) Any employee, contractor, or agent shall be entitled to all relief necessary to make that employee, contractor, or agent whole, if that employee, contractor, or agent is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts done by the employee, contractor, agent or associated others in furtherance of an action under [the False Claims Act] or other efforts to stop 1 or more violations of [the False Claims Act]. (2) Relief . . . shall include reinstatement with the same seniority status that employee, contractor, or agent would have had but for the discrimination, 2 times the amount of back pay, interest on the back pay, and compensation for any special damages sustained as a result of the discrimination, including litigation costs and reasonable attorneys’ fees. 31 U.S.C. § 3730(h). 290. As discussed supra, in violation of 31 U.S.C. § 3730, Defendant Ventavia retaliated against Relator as a result of Relator’s efforts to stop Defendants from committing False Claims Act violations. Defendant Ventavia punished Relator for her lawful and statutorily protected activity with harassment and termination. 291. Relator has suffered both economic loss and emotional harm as a result of Defendant Ventavia’s retaliatory actions. - 70 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 76 of 81 PageID #: 81 XI. CAUSES OF ACTION A. Count I – Presentation of False and/or Fraudulent Claims (31 U.S.C. § 3730(a)(1)(A)) 292. Relator realleges and hereby incorporates by reference each and every allegation contained in all paragraphs of this Complaint. 293. Since December of 2020, Defendants have knowingly presented or caused the presentment of false and/or fraudulent claims to the United States for payment or approval. Defendant Pfizer’s claims for payment to DoD were rendered false or fraudulent by Defendants’ implied and express false certifications of legal and regulatory compliance, accuracy of data, and clinical trial protocol compliance. 294. By creating and carrying out their fraudulent scheme, Defendants knowingly and repeatedly violated the False Claims Act. See 31 U.S.C. § 3729(a)(1)(A). 295. Defendants’ knowing submission, or causation of submission, of false and/or fraudulent claims had the potential to influence the United States’ payment decision and was material to the United States’ decision to pay the claims. 296. The United States paid the false and/or fraudulent claims. 297. Defendants’ presentment or causation of presentment of false and/or fraudulent claims was a foreseeable factor in the United States’ loss and a consequence of Defendants’ fraudulent scheme. By virtue of Defendants’ actions, the United States has suffered damages and is entitled to recover treble damages plus a civil monetary penalty for each false and/or fraudulent claim. B. Count II – Making or Using False Records or Statements Material to False and/or Fraudulent Claims (31 U.S.C. § 3730(a)(1)(B)) 298. Relator realleges and hereby incorporates by reference each and every allegation contained in all paragraphs of this Complaint. - 71 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 77 of 81 PageID #: 82 299. From 2020 to the present, Defendants knowingly made, used, or caused to be made or used, false records or statements that were material to false and/or fraudulent claims paid or approved by the United States. These false records or statements include the clinical trial protocol that Defendant Pfizer submitted to the United States and the falsified source documents and data behind Defendants’ clinical trial results and Emergency Use Authorization application. 300. By creating and carrying out their fraudulent scheme, Defendants knowingly and repeatedly violated 31 U.S.C. § 3729(a)(1)(B). 301. Defendants’ false records or statements, or causation thereof, had the potential to influence the United States’ payment decision and were material to the United States’ decision to pay the claims. 302. Defendants’ false records or statements, or causation thereof, were material because they went to the very essence of the bargain for which the United States contracted. Had the United States known of Defendants’ fraudulent misrepresentations regarding the clinical trial at issue, which resulted in the submission of ineligible false/fraudulent claims for reimbursement, then the United States would not have paid those claims. 303. The United States paid the false and/or fraudulent claims. 304. Defendants’ false records or statements, or causation thereof, was a foreseeable factor in the United States’ loss and a consequence of Defendants’ scheme. By virtue of Defendants’ actions, the United States has suffered actual damages and is entitled to recover treble damages plus a civil monetary penalty for each false and/or fraudulent claim. PRAYER FOR RELIEF 305. WHEREFORE, Relator prays that this Court enter judgment against Defendants and award the following: - 72 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 78 of 81 PageID #: 83 (1) Damages in the amount of three (3) times the actual damages suffered by the United States as a result of Defendants’ conduct; (2) Civil penalties against Defendants up to the maximum allowed by law for each violation of 31 U.S.C. § 3729; (3) The maximum award Relator may recover pursuant to 31 U.S.C. § 3730(d); (4) All costs and expenses of this litigation, including attorneys’ fees and costs of court; and (5) All other relief on behalf of Relator or United States that the Court deems just and proper. C. Count III – Retaliation (31 U.S.C. § 3730(h)) 306. Relator realleges and hereby incorporates by reference each and every allegation contained in all paragraphs of this Complaint. 307. In violation of 31 U.S.C. § 3730(h), Defendant Ventavia Research Group, LLC (“Ventavia”) retaliated against Relator Jackson as a result of her efforts to stop Defendants from committing violations of the False Claims Act. 308. Ventavia punished Relator for her lawful and statutorily protected activity with harassment and termination. 309. Relator has suffered economic loss and emotional harm as a result of her termination by Ventavia. PRAYER FOR RELIEF 310. WHEREFORE, Relator prays that this Court enter judgment against Defendant Ventavia Research Group, LLC for the following: (1) Reinstatement with the same seniority status; (2) Two times the amount of Relator’s back pay; (3) Interest on Relator’s back pay; - 73 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 79 of 81 PageID #: 84 (4) Compensation for special damages sustained by Relator as a result of Defendants’ actions, including but not limited to compensatory damages for emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, loss to reputation, and other pecuniary and nonpecuniary losses; (5) Punitive damages; (6) Litigation costs and attorneys’ fees; (7) Prejudgment interest at the highest rate allowed by law; and (8) Any other relief that the Court deems just and proper to make Relator whole. XII. 311. Exhibit Number 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 INDEX OF EXHIBITS The exhibits referenced herein consist of the following: Description Bates Range Text Messages with Ray and Others (Sept. 17, 2020) E-mail Chain with Ray and Others (Sept. 23, 2020) Transcript of September 24, 2020 Meeting Form FDA-1571 Form FDA-1572 BNT162b2 Product Manual Clinical Trial Protocol Pfizer Press Release (Nov. 18, 2020) E-mail Chain with Downs and Others (Sept. 18, 2020) Pfizer-DoD Contract Ventavia’s Quality Control Findings E-mail Chain with Raney (Sept. 17, 2020) Unblinding E-mail Chain (Sept. 22, 2020) Note to File on Randomization (Sept. 17, 2020) E-mail Chain with Downs and Alfaro E-mail Chain with Henslin (Sept. 15, 2020) Marnie Fisher’s List of Deficiencies (Sept. 21, 2020) Common Quality Assurance Findings Checklist (Sept. 22, 2020) E-mail Chain with Icon (Sept. 21, 2020) Informed Consent E-mail Chain with Alfaro and Others (Sept. 24, 2020) Daily Status Updates E-mail Chain E-mail Chain with Fisher, Raney, and Others (Sept. 9, 2020) E-mail Chain with Livingston, Vasilio, and Others (Sept. 22, 2020) JSN0001-JSN0011 JSN0012-JSN0014 JSN0015-JSN0046 JSN0047-JSN0049 JSN0050-JSN0051 JSN0052-JSN0135 JSN0136-JSN0281 JSN0282-JSN0287 JSN0288-JSN0292 JSN0293-JSN0327 JSN0328-JSN0351 JSN0352-JSN0357 JSN0358-JSN0359 JSN0360 JSN0361-JSN0364 JSN0365-JSN0369 JSN0370-JSN0373 JSN0374-JSN0377 - 74 - JSN0378-JSN0385 JSN0386-JSN0391 JSN0392-JSN0457 JSN0458-JSN0460 JSN0461-JSN0464 Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 80 of 81 PageID #: 85 Exhibit Description Number 24 Mercedes Livingston’s List of Common Errors (Sept. 22, 2020) 25 Blood Draw Data 26 Source Documentation E-mail Chain (Sept. 10, 2020) 27 Symptom Log E-mail Chain and Attachment (Sept. 24, 2020) 28 List of Action Items 29 Text Messages with Fisher (Sept. 14-15, 2020) Bates Range JSN0465-JSN0467 JSN0468-JSN0495 JSN0496-JSN0497 JSN0498-JSN0503 JSN0504-JSN0521 JSN0522 XIII. DEMAND FOR JURY TRIAL 312. Pursuant to Federal Rule of Civil Procedure 38, Relator demands a trial by jury. Respectfully submitted, BERG & ANDROPHY ____/s/ Joel M. Androphy_________ Joel M. Androphy TX State Bar No. 01254700 Rebecca L. Gibson TX State Bar No. 24092418 3704 Travis Street Houston, TX 77002 Tel. (713) 529-5622 Fax (713) 529-3785 jandrophy@bafirm.com rgibson@bafirm.com Greg M. Dykeman TX State Bar No. 06325100 STRONG PIPKIN BISSELL & LEDYARD LLP 595 Orleans, Suite 1400 Beaumont, TX 77701-3255 Tel. (409) 981-1000 Fax (409) 981-1010 gdykeman@strongpipkin.com COUNSEL FOR RELATOR BROOK JACKSON OF COUNSEL: Steve Kardell Kardell Law Group - 75 - Case 1:21-cv-00008-MJT Document 2 Filed 01/08/21 Page 81 of 81 PageID #: 86 4514 Cole Avenue Suite 600 Dallas, TX 75205 Tel. (214) 616-4654 Fax (469) 729-9926 skardell@kardelllawgroup.com CERTIFICATE OF SERVICE I hereby certify that on January 8, 2021, a true and correct copy of the foregoing was delivered to the following recipients via certified mail, return receipt requested. Civil Division U.S. Department of Justice 175 North Street NE, 9th Floor Washington, DC 20002 CC to: Civilfrauds.quitams@usdoj.gov Jeffrey Rosen Acting United States Attorney General Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530 Michael Lockhart U.S. Attorney’s Office, Eastern District of Texas 350 Magnolia Avenue, Suite 150 Beaumont, Texas 77701-2237 ____/s/ Joel M. Androphy_____ Joel M. Androphy - 76 - Case No. 100619-5 IN THE SUPREME COURT OF WASHINGTON On Appeal from the Court of Appeals Division I 80968-7 CHRISTOPHER and ANGELA LARSON, Plaintiff-Appellant, v. SNOHOMISH COUNTY et al ., Defendant-Respondent. PETITION FOR DISCRETIONARY REVIEW Scott E. Stafne, WSBA# 6964 STAFNE LAW Advocacy & Consulting 239 North Olympic Avenue Arlington, Washington, 98223 Tel: 360-403-8700 Scott@stafnelaw.com Attorney for Plaintiff-Appellant TABLE OF CONTENTS I. IDENTITY OF PETITIONERS ....................... 1 II. COURT OF APPEALS DECISIONS ............... 1 III. ISSUES PRESENTED FOR REVIEW ........... 1 IV. STATEMENT OF THE CASE Appeal No. 80968-7-1 ............................................................ 2 V. STATEMENT OF THE CASE Appeal No. 81874-1 ............................................................... 11 VI. ARGUMENT WHY REVIEW SHOULD BE ACCEPTED OF THE ISSUES IDENTIFIED & SHOULD BE GRANTED IN BOTH CASES ...... 17 A. This Court should accept review of the ruling that the rule of necessity applies to superior court judges in Washington in light of art. IV, § 7 ............................................................................ 17 B. Judicial power must be exercised by neutral adjudicators in accordance with due process. ................................................... 19 C. This Court should accept review of Issue Two pursuant to RAP 13.4(b)(1), (3), and (4).......................................................... 24 D. This Court should accept review of Issues Three and Four pursuant to RAP 13.4(b)(1), (2) and (3). ................................. 27 VII. CONCLUSION .................................... 36 i TABLE OF AUTHORITIES State Cases Bain v. Metro. Mortg. Grp., Inc., 175 Wn.2d 83, 285 P.3d 34 (2012) ..................................... 31 Blanchard v. Golden Age Brewing Co., 188 Wash. 396, 63 P.2d 397 (1936) .................................... 22 Dilibero v. Mortgage Elec. Registration Sys., 108 A.3d 1013 (R.I. 2015) .................................................... 3 Horowitz v. State Dep’t of Ret. Sys., 96 Wn.2d 468, 635 P.2d 1078 (1981) ................................... 9 In re Buecking, 179 Wn.2d 438, 316 P.3d 999 (2013) .................................. 22 Kennett v. Levine, 50 Wn.2d 212, 310 P.2d 244 (1957) ................................... 19 Lake v. State Health Plan for Teachers & State Emps. , 376 N.C. 661, 852 S.E.2d 888 (2021) ................................ 35 Larson v. Snohomish Cnty., 499 P.3d 957 (Wash. Ct. App. 2021) ................................. 25 New Wash. Oyster Co. ex rel. v. Meakim, 34 Wn.2d 131, 208 P.2d 628 (1949) ................................... 18 State v. Gentry, 183 Wn.2d 749, 356 P.3d 714 (2015) .................................. 36 ii Yvanova v. New Century Mortgage Corp., 62 Cal. 4th 919, 199 Cal. Rptr. 3d 66, 365 P.3d 845 (2016) .. 3 Federal Cases Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 106 S. Ct. 1580, 89 L. Ed. 2d 823 (1986) ...... 22 Bracy v. Gramley, 520 U.S. 899, 117 S. Ct. 1793, 138 L. Ed. 2d 97 (1997) ....... 22 Caliste v. Cantrell, 937 F.3d 525 (5th Cir. 2019) ......................................... 26, 31 Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 129 S. Ct. 2252, 173 L. Ed. 2d 1208 (2009) .................................................................................... 22, 36 Gibson v. Berryhill, 411 U.S. 564, 93 S. Ct. 1689, 36 L. Ed. 2d 488 (1973) ........ 22 Greenlaw v. United States, 554 U.S. 237, 128 S. Ct. 2559, 171 L. Ed. 2d (2008) .......... 26 In re Murchison, 349 U.S. 133, 75 S. Ct. 623, 99 L. Ed. 942 (1955) ......... 22, 27 Liljeberg v. Health Servs. Acq. Corp., 486 U.S. 847, 108 S. Ct. 2194, 100 L. Ed. 2d 855 (1988) .......................................................................................... 35 Rippo v. Baker, __U.S.__, 137 S. Ct. 905, 197 L. Ed. 2d 167 (2017) .......... 22 iii Ross v. Deutsche Bank Nat’l Tr. Co., 933 F. Supp. 2d 225 (D. Mass. 2013) .................................. 3 Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749 (1927) ..... 2, 26, 27 United States v. Sineneng-Smith, __U.S.__, 140 S. Ct. 1575, 206 L. Ed. 2d 866 (2020) ....... 27 United States v. Will, 449 U.S. 200, 101 S. Ct. 471, 66 L. Ed. 2k 392(1980) ........ 18 Ward v. Monroeville, 409 U.S. 57, 93 S. Ct. 80, 34 L. Ed. 2d 267 (1972) ............. 22 Williams v. Pennsylvania, 579, U.S. 1, 136 S. Ct. 1899, 195 L. Ed. 2d 132 (2016) ........ 22 Federal Statutes 28 U.S.C. § 455 ..................................................................... 24 486 U.S.C. § 847.................................................................... 35 State Statutes Chapter 2.10 RCW .................................................................. 9 Chapter 43.33 RCW ................................................................ 8 Chapter 61.24 RCW .............................................................. 34 Chapter 65.12 RCW ....................................................... passim RCW 2.10.090 ........................................................................ 9 RCW 2.28.030 ................................................................ passim RCW 4.28.030 ........................................................................ 5 iv Constitutional Provisions Wash. Const. art. IV ........................................................ passim Wash. Const. art. IV, § 1 ....................................................... 20 Wash. Const. art. IV, § 7 ................................................. 18, 19 Wash. Const. art. IV, § 30(1) ................................................. 20 U.S. Const. art. III ................................................................ 20 U.S. Const. Amend. XIV ................................................. passim Rules RAP 13.4 .......................................................................... passim Other Bowie, P., Centennial Reflections on Roscoe Pound's The Causes of Popular Dissatisfaction With The Administration of Justice: Foreword: The Last 100 Years: An Era of Expanding Appearances, 48 S. Tex. L. Rev. 911, 913 (2007) ..................................... 24 Fishman, C.F., Old Testament Justice, 51 Cath. U. L. Rev. 405 (2002) ......................................... 21 Day v. Savage, Hobart (3d ed. i67i) 85 (K. B. 1614) ................................... 23 Deuteronomy 16:18–19 (New Int.Vers) BibleGateway https://www.biblegateway.com/passage/?search=Deuteronomy%2016%3A18-19&version=NIV ................................... 21 Dr. Bonham’s Case, 8 Colo. 107a, 77 Eng. Rep. 638 (C.P. 1610) ........................ 23 Earl of Derby’s Case, 12 Co. Rep. 114, 77 Eng. Rep. 1390 (K.B. 1614) ....................................................................... 23 v Gerber. S. D., A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606–1787 (Oxford Univ. Press 2011) ................................ 20 Hamilton, A., Federalist Paper No. 80 (1788) ......................... 23 Madison, J., Federalist Paper No. 10 (1787) ............................ 20 Madison. J., Letter to W.T. Barry (Aug. 4, 1822), in The Writings of James Madison 103 (1910) ........................ 37 Proverbs 15:27 (Rev. Std. Vers) Bible Gateway https://www.biblegateway.com/passage/?search=Proverbs%2015%3A27&version=NRSV ..................................... 21 Sir Nicholas Bacon’s Case (1563) 2 Dyer 220b ...................... 23 Wiggins, Charles K., George Turner and the Judiciary Article. Part II The Constitutional Convention of 1889 Creates a Judiciary for Washington, 43 Wash. St. Bar News 17, 18 (Oct. 1989) ......................... 19 Wiggins, Charles K., The Twenty-Three Lawyer Delegates to the Constitutional Convention, 43 Wash. St. Bar News 9 (Nov. 1989) ............................... 20 Process Act of May 8, 1792, ch. 36, § 11, 1 Stat. 275 ............... 24 Fabian Gelinas, The Dual Rationale of Judicial Independence 1, 9–10 (2011) ........................................................................ 20 vi I. IDENTITY OF PETITIONERS Christopher and Angela Larson were the Torrens Land Title Applicants in the superior court and are Petitioner/Appellants in Christopher Larson v New Century Mortgage, Appeal No. 81874-1-I. The Larsons were the Plaintiffs below and Petitioner/Appellants in the linked Appeal Christopher Larson v. Snohomish County, Appeal No. 80968-7-I, challenging Snohomish County, and its officials’ noncompliance with Chapter 65.12 RCW–Registration of Land Titles (Torrens Act). Because the two above referenced appeals were linked by the Court of Appeals and cannot be meaningfully reviewed separately, the Larsons have filed the same Petition for Review – word for word – in both cases. This has resulted in a situation where the word count of each Petition exceeds 5,000 words, but is less than that if it is considered that the same Petition for Review addresses both cases. The Larsons intend to file an alternative motion to consolidate review of the above-referenced appeals or alternatively to allow them to exceed the word count with regard to each of the Petitions for Review they have filed. II. COURT OF APPEALS DECISIONS The Larsons request review of parts of the Court of Appeals’ above referenced decisions dealing with judicial neutrality. 1 The Larsons timely moved for Reconsideration of these linked decisions, which was denied on January 5, 2022. A copy of the linked decisions being appealed is in the Appendix at pages App. 1–45. A copy of the Order denying Larsons’ Motion for Reconsideration is in the Appendix at pages App. 46–7. A copy of this Court’s Order granting the Larsons an Extension of Time in which to file this Petition for Review until February 14, 2022, is in the Appendix at pages App. 48–52. III. ISSUES PRESENTED FOR REVIEW 1. Whether the rule of necessity applies to Washington State superior court judicial officers and judges in this case? 2. Whether Washington judges must apply the partiality claims asserted by the parties against judicial officers and judges when determining whether there has been a legitimate exercise of judicial power under Wash. Const. art. IV in accordance with that Due Process of law mandated by the Fourteenth Amendment and the statutory requirements of RCW 2.28.030(1)? 3. Whether Washington State superior court judges must inform themselves about those facts which could be a legitimate basis for their recusal under Wash. Const. art. IV, the Fourteenth Amendment, and RCW 2.28.030? 2 4. Whether Washington State superior court judges must apply an objective standard to those facts found to exist with regard to challenges to judicial partiality based on Wash. Const. art. IV, the Fourteenth Amendment, and RCW 2.28.030? IV. STATEMENT OF THE CASE Re: Christopher Larson v. Snohomish County, Appeal No. 80968-7-I Threatened with a nonjudicial foreclosure by Deutsche Bank as trustee of a 2007 Morgan Stanley Trust seeking to enforce a New Century (then a bankrupt entity) loan the Larsons alleged was (1) never funded or (2) appropriately assigned by MERS to Deutsche Bank, 1 the Larsons filed a Torrens Title 1 The Larsons’ factual basis for their assertion that their loan had not been funded by New Century was based on an agreed order between their lender, New Century, and Washington’s Department of Financial Institutions, which stipulated that New Century loans closed loans during this time frame which were never not funded by New Century. CP 4003–04 (Complaint) ; CP 1194, ¶¶4–5 (SJ Response); CP2534-2540 (Evidence). See also App. 63-64, 87-96. The Larsons’ factual contentions that MERS had no authority to assign their Deed of Trust to Deutsche Bank after New Century’s bankruptcy was set forth in their opposition to the summary judgment motion at CP 1195–1199, ¶¶10–27. The Larsons’ legal theory in this regard was based on decisions from other state and federal courts holding that under these exact same circumstances MERS relationship with New Century was terminated in 2008, citing Yvanova v. New Century Mortg. Corp., 62 Cal. 4th 919, 199 Cal. Rptr. 3d 66, 365 P.3d 845 (2016); Dilibero v. Mortg. Elec. Registration Sys., 108 A.3d 1013 (R.I. 2015); and Ross v. Deutsche Bank Nat'l Tr. Co., 933 F. Supp. 2d 225, 228-29 (D. Mass. 2013). See CP 1196, ¶15. See also cases cited in Larsons Opening Brief in Torrens Appeal at pp. 10–12. The Larsons also presented into evidence Debtor New Century’s “Notice of Rejection of Executory Contract,” CP 343–346 and 2541–2547, and the 3 Application pursuant to Ch. 65.12 RCW with the Snohomish County Superior Court on June 5, 2018. App. 315–337. When Snohomish County failed to act on their title registration application, see Clerk’s Papers (CP) 248–51, the Larsons sued the County and several of its officials—including its superior court’s judges and court clerk—for noncompliance with their ministerial duties under that law. CP 3985–4056. When the Larsons began preparation of their Complaint against Snohomish County they suspected that many—if not all—counties in Washington State were not in full compliance with the Torrens Act. See App. 258-260. Therefore, the Larsons included a prayer for relief in their Complaint filed with the Skagit County Superior Court in hopes of obtaining a neutral judge. This Prayer for relief requested recusal of all superior court judges in any county which has failed to comply with the provisions of the Torrens Act and/or whom are in a similar position to these Snohomish County judicial defendants with regards to the issues being raised in this litigation; i.e., superior court judges whose acts and omissions have prevented landowners within their respective county from availing themselves of the protections afforded persons with interests in land bankruptcy court’s Order authorizing and approving the procedures for rejection of MERS’ executory contract. CP 1344–1349, 1844–1849, 2548– 2551. 4 by the public and transparent land registration system established by the Torrens Act. CP 4030–31, ¶H. When the Larsons confirmed that Skagit County, like Snohomish County did not have an operating land registration system—and the Skagit County Judges were not complying with the Torrens statute in the same way as the Snohomish County Judges, see CP 3701–3755 (Anderson declaration with exhibits including email correspondence between Anderson and Skagit County Court Clerk, at 3479) the Larsons filed an affidavit of prejudice which asserted that disqualification of Skagit County Judges was also required by RCW 2.28.030. CP 3615–18. Although one Skagit County Superior Court Judge (Judge Stiles, at CP3479) recused himself on this basis, the second Skagit County Superior Court Judge (Judge Svaren) to whom the case was then referred, refused to do so. CP 3584. Shortly thereafter Judge Svaren dismissed all the Snohomish County Defendants (including the judges) and transferred the case to the Snohomish County Superior Court, claiming the Snohomish County Superior Court had mandatory venue. CP. 18–25; 3570– 3573; 3581–3583.2 2 Although the Larsons’s do not seek review of this venue decision here, they would note that RCW 4.28.030(4) specifically provides for transfer of venue in situations where the prerequisites of RCW 2.28.030(1) involving judicial partiality are not met. These particular venue provisions, which are grounded in the need for judicial neutrality, have their roots in 5 After the Appeal of this case against the Snohomish County Defendants was docketed, counsel for the Larsons observed that there were irregularities with the Superior Court Clerk’s filings. See App. 175-263 (Filings re: Larsons’ motion to require Snohomish County Clerk to comply with RAP 9.6.) And when the Court of Appeals did not grant the relief requested, the Larsons moved the Court of Appeals to modify the Commissioners ruling. The filings relating to Larsons’ Motion to Modify are set forth in the record at App. 112-174. These pleadings are mentioned here because they document problems the Larsons had with regard to creating a record in both the superior court and the Court of Appeals which accurately reflected their court filings. After the Snohomish County case was transferred by Judge Svaren to the Snohomish County Court, Defendants Deutsche Bank (as trustee for the 2007 Morgan Stanley trust which claimed to own Larsons’ Deed of Trust) and MERS, the entity which purportedly assigned the Deed of Trust to Deutsche Bank, moved for summary judgment. CP 537–51. Before that dispositive motion could be heard, the Presiding Judge of the Snohomish County Superior Court issued an Order disqualifying all judicial officers in that court (judges and commissioners) from Washington’s territorial laws, see 1854 laws, §§ 98–9, 1869 laws, §§ 52 (2) and (3); 1877 laws, § 52; and 1881 laws, § 51. 6 adjudicating this case. CP 575–78. As part of the same Order the Presiding Judge appointed Skagit County Superior Court Judge Svaren (the same judge as had been adjudicating this case in the Skagit County Court) to act as a Snohomish County judge pro tempore for purposes of adjudicating the Snohomish County case. Following Judge Svaren’s appointment as a pro tempore judge to adjudicate the Larsons Snohomish County Case the Larsons again sought Judge Svaren’s disqualification as a judge through a series of related motions, i.e., such as Larsons’ Motion to Amend their Complaint, CP 274-2753; Motion to Disqualify CP 2745-2753, and Larsons various responses to Defendants’ summary motions. See e.g., 1191-1192, 1210-1214, 1221-1231. The Larsons asserted two different grounds for Judge Svaren’s recusal after he started acting as a pro tempore judge for Snohomish County. First, the Larsons argued Judge Svaren, as a pro tempore judge of Snohomish County should be recused on the basis of the res judicata effect of the Snohomish County Presiding Judge’s recusal of all Snohomish County judicial officers because the Skagit County Superior Court Judges had not complied with the Torrens Act provisions in precisely the same way as Snohomish County, resulting in neither Snohomish or Skagit County having an operating Torrens Title system. Thus, to the extent that Judge Svaren would be adjudicating the culpability of the Snohomish County Judges not complying with the Torrens 7 Act in such a way as to have initiated an operating Torrens system he would also be adjudicating his own and fellow officers’ culpability for Skagit County also not having any registration system its landowners could use. Secondly, the Larsons challenged that changes in Washington law occurring in or around 2006-07 were designed to pool the retirement funds of all Washington’s public officials (including judges) into profit based investment funds managed by the Washington State Investment Board (WSIB), an agency of the Executive Branch, see Ch. 43.33 RCW, and its adviser State Street Bank, an entity which was accused of and admitted to selling low value subprime mortgages and mortgage-backed securities to investors by falsifying their value so that it could make a profit. The Larsons request this Court take judicial notice of SEC’s February 11, 2012, Cease and Desist Order to establish this fact. This Order is accessible on the SEC’s government website. 3 The Larsons also presented evidence to the Superior Court Judges which demonstrated WSIB had invested billions of dollars in mortgages and mortgage-backed securities the value of which the Larsons claimed could be manipulated by judicial decisionmaking anticipated to occur as a result of those subprime mortgage practices that State Street Bank, WSIB’s partner, and https://www.sec.gov/litigation/admin/2010/33-9107.pdf Last accessed February 13, 2022. 3 8 Morgan Stanley, one of WSIB’s advisers (and the creator of the New Century Trust fund in this case) were engaging in. See CP 1001-1171. The Larsons argued that prior to 2006 judges’ retirement benefits appeared to be invested in several different funds, systems, and accounts. See e.g., Ch. 2.10 RCW: “Judicial retirement system”; Ch. 2.12. RCW: “Retirement of judges—Retirement System”; 2.14: “Retirement of Judges Supplemental retirement.” Judges’ retirement benefits under Ch. 2.10 RCW were designed to be paid to judges through a separate judicial retirement system which preserved judges’ neutrality—and the appearance of judges’ neutrality—by guaranteeing the solvency of judges’ retirement benefits. See RCW 2.10.090(3) (“The state shall…guarantee the solvency of said [judge’s retirement] fund…”) See also Horowitz v. State Dep’t of Ret. Sys., 96 Wn.2d 468, 471-72, 635 P.2d 1078, 1080 (1981). See also 2.12.060. At some point judges were given the opportunity, or required to, leave their own retirement programs established exclusively for judges to join Washington’s public employees’ retirement system. See e.g., 2.12.100; 2.14.115. In fact, the political branches incentivized Washington judges to move into plans where judges' contributions and investment were pooled with most other government workers, including employees of the 9 Legislature and Executive branches, by compensating judges to do so. See e.g., RCW 41.40.124. The Larsons claimed that the changes by the legislature in pooling the retirement accounts of judges with those of other government workers under the auspices of an Executive Branch agency, teamed up with State Street Bank (a bad actor in the subprime mortgage crisis) and Morgan Stanley (an entity apparently having an interest in this case) created circumstances about which judges must discover those facts applicable to their situation, which are necessary to be determined in order to conclude whether a judge has or would reasonably appear to have a disqualifying interest in adjudicating the case. After Judge Svaren granted the private Defendants’ Motion for Summary Judgment, Judge Svaren turned to the Larsons’ recusal challenges. This time, Judge Svaren, acting as a Snohomish County Judge Pro Tempore, didn’t ignore the Larsons’ arguments, but he also didn’t address their substance, i.e., (1) that he, Judge Svaren, had failed to comply with RCW 65.12 in the same way as had the Snohomish County Judges and was therefore acting as a judge over his own conduct as well as the conduct of other Skagit County and Snohomish County Judges’ conduct and (2) did not consider whether the economic interest he and other judges were given by law in mortgage and mortgage- 10 backed securities investments constituted a pecuniary interest which created bias or created an appearance of bias. THE COURT: . . . Bottom line, motions for summary judgment are granted. * * * I haven’t addressed in my oral comments the request that was brought to have me disqualify myself. That request is denied. I don’t have a dog in this fight. App. 174, lines 3–11. See also CP 9, 32, & 45. (Written orders stating Judge Svaren’s subjective opinion that he is able to decide this case impartially.) The Larsons contend that most reasonable people—and most judges—would agree Judge Svaren did have a dog in these fights because he and the other Skagit County Judges and officials had violated the Torrens Act and as a result landowners could not register their land in Skagit County in exactly the same way as land could not be registered in Snohomish County when the Larsons attempted to do so. See CP 3985–4056. Perhaps, Judge Svaren did have not an interest in Washington’s pooled retirement accounts, but we will never know because he provided no information about whether he had any judicial retirement account or not. But certainly, this is information which Judge Svaren and other likely should have been aware of. It is the Larsons’ position that the burden should not be placed on litigants to sniff out judges’ personal affairs. Judges should be aware of 11 their personal affairs and be willing to investigate them further if they issues affect the public’s perception of judicial neutrality. After this Appeal was docketed Larsons learned the Snohomish County Court Clerk had failed to include in the summary judgment record the Declaration of Joseph Vincent, legal counsel for Washington’s Department of Financial Institutions. Vincent testified in support of the premise that New Century never funded some closed loans in Washington, like the Larsons claimed happened with their loan. See App. 87-111 (Motion for Reconsideration) V. STATEMENT OF THE CASE Re: Christopher Larson v. Snohomish County, Appeal No. 81874-14 Notwithstanding that Larsons’ land title registration (Torrens) application was filed first, those proceedings were not concluded in the Snohomish County Superior Court until after the Larsons Snohomish County case filed in Skagit County had been decided because there was no Snohomish County process in effect to handle these title registration proceedings. See App. 43, where the Court of Appeals states: “And by the time Judge Okrent dismissed the Larsons Torrens Act petition, the County had rectified the issues the Larsons had raised in their Snohomish County lawsuit.” 4 The Larsons will refer to the clerk’s paper in the Torrens Act proceedings as TACP followed by the numbers of the relevant Clerk’s pages. 12 Without waiting for the newly appointed Title Examiner to present his report on the Larson’s title fraud claims against MERS and Deutsche Bank, see RCW 65.12.110, Judge Okrent (a Snohomish County judge who had been recused by the Presiding Judge of that Court from adjudicating the issue of whether he and his fellow judges violated their duties under the Torrens Act to create a working registration system) sent an email to the attorneys for Larsons and Deutsche Bank requiring them to set forth any grounds for his recusal within three days. See Torrens Act Clerk’s Papers (TACP 18). The Larsons responded by filing a pleading denominated as “Specific Grounds for Recusal of Snohomish County Superior Court Judge Okrent under Controlling Federal Due Process Precedent and RCW 2.28.030(1).” See 17-25. This filing asserted Facts justifying disqualification of Judge Okrent with regard to this matter for these interests include those previously set forth in the pleadings and these additional ones: 1.) The Larsons originally filed this registration proceeding with the Snohomish County Superior Court on June 8, 2018, to have the chain of title to their real property in Washington's land records examined so that they could register their homestead. When this Court took no action for a prolonged period of time and the Larsons were unable to provoke any attempt by court personnel to comply with the law, the Larsons 13 filed suit on November 15, 2018, against all the judges on this superior court in the Skagit County Superior Court because they wanted this county's superior court judges, including Judge Okrent, to comply with their ministerial duties under Washington's Registration of Land Title (Torrens) Act, Ch. 65.12 RCW, which was necessary to create an operating Torrens system in Snohomish County. 2.) In their Complaint against Snohomish County Judges the Larsons requested that their case be adjudicated by a judge from a county superior court that had an operating Torrens system or by an agreed upon lawyer who had no interest in this issue as to whether the Torrens Act should be repealed. 3.) Skagit County Superior Court Judge Svaren, who refused to disqualify himself notwithstanding Skagit County judges were in the same position as Snohomish County Judges with regard to their noncompliance with the Torrens Act, dismissed the judges of this Court from this case without prejudice. Thereafter the Larsons filed an Amended Complaint again naming all Snohomish County Judges and additional Snohomish County officials as Defendants. 4.) The Larsons then moved all Snohomish County Judges named in the Amended Complaint to recuse themselves. The Presiding Judge granted that motion and disqualified all judicial officers. 5.) The Larsons contend they are entitled to a preclusive and/or estoppel effect here because reversing this Court’s Presiding Judge’s decision now will allow Judge Okrent to adjudicate the appropriateness of Snohomish County’s conduct in not complying with his and other judges duties under Ch. 65.12 RCW at a time when this is still a live issue before the Court of 14 Appeals where all Snohomish County Superior Court Judges are still named parties in the presently ongoing Appeal of that case, which involves precisely the same Torrens Act issue that is being raised here. 6.) Additionally, the Larsons contend that Judge Okrent, and all Snohomish County judicial officers, are interested in the public perception of the Snohomish County Clerk, who is a Defendant in this case. Because the Snohomish County Clerk is accused of several irregularities that suggest the quality of record-keeping by the Snohomish County Court may vary depending on the Clerk's interests in the case the average person as a judge of this issue would be tempted to adjudicate the facts and law in such a way as to favor the interests of the clerk and her court in order to make the judge, the court, and the clerk look good, or at least not bad. 7.) As the Larsons’ point out in their Opposition to Deutsche Bank's Motion to dismiss these proceedings, there are also separation of powers issues at play. These are indicated by efforts to repeal the Torrens Act by County and state officials based on misrepresentations of fact and law; the creation of pecuniary incentives for all government employees to invest in mortgage-backed securities; and the natural tendency to want to prove they, as judges, have done nothing wrong in refusing to comply with the law in such a way as to deprive citizens of those opportunities their forefathers intended they have. TACP 20–23. Significantly, Deutsche Bank’s response, TACP 32-35, did not address any of the Larsons’ Due Process arguments or any of 15 the Supreme Court objective Due Process precedents advanced by the Larsons as requiring disqualification. Although Deutsche Bank argued that RCW 2.28.030(1) did not apply to this case because Judge Okrent was not a named Defendant in the Larsons’ Torrens Act case, it failed to address the “interest” in the case prong of RCW 2.28.030(1). TCAP 33. Deutsche Bank also erroneously claimed that the Presiding Judge’s Order Disqualifying Judge Okrent from adjudicating the Snohomish County case was not applicable because Judge Okrent was a named Defendant in that case. TCAP 34 But this was not true because Judge Svaren had already dismissed the Snohomish County Defendants (including judges) before they recused themselves. Deutsche Bank and MERS mocked the Larsons’ request for an unbiased judge to adjudicate the Larsons’ title claims because they claimed there were no unbiased judges in Washington with regards to such matters. TCAP 34. Apparently in a hurry to allow Deutsche Bank to take the Larsons’ home, Judge Okrent signed a proposed order prepared by Deutsche Bank’s attorneys which denied recusal but did not say why: “It is hereby ORDERED ADJUDGED and DECREED that: the Larsons’ Motion that the Honorable Richard Okrent, Snohomish County Superior Court Judge, recuse 16 and remove himself from the above matter is hereby DENIED.” TACP 14. The Larsons object to that judicial arrogance which insists that judicial officers can adjudicate legal and factual issues without any explanation as to why. See Alexander Hamilton, Federalist Papers No. 78 (The judiciary, . . . may truly be said to have neither FORCE nor WILL, but merely judgment;) And judgment should not be interpreted to mean such silence as is unreviewable and therefore not open to challenge. VI. ARGUMENT WHY REVIEW SHOULD BE ACCEPTED OF THE ISSUES IDENTIFIED & SHOULD BE GRANTED IN BOTH CASES A. This Court should accept review of the ruling that the rule of necessity applies to superior court judges in Washington in light of art. IV, § 7 The Court of Appeals first excuses any partiality that Judge Svaren, or Judge Okrent have or appear to have under Wash. Const. art. IV, the Fourteenth Amendment and RCW 2.28.030 by invoking the “rule of necessity.” App. 42. The Panel states this rule is “a well-settled principle at common law that . . . ‘although a judge had better not, if it can be avoided, take part in the decision of a case in which he has any personal interest, yet he not only may but must do so if the case cannot be heard otherwise.” citing United States v. Will, 449 U.S. 200, 213 (1980). But Washington’s founders intentionally created a constitution that provides an alternative forum, i.e., pro tempore 17 judges who are members of the bar, to exercise judicial power when elected and appointed judicial officers are prohibited by law from doing so. In this regard, Wash. Const. art. IV, § 7 states: . . . A case in the superior court may be tried by a judge, pro tempore, who must be a member of the bar, agreed upon in writing by the parties litigant, or their attorneys of record, approved by the court and sworn to try the case. 5 Washington’s history indicates this language was designed to address and solve the problem of biased judicial officers acting as judges in Washington’s courts by ensuring that pro tempore judges, who are members of the bar, can be appointed in situations like this one to obtain unbiased judges to resolve these types of cases. Theodore Stiles, a delegate to Washington’s Constitutional Convention in 1889 and one of its first Supreme Court judges, wrote in 1911 that Washington’s judiciary article, i.e., Wash. Const. art. IV, was “[a]mong the meritorious provisions of our constitution which had any degree of novelty at all, …. Not many of the states have constitutional courts, and still fewer of them have undertaken to define the jurisdiction of their 5 Notwithstanding Wash. Const. Art. IV, § 7 was amended in 1987 by Amendment 80 and in 2001 by Amendment 94, this sentence providing for members of the bar as alternative judges when elected or appointed judicial officers are not available has remained part of this constitutional provision. This Court has indicated this sentence means what it says. State ex rel. New Wash. Oyster Co. v. Meakim, 34 Wn.2d 131, 135-36, 208 P.2d 628, 631 (1949). 18 courts by the higher law. ” 6 (emphasis added) This Court should review the Court of Appeals decision that the rule of necessity applies in this case because this involves a significant question of law regarding the meaning of Wash. Const. art. IV, § 7 and also involves an issue of substantial public interest that should be determined by this Court. Furthermore, as the rule of necessity is being interpreted by the Court of Appeals in these decisions the Court of Appeals’ interpretation conflicts with this Court’s interpretation of the rule in Kennett v. Levine, 50 Wn.2d 212, 219-20, 310 P.2d 244, 249 (1957) explaining that “[i]t is established by the great weight of authority that where a public officer, . . . is given exclusive jurisdiction to conduct a hearing . . . , and no alternate or substitute is provided, disqualification will not be permitted to destroy the only tribunal with power in the premises.” Id. at 219-20. B. Judicial power must be exercised by neutral adjudicators in accordance with Due Process. Wash. Const. art. IV, § 1 provides: “The judicial power of the state shall be vested in a supreme court, superior courts, The history of our constitutional convention demonstrates delegates’ disillusionment with the federal judicial system as our founders soundly defeated a proposal to give the political branches authority to establish Washington court’s jurisdiction as is so in the federal system. See Wiggins, Charles K., George Turner and the Judiciary Article. Part II The Constitutional Convention of 1889 Creates a Judiciary for Washington, 43 Washington State Bar News 17, 18 (Oct. 1989). 6 19 justices of the peace, and such inferior courts as the legislature may provide.” 7 The term judicial power was borrowed directly from Article III of the United States Constitution, wherein that phrase is used to describe that separate and distinct type of governmental power used to adjudicate disputes between litigants within courts’ jurisdictions. It is Larsons’ contention here that those founders who wrote and ratified Washington’s Constitution 8 understood that judicial power can only be exercised by courts acting through judges who are—and appear to be—neutral as between the parties. See e.g., Scott Douglas Gerber, A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606–1787 (Oxford Univ. Press 2011); Fabian Gelinas, The Dual Rationale of Judicial Independence 1, 9–10 (2011) (discussing ancient roots of the concept of adjudicatory justice, which trace back to Egypt’s First Intermediate Period and also appear in Babylonian inscriptions about this same period of time.) See also Clifford S. Fishman, Old 7 Years later, in 1968, the term judicial power was used when the People of Washington amended their Constitution to add Washington's Court of Appeals as a court capable of exercising judicial power. Wash. Const. art IV, § 30(1). 8 Twenty-three of the seventy-five delegates to Washington’s Constitutional Convention were lawyers. Wiggins, Charles K., The Twenty-Three Lawyer Delegates to the Constitutional Convention, 43 Washington State Bar News 9, (Nov. 1989). 20 Testament Justice, 51 Cath. U. L. Rev. 405 (2002)(Explaining the ancient basis for modern day law and procedure). See also The Law of Moses, which directed the appointment of judges who “shall judge the people fairly.” “Do not pervert justice or show partiality. Do not accept a bribe, for the bribe blinds the eyes of the wise and twists the words of the righteous.” Deuteronomy 16:18–19 (New Int.Vers). See also Proverbs 15:27 (Rev. Std. Vers). (“He who is greedy for unjust gain makes trouble for his household, but he who hates bribes will live.”) Indeed, the enactment of RCW 2.28.030 in 1891, just two years after Washington’s Constitution was ratified, indicates Washington’s founders appreciated the collective wisdom of history at that time and intended judicial power could only be exercised by neutral judges. This statute states in pertinent part: “A judicial officer is a person authorized to act as a judge in a court of justice. Such officer shall not act as such in a court of which he or she is a member …: (1) In an action, suit, or proceeding to which he or she is a party, or in which he or she is directly interested; . . .” It is the Larsons’ position that this is an appropriate statutory restriction, i.e., reasonable regulation, on Washington courts and judges’ exercise of judicial power. Cf. In re Marriage of Buecking, 179 Wn.2d 438, 448, 316 P.3d 999 (2013) citing James v. Kitsap County, 154 Wn.2d 574, 579-89, 115 P.3d 286 (2005) and 21 Blanchard v. Golden Age Brewing Co., 188 Wash. 396, 418, 63 P.2d 397 (1936). Additionally, and separately from the Larsons’ assertion that judicial neutrality—and its appearance—are a requisite for the valid exercise of judicial power under Wash. Const. art. IV, they also assert that this same requirement is part of that Due Process which States must provide those who appear in their courts under the Fourteenth Amendment. See e.g., Rippo v. Baker, 137 S. Ct. 905 (2017); Williams v. Pennsylvania, 136 S. Ct. 1899 (2016); Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 876 (2009); Bracy v. Gramley, 520 U.S. 899 (1997); Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 822 (1986); Gibson v. Berryhill, 411 U.S. 564, 578-79 (1973); Ward v. Monroeville, 409 U.S. 57 (1972); In re Murchison, 349 U.S. 133, 136 (1955); Tumey v. Ohio, 273 U.S. 510 (1927). The classic principle of neutrality associated both with the exercise of judicial power and Due Process of law throughout the world is “no one shall be his own judge or decide his own case.” This principle, which is consistent with the ancient authorities previously discussed as well as RCW 2.28.030 and the Fourteenth Amendment, was codified as part of Roman law at least as early as 376 AD. See e.g., Justinian Codex 3.5.1, imperial decree of year 376 AD. 22 This predicate for the exercise of judicial power—i.e., judicial neutrality as between the parties—was a part of European legal principles well before the founding of the United States. In England, for example, the principle that a judge at common law was not competent to adjudicate a matter in which he had a direct financial interest was recognized as early as 1563 , see Sir Nicholas Bacon’s Case (1563) 2 Dyer 220b., and was well established before the lack of neutral judges in the King’s courts of North America became a rallying cry for revolution in this Nation’s Declaration of Independence. See e.g., Dr. Bonham’s Case, 8 Co. Rep. 107a, 118a, 77 Eng. Rep. 638, 652 (C.P. 1610); Earl of Derby’s Case, 12 Co. Rep. 114, 77 Eng. Rep. 1390 (K.B. 1614); and Day v. Savage, Hobart (3d ed. i67i) 85 (K. B. 1614). By the time this country established its nationhood, the necessity for independent neutral judges was well understood and accepted by those who wrote and ratified our national Constitution. See e.g., Madison, James, Federalist Paper No. 10 (1787) (“No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.”) See also Hamilton, Alexander, Federalist Paper No. 80 (1788) (“No man ought certainly to be a judge in his own cause, or in any cause in respect to which he has the least interest or bias.”) 23 The common law prohibition against financially interested judges exercising judicial power was enacted into law by the political branches of the federal government in 1792. This statute required recusal in any case in which “it shall appear that the judge of such court is, any ways, concerned in interest.” Act of May 8, 1792, ch. 36, § 11, 1 Stat. 275, 278-79 (quoted in Peter Bowie, Centennial Reflections on Roscoe Pound's The Causes of Popular Dissatisfaction With The Administration of Justice: Foreword: The Last 100 Years: An Era of Expanding Appearances, 48 S. Tex. L. Rev. 911, 913 (2007). This same statute enacted in 1792 required disclosure of the disqualifying facts “to be entered on the minutes of the court.” Judge Bowie in the above referenced article describes how over time the public’s concern with judicial conduct resulted in the creation of rules of conduct for judges. In 1922, for example, Chief Justice Taft chaired the American Bar Association Committee that drafted the Canons of Judicial Ethics, which provided that a judge should avoid even the appearance of impropriety. Bowie, supra, at 917-18. Avoiding the appearance of impropriety was carried into the 1972 ABA Code of Judicial Conduct, and eventually into 28 U.S.C. § 455(a), requiring that a judge “disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Id. at 930-31. 24 This same standard requiring recusal of a judge in any proceeding “in which his impartiality might be reasonably questioned” has been adopted and applied by many states, including Washington. The Court of Appeals acknowledges this in the text of their decision at App. 41, when it states: “Due process, appearance of fairness and Canon 3(D)(1) of the Code of Judicial Conduct require a judge to recuse himself where there is bias against a party or where impartiality can be questioned.” C. This Court should accept review of Issue Two pursuant to RAP 13.4(b)(1), (3), and (4). Notwithstanding the Larsons’ judicial neutrality challenges were premised on the Fourteenth Amendment and RCW 2.28.030 the Court of Appeals decided them based on Washington’s Code of Judicial Conduct, explaining: CJC Canon 3(D)9 lays out the rules for when judges should disqualify themselves in a proceeding, for 9 As can be seen from the Court of Appeals’ decision reproduced at page 42 of the Appendix, the Panel appears to be citing to CJC Canon 3(D). But published copies of the decision substitute in place of the Panel’s reference to “CJC Canon 3(D)” a reference to “CJC 2.11(A).” See e.g., Larson v. Snohomish Cty., 499 P.3d 957, 982-83 (Wash. Ct. App. 2021). (Published electronically by Lexis-Nexis). The Larsons take offense to the Panel’s unauthorized and undisclosed amendment of their decision in light of the fact the Panel denied the Larsons’ formal motion to reconsider similar mistakes, such as the Panel’s failure to acknowledge that proof in the record documenting New Century’s bankruptcy. See App. 60, 64-72. In any event, the Larsons would note they believe the Panel is actually referring to CJC 2.11(A) rather than Canon 3(D), but assert this does not matter because the legal theories for recusal the Larsons have continually asserted are premised 25 example, when the judge has a personal bias or prejudice concerning a party, when the judge previously served as a lawyer or witness in a controversy, or when the judge's family member is or is likely to be a witness in the case. None of these situations occurred here. App. 42. The Larsons assert that while the standards applicable to Due Process, RCW 2.28.030, and the CJC may be similar, the Larsons are entitled to have Washington judges apply the legal standards they asserted, which included judges’ pecuniary interests in the outcome of the case created by state law 10 as part of the Due Process and statutory standard they asserted, applied to the facts of this litigation. Greenlaw v. United States, 554 U.S. 237 (2008) (“In our adversary system … we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.” Id. at 244). See also United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020). on the Fourteenth Amendment and RCW 2.28.030, not the CJC or Washington’s Appearance of Fairness doctrine. 10 As interpreted by the Court of Appeals CJC does not reach the situation the Larsons assert has occurred here, where laws have been enacted which give judicial officers interest in assets which compromise judicial neutrality -- or the appearance of thereof. See e.g., Tumey v. Ohio, 273 U.S. 510, 515 (1927). (“[I]t certainly violates the Fourteenth Amendment… to subject . . . property to the judgment of a court the judge of which has a direct, personal, substantial, pecuniary interest in reaching a conclusion against him in his case.” See also Caliste v. Cantrell, 937 F.3d 525 (5th Cir. 2019) cert. denied 140 S. Ct. 1120 (2020). 26 Determining whether litigants in Washington can assert distinct judicial neutrality claims, such as those the Larsons are asserting under Wash. Const. art. IV, the Fourteenth Amendment, and RCW 2.28.030 in this case, without having them co-opted by judges deciding them pursuant to Washington’s CJC’s apparently different standards, involves significant questions of law under both the Constitution of Washington and the United States. RAP 13.4(b)(3). It also involves an issue of substantial public interest which should be determined by this Court pursuant to RAP 13.4(b)(4). Considering whether Washington judges can simply co-opt the Larsons’ neutrality arguments based on national law by simply applying a different standard to the facts they present also arguably conflicts with Tumey, supra, at 523 and In re Murchison, supra., at 136 and arguably provides a basis for review under RAP 13.4(b)(1). D. This Court should accept review of Issues Three and Four pursuant to RAP 13.4(b)(1), (2) and (3). The Panel states the CJC was not violated because: The Larsons allegation that judges have a personal interest in retirement funds invested in mortgagebacked securities and therefore have some interest in allowing lenders to foreclose is pure speculation. The Larsons have alleged no facts indicating that either judge has control over the state retirement plans or that their decisions regarding the Torrens Act will have any impact whatsoever on the value of securities in which the retirement plans are invested. Without 27 these facts, there is nothing to support the Larsons’ argument. App. 43 But it is the Court of Appeals’ judges, not Larsons, who appear to have their facts wrong. The Larsons set forth facts and arguments with regard to the judicial neutrality issues they advanced in so many pleadings it is difficult to believe the Panel could have overlooked them. Those pleadings submitted directly to the Court of Appeals in this regard include without limitation: App. 82-84 (Motion to Reconsider); 132-138; 140-144; 186-189; - p. 4 of 9.6. Those pleadings submitted to the superior courts in this regard which referenced facts and evidence included without limitation: Stafne’s Declaration in support of Larson’s Motion to Amend, CP 2611–2743 (also included in record as CP 2769– 2911 11). See also 65–67; 85, 114–15, 264–277; 583-585, 2745-50. See also in Torrens Act proceedings, TACP 9-13, 17-25, 49–75, 77–79, 86–95, 122-138, 212–242, 265–396, 411–609, 620–648 (Vincent Declaration), 650–680, 722–763, 767–780, 791–906, 1030–1032. 11 See, CP 31 (Amended Order granting summary judgment identifying Stafne’s declaration in support of the Larsons’ Motion to Amend their Complaint as being one of the few submitted by Larson that Judge Svaren considered.) 28 The Larsons produced evidence (some of it coming directly from Skagit County) which demonstrated that Skagit County Judges (which included Judge Svaren) had not complied with their responsibilities under Chapter 65.12 RCW in exactly the same way Snohomish County Judges had ignored their duties. See CP 3468–522, and specifically the correspondence from Skagit County to Anderson at CP 3479 (Skagit County Clerk stating: “I spoke with the Skagit County Auditor, Jeanne Youngquist about this matter. The Torrens Act was used in this County in the 1800’s and early 1900’s to register lands. The Auditor’s office does not have any records on site regarding the Land Registration Docket. . . . Currently the process entitles the recording of a Deed for lands.”12 (Emphasis Supplied). See also email at 3522. Certainly, the Court of Appeals judges (as well as all of this State’s superior court judges) knew or should have known that Washington's political branches changed judges’ retirement benefits from being guaranteed by the State (i.e. benefits which were paid to judges regardless of the consequences of their judicial decision-making) to being paid from the pooled retirement investments of all government workers being managed by WSIB, an 12 The Auditor’s claim that the Torrens Act was used in the 1800s is obviously not correct because the Torrens Act was not enacted into law until 1907. On the other hand, the Auditor’s statement that Skagit County only allows the recording of deeds substantiates Skagit County’s noncompliance with the Torrens Act. 29 Executive Branch agency in 2006, and if that didn’t work, then directly from the taxpayers. See RCW 2.12.060. And the Larsons did present evidence that WSIB, the entity that was managing Washington judges’ retirement funds, was partnered up with State Street Corporation, an entity WSIB identified as its agent and counterparty for securities lending transactions. CP 1033. The Larsons also submitted evidence demonstrating that while State Street was helping WSIB manage judges’ retirement accounts the Securities and Exchange Commission issued a Cease and Desist Order against it in 2010 which charged that in 2007 State Street was misleading some investors about the value of the mortgage-backed securities it was selling them. CP 272–75. The Larsons complained that WSIB’s maintenance of a relationship with State Street after 2010 was “not consistent with administering a trust fund for judges who were . . . tasked with adjudicating the legal consequences of these same type of bank frauds.” CP 274. 13 Further , the Larsons alleged this forced alliance between government workers, judges, money lenders and debt buyers imposed by state law created federal Due Process 13 Additionally, it should be noted that Morgan Stanley, the purported creator of the trust claiming ownership of Larsons’ loan in this litigation, is identified as one of WSIB’s “private equity partners.,” see CP 1004. See also CP 1171 indicating WSIB invests in a Morgan Stanley investment pool. 30 problems, citing Cain v. White, 937 F.3d 336 (5th Cir. 2019) and Caliste v. Cantrell, 937 F.3d 525 (5th Cir. 2019). Although the Court of Appeals judges claim otherwise, it is patently obvious that the law applicable to mortgage-backed securities and MERS’ private registration alternative to Washington’s Torrens title public registration system was not settled in 2006 at the time these changes were made lumping judges’ interests in these type of investments with those of other government workers. See e.g., Bain v. Metro. Mortg. Grp., Inc., 175 Wn.2d 83, 285 P.3d 34 (2012). Reasonable people, who are not economically interested in these retirement funds, understand that if judges had decided against the enforceability of these types of subprime mortgages and mortgage-backed securities through foreclosures after 2007 the value of judges’ and other government workers’ retirement accounts would have declined appreciably. And this is the type of pecuniary interest which must be evaluated to determine whether the Fourteenth Amendment, Wash. Const. art IV, and RCW 2.28.030 require recusal. Additional evidence of partiality by these judicial officers/judges and the Snohomish County and Skagit County courts in the record includes: a) Both Snohomish and Skagit County officials (including all of their superior court judges and specifically including Judges 31 Svaren and Okrent) failed to perform those statutory duties required of them to set up title registration systems in their counties. And the Court of Appeals outright admits this in its decisions: “And by the time Judge Okrent dismissed the Larsons' Torrens Act petition, the county had rectified the procedural issues the Larsons had raised in their Skagit County lawsuit.” App. 43. b) The record before the Court of Appeals contains evidence of partiality by the Snohomish County Court Clerk. As is stated above the retirement funds of the Clerk and her staff (who are government workers) are also invested in mortgages and mortgage-backed securities, the value of which has been mostly determined by judicial decision-making occurring after 2007. c) The most serious misconduct brought directly to the Court of Appeals attention was the Clerk’s apparent manipulation of the court record, including the failure to file a declaration offered by a Washington State official in opposition to private Defendants’ Motion for Summary Judgment. See supra. Other misconduct included making false statements in the Clerk’s certification of records from the Skagit County Court to the Snohomish County Court. See e.g., App. 114-5, 166-171. 32 d) Still more evidence of misconduct by Judge Svaren, the Snohomish County Clerk, Deutsche Bank, and MERS is that following the Larsons’ Motion to Reconsider the Summary Judgment Order for not identifying the evidence the Court relied upon, compare CP 4–9 with 29–32, Judge Svaren signed an Order prepared by Deutsche Bank and MERS which failed to reference virtually any of the evidence the Larsons filed with the Snohomish County Superior Court Clerk in the Snohomish County Case in opposition to the summary judgment. See e.g., McDermott declaration at CP 989– 1171, which included exhibits documenting WSIB’s investments relating to public workers’ (including judges’), retirement accounts had invested in mortgages and mortgagebacked securities, 14 which was not considered by Judge Svaren. CP 31. See also Stafne Declaration in Opposition to Summary Judgment which Judge Svaren indicates at CP 39 was not considered, notwithstanding the Order prepared by Deutsche Bank and MERS and signed by Judge Svaren provides no basis for excluding this declaration, which included 11 exhibits, including Exhibit 2, public and historical documents, which the Clerk failed to include as part of the record. 14 It appears that part of McDermott’s declaration, CP 1500-1671, was misfiled by the Clerk as a part of Stafne’s declaration in opposition to the motions for summary judgment. 33 CP 1443–1444, ¶ 3; Exhibit 3, various iterations of Washington’s Deeds of Trust Act, Chapter 61.24 RCW, those parts of this exhibit which clerk filed appear at 2001–2239; Exhibit 4 depositions of Michael Maynes, at CP 1417–1429, 1917– 29, the Honorable Judge Monty J. Cobb, at CP 2457–94; Richard Beresford, at 2510-33; and the three depositions of Jeffrey Stenman, at CP 2242–67, 2272–368, and 2373–448; Exhibit 5, New Century Consent decree at CP 2534– 2540; Exhibit 6, New Century Bankruptcy documents at CP 2541–2551; and etc., i.e. Exhibits 7–11, at CP 2552–2596.15 The Larsons assert that this type of misconduct by the Court through its judge and staff, which prevented the Larsons from presenting their case based on a record capable of appellate review because of misconduct, is not consistent with the legitimate exercise of judicial power under Wash. Const art. IV or Due Process under the Fourteenth Amendment or the mandates of RCW 2.28.030. This Court should review the Court of Appeals decision that Larsons must do more than they have done in order to challenge neutrality because the Panel’s ruling appears to put the 15 It is the Larsons’ position that Judge Svaren’s uncritical acceptance of the order prepared by MERS and Deutsche Bank which intentionally misstated the evidence in the record -- under the circumstances of this case -constitutes further evidence of judicial partiality or the appearance thereof. 34 burden on litigants to actually establish disqualification, rather than on judges to determine they are qualified under the Due Process Clause and RCW 2.28.030. See cases cited at 22, supra. See also Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847 (1988)(a violation of 28 U.S.C § 455 is established when a reasonable person, knowing the relevant facts, would expect that a judge knew of circumstances creating an appearance of partiality). Cf. Lake v. State Health Plan for Teachers & State Emps., 376 N.C. 661, 662, 852 S.E.2d 888 (2021)(North Carolina Supreme Court justices interpret that state’s Code of Judicial Conduct to so as to require each to determine whether justice’s relatives have an interest in PERS retirement plan before that case is before them.) This Court should also review the Court of Appeals decision because it excuses Judge Svaren’s application of a subjective standard—“I don’t have a dog in this fight”—and relieves him (and future Washington judges) from applying the objective inquiry Due Process requires. See authorities, cited supra., at 22. Actual bias—“I don’t have a dog in this fight”—is not the test for judicial disqualification. Caperton, supra., at 883–84. Rather “under a realistic appraisal of psychological tendencies and human weakness,” the legal standard which must be applied requires determining whether the judicial bias alleged “poses such a risk of actual bias or prejudgment that the practice must be 35 forbidden if the guarantee of Due Process is to be adequately implemented.” Id. Judge’s Okrent’s failure to provide any basis for refusing to recuse himself is similarly problematic unless this Court intends to give Washington’s superior court judges a pass on this issue which the judges of other states do not have. This Court should grant review to determine whether the objective standard long required by Due Process has been met here given the alignment of government workers as a result of Washington State laws which give them a common pecuniary interest against borrowers. And in this regard this Court should observe that even the Court of Appeals indicates it believes “[t]he test for determining whether a judge's impartiality might reasonably be questioned is an objective test that assumes that a reasonable person knows and understands all the relevant facts,” citing State v. Gentry, 183 Wn.2d 749, 762, 356 P.3d 714 (2015). App. 41. What is most startling about this case is the breadth of issues—many of them constitutional—which the superior court judges and Court of Appeals Panel decided on the basis of a summary judgment record which the superior court clerk and judges stripped of its essence. Why did these judges want to position these issues in a way that couldn’t be won? Our governments, both at the national and Washington State level, were carefully designed to ensure openness and 36 public disclosure. This is because “a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.” Letter from James Madison to W.T. Barry (Aug. 4, 1822), in The Writings of James Madison 103 (1910). This Court should consider whether this goal is thwarted if judges are allowed to decide partiality issues based only on their subjective conclusion that they can be fair. Review of these partiality issues are appropriate under RAP 13.4(b)(1)-(3) and this Court should grant review. VII. Conclusion Review should be granted. I hereby certify this Petition contains 8574 words, and is not in compliance with RAP 18.17. See Motion to Consolidate, or Alternatively to Extend Permissible Word Count. DATED this 14th day of February 2022. Respectfully submitted, by: s/ Scott E. Stafne Scott E. Stafne , WSBA No. 6964 Stafne Law Advocacy & Consulting 239 North Olympic Avenue Arlington, Washington 98223 Tel: 360.403.8700 scott@stafnelaw.com x 37 CERTIFICATE OF SERVICE I hereby certify that on this day, February 14, 2022, I filed the Petition for Discretionary Review by using the Appellate Court’s electronic filing system which will provide service to the interested parties of record. Dated February 14, 2022, at Mount Vernon, WA. By: s/LeeAnn Halpin x LeeAnn Halpin, Paralegal 38 TABLE OF APPENDICES Date Title of Filing Page No. Dec 06, 2021 Published Opinion pp. 1–45 Jan 05, 2022 Order Denying Motion for Reconsideration pp. 45–47 Feb 07, 2022 Order Granting Motion for Extension of Time Case No. 100620-9 pp. 48–49 Feb 07, 2022 Order Granting Motion for Extension of Time Case No. 100619-5 pp. 50–52 Dec 12, 2021 Motion for Reconsideration pp. 53–85 Appendix re MotionDeclaration of Vincent w. exhibits pp. 87–111 Jul 13, 2020 Appellants’ Reply re Motion to Modify pp. 112–20 Jun 29, 2020 Response re Amended Motion to Modify pp. 121–23 Jun 22, 2020 Amended Motion to Modify pp. 124–44 Jun 22, 2020 Attachment 1 re Amended Motion pp. 145–47 Attachment 2 re Amended Motion pp. 148–50 Stafne Declaration in Support of Amended Motion to Modify pp. 151–64 App. i Appendix re Amended Motion-Clerk’s Letter pp. 166–67 Appendix re Amended Motion-Case Summary pp. 166–71 Appendix re Amended Motion-Clerk’s Letter re Order of Dismissal p. 172 Apr 10, 2020 Verbatim Report of Proceedings pp. 173–74 Apr 06, 2020 Reply to Motion re Clerk to Comply with RAP 9.6 pp. 174–84 Apr 06, 2020 Stafne’s Declaration in Support of Reply pp. 185–89 Exhibit re Stafne’s Declaration -Order of Assignment p. 190 Halpin’s Declaration in Mar 03, 2020 Support of Reply pp. 191–97 Exhibit re Halpin’s Declaration- Clerk’s Letter Exhibit re Halpin’s Declaration in Support of Reply- Clerk’s Letter p. 205 Apr 03, 2020 Response re to Motion re Clerk to Comply pp. 206– 09 Mar 13, 2020 Motion re Clerk to Comply with RAP 9.6 pp. 210–23 App. ii pp. 191– 204 Mar 13, 2020 Stafne Declaration in Support of Motion re Clerk to Comply with RAP 9.6 pp. 224–52 Exhibit re Stafne Declaration -Ruling Denying Motion to Strike pp. 254–61 Exhibit re Stafne Declaration- Recusal pp. 262–63 App. iii FILED 12/6/2021 Court of Appeals Division I State of Washington THE COURT OF APPEALS FOR THE STATE OF WASHINGTON CHRISTOPHER LARSON and ANGELA LARSON, No. 80968-7-I DIVISION ONE Appellants, PUBLISHED OPINION v. SNOHOMISH COUNTY, a Washington State Municipal Corporation; CAROLYN WEIKEL, individually and as the SNOHOMISH COUNTY AUDITOR and Registrar; SONJA KRASKI, individually and as the SNOHOMISH COUNTY CLERK; JANE DOE, individually and as SNOHOMISH COUNTY EXAMINER OF TITLES and LEGAL ADVISOR TO THE REGISTRAR; SNOHOMISH COUNTY SUPERIOR COURT JUDGES GEORGE F. APPEL, GEORGE N. BOWDEN, MARYBETH DINGLEDY, JANICE E. ELLIS, ELLEN J. FAIR, ANITA L. FARRIS, MILLIE M. JUDGE, LINDA C. KRESE, DAVID A. KURTZ, JENNIFER R. LANGBEHN, CINDY A. LARSEN, ERIC Z. LUCAS, RICHARD T. OKRENT, BRUCE J. WEISS, and JOSEPH P. WILSON; THE STATE OF WASHINGTON; WASHINGTON STATE GOVERNOR JAY INSLEE in his official capacity; WASHINGTON STATE ATTORNEY GENERAL ROBERT FERGUSON in his official capacity as WASHINGTON ATTORNEY GENERAL; JOHN DOES, Successors in interest and assigns to App. 1 No. 80968-7-I and No. 81874-1/2 NEW CENTURY MORTGAGE COMPANY and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; DEUTSCHE BANK NATIONAL TRUST COMPANY; DEUTSCHE BANK NATIONAL TRUST COMPANY as trustee for Morgan Stanley ABS Capital I Inc. Trust 2007-HE2 Mortgage Pass Through Certificates, Series 2007; MORGAN STANLEY ABS CAPITAL I INC. TRUST 2007-HE2; QUALITY LOAN SERVICE CORPORATION OF WASHINGTON, a Washington Corporation; SELECT PORTFOLIO SERVICING, INC., a Utah corporation; and MORTGAGE ELECTRONIC RECORDING SYSTEM, INC., a Delaware Corporation, Respondents. CHRISTOPHER LARSON and ANGELA LARSON, No. 81874-1-I Appellants, v. NEW CENTURY MORTGAGE; JANE DOE; ALL OTHER PERSONS OR PARTIES UNKNOWN CLAIMING ANY RIGHT, TITLE, ESTATE, LIEN OR INTEREST INTO, OR UPON THE REAL PROPERTY DESCRIBED HEREIN, Respondents. ANDRUS, A.C.J. — Christopher and Angela Larson appeal adverse rulings in two separate lawsuits related to the nonjudicial foreclosure of their home. They challenge the dismissal of a Torrens Act 1 application they filed in Snohomish County Superior Court 2 and the dismissal of a lawsuit they filed in Skagit County 1 Ch. 65.12 RCW. The Snohomish County Torrens Act application was filed as Snohomish County Superior Court No. 18-2-04994-31. We will refer to this lawsuit hereinafter as the “Torrens Act proceeding.” 2 -2- App. 2 No. 80968-7-I and No. 81874-1/3 Superior Court against the State of Washington, Snohomish County, its superior court judges, the successor lender, foreclosure trustee, and loan servicer. 3 In both proceedings, the Larsons sought a judicial determination that the 2006 deed of trust they granted to their initial lender, New Century Mortgage Company, was invalid. In the Skagit County lawsuit, the Larsons sought declaratory relief against the Public Defendants, 4 seeking to compel them to comply with the Torrens Act. They also sought monetary damages and injunctive relief against the successor lender, the trustee, and loan servicer 5 for alleged violations of the Deed of Trust Act (DTA) 6 and the Consumer Protection Act (CPA). 7 Although the Larsons sought injunctive relief, they never actually moved to enjoin the nonjudicial foreclosure sale. The trustee proceeded with the sale after which the trial court dismissed the Larsons’ claims against the Public Defendants under CR 12(b)(6) and transferred venue for the remaining claims against the Private Defendants to Snohomish County Superior Court. The court subsequently dismissed all remaining claims on summary judgment. The court also dismissed the Larsons’ Torrens Act application because they were no longer title owners of the property. 3 The Skagit County lawsuit was filed under Skagit County Superior Court No. 18-2-01234-29. The court transferred venue of the lawsuit to Snohomish County Superior Court in January 2019, and it proceeded under Snohomish County Superior Court No. 19-2-01383-31. 4 We refer hereafter to the State of Washington, Governor Inslee, and Attorney General Ferguson collectively as “the State Defendants.” We refer to Snohomish County, its auditor, its examiner of titles, and the Snohomish County superior court judges as “the County Defendants.” We refer to the State Defendants and the County Defendants collectively as “the Public Defendants.” 5 We refer hereafter to Deutsche Bank Trust Company, as trustee for Morgan Stanley ABS Capital I, Inc. Trust 2007-HE2, Quality Loan Service Corporation of Washington, Select Portfolio Servicing, Inc. and Mortgage Electronic Recording System (MERS) collectively as “the Private Defendants.” 6 Ch. 61.24 RCW. 7 Ch. 19.86 RCW. -3- App. 3 No. 80968-7-I and No. 81874-1/4 On appeal, the Larsons raise a number of statutory and constitutional arguments, none of which have merit. We therefore affirm the dismissal of both lawsuits. FACTUAL BACKGROUND In October 2006, Christopher Larson 8 purchased a house in Snohomish County and borrowed $218,000 from New Century Mortgage Corp. (New Century) to do so. Christopher signed the promissory note in which he agreed to make monthly loan payments beginning December 1, 2006. Christopher and his wife, Angela, executed a deed of trust securing the loan. The deed of trust identified Christopher as the borrower, New Century as the lender, First American Title as the trustee, and Mortgage Electronic Registration Systems, Inc. (MERS) as the beneficiary. The sellers, Tyson and Alisia Bushnell, executed a statutory warranty deed, conveying the property to Christopher, on October 9, 2006. The Larsons allege that New Century declared bankruptcy in April 2007 and declined to accept their mortgage payment in August 2007. Angela testified that she contacted New Century and was informed that the lender no longer “had [their] mortgage” and could not tell her to whom they should pay their mortgage payment. In October 2007, the Larsons received a notice of default on behalf of Countrywide Home Loans through its servicer, Recontrust. The Larsons, believing their home was in foreclosure, moved to Idaho, where they lived for eight years. The Larsons do not dispute that they made no regular mortgage payments after July 2007. In 2009, they received another notice of default from BAC Home 8 We refer to Christopher and Angela Larson by their first names for ease of reference. We mean no disrespect in doing so. -4- App. 4 No. 80968-7-I and No. 81874-1/5 Loans and in 2010, they received both a notice of default and a notice of trustee sale from Recontrust on behalf of Bank of America. The Larsons did not respond to any of these notices and made no loan payments in response to them. In July 2010, MERS assigned its interest in the Larson deed of trust to Deutsche Bank, the note holder at the time. That same month, Recontrust issued a notice of trustee sale, identifying Deutsche Bank as the assignee under the deed of trust, but it apparently did not proceed with the sale. In August 2012, the Larsons received a letter from Select Portfolio Servicing, Inc. (SPS), identifying itself as the new loan servicer. In May 2014, SPS referred the account to a new trustee, Northwest Trustee Services, Inc., to commence foreclosure. At that point, the Larsons retained counsel who began corresponding with Northwest Trustee Services and SPS, challenging the validity of the debt and the right of any lender to conduct a nonjudicial foreclosure sale. The Larsons made no payments on the note until May 2017, when they made one partial mortgage payment. On December 22, 2017, North Cascade Trustee Services, Inc., the successor trustee, issued a notice of default on behalf of the note holder, Deutsche Bank. North Cascade recorded a notice of trustee’s sale in February 2018 and set a sale date of June 29, 2018. On May 17, 2018, SPS appointed Quality Loan Service Corporation of Washington (QLS) as successor trustee under the deed of trust. On June 5, 2018, the Larsons filed an “Application for ‘Torrens’ Registration of Title to Land” in Snohomish County Superior Court. In this application, the Larsons alleged that “[t]here a[re] no known valid liens or encumbrances on the -5- App. 5 No. 80968-7-I and No. 81874-1/6 listed property,” and sought a court order declaring that they held sole title to their land. The Larsons attached to their application a copy of a Ticor Title Company commitment for title insurance, with an effective date of June 9, 2017. This commitment, by its terms, was no longer in effect, as it had expired six months after its effective date. The commitment also identified as an encumbrance, and excluded from any title insurance coverage, the recorded Deutsche Bank deed of trust. The next day, on June 6, 2018, QLS executed a notice of discontinuance of the trustee sale scheduled for June 28, 2018, and issued a new notice of trustee’s sale, rescheduling the foreclosure sale for October 12, 2018. The notice was recorded on June 8, 2018. There is no evidence in the record that Deutsche Bank, QLS, or SPS was aware of the Larsons’ Torrens Act application before issuing this notice of trustee sale. At some point, QLS continued the foreclosure sale to November 16, 2018. The Larsons did not move to enjoin the foreclosure sale. Nor did they file a motion in the Torrens Act proceeding to obtain any relief under that statute. Instead, on October 18, 2018, they initiated a lawsuit in Skagit County Superior Court against the Public and Private Defendants, alleging several causes of action. The Larsons sought declaratory and injunctive relief against the Public Defendants, seeking an order compelling the County Defendants to create a Torrens Act system, compelling the superior court judges to comply with their duties under the Torrens Act, compelling the State Attorney General to “provide guidance to the court” on how to comply with the Torrens Act, and compelling the Governor to fulfill his duty to “see that the laws are faithfully executed.” -6- App. 6 No. 80968-7-I and No. 81874-1/7 The Larsons alleged that they wanted to register their interest in the land under the Torrens Act, but if they could not do so, they alternatively sought to quiet title, alleging that the original promissory note had been forged, that the original loan had never been funded, that Deutsche Bank had no interest in the property under the deed of trust, and that foreclosure was barred by the statute of limitations. They also sought damages and injunctive relief against Deutsche Bank, MERS, SPS, and QLS under the CPA. They claimed that these Private Defendants violated the CPA by attempting to collect a “loan which was never funded,” “[i]ntentionally splitting the note from the Security Instrument and transferring each separately,” falsifying or forging a note, charging fees not owed, and violating the DTA by attempting to foreclose on a void note and deed of trust after the expiration of the statute of limitations. They further alleged that the DTA was unconstitutional on its face and as applied to them. 9 Finally, they alleged numerous but unspecified “equitable claims” to preclude Deutsche Bank from foreclosing on their home. When the Larsons did not obtain a court order precluding Deutsche Bank and QLS from conducting the scheduled nonjudicial foreclosure sale, QLS sold the Larsons’ property to Deutsche Bank on November 16, 2018, and recorded the trustee deed of sale on November 21, 2018. 9 The Larsons also alleged claims under the Washington Collection Agency Act, Ch. 19.16 RCW, the Consumer Loan Act, Ch. 31.04 RCW, and 42 U.S.C. §1983. The Larsons do not challenge the dismissal of these claims. -7- App. 7 No. 80968-7-I and No. 81874-1/8 On November 30, 2018, the Public Defendants moved to dismiss the Larsons’ claims against them, arguing that the Larsons’ Torrens Act application was deficient due to their failure to file an abstract of title as required by RCW 65.12.085, and, in the alternative, moved to transfer venue to Snohomish County Superior Court under RCW 4.12.010(1) and RCW 4.12.020(2). QLS moved to dismiss the claims asserted against it, arguing the DTA is constitutional, the Larsons waived any claims by failing to seek an injunction of the sale before it occurred, Deutsche Bank was the holder of the Larson promissory note and entitled to foreclose, the foreclosure sale complied with the DTA, and the statute of limitations did not bar foreclosure. QLS also joined in the Public Defendants’ motions. Deutsche Bank, SPS and MERS joined the motions filed by the Public Defendants and QLS. At a December 2018 hearing on these motions, the Larsons asked Skagit County Superior Court Judge Svaren to recuse himself, a request the court denied. The court granted the Public Defendants’ motions and dismissed all claims against them without prejudice. The court separately granted the Private Defendants’ motion to dismiss with prejudice the Larsons’ quiet title claim, concluding that the Larsons’ failure to enjoin the trustee sale under RCW 61.24.127(2) barred that claim. The court denied the motion to dismiss the CPA claim, the claim for declaratory relief as to the constitutionality of the DTA, and the Larsons’ claim for “equitable causes of action.” The court concluded venue in Snohomish County was mandatory under RCW 4.12.020(1) and transferred all remaining claims to Snohomish County Superior Court. -8- App. 8 No. 80968-7-I and No. 81874-1/9 In July and August 2019, the Private Defendants moved for summary judgment dismissal of all remaining claims. While the parties were briefing these summary judgment motions, the Larsons moved to amend their complaint to add new causes of action against the Private Defendants and to add as defendants the Washington State Treasurer, the Washington State Investment Board, the Snohomish County Treasurer, Snohomish County Prosecuting Attorney, and Snohomish County Sheriff. They simultaneously moved to disqualify all Snohomish County judicial officers on the grounds that they were named as defendants to the action. The presiding judge of Snohomish County Superior Court granted the motion to disqualify the named judges and assigned the case to Judge Svaren, sitting in the capacity of a visiting judge for Snohomish County Superior Court. Judge Svaren heard oral argument on the Larsons’ motion to amend their complaint on October 23, 2019. The court denied the motion in part, concluding that the proposed amended complaint realleged a claim for quiet title, a claim the court had already dismissed with prejudice, and realleged violations of the Torrens Act, claims the court had dismissed for lack of compliance with that statute. The Larsons reminded the court that it had dismissed the Torrens Act claims without prejudice. The court responded “It does not make any difference to the court, because as I said, the basis of that ruling remains the same. There was no abstract filed. [The] Torrens Act was not properly invoked and therefore there’s no judiciable controversy.” 10 10 The court granted the motion to the extent the Larsons sought to assert their “undefined equitable claims,” and the CPA claim. It also ruled that the Larsons could proceed with their constitutional -9- App. 9 No. 80968-7-I and No. 81874-1/10 Despite this ruling, on October 24, 2019, without notice to any of the other parties, the Larsons appeared in the Ex Parte Department of the Snohomish County Superior Court and presented a motion to a commissioner for an order referring their Torrens Act application to the county examiner of titles. They attached to this motion the same expired Ticor Title Company commitment for title insurance as they had previously attached to their June 2018 application, and represented to the commissioner that this document was an “abstract of title,” despite the fact that Judge Svaren had ruled that the document did not constitute an abstract of title under the Torrens Act. The commissioner signed an order referring the Larsons’ application to the county examiner of titles. 11 On November 11, 2019, the court granted the Private Defendants’ summary judgment motions. On May 29, 2020, Deutsche Bank, now the sole owner of the property, filed a motion to dismiss the Larsons’ Torrens Act application and the case was assigned to Judge Okrent at Snohomish County Superior Court. The Larsons moved for Judge Okrent to recuse himself, but the court denied the motion. At an August 19, 2020, hearing, the court dismissed the Larsons’ Torrens Act case, concluding that they were no longer owners of the property and had no right to seek a title registration under the Torrens Act. The Larsons now appeal rulings from both cases. challenge to the DTA. It asked the Larsons to submit a new proposed amended complaint that complied with the court’s ruling as to the claims it would allow and those it would not. We have been unable to locate any revised amended complaint in the record before us. 11 The County Defendants moved to vacate this ruling based on the Larsons’ misrepresentations to the commissioner, but subsequently withdrew that motion when Deutsche Bank moved to dismiss the application. - 10 - App. 10 No. 80968-7-I and No. 81874-1/11 ANALYSIS 1. The Deeds of Trust Act and the Torrens Act At the heart of this case is a question of the relationship between two statutes, the well-known Deeds of Trust Act (DTA), chapter 61.24 RCW, and the lesser-known and rarely used Torrens Act, chapter 65.12 RCW. The Larsons contend that they had the statutory right to initiate a Torrens Act proceeding to register title to their land and to clear any cloud to that title, including obtaining a judicial determination as to the validity of the Deutsche Bank deed of trust. They argue that simply filing the Torrens Act proceeding had the legal effect of staying any nonjudicial foreclosure sale—even in the absence of a court order enjoining the sale—and that the Public Defendants denied them the right to this proceeding by not having a functioning Torrens Act system. They further argue that Deutsche Bank and the trustee violated the DTA by proceeding with the nonjudicial foreclosure sale once the Larsons filed their Torrens Act petition. To analyze their claims, we need to understand the difference between the DTA and the Torrens Act. Most homeowners have a basic understanding of a mortgage. “A mortgage [is] a mechanism to secure an obligation to repay a debt,” and has existed since “at least the 14th century.” Bain v. Metro. Mortg. Grp., Inc., 175 Wn.2d 83, 92, 285 P.3d 34 (2012). Most mortgages today are secured by a deed of trust on the property. Id. Under the DTA, a deed of trust creates a threeparty transaction in which the borrower conveys their property to a trustee who holds in trust for the lender, who is the beneficiary of this transaction. Id. Under the DTA, if the deed of trust explicitly provides the trustee with the power of sale on a default of the underlying loan, the trustee may foreclose the - 11 - App. 11 No. 80968-7-I and No. 81874-1/12 deed of trust and sell the property without judicial supervision, i.e., through a nonjudicial foreclosure sale. Id. at 93 (citing RCW 61.24.020, RCW 61.12.090, and RCW 7.28.230(1)). Because the power to sell is “a significant power,” the DTA sets out specific procedures a trustee must follow before it may legally conduct such a sale. Id. In interpreting the DTA, our Supreme Court has advised courts to keep in mind the statute’s three basic objectives: the nonjudicial foreclosure process should remain efficient and inexpensive, the process should provide an adequate opportunity for interested parties to prevent wrongful foreclosure, and the process should promote the stability of land titles. Id. at 94; accord Jackson v. Quality Loan Serv. Corp., 186 Wn. App. 838, 848, 347 P.3d 487 (2015). While the DTA governs the use of deeds of trust to secure home loans and the process by which lenders may enforce their rights against borrowers who default on those loans, the Torrens Act has nothing to do with the securitization of residential mortgages or the enforcement of rights under deeds of trust. The Torrens Act is instead one of two recognized methods of establishing who holds legal title to a piece of real estate. Under RCW 65.04.020(1), each county auditor must have a system of recording transfers of real property. The auditor, acting as the “register of deeds,” maintains actual books containing copies of all instruments affecting title to parcels of land within the county. 18 W ILLIAM B. STOEBUCK & JOHN W. W EAVER, WASHINGTON PRACTICE: REAL ESTATE: TRANSACTIONS § 14.6 (2d ed. 2004). An auditor must record documents if certain requisites are met. Id. The auditor maintains a general index of all recorded documents. Id. (citing RCW 65.04.050). - 12 - App. 12 No. 80968-7-I and No. 81874-1/13 This recording system does not determine the validity of any deed or encumbrance; it instead merely provides notice, and establishes priority of, recorded legal interests in the land. Id. at § 14.5; --see --also -----------Dickson v. Kates, 132 Wn. App. 724, 737, 133 P.3d 498 (2006) (“our recording statutes are intended to provide constructive notice to land possessors who have restrictions burdening their land”). Recording a deed or other conveyance document with a county auditor is not required by law, but is, instead, permissive. 65.08.070). Id. (citing RCW Once an encumbrance is recorded, a subsequent purchaser is deemed to have constructive notice of it, but anyone searching the county land index has a right to rely on it and is not bound to search for records outside the recorded chain of title. Dickson, 132 Wn. App. at 737. Because recording a deed or some other encumbrance does not establish its legal validity, chain-of-title issues can arise. 18 STOEBUCK & W EAVER, supra § 14.11. Such problems arise rarely in Washington because of the prevalence of title insurance companies, who conduct title searches to identify instruments that create a cloud on one’s title. Id. The Torrens Act, unlike the recording statutes, establishes a system for adjudicating the validity of one’s title and any encumbrances on land through a process called “registration.” Id. at § 14.13; RCW 65.12.005. Adopted by the Washington legislature in 1907, the Torrens Act allows a landowner to apply to have their title registered by filing a petition for registration with the superior court for the county in which the land is situated. RCW 65.12.005; RCW 65.12.040. The court must then “inquire into the condition of the title to and any interest in the land and any lien or encumbrance thereon,” and enter a judicial decree declaring the - 13 - App. 13 No. 80968-7-I and No. 81874-1/14 validity of title and any liens or encumbrances on the land, declaring the priority of any such encumbrances, and removing any clouds on the title. RCW 65.12.040. The process starts with the filing of an application and “an abstract of title” in superior court and recording the application with the county auditor. RCW 65.12.005 (recording with auditor required); RCW 65.12.040 (filing application with superior court required); RCW 65.12.085 (filing abstract of title required); 18 STOEBUCK & W EAVER, supra §14.14. The clerk must certify a copy of the application and file it with the auditor, at which time the application has “the force and effect of a lis pendens.” RCW 65.12.100. When the abstract of title is on file, the superior court “shall enter an order referring the application to an examiner of titles.” RCW 65.12.110. The title examiner examines the abstract of title, searches records, “investigate[s] all the facts brought to his or her notice,” and then issues a report containing his or her opinion on the title. If the opinion is adverse to the applicant, they may withdraw the application or proceed with further judicial proceedings. Id. Summonses are issued to any person found by the examiner as being in possession of the property or having a lien, encumbrance, or any other right, title or interest in the land. RCW 65.12.120, RCW 65.12.130. Once summonses have issued and those served have appeared and answered, the superior court may decide the case or may refer the matter to the title examiner to take evidence and report their findings to the court. RCW 65.12.160. RCW 65.12.165. If the court determines the applicant holds title to the land, it may issue a decree of confirmation and registration. RCW 65.12.175. This decree becomes binding and conclusive as against all other parties to the action. - 14 - App. 14 No. 80968-7-I and No. 81874-1/15 Id. And the person receiving the certificate of title holds that title “free from all [e]ncumbrances except only such estates, mortgages, liens, charges and interests” noted in the last certificate of title in the registrar’s office. RCW 65.12.195. The Torrens Act has been “little used” since its adoption, the primary reason being the trouble and expense of converting from recorded to registered title. Since all land was under record title when the Torrens system was adopted and since the certificate of registration is, with a few exceptions, conclusive as to the state of title, it is necessary to have a kind of quiet title action in court to establish the title and other interests that will appear on the original [title] certificate. 18 STOEBUCK & WEAVER, supra, § 14.13 at 161. 2. Larsons’ Torrens Act Claims Against Public Defendants The Larsons first contend the trial court erred in dismissing their declaratory judgment action against the Public Defendants because it lacked subject matter jurisdiction over the adequacy of their Torrens Act application. The Larsons also contend their Torrens Act application was not defective because the Ticor Title Insurance document they submitted to the court was the equivalent of an abstract of title as that term is used in RCW 65.12.085. We review de novo a dismissal under CR 12(b)(6). Leishman v. Ogden Murphy Wallace, PLLC, 196 Wn.2d 898, 903, 479 P.3d 688 (2021). A dismissal at this stage of the proceedings will be affirmed if it appears beyond doubt that the plaintiff can prove no set of facts consistent with the complaint that would entitle him or her to relief. Id. at 903-04. - 15 - App. 15 No. 80968-7-I and No. 81874-1/16 The Larsons’ subject matter argument lacks merit. A superior court has subject matter jurisdiction “where it has authority to adjudicate the type of controversy involved in the action.” Boudreaux v. Weyerhaeuser Co., 10 Wn. App. 2d 289, 295, 448 P.3d 121 (2019) (quoting In re Marriage of McDermott, 175 Wn. App. 467, 480-81, 307 P.3d 717 (2013)). The Washington Constitution provides that “The superior court shall also have original jurisdiction in all cases and of all proceedings in which jurisdiction shall not have been by law vested exclusively in some other court.” CONST. art. IV, § 6. The Larsons do not argue that any of their claims against the Public Defendants have been vested in the exclusive jurisdiction of another forum. Instead, they argue that Skagit County Superior Court lacked jurisdiction under the “prior exclusive jurisdiction doctrine,” which, they assert, stands for the proposition “that two courts do not have the jurisdiction to adjudicate the same case at the same time.” The Larsons argue that under the doctrine, Skagit County Superior Court’s 2018 ruling that their Torrens Act application was defective conflicts with the Snohomish Superior Court’s 2019 order accepting the application and referring it to the county examiner of titles. No Washington court has ever held that the prior exclusive jurisdiction doctrine applies in this state. The Larsons’ position is puzzling because they themselves invoked the Skagit County Superior Court’s jurisdiction by filing this lawsuit in that court and seeking relief for Snohomish County’s alleged inaction with regards to their Torrens Act application. The Larsons sought a court order requiring the Snohomish County Superior Court to process their Torrens Act application; the County Defendants argued they had no duty to do so because the - 16 - App. 16 No. 80968-7-I and No. 81874-1/17 Larsons failed to file a valid application under the statute. Because the defense to the Larsons’ claims against the County Defendants was the invalidity of their application and the Larsons invoked the subject matter jurisdiction of the superior court, the Skagit County Superior Court had the authority to render a ruling on whether the Larsons complied with RCW 65.12.085. The Larsons also argue that Skagit County Superior Court lacked jurisdiction under the “priority of action rule.” This argument fails for similar reasons. “The rule provides generally that the first court to obtain jurisdiction over a case possesses exclusive jurisdiction to the exclusion of other coordinate courts.” Am. Mobile Homes of Wash., Inc. v. Seattle-First Nat'l Bank, 115 Wn.2d 307, 317, 796 P.2d 1276 (1990). “[T]he rule should not be automatically applied each time two similar cases are pending in different counties. For instance . . . there must be identity of subject matter, relief, and parties between the actions before the priority rule should be applied.” Id. The Larsons chose to sue the Public Defendants in Skagit County Superior Court. They cite no authority for the proposition that, because they filed a Torrens Act application in Snohomish County Superior Court, this act divested Skagit County Superior Court of the jurisdiction to rule on a case properly before it under the elective venue statute, RCW 36.01.050(1). These are two different cases. The issue the Larsons presented before Skagit County Superior Court was whether they were entitled to an injunction requiring Snohomish County to take action under the Torrens Act. Any issues with Skagit County Superior Court’s jurisdiction were rendered moot when the Skagit County Superior Court transferred venue to Snohomish County Superior Court, the court the Larsons now claim should have - 17 - App. 17 No. 80968-7-I and No. 81874-1/18 ruled on the adequacy of their Torrens Act application in the first instance. We reject the Larsons’ subject matter jurisdiction argument. As to the merits of the dismissal, the Larsons’ claims against the Public Defendants rested on the allegation that Snohomish County failed to follow the mandatory procedures laid out in the Torrens Act with regard to their land title application. The Larsons alleged that they filed their application in court on June 5, 2018, that the clerk did not file the application in the “land registration docket,” and that the superior court did not refer the application to a county title examiner as required under the statute. The trial court dismissed this claim without prejudice, concluding that the Larsons’ application did not trigger the County’s duties under the Act because the application did not include the required abstract of title. We affirm this ruling. The Larsons argued below that their application was not defective because there is a question of fact as to whether their title insurance commitment constitutes an “abstract of title” under the Torrens Act. But the meaning of RCW 65.12.085 is a question of law, not a question of fact, and we review the trial court’s interpretation de novo. Dept. of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002). RCW 65.12.085 requires the filing of “an abstract of title such as is now commonly used.” Commentators have stated, “[n]ow that abstracts of title are no longer ‘commonly used’ in Washington, it is unclear whether an old-fashioned abstract must be produced, if anyone can be found to make up one, or whether a preliminary commitment for title insurance . . . will suffice.” - 18 - App. 18 18 STOEBUCK & No. 80968-7-I and No. 81874-1/19 WEAVER, supra, § 14.14 at 163. We conclude a preliminary commitment for title insurance does not suffice under the Torrens Act. First, although the Torrens Act does not define “abstract of title,” our legislature has passed statutes distinguishing between an abstract of title, a title policy, a preliminary title report, and a commitment for title insurance. Barstad v. Stewart Title Guar. Co., Inc., 145 Wn.2d 528, 537, 39 P.3d 984 (2002). In the chapter regulating title insurers, chapter 48.29 RCW, the legislature defined an abstract of title as follows: [A] written representation, provided under contract, whether written or oral, intended to be relied upon by the person who has contracted for the receipt of this representation, listing all recorded conveyances, instruments, or documents that, under the laws of the state of Washington, impart constructive notice with respect to the chain of title to the real property described. An abstract of title is not a title policy as defined in this subsection. RW 48.29.010(3)(a). A title insurance commitment serves a very different purpose: "Preliminary report," "commitment," or "binder" means reports furnished in connection with an application for title insurance and are offers to issue a title policy subject to the stated exceptions in the reports, the conditions and stipulations of the report and the issued policy, and other matters as may be incorporated by reference. The reports are not abstracts of title, nor are any of the rights, duties, or responsibilities applicable to the preparation and issuance of an abstract of title applicable to the issuance of any report. The report is not a representation as to the condition of the title to real property, but is a statement of terms and conditions upon which the issuer is willing to issue its title policy, if the offer is accepted. RCW 48.29.010(3)(f). Requiring a Torrens Act applicant to file and record an abstract of title serves the purpose for which this requirement is intended: it provides the title examiner a report as to the condition of the title to real property. - 19 - App. 19 No. 80968-7-I and No. 81874-1/20 Allowing the applicant to file a title insurance commitment would not serve this purpose because a commitment makes no representations as to chain of title. Second, even if a title insurance policy could serve the same purpose as an abstract of title, the Larsons’ Ticor Title commitment expired a year before they filed it. An expired title insurance commitment clearly cannot meet the purpose of an abstract of title under RCW 65.12.085. The trial court correctly concluded that the County Defendants had no duty to process the Larsons’ Torrens Act application in the absence of the statutorily mandated abstract of title. The Larsons now argue that they should have had the opportunity to amend their Torrens Act application and file the requisite abstract of title. But they had this opportunity; the trial court’s dismissal was without prejudice. The Larsons could have remedied the defect in their Torrens Act application by obtaining, filing, and recording a current abstract of title and, if the County then failed to act, could have renewed its claim for injunctive relief. And the Larsons also had time to move to enjoin the nonjudicial foreclosure sale to give them time to remedy the defect. At the time they sought Torrens Act relief in June 2018, the foreclosure sale was four months away and then continued another month. They inexplicably chose not to take advantage of these options. Dismissal without prejudice was appropriate. As to the claims against the State Defendants, the trial court correctly concluded that they have neither the duty nor the authority to force the County or its superior court judges to take the action the Larsons demanded and such an order would constitute a violation of the doctrine of separation of powers. The Constitution provides that “[t]he attorney general shall be the legal adviser of the state officers, and shall perform such other duties as may be - 20 - App. 20 No. 80968-7-I and No. 81874-1/21 prescribed by law.” CONST. ART. III, § 21. The legislature has delineated the Attorney General’s “other duties” in various statutes, 12 but none establish the mandatory duty the Larsons seek to enforce here. The Constitution also provides that the Governor “shall see that the laws are faithfully executed.” CONST. art. III, § 5. The Larsons argue that the Attorney General’s position as “the chief law enforcement officer for Washington State” and the Governor’s duty to “see that the laws are faithfully executed” imposes a duty to compel the county to develop a Torrens Act system. But neither the Attorney General nor the Governor have any duty or enforcement authority under the Torrens Act. See RCW 65.12. The Larsons essentially seek a writ of mandamus against the State Defendants. A writ of mandamus “is an extraordinary remedy that we grant only if the mandatory act sought to be compelled is not discretionary.” Goldmark v. McKenna, 172 Wn.2d 568, 576, 259 P.3d 1095 (2011). “Mandamus, therefore, is an appropriate remedy only where the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment.” Colvin v. Inslee, 195 Wn.2d 879, 893, 467 P.3d 953 (2020) (citations omitted). To order a mandamus to compel discretionary duties of a public official would be to “usurp the authority of the coordinate branches of government.” Walker v. Munro, 124 Wn.2d 402, 410, 879 P.2d 920 (1994). Because the Larsons have not identified any mandatory duty on behalf of the Governor or Attorney General, the trial court properly dismissed the Larsons’ 12 See ch. RCW 43.10. - 21 - App. 21 No. 80968-7-I and No. 81874-1/22 claims against the State Defendants. We affirm the trial court’s order dismissing claims relating to the Torrens Act against the Public Defendants under CR 12(b)(6). 3. Dismissal of Quiet Title Claim against Private Defendants The Larsons next contend the trial court erred in dismissing their quiet title claim against the Private Defendants. They raise two main arguments. First, the Larsons argue that their June 2018 Torrens Act application precluded any nonjudicial foreclosure sale and their failure to move to enjoin the sale did not constitute a waiver of their quiet title claim. Second, they contend that RCW 64.24.127, the DTA waiver statute, is unconstitutional. We reject both arguments. a. A Torrens Act application does not automatically stop a nonjudicial foreclosure sale The trial court dismissed the Larsons’ quiet title claim in December 2018 because they failed to obtain an order restraining the November 2018 foreclosure sale. The trial court held that under RCW 61.24.127, the Larsons waived their quiet title claim by failing to do so. We agree. RCW 61.24.130 provides that a borrower may seek a court order to restrain a nonjudicial foreclosure sale “on any proper legal or equitable ground.” The procedure laid out in RCW 61.24.130 is “the only means by which a grantor may preclude a sale once foreclosure has begun with receipt of the notice of sale and foreclosure.” Cox v. Helenius, 103 Wn.2d 383, 388, 693 P.2d 683 (1985). A borrower with notice of an impending nonjudicial foreclosure sale who does not obtain an order restraining that sale waives any claim to the validity of the sale. Plein v. Lackey, 149 Wn.2d 214, 225-26, 67 P.3d 1061 (2003). - 22 - App. 22 No. 80968-7-I and No. 81874-1/23 RCW 61.24.127(2)(b), (d) and (e) provide that failing to enjoin a sale does not waive claims for monetary damages for certain common law and statutory claims, but “[a] borrower . . . who files such a claim is prohibited from recording a lis pendens” and “[t]he claim may not operate in any way to encumber or cloud the title to the property that was subject to the foreclosure sale.” The Larsons did not obtain a court order enjoining the sale and, as a result, their quiet title action violated this provision of the DTA. The Larsons maintain that their Torrens Act application, by itself, had the effect of preventing a nonjudicial foreclosure sale under the DTA. RCW 65.12.210, the Larsons’ only authority for this proposition, provides: Any person who shall take by conveyance, attachment, judgment, lien or otherwise any right, title or interest in the land, subsequent to the filing of a copy of the application for registration in the office of the county auditor, shall at once appear and answer as a party defendant in the proceeding for registration, and the right, title or interest of such person shall be subject to the order or decree of the court. (Emphasis added). This statute says nothing about whether a Torrens Act application automatically stops a nonjudicial foreclosure sale under the DTA. It merely states that if a person receives title to property after a Torrens Act application is filed, then that person must become a party defendant in the Torrens Act proceeding. RCW 65.12.210 does not support the Larsons’ argument. Nor is their argument supported by existing case law. In Cox v. Helenius, the Washington Supreme Court held that simply filing a lawsuit challenging the underlying debt, filed after notice of sale and foreclosure has been received, does not have the effect of restraining the sale. 103 Wn.2d at 388. In Plein v. Lackey, it held that simply filing an action for a permanent injunction also does not forestall - 23 - App. 23 No. 80968-7-I and No. 81874-1/24 a trustee’s sale that occurs before that lawsuit is resolved. 149 Wn.2d at 227. Any homeowner seeking to enjoin a sale must file a motion and obtain a court order doing so. By enacting RCW 61.24.127, the legislature made it clear that a borrower cannot bring a claim that affects title to property if they do not first obtain a court order enjoining the nonjudicial foreclosure sale. There is nothing to suggest that the legislature intended to exempt a quiet title action initiated under the Torrens Act from the scope of this waiver provision. We therefore reject the Larsons’ contention that the mere filing of a Torrens Act application under Chapter 65.12 RCW somehow automatically precluded Deutsche Bank and QLS from conducting the nonjudicial foreclosure. The undisputed evidence supports the trial court’s conclusion that the Larsons waived their quiet title claim. The Larsons had notice of the nonjudicial foreclosure and did not obtain a court order enjoining the sale, either in the Torrens Act proceeding, which was then pending in Snohomish County Superior Court, or in any other proceeding. The trial court did not err in dismissing the quiet title claims against the Private Defendants. b. RCW 64.24.127, the DTA waiver statute, is constitutional The Larsons next maintain that RCW 61.24.127 cannot constitutionally extinguish their right to pursue a quiet title action. They contend the provision violates the privileges and immunities provision of article I, section 12 of the state constitution. They argue that the statute denies them the right to pursue a common law cause of action against lenders and foreclosure trustees and unconstitutionally confers a special privilege on these entities. We reject this argument. - 24 - App. 24 No. 80968-7-I and No. 81874-1/25 Washington courts employ a two-part test to decide if legislation violates article I, section 12, asking first if the challenged law grants a “privilege” or “immunity” for purposes of the state constitution, and, if yes, asking if there is a reasonable ground for granting the privilege or immunity. Schroeder v. Weighall, 179 Wn.2d 566, 572-73, 316 P.3d 482 (2014) (citations omitted). “Not every benefit constitutes a ‘privilege’ or ‘immunity’ for purposes of the independent article I, section 12 analysis. Rather, the benefits triggering that analysis are only those implicating ‘fundamental rights . . . of . . . state . . . citizenship.’” Id. at 573 (quoting State v. Vance, 29 Wash. 435, 458, 70 P. 34 (1902)). 13 In Schroeder, the Supreme Court recognized that “where a cause of action derives from the common law, the ability to pursue it is a privilege of state citizenship triggering article I, section 12's reasonable ground analysis. A law limiting the pursuit of common law claims against certain defendants therefore grants those defendants an article I, section 12 immunity.” Id. at 573 (quotations omitted). RCW 61.24.127 does limit the Larsons’ ability to bring a quiet title action after a foreclosure sale, thereby implicating article I, section 12. But RCW 61.24.127 does not bar all quiet title actions; it merely affects the timing of when such claims may be brought—parties must do so in advance of a nonjudicial foreclosure sale. The question is whether the legislature had a reasonable ground 13 The Larsons also argue that Washington courts have recently “eliminated” installment contract statutes of limitations and that this case law violates article 1, section 12. No Washington court has “eliminated” the statute of limitations for installment contracts, as the Larsons suggest. Our Supreme Court held as early as 1945 that “when recovery is sought on an obligation payable by installments the statute of limitations runs against each installment from the time it becomes due.” Herzog v. Herzog, 23 Wn.2d 382, 388, 161 P.2d 142 (1945). Our cases merely enforce this black letter contract law. See Merceri v. Bank of New York Mellon, 4 Wn. App. 2d 755, 434 P.3d 84 (2018) (a trustee sale is timely if note has not been accelerated and action is brought within six years of any missed monthly installment payment). This case law does not implicate the privileges and immunities provision of the state constitution. - 25 - App. 25 No. 80968-7-I and No. 81874-1/26 for limiting quiet title remedies in this manner. The Larsons rely on two Supreme Court cases holding that statutes limiting the ability of minors to bring medical malpractice claims are unconstitutional under article I, section 12. See Schroeder, 179 Wn.2d at 566; DeYoung v. Providence Med. Ctr., 136 Wn.2d 136, 960 P.2d 919 (1998). In both of those cases, the court concluded that the challenged statutes did not further the legislature’s stated objectives of reducing medical malpractice insurance premiums and barring stale claims. Schroeder, 179 Wn.2d at 574-77; DeYoung, 136 Wn.2d at 148. Unlike Schroeder and DeYoung, however, the timing restriction of RCW 61.24.127 advances the three basic objectives of the DTA by keeping the foreclosure process efficient and inexpensive, retaining the opportunity for a homeowner to prevent a wrongful foreclosure, and promoting the stability of land titles. Bain, 175 Wn.2d at 94. The Larsons do not explain how the ability to bring a quiet title action after a sale has concluded instead of an injunction action to prevent the foreclosure sale from occurring, provides any more protection of their property rights. RCW 61.24.127 is therefore supported by reasonable grounds and does not violate the privileges and immunities clause. 14 14 The Larsons make a similar argument with respect to the limitations placed on their ability to prosecute claims under the CPA. But they fail to demonstrate that the limitation on a statutory cause of action falls within the scope of article 1, section 12. Generally, rights left to the discretion of the legislature have not been considered fundamental. Martinez-Cuevas v. DeRuyter Bros. Dairy, Inc., 196 Wn.2d 506, 475 P.3d 164 (2020). In Martinez-Cuevas, the Supreme Court held that the statutory right to exempt dairy workers from overtime pay constituted an impermissible privilege or immunity granted to agricultural employers. Id. at 519. But the court’s analysis was premised on a constitutional guarantee to workers that “the legislature shall pass necessary laws for the protection of persons working in . . . employments dangerous to life or deleterious to health.” Id. (quoting CONST. art. II, § 35). It concluded that “[t]he right to statutory protection for health and safety pursuant to article II, section 35” is a fundamental personal right entitled to protection by the government. Id. at 522. The Larsons have not demonstrated that they have any similar constitutional right, personal to them, affected by RCW 61.24.127. Thus, to the extent the DTA limits their statutory right to recovery under the CPA, it does not implicate article I, section 12. - 26 - App. 26 No. 80968-7-I and No. 81874-1/27 4. CPA Claims & Constitutional Challenges to the DTA as Against Private Defendants The Larsons appear also to challenge the summary judgment dismissal of their CPA claims and their constitutional challenges to the DTA. Because the Larsons failed to raise a genuine issue of material fact under the CPA and their challenges to the DTA fail as a matter of law, we affirm dismissal of these claims. We review a summary judgment order de novo and perform the same inquiry as the trial court. Borton & Sons, Inc. v. Burbank Props., LLC, 196 Wn.2d 199, 205, 471 P.3d 871 (2020). A moving party is entitled to summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact.” CR 56(c). We view all facts and reasonable inferences in light most favorable to the non-moving party. Owen v. Burlington N. Santa Fe R.R. Co., 153 Wn.2d 780, 787, 108 P.3d 1220 (2005). a. CPA Claims 15 The Larsons contended below that the Private Defendants violated the CPA by conducting a nonjudicial foreclosure sale in violation of the DTA. They argue on appeal that the trial court erred in dismissing their CPA claim because the October 2006 promissory note was not authentic, the MERS’s assignment of the deed of trust to Deutsche Bank was invalid, New Century never funded the 15 The Larsons have not assigned error to the dismissal of CPA claims against SPS and QLS. Generally, a party’s failure to assign error to or provide argument and citation to authority in support of an assignment of error, as required by RAP 10.3, precludes appellate consideration of an alleged error. Matter of WWS, 14 Wn. App. 2d 342, 350 n.4, 469 P.3d 1190 (2020). In their reply brief, the Larsons contend that QLS violated RCW 65.12.210 by selling the home in a nonjudicial foreclosure without participating in the Larsons’ Torrens Act proceeding. They failed to raise this argument below and we will not address any argument raised for the first time in a reply brief. See Ainsworth v. Progressive Cas. Ins. Co., 180 Wn. App. 52, 78 n.20, 322 P.3d 6 (2014). - 27 - App. 27 No. 80968-7-I and No. 81874-1/28 Larsons’ loan, and New Century breached its contractual obligations to the Larsons by refusing to accept their August 2007 mortgage payment. We reject many of these arguments as frivolous and others as simply not supported by any evidence in this record. To prevail on a private CPA claim, a plaintiff must establish (1) an unfair or deceptive act or practice; (2) that occurs in trade or commerce; (3) a public interest; (4) injury to the plaintiff; and (5) a causal link between the unfair or deceptive act and the injury suffered. Trujillo v. Nw. Tr. Servs., Inc., 183 Wn.2d 820, 834-35, 355 P.3d 1100 (2015). The failure to establish any of the five elements is fatal to a CPA claim. Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 784, 719 P.2d 531 (1986). Violations of the DTA may be actionable under the CPA. Frias v. Asset Foreclosure Srvs., Inc., 181 Wn.2d 412, 430, 334 P.3d 529 (2014). As to the authenticity of the Larson promissory note, the Larsons contend that Christopher’s signature on the note was “misappropriated.” Christopher never testified that his signature on the note was forged. Deutsche Bank produced the original promissory note at the summary judgment hearing and demonstrated that the note bears Christopher’s signature. In addition, the trial court had copies of the deed of trust bearing both Christopher’s and Angela’s notarized signatures. When they executed these documents, Christopher also executed a “Name Affidavit,” in which he certified that he was the person named in the documents and that his signature was his true and correct signature. This document was also notarized on October 9, 2006, by the same notary public who notarized the deed - 28 - App. 28 No. 80968-7-I and No. 81874-1/29 of trust. There is no evidence in this record that Christopher’s signature on the promissory note was a forgery. The Larsons argue that under RCW 62A.3-308(a), by denying the validity of the note, they shifted the burden of proving validity to Deutsche Bank. 16 To the extent this statute applies, Deutsche Bank met its burden of proving the validity of the note. The Larsons failed to present any conflicting evidence. They also cite Stahly v. Emonds, 184 Wash. 207, 210, 50 P.2d 908 (1935), for the proposition that whether a signature has been forged is a question of fact and thus inappropriate for summary judgment. Stahly, however, is distinguishable. The plaintiffs in that case testified “unequivocally” at trial that the signatures on the documents were not theirs. Id. at 210. We have no such testimony here. There is thus no genuine issue of material fact regarding the authenticity of the note. The Larsons next argue that there is a genuine issue of material fact as to whether New Century and MERS split the deed of trust and promissory note when they named MERS as beneficiary under the deed of trust. They argue that MERS was not an eligible beneficiary of the deed of trust (because it never held the promissory note), and its assignment of the deed of trust to Deutsche Bank had no legal effect unless MERS was New Century’s agent and had the authority to assign New Century’s rights to Deutsche Bank. If MERS was not acting as New Century’s agent at the time of the assignment, the Larsons argue, then Deutsche Bank had no right to conduct a nonjudicial foreclosure under the DTA. 16 RCW 62A.3-308(a) provides: “In an action with respect to an instrument, the authenticity of, and authority to make, each signature on the instrument is admitted unless specifically denied in the pleadings. If the validity of a signature is denied in the pleadings, the burden of establishing validity is on the person claiming validity.” - 29 - App. 29 No. 80968-7-I and No. 81874-1/30 The Larsons rely on Bain for this argument. In Bain, our Supreme Court held that MERS is an ineligible beneficiary under the DTA if it never held the promissory note. 175 Wn.2d at 110. But it cast doubt on the theory that involving MERS automatically constituted a “split” rendering a deed of trust unenforceable. The court stated “While that certainly could happen, given the record before us, we have no evidence that it did. If, for example, MERS is in fact an agent for the holder of the note, likely no split would have happened.” Id. at 112. The Bain court also raised a possible second legal option: the creation of an equitable mortgage in favor of the noteholder. Id. at 112-13 (citing the RESTATEMENT (THIRD) OF PROPERTY: MORTGAGES § 5.4 reporters' note at 386 (1997)). 17 In Walker v. Quality Loan Service Corp., 176 Wn. App. 294, 308 P.3d 716 (2013), this court rejected a similar “split the note” theory. In that case, the borrower argued that MERS was never a legitimate beneficiary under RCW 61.24.005 because it did not hold the promissory note and “the interest in the Deed of Trust has been effectively segregated from the interest in the Note,” rendering the deed of trust invalid. 176 Wn. App. 294 at 321. This court held that the defect in identifying MERS as the beneficiary did not void the deed of trust and the real beneficiary was the lender or its successors whose interests were secured by the deed of trust. Id. at 323. 17 Under the Restatement (Third) of Property (Mortgages) §5.4 cmt. b (Am. Law Inst. 1997): A transfer in full of the obligation automatically transfers the mortgage as well unless the parties agree that the transferor is to retain the mortgage. The objective of this rule . . . is to keep the obligation and the mortgage in the same hands unless the parties wish to separate them. - 30 - App. 30 No. 80968-7-I and No. 81874-1/31 The Walker court held that the note holder and the beneficiary of a deed of trust securing that note are legally one and the same and the note cannot be “split” from the deed of trust: In Bain, the Supreme Court declined to decide the legal effect of MERS acting as an unlawful beneficiary under the DTA. However, the court stated its inclination to agree with MERS’s assertion that any violation of the DTA “‘should not result in a void deed of trust, both legally and from a public policy standpoint.’” The court also noted, “[I]f in fact MERS is not the beneficiary, then the equities of the situation would likely (though not necessarily in every case) require the court to deem that the real beneficiary is the lender whose interests were secured by the deed of trust or that lender’s successors.” While dicta, these statements identify critical problems with Walker’s argument. Id. at 322. The court concluded that any defect in the deed of trust through the designation of MERS as beneficiary did not invalidate the deed of trust. Id. Similarly, in Winters v. Quality Loan Service Corp. of Washington, Inc., 11 Wn. App. 2d 628, 644-45, 454 P.3d 896 (2019), this court held that the holder of a promissory note has the authority to enforce the deed of trust because “the deed of trust follows the note by operation of law.” 18 We take this opportunity to clearly hold that the designation of MERS as a beneficiary of a deed of trust, even though ineligible to hold that position under the DTA, does not split the promissory note from the deed of trust or invalidate the deed of trust. It is undisputed that Deutsche Bank holds the Larsons’ note and was entitled to enforce the deed of trust. Because Deutsche Bank was not barred from foreclosing on the Larsons’ home simply because MERS was listed as the original beneficiary under the deed of trust in 2006, it is immaterial whether MERS was 18 The Ninth Circuit has also held that the split the note theory has no sound basis in law or logic. Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1044 (9th Cir. 2011). - 31 - App. 31 No. 80968-7-I and No. 81874-1/32 acting as New Century’s agent or acting on its own behalf when it assigned the deed of trust to Deutsche Bank. The Larsons next argue that there is a genuine issue of material fact as to whether New Century ever funded the Larsons’ loan. We reject this argument because there is absolutely no evidence to support it. 19 Deutsche Bank provided the trial court with copies of the 2006 closing documents related to New Century’s funding of the Larsons’ loan. The undisputed evidence shows that New Century funded this loan on October 6, 2006. It authorized the closing escrow company, First American Title, to disburse the funds that same day. First American confirmed it had disbursed the loan proceeds from New Century. The Larsons themselves admit that they closed their loan on October 11, 2006 and used the funds to purchase the property. The record also contains the statutory warranty deed by which the former owners conveyed the property to the Larsons. The Larsons cannot point to a single piece of evidence supporting their allegation that New Century was unable to fully fund their loan. Finally, the Larsons argue that there is a genuine issue of material fact as to whether New Century breached its contract by refusing to accept their August 2007 mortgage payment. Although somewhat unclear, it appears the Larsons contend that if New Century breached an agreement with them before they defaulted, the Larsons were then released from the obligation to make further payments on the note. But the Larsons cite no legal authority for this proposition 19 The Larsons contend that in 2007, New Century failed to fund a number of loans made to Washington consumers. But even if New Century had insufficient funds to fund loans in 2007, this fact would not prove that it failed to fully fund the Larsons’ loan in October 2006. - 32 - App. 32 No. 80968-7-I and No. 81874-1/33 and it is illogical. First, the Larsons do not explain how New Century’s refusal to accept a payment in August 2007 constituted a material “breach” of any provision of the promissory note. The note contains the Larsons’ promise to repay the loan through monthly installment payments on the first day of each month. There is no evidence that New Century declared the Larsons to be in default when they were not in arrears. In fact, according to Angela, New Century informed her in August 2007 that the note had been assigned to someone else. So the only evidence in this record is that New Century no longer held the note when the Larsons claim it refused their payment. Second, Christopher explicitly acknowledged in the note itself that “the Lender may transfer this Note.” New Century indorsed the Larson promissory note in blank. Under the Uniform Commercial Code (UCC), RCW 62A.3-205(b), a note becomes payable to whomever holds the note when it is indorsed in blank. Blair v. Nw. Tr. Srvs, Inc., 193 Wn. App. 18, 32, 372 P.3d 127 (2016). Deutsche Bank presented undisputed testimony that it is the holder of the Larson promissory note and had the legal right to Larsons’ installment payments. Finally, Deutsche Bank did not seek to collect payments prior to March 2012. The final notice of default, dated December 22, 2017, stated that the Larsons’ delinquent monthly payments began March 2012. The Larsons do not deny that they failed to make regular payments after that date, or that servicers for Deutsche Bank paid the property’s real estate taxes and homeowner’s insurance, resulting in over $50,000 in escrow advances on their loan. The Larsons fail to - 33 - App. 33 No. 80968-7-I and No. 81874-1/34 explain how New Century’s alleged breach of contract in 2007 is attributable to Deutsche Bank or any of the other Private Defendants. The Larsons have failed to establish a genuine issue of material fact on any of their CPA claims against the Private Defendants related to the foreclosure of their home under the DTA. The trial court thus properly dismissed these claims on summary judgment. b. Constitutional Challenges to the DTA The Larsons alleged several constitutional challenges to the DTA in the complaint, and the trial court dismissed these arguments on summary judgment. On appeal, their constitutional arguments can be distilled into four claims: (1) the DTA’s permissive allowance of nonjudicial foreclosures violates the due process guarantee of a fair hearing, (2) the 2018 amendments to the DTA impaired the contractual relationship between the Larsons and their lender, (3) the DTA treads upon the constitutional original jurisdiction of superior courts, and (4) the DTA’s shortened statute of limitations for CPA claims is unconstitutional because it grants unequal privileges and immunities to lenders. 20 We disagree with each of these arguments and affirm their dismissal. The Larsons first argue that the DTA is unconstitutional because it gives corporate trustees the authority to remove property from mortgagors without due process of law under article I, section 3 of the state constitution. This claim fails for lack of state action. A violation of the state due process clause requires state action, whether in 20 We rejected the Larsons’ constitutional challenge to the limitation of actions contained in RCW 61.24.127 in section 3(b) of this opinion and will therefore not address the issue again here. - 34 - App. 34 No. 80968-7-I and No. 81874-1/35 civil or criminal context. State v. McCullough, 56 Wn. App. 655, 784 P.2d 566, review denied, 114 Wn.2d 1025 (1990). Our Supreme Court has held that the legislature’s passage of the DTA constituted “passive involvement” in private conduct, neither commanding nor forbidding nonjudicial foreclosure, and thus did not constitute state action, as required to support a due process claim. Kennebec, Inc. v. Bank of the West, 88 Wn.2d 718, 722-23, 565 P.2d 812 (1977). The Larsons distinguish their case from Kennebec on the basis that they “challenge the conduct of the State, . . . the conduct of Snohomish County . . . in intentionally not complying with their duties under [the Torrens Act], the conduct of Judge Svaren, . . . and the Sheriff’s threatened eviction of them from their home.” But the Larsons’ argument blurs their claims against the Public Defendants and their distinct constitutional arguments, arising out of their contract with private parties. They do not allege that the Public Defendants deprived them of due process, but that the DTA and associated mortgage agreements lack adequate procedural protections. State enforcement of a contract between two private parties is not state action. State v. Noah, 103 Wn. App. 29, 50, 9 P.3d 858 (2000). To the extent the Larsons challenge the actions of the Snohomish County Sheriff in threatening eviction, their claim is similarly unavailing. The mere acquiescence in the actions of a private contracting party is not sufficient to hold the government responsible for those actions under the due process clause of the Fourteenth Amendment to the United States Constitution. Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S. Ct. 2777, 73 L. Ed. 2d 534 (1982) (Medicaid recipients failed to establish state action in nursing home decision to discharge or transfer to lower levels of care). The Larsons failed to allege state action to support their due - 35 - App. 35 No. 80968-7-I and No. 81874-1/36 process claim. Even if we were to conclude that nonjudicial foreclosure proceedings under the DTA do constitute state action, the Larsons still have failed to establish a deprivation of due process. “The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 1191, 14 L. Ed. 2d 62 (1965)). The level of procedural protection required varies based on circumstance. Id. at 334. Throughout the foreclosure process, the Larsons had open access to the courts and the ability to seek an order enjoining the foreclosure. They chose not to avail themselves of this procedural protection. The Larsons cannot now complain of a lack of procedural protections they expressly declined to use. Next, the Larsons argue that the Private Defendants could not foreclose in 2018 unless they had the legal authority to do so under the laws in effect at the time the Larsons obtained their loan in 2006. They contend that the state legislature amended RCW 61.24.030(7)(a) in 2018 to permit a note holder who is not the “owner” of the deed of trust to foreclose, but this amendment cannot apply retroactively to the Larsons’ deed of trust without impairing the Larsons’ contract rights. 21 21 RCW 61.24.030(7)(a) requires a trustee, before recording a notice of trustee’s sale, to receive proof that the beneficiary under the deed of trust is the holder of the promissory note secured by the deed of trust. A declaration from the beneficiary, made under penalty of perjury, stating that the beneficiary is the holder of the note “shall be sufficient proof as required under this subsection.” - 36 - App. 36 No. 80968-7-I and No. 81874-1/37 Article I, section 23 of the Washington Constitution prohibits the legislature from passing a law “impairing the obligations of contracts.” Wash. Educ. Ass’n v. Dep’t Ret. Svcs., 181 Wn.2d 233, 242, 332 P.3d 439 (2014). But the prohibition against the impairment of contracts is not absolute and cannot be read with “literal exactness.” Wash. Fed. of State Emps v. State, 127 Wn.2d 544, 560, 901 P.2d 1028 (1995). When the legislature impairs contract rights between private parties, courts defer to legislative judgment to determine if it was reasonably necessary. Hous. Auth. of Sunnyside, Wash. v. Sunnyside Valley Irr. Dist., 51 Wn. App. 387, 393, 753 P.2d 1005, 1009 (1988), rev'd on other grounds sub nom. Hous. Auth. of Sunnyside v. Sunnyside Valley Irr. Dist., 112 Wn. 2d 262, 772 P.2d 473 (1989). In determining whether a law violates the contracts clause, a court will determine if state law has operated to substantially impair a contractual relationship, measured by the degree of destruction of the contractual expectation. Id. (citing Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U.S. 400, 103 S. Ct. 697, 74 L. Ed. 2d 569 (1983)). If so, the state must have a significant and legitimate public purpose for the regulation such as the remedying of a broad and general social or economic problem. Id. The Larsons fail to explain how the passage of RCW 61.24.030(7)(a) substantially impaired their contractual relationship with their lender. It appears that their argument is premised on the erroneous assumption that New Century and MERS “split” the note from the deed of trust, a legal argument we have rejected. And we do not understand how permitting a note holder, such as Deutsche Bank, to enforce the deed of trust significantly modified any contract rights the Larsons had when they obtained their home loan in 2006. - 37 - App. 37 No. 80968-7-I and No. 81874-1/38 We also reject the Larsons’ assertion that nonjudicial foreclosure sales violate article IV, section 6 of the state constitution by infringing upon the original jurisdiction on the superior courts. Article IV, section 6 provides that “[t]he superior court shall have original jurisdiction in all cases at law which involve the title or possession of real property.” In Jackson v. Quality Loan Serv. Corp., 186 Wn. App. 838, 347 P.3d 487 (2015), the plaintiff made the same argument that the Larsons do here: that the DTA is unconstitutional for giving nongovernmental actors the authority to determine the result of contractual cases at law which involve the title and possession of real property, when the exclusive jurisdiction over such matters is bestowed by article IV, section 6 with the superior courts. The Jackson court disagreed, reasoning a nonjudicial foreclosure is not made pursuant to a judgment but rather is one conducted under a power contained in a mortgage or a decree of foreclosure. As such, it is made through an agreement between the grantor and the beneficiary of the deed of trust. The DTA does not divest the superior court of jurisdiction. Indeed, the superior court's constitutional grant of jurisdiction is preserved in specific portions of the DTA. Until a party challenges the foreclosure, there is no judicial involvement. It is at that point that the superior's court's jurisdiction is invoked. Jackson, 186 Wn. App. at 847-48. The Larsons argue that Jackson is not controlling because its constitutional analysis was mere dicta and conflicts with other precedents holding that the legislature may not enact legislation intended to frustrate the jurisdiction of the superior courts. The Larsons correctly note that the Jackson court rejected the borrowers’ constitutional challenge based on their failure to notify the state attorney general of their challenge, as required by RCW 7.24.110. 186 Wn. App. at 846. - 38 - App. 38 No. 80968-7-I and No. 81874-1/39 Its discussion about the legislature’s authority to enact the DTA is thus dicta. But Jackson’s constitutional analysis is well-reasoned and we adopt it here. A superior court has subject matter jurisdiction “where it has authority to adjudicate the type of controversy involved in the action.” Boudreaux, 10 Wn. App. 2d at 295(quoting In re McDermott, 175 Wn. App. 467 at 480-81). As the Jackson court explained, a nonjudicial foreclosure is conducted under a specific contractual agreement made between the borrower and the beneficiary of the deed of trust. 186 Wn. App. at 847. The DTA preserves the superior court’s jurisdiction by giving a borrower the right to file an action in superior court to restrain the sale, RCW 61.24.130(1), granting the borrower the power to initiate court action, RCW 61.24.040(2), and granting the borrower the right to request a court to decide the reasonableness of fees a lender demands before reinstating the mortgage. RCW 61.24.090(2). We conclude that the legislature had the authority to enact the DTA and its enactment does not encroach on the jurisdiction of the superior court. Summary judgment as to this claim was appropriate. 5. Order Dismissing Torrens Act Proceeding In August 2020, the Snohomish County Superior Court dismissed the Larsons’ Torrens Act application on the basis that, after the nonjudicial foreclosure sale, they were no longer the owners of the property and lacked any interest in the land to be registered. We affirm this conclusion. The Torrens Act provides that “[t]he owner of any estate or interest in land, whether legal or equitable, except unpatented land, may apply as hereinafter provided to have the title of said land registered.” RCW 65.12.005. Homeowners who have lost their home in a foreclosure sale are no longer owners of the property - 39 - App. 39 No. 80968-7-I and No. 81874-1/40 and lack standing to prosecute a title registration action. Matter of Warren, 10 Wn. App. 2d 596, 599, 448 P.3d 820 (2019). Once the Larsons lost title in the property in the November 2018 foreclosure sale, they had no statutory right to pursue title registration. The trial court properly dismissed their Torrens Act application. 6. Denial of Motion to Amend The Larsons next argue that the trial court erred in denying their motion to amend their complaint to reallege claims against the Public Defendants and to add additional State office holders or entities. They contend they had no other way to obtain a ruling that Snohomish County and its officials were intentionally not complying with the Torrens Act. We disagree—the Larsons could have remedied the defect in their Torrens Act petition by filing and recording the abstract of title, as the superior court ruled when dismissing the claims. We review the denial of a motion to amend a complaint under a manifest abuse of discretion standard. McDonald v. State Farm Fire and Cas. Co., 119 Wn.2d 724, 737, 837 P.2d 1000 (1992). Leave to amend “shall be freely given when justice so requires.” CR 15(a). However, a trial court may consider whether the new claim is futile. Ino Ino, Inc. v. City of Bellevue, 132 Wn.2d 103, 142, 937 P.2d 154 (1997). The trial court did not abuse its discretion in concluding that the Larsons’ proposed amendment would be futile. At oral argument, the trial court recognized, and the Larsons do not dispute, that the proposed amended complaint contained “the same basic claims, based upon the same basic facts.” The only apparent difference was the addition of a claim for damages against both Public and Private Defendants for violations of the Torrens Act. The gravamen of the Larsons’ - 40 - App. 40 No. 80968-7-I and No. 81874-1/41 argument was, once again, that the trial court lacked subject matter jurisdiction to decide whether their application was defective. Under these circumstances, the trial court did not abuse its discretion in denying the motion to amend. 7. Recusal The Larsons next argue that both Judge Svaren and Judge Okrent had an interest in the outcome of their respective cases and thus erred by failing to recuse themselves. We disagree. This court reviews a trial judge’s recusal decision for abuse of discretion. State v. Gentry, 183 Wn.2d 749, 761, 356 P.3d 714 (2015). A judicial officer “shall not act as such in a court of which he or she is a member in any . . . action, suit, or proceeding to which he or she is a party, or in which he or she is directly interested.” RCW 2.28.030. “Due process, appearance of fairness and Canon 3(D)(1) of the Code of Judicial Conduct require a judge to recuse himself where there is bias against a party or where impartiality can be questioned.” State v. Leon, 133 Wn. App. 810, 812, 138 P.3d 159 (2006). A mere suspicion of partiality may be enough to warrant recusal because the effect on the public's confidence in our judicial system can be debilitating. The test for determining whether a judge's impartiality might reasonably be questioned is an objective test that assumes that a reasonable person knows and understands all the relevant facts. Gentry, 183 Wn.2d at 762 (citations omitted). The Larsons argue that Judge Svaren, and every other Skagit County Superior Court judge, should have been precluded from hearing their case because “judges and other public servants have been unconstitutionally incentivized to approve foreclosures outside of equity” due to the fact that judges’ - 41 - App. 41 No. 80968-7-I and No. 81874-1/42 state retirement funds are invested in mortgage-backed securities. They further argue that Judge Okrent and the Snohomish County judges cannot be considered impartial because (1) their retirement accounts are invested in mortgage backed securities, and (2) they have historically failed to comply with their duties under the Torrens Act. The Larsons offer documents from the Washington State Investment Board to support its allegation. These arguments are unconvincing for several reasons. First, the Larsons appear to argue that there is no judge in either county who could adjudicate their cases. If true, the rule of necessity defeats their argument. The rule of necessity is “a well-settled principle at common law that . . . ‘although a judge had better not, if it can be avoided, take part in the decision of a case in which he has any personal interest, yet he not only may but must do so if the case cannot be heard otherwise.’” U.S. v. Will, 449 U.S. 200, 213, 101 S. Ct. 471, 66 L. Ed. 2d 392 (1980) (quoting F. POLLACK, A FIRST BOOK OF JURISPRUDENCE 270 (6th ed. 1929)). The rule “provides for the effective administration of justice while preventing litigants from using the rules of recusal to destroy what may be the only tribunal with power to hear a dispute.” Glick v. Edwards, 803 F.3d 505, 509 (9th Cir. 2015). Because the Larsons sought the disqualification of every judge in both counties where they elected to bring their cases, the recusal of Judge Svaren and Judge Okrent was not required. Second, the Larsons failed to establish any personal connection between Judge Svaren or Judge Okrent and their cases. CJC Canon 3(D) lays out the rules for when judges should disqualify themselves in a proceeding, for example, when the judge has a personal bias or prejudice concerning a party, when the judge - 42 - App. 42 No. 80968-7-I and No. 81874-1/43 previously served as a lawyer or witness in a controversy, or when the judge’s family member is or is likely to be a witness in the case. None of these situations occurred here. The Larsons’ allegation that judges have a personal interest in retirement funds invested in mortgage-backed securities and therefore have some interest in allowing lenders to foreclose is pure speculation. The Larsons have alleged no facts indicating that either judge has control over the state retirement plans or that their decisions regarding the Torrens Act will have any impact whatsoever on the value of securities in which the retirement plans are invested. Without these facts, there is nothing to support the Larsons’ argument. Their allegation that Judge Svaren could not rule impartially on a case in which a party alleges that judges in Snohomish County were violating the Torrens Act is similarly unsupported in this record. And by the time Judge Okrent dismissed the Larsons’ Torrens Act petition, the County had rectified the procedural issues the Larsons had raised in their Skagit County lawsuit. 22 The only issue before Judge Okrent was whether the Larsons could continue to pursue title registration after they lost their home in a foreclosure sale. No reasonable person could conclude that either Judge Svaren or Judge Okrent acted in any way other than impartially in handling these cases. 8. Transfer of Venue The Larsons finally argue that trial court erred in transferring venue to Snohomish County Superior Court. 22 The Larsons argue that RCW 4.12.030 According to the Larsons, Snohomish County appointed an examiner of titles in 2019. - 43 - App. 43 No. 80968-7-I and No. 81874-1/44 requires that venue should have remained with Skagit County Superior Court. We disagree. Venue is governed primarily by statute. Ralph v. Weyerhaeuser Co., 187 Wn.2d 326, 338, 386 P.3d 721 (2016). While as a general rule the initial choice of venue lies with the plaintiff, the plaintiff must choose a venue that is statutorily authorized. Id. If a plaintiff files in an improper venue and the defendant does not waive the objection, the defendant has the right to have the matter transferred to a proper venue. RCW 4.12.030(1). Changing venue under such circumstances is not discretionary and is reviewed as a matter of law. Ralph, 187 Wn.2d at 338. Actions relating to the title of real property must be brought in the county in which the real estate is situated. RCW 4.12.010(1). The Larsons’ complaint against the Private Defendants was an action relating to the title of real property because they alleged these defendants had no valid encumbrance on their property and thus no legal right to conduct a foreclosure sale under various legal theories. Their lawsuit was an action relating to title of real property. The trial court correctly concluded a change of venue was legally required under this statute. The Larsons, however, argue that they were entitled to remain in Skagit County Superior Court under RCW 4.12.030(2). Under RCW 4.12.030(2), a court has the discretion to change venue when, among other reasons, “there is a reason to believe that an impartial trial cannot be had therein.” We review a venue decision under this section for abuse of discretion. Unger v. Cauchon, 118 Wn. App. 165, 170, 73 P.3d 1005 (2003). The Larsons argue that an impartial trial could not be held in Snohomish County because all of the Snohomish County Superior Court judges had recused themselves from the case. But this issue was - 44 - App. 44 No. 80968-7-I and No. 81874-1/45 resolved by appointing Judge Svaren to sit as a visiting judge in Snohomish County Superior Court. None of the recused judges ruled on the Larsons’ cases. The trial court’s refusal to set venue in Skagit County Superior Court under RCW 4.12.030(2) was not an abuse of discretion. 9. Attorney Fees Deutsche Bank requests attorney fees on appeal under RAP 18.1, relying on paragraph 26 of the deed of trust. This provision provides: Lender shall be entitled to recover its reasonable attorneys’ fees and costs in any action or proceeding to construe or enforce any term of this Security Instrument. The term “attorneys’ fees,” whenever used in this Security Instrument, shall include without limitation attorneys’ fees incurred by Lender in any bankruptcy proceeding or on appeal. A lender can recover attorney fees on appeal when the deed of trust allows them to do so. Edmundson v. Bank of Am., 194 Wn. App. 920, 933, 378 P.3d 272 (2016). The Larsons’ complaint sought to invalidate the deed of trust; Deutsche Bank had to participate in the lawsuit to enforce its terms. For this reason, the proceeding involved the construction and enforcement of the deed of trust, entitling Deutsch Bank to an award of attorney fees on appeal. We therefore award attorney fees to Deutsche Bank conditioned on its compliance with RAP 18.1(d). Affirmed. WE CONCUR: - 45 - App. 45 FILED 1/5/2022 Court of Appeals Division I State of Washington THE COURT OF APPEALS FOR THE STATE OF WASHINGTON CHRISTOPHER LARSON and ANGELA LARSON, No. 80968-7-I ORDER DENYING MOTION FOR RECONSIDERATION Appellants, v. SNOHOMISH COUNTY, a Washington State Municipal Corporation; CAROLYN WEIKEL, individually and as the SNOHOMISH COUNTY AUDITOR and Registrar; SONJA KRASKI, individually and as the SNOHOMISH COUNTY CLERK; JANE DOE, individually and as SNOHOMISH COUNTY EXAMINER OF TITLES and LEGAL ADVISOR TO THE REGISTRAR; SNOHOMISH COUNTY SUPERIOR COURT JUDGES GEORGE F. APPEL, GEORGE N. BOWDEN, MARYBETH DINGLEDY, JANICE E. ELLIS, ELLEN J. FAIR, ANITA L. FARRIS, MILLIE M. JUDGE, LINDA C. KRESE, DAVID A. KURTZ, JENNIFER R. LANGBEHN, CINDY A. LARSEN, ERIC Z. LUCAS, RICHARD T. OKRENT, BRUCE J. WEISS, and JOSEPH P. WILSON; THE STATE OF WASHINGTON; WASHINGTON STATE GOVERNOR JAY INSLEE in his official capacity; WASHINGTON STATE ATTORNEY GENERAL ROBERT FERGUSON in his official capacity as WASHINGTON ATTORNEY GENERAL; JOHN DOES, Successors in interest and assigns to NEW CENTURY MORTGAGE COMPANY and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; App. 46 No. 80968-7-I and No. 81874-1/2 DEUTSCHE BANK NATIONAL TRUST COMPANY; DEUTSCHE BANK NATIONAL TRUST COMPANY as trustee for Morgan Stanley ABS Capital I Inc. Trust 2007-HE2 Mortgage Pass Through Certificates, Series 2007; MORGAN STANLEY ABS CAPITAL I INC. TRUST 2007-HE2; QUALITY LOAN SERVICE CORPORATION OF WASHINGTON, a Washington Corporation; SELECT PORTFOLIO SERVICING, INC., a Utah corporation; and MORTGAGE ELECTRONIC RECORDING SYSTEM, INC., a Delaware Corporation, Respondents. CHRISTOPHER LARSON and ANGELA LARSON, No. 81874-1-I Appellants, v. NEW CENTURY MORTGAGE; JANE DOE; ALL OTHER PERSONS OR PARTIES UNKNOWN CLAIMING ANY RIGHT, TITLE, ESTATE, LIEN OR INTEREST INTO, OR UPON THE REAL PROPERTY DESCRIBED HEREIN, Respondents. The appellants, Christopher and Angela Larson, have filed a motion for reconsideration. A majority of the panel has determined that the motion should be denied. Now, therefore, it is hereby ORDERED that the motion for reconsideration is denied. -2- App. 47 THE SUPREME COURT ERIN L. LENNON STATE OF WASHINGTON TEMPLE OF JUSTICE SUPREME COURT CLERK P.O. BOX 40929 OLYMPIA, WA 98504-0929 SARAH R. PENDLETON (360) 357-2077 e-mail : supreme@courts.wa.gov www.courts .wa.gov DEPUTY CLERK/ CHIEF STAFF ATTORNEY February 7, 2022 LETTER SENT BY E-MAIL ONLY Scott Erik Stafne Stafne Law Advocacy & Consulting 239 North Olympic Avenue Arlington, WA 98223-1336 Robert William McDonald Quality Loan Service Corp of Washington 108 1st Avenue South, Suite 202 Seattle, WA 98104-2538 Geoffrey Alan Enns Lyndsey Marie Downs Snohomish County Prosecutor's Office Civil Division 3000 Rockefeller Avenue # MS504 Everett, WA 98201-4046 Hon. Lea Ennis, Clerk Division I, Court of Appeals One Union Square 600 University Street Seattle, WA 98101 Robert A. Bailey Lagerlof, LLP 701 Pike Street, Suite 1560 Seattle, WA 98101-3915 Re: Supreme Court No. 100620-9 – Christopher E. Larson, et ano. v. New Century Mortgage, et al. Court of Appeals No. 81874-1-I Clerk and Counsel: On February 4, 2022, this Court received and filed the Petitioner’s “MOTION TO EXTEND TIME”. The matter has been assigned the above referenced Supreme Court case number. The Supreme Court Deputy Clerk entered the following ruling regarding the motion on February 7, 2022: In light of the extraordinary circumstances related to Covid-19 described in the Petitioners' motion for a 10-day extension of time to file a petition for review, the motion for extension of time is granted. The petition for review should be served and filed by February 14, 2022. App. 48 Page 2 No. 100620-9 February 7, 2022 To proceed with this case, the Petitioner should serve and file in this Court a petition for review pursuant to RAP 13.4, by February 14, 2022. Failure to serve and file the petition for review may result in the dismissal of this matter. The parties should note that Christopher E. Larson, et ano. V. Snohomish County, et al. No. 100619-5 and Christopher E. Larson, et ano. v. New Century Mortgage, et al. No. 100620-9 are not consolidated at this time. Therefore, in the future, motions and filings should be made in each case separately. It is also noted that the $200 filing fee has not been received. If the filing fee and petition for review are not received by February 14, 2022, it is likely that this matter will be dismissed. RAP 18.9(b). The parties are advised that upon receipt of the petition for review and filing fee, a due date will be established for the filing of any answer to the petition for review. The petition for review will be set for consideration by a Department of the Court without oral argument on a yet to be determined date. Counsel are referred to the provisions of General Rule 31(e) regarding the requirement to omit certain personal identifiers from all documents filed in this court. This rule provides that parties “shall not include, and if present shall redact” social security numbers, financial account numbers and driver’s license numbers. As indicated in the rule, the responsibility for redacting the personal identifiers rests solely with counsel and the parties. The Clerk’s Office does not review documents for compliance with the rule. Because briefs and other documents in cases that are not sealed may be made available to the public on the court’s internet website, or viewed in our office, it is imperative that such personal identifiers not be included in filed documents. cD Sincerely, f Counsel are advised that future correspondence from this Court regarding this matter will most likely only be sent by an e-mail attachment, not by regular mail. This office uses the e-mail address that appears on the Washington State Bar Association lawyer directory. Counsel are responsible for maintaining a current business-related e-mail address in that directory. Sarah R. Pendleton Supreme Court Deputy Clerk SRP:jm App. 49 THE SUPREME COURT ERIN L. LENNON STATE OF WASHINGTON TEMPLE OF JUSTICE SUPREME COURT CLERK P.O. BOX 40929 OLYMPIA, WA 98504-0929 SARAH R. PENDLETON (360) 357-2077 e-mail : supreme@courts.wa.gov www.courts .wa.gov DEPUTY CLERK/ CHIEF STAFF ATTORNEY February 7, 2022 LETTER SENT BY E-MAIL ONLY Scott Erik Stafne Stafne Law Advocacy & Consulting 239 North Olympic Avenue Arlington, WA 98223-1336 Amy Edwards Stoel Rives LLP 760 Southwest 9th Avenue, Suite 3000 Portland, OR 97205-2584 Geoffrey Alan Enns George Bradley Marsh Lyndsey Marie Downs Snohomish County Prosecutor's Office Civil Division 3000 Rockefeller Avenue Everett, WA 98201-4046 Joseph Ward McIntosh McCarthy & Holthus, LLP 108 1st Avenue South, Suite 300 Seattle, WA 98104-2104 Re: Rene David Tomisser R. July Simpson Office of the Attorney General 7141 Cleanwater Drive Southwest Tumwater, WA 98501-6503 Robert A. Bailey Lagerlof, LLP 701 Pike Street, Suite 1560 Seattle, WA 98101-3915 Robert William McDonald Quality Loan Service Corp of Washington 108 1st Avenue South, Suite 202 Seattle, WA 98104-2538 Hon. Lea Ennis, Clerk Division I, Court of Appeals One Union Square 600 University Street Seattle, WA 98101 Supreme Court No. 100619-5 – Christopher E. Larson, et ano. v. Snohomish County, et al. Court of Appeals No. 80968-7-I Clerk and Counsel: On February 4, 2022, this Court received and filed the Petitioner’s “MOTION TO EXTEND TIME”. The matter has been assigned the above referenced Supreme Court case number. The Supreme Court Deputy Clerk entered the following ruling regarding the motion on February 7, 2022: App. 50 Page 2 No. 100619-5 February 7, 2022 In light of the extraordinary circumstances related to Covid-19 described in the Petitioners' motion for a 10-day extension of time to file a petition for review, the motion for extension of time is granted. The petition for review should be served and filed by February 14, 2022. To proceed with this case, the Petitioner should serve and file in this Court a petition for review pursuant to RAP 13.4, by February 14, 2022. Failure to serve and file the petition for review may result in the dismissal of this matter. The parties should note that Christopher E. Larson, et ano. V. Snohomish County, et al. No. 100619-5 and Christopher E. Larson, et ano. v. New Century Mortgage, et al. No. 100620-9 are not consolidated at this time. Therefore, in the future, motions and filings should be made in each case separately. It is also noted that the $200 filing fee has not been received. If the filing fee and petition for review are not received by February 14, 2022, it is likely that this matter will be dismissed. RAP 18.9(b). The parties are advised that upon receipt of the petition for review and filing fee, a due date will be established for the filing of any answer to the petition for review. The petition for review will be set for consideration by a Department of the Court without oral argument on a yet to be determined date. Counsel are referred to the provisions of General Rule 31(e) regarding the requirement to omit certain personal identifiers from all documents filed in this court. This rule provides that parties “shall not include, and if present shall redact” social security numbers, financial account numbers and driver’s license numbers. As indicated in the rule, the responsibility for redacting the personal identifiers rests solely with counsel and the parties. The Clerk’s Office does not review documents for compliance with the rule. Because briefs and other documents in cases that are not sealed may be made available to the public on the court’s internet website, or viewed in our office, it is imperative that such personal identifiers not be included in filed documents. Counsel are advised that future correspondence from this Court regarding this matter will most likely only be sent by an e-mail attachment, not by regular mail. This office uses the e-mail address that appears on the Washington State Bar Association lawyer directory. Counsel are responsible for maintaining a current business-related e-mail address in that directory. App. 51 Page 3 No. 100619-5 February 7, 2022 w Sincerely, Sarah R. Pendleton Supreme Court Deputy Clerk SRP:jm App. 52 FILED Court of Appeals Division I State of Washington 1212712021 4:20 PM No. 80968-7 & 81874-1 IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON DIVISION I On Appeal from Snohomish County Case Nos . 19-2-01383-31 and 19-2-01383-31 Christopher and Angela Larson, Plaintiff-Appellant, v. Snohomish County et al., Defendants-Respondents. MOTION FOR RECONSIDERATION Scott E. Stafne, WSBA No. 6964 STAFNE LAW Advocacy & Consulting 239 N. Olympic Avenue Arlington, WA 98223 360.403.8700 scott@stafnelaw.com Attorney for Petitioners-Appellants App. 53 TABLE OF CONTENTS I. Designation of Persons Filing this Motion ............................. 1 II. Relief Requested .................................................................. 2 III. Reference to Pertinent Parts of the Record .......................... 3 IV. Statement of the Grounds for Relief Sought and Supporting Argument................................................................................. 6 A. The Evidence before the Court was disputed and does not support the grant of a summary judgment .................. 6 1) Larsons submitted evidence that New Century went into bankruptcy. .............................................. 6 2) The Panel’s decision erroneously implies the absence of material fact standard applies only to the CPA claims .............................................................. 8 3) The disputed facts of this case require a trial........ 8 4) Questions of fact exist with regard to who purchased Larsons’ Note and Deed of Trust from New Century .......................................................... 11 5) New Century’s 2007 Bankruptcy creates both material issues of fact and law ................................. 13 6) There is a question of fact with regard to whether Private Defendants hold the original, authentic Note ................................................................................ 15 7) There are other questions of fact with regard to whether the Note in Private Defendants’ possession is an authentic wet ink original ................................ 19 8) Private Defendants have not proved for purposes of summary judgment that the loan was funded. .... 20 ii App. 54 9) There is a question of fact with regard to whether New Century breached their agreements with the Larsons by refusing to accept their mortgage payments. ............................................................... 23 B. This Panel should reconsider its judicial neutrality analysis. ......................................................................... 24 V. Conclusion ......................................................................... 26 Table of Appendices .............................................................. 28 iii App. 55 TABLE OF AUTHORITIES State Cases Bain v. Metro. Mortg. Grp., Inc., 175 Wn.2d 83, 285 P.3d 34 (2012) .................................... 16 Balise v. Underwood, 62 Wn.2d 195, 381 P.2d 966 (1963) .................................. 11 Beaulaurier v. Buchanan, 16 Wn. App. 887, 559 P.2d 1372 (1977) ............................. 18 Citibank, NA v. Peterson, No. 53747-8-II, 2021 Wash. App. LEXIS 516 (Wash. Ct. App. Mar. 9, 2021) ........................................................... 19 Deutsche Bank Nat’l Tr. Co. v. Moss, 99 A.3d 226 (Del. 2014) .............................................. 20, 21 Dilibero v. Mortg. Elec. Registration Sys., 108 A.3d 1013 (R.I. 2015) .................................................. 16 Dilibero v. Mortgage Elec. Registration Sys., 108 A.3d 1013 (R.I. 2015) .................................................. 13 Dunbabin v. Brandenfels, 18 Wn. App. 9, 566 P.2d 941 (1977) .................................. 18 Edelstein v. Bank of N.Y. Mellon, 128 Nev. 505, 286 P.3d 249 (2012), ................................... 18 Laguna v. State, iv App. 56 146 Wn. App. 260 (2008) ................................................. 11 PNC Bank, Nat’l Ass’n v. Cozza, No. 80966-1-I (2021) ........................................................ 11 Redemptorist Fathers of the Wash. v. Purdy, 174 Wash. 358 (1933) ........................................................ 18 Supreme Court Opinions Prentis v. Atl. Coast Line Co., 211 U.S. 210 (1908) ............................................................. 8 Rippo v. Baker, 137 S. Ct. 905, 197 L. Ed. 2d 167 (2017) ............................ 26 United States v. Sineneng-Smith, 140 S. Ct. 1575, 206 L. Ed. 2d 866 (2020) .......................... 8 Williams v. Pennsylvania, 579 U.S. 1, 136 S. Ct. 1899, 195 L. Ed. 2d 132 (2016) ......... 26 U.S. Constitution U.S. Const. art. VI ................................................................ 16 Federal Court Opinions Cain v. White, 937 F.3d 446 (5th Cir. 2019) ............................................. 25 Caliste v. Cantrell, 937 F.3d 525 (5th Cir. 2019) .............................................. 25 State Constitution Wash. Const. art. VI, § 7 v App. 57 .......................................................................................... 26 State Statutes Chapter 64.12 RCW .............................................................. 16 RCW 62 A. 3-308(a). ............................................................. 19 RCW 2.56.030 ...................................................................... 26 Restatement of the Law Restatement (Third) of Prop.: Mortgages § 5.4 (1997) .......... 16 Other CR 56 ...................................................................................... 8 vi App. 58 I. Designation of Persons Filing this Motion Christopher Larson and Angela Larson were the applicants in the Torrens Act registration proceedings filed with the Snohomish County Superior Court on June 5, 2018. The Larsons are the appellants in the Appeal related to application proceedings, which is docketed here as Appeal No. 81874-1. The Torrens Application Appeal (Torrens Appeal) referenced above is linked with the Larson’s Appeal of their case against the Public and Private Defendants in Larsons v. Snohomish County, Appeal No. 80968-7-1. This second case against Snohomish County, its Superior Court judges, and others was originally brought in the Skagit County Superior Court to require public official Defendants to comply with their duties to establish a working land registration system in Snohomish County. This second case also sought to recover damages against several Private Defendants, who were alleged to have misappropriated the Larsons’ loan from the Larson’s original lender’s (i.e., New Century’s) bankruptcy proceedings. The Larsons were the Plaintiffs in this second court action that was eventually transferred to Snohomish County, so that the Snohomish County Superior Court could adjudicate it. The Larsons are the Appellants in that Appeal, i.e., Appeal No. 81874-1, which was decided by the superior court first and provided the 1 App. 59 basis for the Snohomish County Superior Court’s resolution of the Torrens application proceedings. Respectfully, the Larsons move for the relief set forth in Section II with regard to the Snohomish County case and Appeal. Accordingly, all references to Clerk’s Papers (CP) are to those in the Snohomish County Appeal, No. 81874-1. II. Relief Requested Christopher and Angela Larson request this Panel reconsider its decision: 1) by changing the word “alleged” to “testified” in this Panel’s assertion at page 4 of its decision that “[t]he Larsons allege that New Century declared bankruptcy in April 2007 ….”; 2) by acknowledging that CR 56’s absence of material fact standard applies to more than just the Larsons’ CPA causes of action; 3) by changing the Panel’s finding/conclusions that there are no material factual issues which preclude granting summary judgment to the Defendants and instead holding that material questions of fact exist which preclude granting summary judgment, including without limitation questions of material fact with regard to who presently owns Larsons’ loan and each of its component agreements; 2 App. 60 4) to address the presentations of the parties regarding those judicial neutrality arguments advanced by the Larsons relating to Judge Svaren, and Defendant Snohomish County Clerk who, as a Defendant, appears to have manipulated those court records she allowed to be filed with the Snohomish County Superior Court arguably for purposes of achieving a judicial result in favor of judicial employees. III. Reference to Pertinent Parts of the Record This Motion for Reconsideration is based mostly on that evidentiary material filed with the Court in support of the July 23, 2019, and August 13, 2019, Motions for Summary Judgment, which did not get decided until much later because all the judicial officers in Snohomish County recused themselves from adjudicating the matter. The first Motion for Summary Judgment was brought on July 23, 2019, by several Private Defendants, namely Deutsche Bank as Trustee (hereafter “Deutsche Bank”) for the Morgan Stanley HE 7 Trust (hereafter “Morgan Stanley Trust”), Select Portfolio Servicing, Inc. (hereafter “SPS”) that Trust’s servicer and Mortgage Electronic Recording System, Inc. (hereafter “MERS”) the entity agreed the Larsons’ agreed would be the legal owner of the Deed of Trust). Private Defendant Quality Loan Service Corporation of Washington (hereafter Quality) also 3 App. 61 filed its own Motion for Summary Judgment and joined in the other Private Defendants motion . CP 537-551. The factual material that was offered as evidence in support of Private Defendants’ Motions for Summary Judgment pursuant to CR 56 included only the Declarations of Daniel Maynes (CP 3134–40), attorney Jeffrey Courser (CP 3101–33); and attorney Robert McDonald (CP 456-536) The Larsons submitted far more evidentiary materials opposing those Motions for Summary Judgment, including without limitation: The Declarations of Angela Larson, CP 1270–1416 and 126–136, Declaration of Micah J. Anderson, CP 807–98, Declaration Scott Stafne, CP 1440–51, The Declaration of Donovan McDermott, CP 989-1171,The deposition of Daniel Maynes impeaching the declaration of Daniel Maynes, CP 14171429; Three depositions of Jeff Stenmen, the CEO of Quality; The deposition of the Honorable Monty Cobb, Superior Court Judge of Mason County, and the deposition of Richard Beresford, who was at that time the Title Examiner for King and Pierce Counties in Washington State. Additionally, the Larsons submitted the Declaration of Joseph M. Vincent, the Director of Regulatory and Legal Affairs at the Washington Department of Financial Institutions, who testified with regard to the meaning of the Agreed Order to Cease and Desist entered into between his agency and the Larsons’ lender. 4 App. 62 Unfortunately, the Larsons did not become aware that Mr. Vincent’s declaration had not been filed by the Defendant Snohomish County Clerk in the Snohomish County Superior Court file until counsel for the Larsons and his staff began preparation of their Clerk’s Papers for purposes of the Snohomish County Appeal. These problems led to motions supported by evidentiary submissions requesting relief from this Court which challenged the integrity of the judicial process below. The Larsons also rely on those motions requesting relief from this Court with regard to the irregularities in the record below, and the evidence offered in support of such motions, as well their adversaries’ responses to such motions and evidence, and the Larsons’ replies as further evidence supporting this Motion for Reconsideration. The Motions and evidence before this Court which the Larsons request this Court consider when ruling on this Motion to Reconsider includes: Motion to Require Clerical personnel to comply with RAP 9.6 filed on March 13, 2020, in Appeal 80968-7; Declarations of Scott Stafne and LeeAnn Halpin in Support of Motion to Require Clerical Personnel to Comply with RAP 9.6 also filed on March 13, 2020 in Appeal 80968-7; Snohomish County’s Response to Larsons’ Motion Requiring Defendant/Appellee Clerk to Comply with RAP 9.6 filed on April 3, 2020, in Appeal 80968-7; Declaration of Scott E. Stafne in Support of Appellants’ Motion to File Reply Brief to 5 App. 63 (1) Answering Brief of Deutsche Bank, SPS, MERS, Snohomish County, its Officials and Judges, and Quality Loan; and (2) Answering Brief of Washington State Defendants, Governor Jay Inslee, and Attorney General Bob Ferguson filed on December 20, 2020, in linked Appeal 80968-7. IV. Statement of the Grounds for Relief Sought and Supporting Argument A. The Evidence before the Court was disputed and does not support the grant of a summary judgment 1) Larsons submitted evidence that New Century went into bankruptcy. The purpose of summary judgment “is not to cut litigants off from their right of trial by jury if they really have evidence which they will offer on a trial, it is to carefully test this out, in advance of trial by inquiring and determining whether such evidence exists.” Keck v. Collins, 184 Wn.2d 358, 369, 357 P.3d 1080, 1085 (2015) (quoting Preston v. Duncan, 55 Wn.2d 678, 683, 349 P.2d 605 (1960) (quoting Whitaker v. Coleman, 115 F.2d 305, 307 (5th Cir. 1940)). The Larsons submitted evidence of New Century’s bankruptcy which included Angela Larson’s testimony to this effect (CP 1274) as well as argument containing numerous court decisions discussing this bankruptcy in the context of other homeowners’ claims MERS had no authority to assign New Century 6 App. 64 loans after the revocation of its agency relationship with New Century by the bankruptcy court. See CP 4001–08 (Larsons’ Complaint, ¶¶ 3.43–3.64); CP 1193–1199 (Larsons’ Opposition to Summary Judgment). Cf. OB in Snohomish County Appeal, 10–13; OB in Torrens Appeal at 23 It is the Larsons’ position that no reasonably, neutral judge, i.e., trial or appellate, could take the position that there are not material questions of fact with regard to whether the bankruptcy occurred and MERS had the agency authority in 2010 to assign the Deed of Trust to Deutsche Bank as Trustee for the 2007 Morgan Stanley Trust after it had allegedly been sold to a different 2006 Trust. And in this regard the Larsons would note that the Private Defendants had the burden of proof on this issue in order to prove their relationship to the loan. Accordingly, the Larsons respectfully request this Panel clarify that New Century’s bankruptcy is shown by evidence so that this fact can be considered pursuant to the material fact standard applicable to summary judgments with regard to the specific legal theories advanced by the Larsons, including specifically without limitation (1) the issue as to whether the Larsons’ loan was funded and, if so, by whom?; and (b) whether MERS had the legal authority to transfer anything related to Larsons’ loan to Deutsche Bank after its agency relationship with New Century was terminated? See also infra. 7 App. 65 2) The Panel’s decision erroneously implies the absence of material fact standard applies only to the CPA claims At pages 27–34 of its decision this Court implies that Rule 56’s absence of material fact standard applies only to their CPA claims because it nowhere else applies that standard to the other legal issues raised by the parties, particularly the Larsons. App. 27–34. This is important because the judicial branch of government is obligated to exercise judicial power between litigants in such a manner as to apply those legal principles advocated by the parties to those facts found to be true through appropriate factfinding procedures. See e.g., Prentis v. Atl. Coast Line Co., 211 U.S. 210, 226 (1908)(“A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end.” Id. at 226). (Emphasis Supplied). This purpose cannot be achieved unless judges make clear that the facts they have found to exist, i.e., about which there are no material disputes, apply to all those legal theories which the adversarial parties present for adjudication. See United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020) 3) The disputed facts of this case require a trial CR 56 (c) provides summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 8 App. 66 show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Unfortunately, this Panel makes various factual claims in its decision but does not provide any reference to those parts of the record, i.e., the Clerk Papers, containing that evidence which supports its factual findings. See e.g., App. 27–8. The only evidence in the record below specifically relied upon by the Private Defendants to support the summary judgment granted by Judge Svaren in the Snohomish case and on Appeal are, as stated previously, the Declarations of Jeffrey Courser, 3101–33, and Daniel Maynes, CP 3134–3229. The Larsons, on the other hand, submitted a massive amount of evidence which this Court’s decision indicates the Panel did not consider because this evidence appears to have been ignored. This Panel’s factual findings seem to be based solely on the declaration of Daniel Maynes, which appears at CP 3134–40. In his declaration Maynes claims he is an “officer” for SPS, the servicer for Deutsche Bank, the Trustee of the Morgan Stanley Trust. CP 3134, ¶ 1. But Maynes testified at his deposition that he really is just a “problem resolution supervisor” who functions as a “document control officer” for about an hour a day when he signs declarations prepared by SPS’ attorneys for use as evidence in prosecuting foreclosure related cases, like this one. See e.g., CP 9 App. 67 1419:6:1–10:6; 1421:16:7–17:16; 1425:30:1–33:4. The Larsons assert that Maynes’ testimony that he is an officer for SPS is misleading because the dictionary definition of “officer” means: “one who holds an office of trust, authority, or command // the officers of the bank; //chief executive officer” See Merriam Webster Online Dictionary. 1 A reasonable juror could well question the rest of Maynes testimony after learning that he (and the SPS attorneys who wrote his declaration) are stretching the truth by claiming in his declaration that he is an officer within the generally accepted meaning of that word. At his deposition Maynes testified that the only documents he reviews for purposes of signing such declarations are those documents SPS’ attorneys provide to him as support for those conclusions the attorneys wrote and ask Maynes to sign. CP 1426:34:19–1427:38.8. Cf. 1423:23:8–24:20 (Maynes doesn’t compare business records attorney provides with his declaration to actual records.) Significantly, Maynes also testified at his deposition that he was not aware of any rules or procedures that he must follow when signing such documents, but seemed pretty sure SPS had some. SPS. CP 1419:8.9–25 . Last Accessed December 26, 2021, at https://www.merriamwebster.com/dictionary/officer 1 10 App. 68 Why did the judges of this Court not acknowledge—or at least consider—whether this deposition impeaches Mayne’s testimony for purposes of creating an issue of fact precluding summary judgment? Certainly, applicable law suggests they should have. See e.g., Balise v. Underwood, 62 Wn.2d 195, 200 (1963); Laguna v. Dep’t of Transp., 146 Wn. App. 260 (2008)(an issue of credibility is present if the party opposing the summary judgment comes forward with evidence which contradicts or impeaches the movant’s evidence on a material issue. Id. at 266-267); Cf. PNC Bank, Nat’l Ass’n v. Cozza, No. 80966-1-I, 2021 Wash. App. LEXIS 547, at *12 (2021)(Refusing to hold credibility of declarant creates an issue of fact regarding foreclosure where credibility does not call into question holdership of the original note.) But as is shown here and below the credibility of Maynes testimony is directly applicable to this important issue because he admits— contrary to his declaration—that he actually does not know whether the original Note was sent to Stoel Rives, SPS’s attorneys. 4) Questions of fact exist with regard to who purchased Larsons’ Note and Deed of Trust from New Century The Larsons provided evidence from New Century’s bankruptcy proceedings that their loan was not sold to the 2007 Morgan Stanley Trust. See Larson Declaration, CP 1270-1416, ¶¶ 8–22 (CP 1272–1277), and Exhibits 6 & 7 (CP 1342–1349). 11 App. 69 Exhibit 6 indicates the Larson loan was a HUD Loan, i.e., MIN #100488910099127945, which was sold to a November 2006 pool in which JP Morgan Chase acted as Trustee. See also CP 3117, response number 1. Exhibit seven is a copy of the original Order of the United States District Bankruptcy Court for the District of Delaware titled: “Order Pursuant to Sections 356 and 554 of the Bankruptcy Code (A) Authorizing and approving the rejection of certain unexpired leases of nonresidential property and (B) Authorizing and approving procedures for the rejection of executory contracts and unexpired leases of person and nonresidential real property.” Maynes testified that he had no evidence to dispute the factual assertion that Larsons loan was sold to Chase as Trustee for a 2006 Trust. CP 1420:11:22–12:4. And Maynes also testified that he did not know whether under the circumstances of Chase originally obtaining the Larsons’ mortgage loan this transaction could have been rescinded. CP 1421:15:22–16:1. This evidence creates a material question of fact because it is inconsistent with Deutsche Bank’s story that the 2007 Morgan Stanley Trust purchased the loan from New Century before New Century’s bankruptcy and now still holds the Larsons’ promissory Note and Deed of Trust agreements as a result of that transaction. Thus, there is at the outset an issue of material fact 12 App. 70 regarding whether the 2007 Morgan Stanley Trust or the 2006 Trust with Chase Bank as its Trustee purchased the Larsons’ October 2006 loan (i.e., Note and Deed of Trust agreements) from New Century before its bankruptcy. 5) New Century’s 2007 Bankruptcy creates both material issues of fact and law No party has ever disputed that New Century filed for bankruptcy in April 2007. It is less clear, however, whether the Larsons’ loan was sold before then. And, if so, to whom? See supra. If the loan remained in the bankruptcy estate, a question of law is presented as to whether MERS could have assigned its interest in that loan in 2010 to Deutsche Bank as Trustee for the 2007 Morgan Stanley Trust after its agency relationship was terminated by the bankruptcy court. See e.g., Dilibero v. Mortg. Elec. Registration Sys., 108 A.3d 1013 (R.I. 2015)(specifically holding MERS could not foreclose after its agency relationship with New Century lending entities was terminated in bankruptcy. Id. at 1017). See also CP 4001–08 (Larsons’ Complaint, ¶¶ 3.43– 3.64); and Opposition to Summary Judgment, CP 1193–1199 (Larsons’ Opposition to Summary Judgment) citing to this and other cases for this legal proposition. This Court appears to have attempted to avoid deciding which of the above three factual issues occurred in this case, i.e., 13 App. 71 whether the loan was purchased by either the 2006 or 2007 Trust or went into the bankruptcy estate by holding this doesn’t matter because the deed of trust always follows the note. But, of course, that assertion doesn’t help these specific Private Defendants if the Larsons loan, i.e., the Note and mortgage, was purchased by the 2006 Trust because then that Trust, not 2007 Morgan Stanley Trust, would have purchased both agreements and presumably hold the actual Note. If, on the other hand, New Century still held the loan when it went into bankruptcy there is a legal issue under federal law (which has not been addressed by either the superior court or this Panel) as to whether MERS could have assigned the loan to Deutsche Bank as Trustee for the 2007 Morgan Stanley Trust. Thus, among other things, it is the Larsons position that Deutsche Bank has not demonstrated that it has standing to foreclose on the Note for the 2007 Morgan Stanley Trust because there is a factual dispute with regard to whether the 2006 Trust or the 2007 Morgan Stanley Trust is the actual owner/holder of the loan. Furthermore, the Larsons assert there is also a factual issue as to whether the Larsons’ loan was still owned by New Century when it went into bankruptcy. If so, then there are both legal and disputed factual issues regarding MERS authority to have assigned the Larsons loan to the Morgan Stanley Trust in 2010. 14 App. 72 6) There is a question of fact with regard to whether Private Defendants hold the original, authentic Note When asked about his declaration testimony that “[t]he original Note is currently held in the custody of Stoel Rives, counsel for SPS and the Trust, . . . ,” CP 3135, ¶ 8, Maynes admitted that he had never seen the original Note and had no personal knowledge as to whether the Note that was sent to Stoel Rives was the authentic original Note. CP 1420:11:2–12:4; 1423:25:22–1425:30:1. Further, when asked what business record suggested to him that the original, authentic Note had been sent to Stoel Rives, Maynes testified under oath that he did not know. CP 1422:21:8–19. 1423:25:22–1425:30:1. 1421:15:22–16:6. Thus, there appears to be no evidentiary basis in the record for this Panel’s finding that it is undisputed that Private Defendants, or any one of them, are the holders of the original promissory Note. See also CP 3120–3121, responses to interrogatories 4 & 5. Maynes’ admissions during his deposition about his lack of knowledge (based on either personal knowledge or the business records he reviewed) as to whether Private Defendants actually hold the original authentic Note is significant in light of that other evidence which poses as a fact question whether the Larsons’ loan was sold to a different Trust or whether it became a part of New Century’s bankruptcy estate. 15 App. 73 If the loan became a part of New Century’s bankruptcy estate, then there are both questions of law and fact as to whether MERS was precluded by federal bankruptcy law from acting as New Century’ agent in assigning the Larsons’ Note and Mortgage to Deutsche Bank as Trustee for the Morgan Stanley Trust. See e.g., Dilibero v. Mortg. Elec. Registration Sys., 108 A.3d 1013 (R.I. 2015). Indeed, it is the Larsons’ position that because MERS’ agency with New Century was terminated by the federal bankruptcy court, this Court has no authority under the Supremacy Clause of Article 6 of the United States Constitution to reinstate that agency relationship so as to allow MERS to assign the loan as New Century’ agent in 2010, when there is evidence that the Larsons’ loan was already then owned by the 2006 Trust. Furthermore, the Larsons assert and will argue as a basis for discretionary review that this Court’s abrogation of the holding in Bain v. Metro. Mortg. Grp., Inc., 175 Wn.2d 83, 111–113 (2012) that MERS must be an agent for the lender to act as the DTA beneficiary under Washington’s Deed of Trust Act, Ch. 64.12 RCW, Bain, at 175 Wn. 2d 106–197, would require a factual finding that MERS and New Century did not intend to split the Note from the mortgage. See e.g., Restat 3d of Property: Mortgages, § 5.4 (a), (b), (c) and Comment E to the Restatement. But certainly, there are material factual questions about whether such 16 App. 74 intent existed with regard to the Larsons’ 2006 loan agreements and others like them executed before Bain was decided. Indeed, MERS argued in Bain that MERS and Lenders intent in the deed of trust language the Larsons agreed to was to split the Note and Mortgage so as to be able to intentionally separate the agreements. See OB, Torrens Appeal, 22–23. See Bain 175 Wn. 2d at 83 (“As MERS itself acknowledges, its system changes “a traditional three party deed of trust [into] a four party deed of trust, wherein MERS would act as the contractually agreed upon beneficiary for the lender and its successors and assigns. MERS Resp. Br. at 20” (cleaned up) See also Bain, 175 Wn. 2d. at 99 (“MERS argues that under a more expansive view of the act, it meets the statutory definition of ‘beneficiary.’ . . . . It contends that the parties were legally entitled to contract as they see fit, and that the ‘the parties contractually agreed that the beneficiary under the Deed of Trust was MERS and it is in that context that the Court should apply the statute.”) And the agreement the Larsons signed clearly states MERS, not the lender, holds legal title to the Deed of Trust, see CP 3151, thereby indicating an intent to split ownership of the Note and Mortgage. See also Robinson v. Am. Home Mortg. Servicing, Inc. (In re Mortg. Elec. Registration Sys.), 754 F.3d 772, (9th Cir. 2014) (Ninth Circuit Panel concluded a split in the note and mortgage likely occurred when MERS was designated as a 17 App. 75 beneficiary in the Deed of Trust. Id. at 786. See also Edelstein v. Bank of N.Y. Mellon, 128 Nev. 505, 286 P.3d 249 (2012), which held that “[d]esignating MERS as the beneficiary does . . . effectively ‘split’ the note and the deed of trust at inception because . . . an entity separate from the original note holder . . . is listed as the beneficiary (MERS) . . . .” Id. at 259. This Panels’ attempt to provide MERS and its successors with an equitable trust remedy under these circumstances based on summary judgment standards suffers from the same type of judicial overreach because the law is that this Court must find that “the intent of the parties to create an equitable mortgage as a lien on real property is unequivocal.” See e.g., Redemptorist Fathers of the Wash. v. Purdy, 174 Wash. 358, 361 (1933); Beaulaurier v. Buchanan, 16 Wn. App. 887, 888-89 (1977); Cf. Dunbabin v. Brandenfels, 18 Wn. App. 9, 12-13 (1977). This Court cannot make such a finding here because there is no evidence in the record to show that the Larsons’ intended to allow anyone MERS assigned its intentionally separated mortgage to the right to foreclose upon their home in violation of the law which existed in Washington at the time they took out their loan in 2006. In fact, the mortgage they signed states just the opposite; namely that its terms should be interpreted pursuant to applicable law. See CP 3150, Deed of Trust, ¶ J definition of “Applicable Law.” See also CP 3166, Adjustable-Rate Rider, ¶ 11. 18 App. 76 7) There are other questions of fact with regard to whether the Note in Private Defendants’ possession is an authentic wet ink original Other legitimate factual questions as to the Note’s authenticity are provided by the Larsons responses to interrogatories 4 & 5 at CP 3121–25. Additionally, the Larsons elected to require Deutsche Bank to prove the authenticity of the Note and the signatures thereon pursuant to RCW 62 A. 3-308(a). See Citibank, NA v. Peterson, No. 53747-8-II, 2021 Wash. App. LEXIS 516, at *8–11(2021) for an example as to how Division Two recently applied this statutory provision in a similar case. Although this Court states there is no evidence that the Note was not signed on October 9, 2006, this is not true. Most, in fact virtually all, documents related to this mortgage recite that the Note and Mortgage were both executed on October 6, 2006. See e.g., Note, CP 3142; Deed of Trust, CP 3237; Adjustable-Rate Rider (which amends the terms of the Deed of Trust), CP 3253; Prepayment Rider Adjustable-Rate Loan, CP 3256, Notice of Default, CP 3261; Appointment of Successor Trustee, CP 3270; Notice of Trustee Sale, CP 3273; Trustee’s Deed Upon Sale, 3277, and Notice of Trustee Sale, CP 3284. In order to arrive at the conclusion it does, i.e., that the Note was executed on October 9, 2006, rather than October 6, 2006, this Panel has to assume facts that are not in evidence so as 19 App. 77 to create a basis for invoking a presumption as to when the documents were signed without ever explaining why this is appropriate. Other courts that have found themselves with inappropriate summary judgment records in cases like this one have decided the trial court should start over. Cf. Deutsche Bank Nat’l Tr. Co. v. Moss, 99 A.3d 226 (Del. 2014)(Delaware Supreme Court vacates summary judgment based on confusing record and trial court’s failure to address the legal issues asserted by Deutsche Bank in case involving this same 2007 Morgan Stanley Trust.) Perhaps the same course of action should be taken here. 8) Private Defendants have not proved for purposes of summary judgment that the loan was funded. Private Defendants propounded interrogatories to the Larsons which required: “[i]dentify the facts supporting your assertion . . . that the loan was never funded.” CP 3120. The Larsons responded by referencing facts alleged in their Complaint and other interrogatory responses. The Larsons then stated: Evidence shows New Century did not have the money to pay loans during applicable time periods. MERS practice at this time was not to fund mortgages. Further, the practice at that time was to treat the note and deed of trust as separate instruments each having its own value and to transfer them separately because the note and deed of trust were split. . . . 20 App. 78 Id. at Response to No. 6. Not content to rely on these assertions for opposing summary judgment, the Larsons submitted the Declaration of Joseph M. Vincent, the Director of Regulatory and Legal Affairs, i.e., Legal Counsel, for the Washington State Department of Financial Institutions (DFI) to further document these assertions. After laying an appropriate legal foundation, Vincent produced a copy of the March 2007 Cease and Desist Order New Century signed with the DFI. App. 47 ¶ 3 and Order, at App.49–55. As can be seen the Order attached as an exhibit to Vincent’s declaration New Century stipulated that it had closed unfunded loans in Washington State. Specifically, New Century agreed: 5. New Century . . . does not have sufficient warehouse lines of credit to fund loans that Respondent closed or intended to close with Washington Consumers. 6. The stock of New Century . . . has dropped considerably and all trading of the stock has been suspended by the New York Stock Exchange by the New York Stock Exchange. 7. Respondents presently have closed and unfunded loans outstanding for Washington Consumers. 8. Respondents are in such financial condition that they cannot continue in business in Washington 21 App. 79 without there being a substantial likelihood that Washington consumers will be injured. Although Vincent’s declaration was submitted as evidence to the Clerk of the Snohomish Superior Court (who was a named Defendant in Snohomish County case and is also a named appellee in this Appeal) she or members of her staff did not file that pleading as part of the superior court’s record. The Larsons did not find out about this until their legal counsel began preparation of the Clerk’s Papers to this Court in the Snohomish County Appeal. After reviewing the record more closely the Larsons’ counsel also identified several other filing problems, indicating the Clerk may have handled the Larsons’ opposition filings to the Summary Judgment in an inappropriate and irregular manner. As was discussed previously those irregularities were documented in this Court by the motions and other material filed in this Court which is referenced in Section III for consideration as evidence pursuant to this Motion for Reconsideration. The Larsons would also ask this Court to take judicial notice pursuant to ER 902 that other government websites during this same period of time also document New Century did not have money to fund many of its loans, including those occurring during the last three-quarters of 2006. See e.g. In the Matter of the California Corporations Commissioner v. New Century Mortgage 22 App. 80 Corp., File Nos.: 603-9136 et al. 2 (March 16, 2011); Massachusetts Commissioner of Banks, Findings of Fact and Temporary Order to Desist, Docket No. 2007-011 3 (March 13, 2011); New Jersey Depart of Banking & Insurance Issues Cease and Desist Order (March 14, 2007). Moreover, these enforcement orders note that several of New Century’s lenders, including Deutsche Bank were asking for their money back from loans they had previously funded for New Century. This is corroborated by news articles during this same time period. See e.g., MarketWatch “Deutsche Bank increases pressure on New Century; Bank wants subprime lender to repurchase $900 million of loans more quickly.” (March 19, 2007) 4 9) There is a question of fact with regard to whether New Century breached their agreements with the Larsons by refusing to accept their mortgage payments. Angela Larson testified that she and her husband attempted to make payments to New Century pursuant to their 2 Last accessed on December 27, 2021, at https://dfpi.ca.gov/wp-content/uploads/sites/337/2013/04/newcentury_dr.pdf 3 Last accessed on December 27, 2021, at: https://www.mass.gov/temporary-order-to-cease-and-desist/new-century-mortgage-corporation 4 This article was last accessed on December 27, 2020, at https://www.marketwatch.com/story/deutsche-bank-increases-pressure-on-new-century 23 App. 81 Note and Mortgage agreements, but that their payments were not accepted. CP 1272, ¶ 8. Both the Note, see CP 3144–3145 at ¶¶ 4–7, and the mortgage, see CP 3152–54 at ¶¶ 1–4, obligated New Century to accept these payments. In their opposition to Private Defendants’ Motion for Summary Judgment the Larsons asserted they moved out of their home for seven years because they were not allowed to make payments. CP 1194. The only reason they moved back after waiting seven years to be foreclosed upon is they remained liable to their government, neighborhood, and creditors for the maintenance of their home. CP 1197. It is difficult to understand why judges cannot see this as a problem for the Larsons given that their debt increased exponentially with regard to each payment they were not allowed to pay. But in any event the Larsons’ allegations in this regard are undisputed and it should be up to a trier of facts to decide their merit. B. This Panel should reconsider its judicial neutrality analysis This Court misstates the Larsons’ judicial neutrality arguments to the Skagit Court Superior Court judges as being based on Washington employee’s retirement system, when in fact it was based on the fact that both Snohomish County and Skagit County judges had purposely chosen not to implement a Torrens registration system for their respective counties. See CP 3468– 24 App. 82 3477; Anderson declaration, ¶¶22–29. The Larsons respectfully request this Panel correct this error. The Larsons believe this Panel has similarly glossed over their Federal Separation of Powers and Fourteenth Amendment Due Process arguments. In their briefing to this Panel and the judges below in these now linked cases the Larsons urged Cain v. White, 937 F.3d 446 (5th Cir. 2019) and Caliste v. Cantrell, 937 F.3d 525 (5th Cir. 2019) as authority for the proposition that a state’s political branches cannot enact laws which compromise or appear to compromise state judges’ impartiality. See e.g., OB Snohomish County Appeal, 43–46; OB Torrens Appeal, 38–40. The Larsons request this Court address these arguments on reconsideration. And they would like to point out to this Court that the conduct by the Clerk in this case supports their claims that the integrity of the entire judicial department—judicial officers and judicial employees alike—appears to have been compromised here. For, if parties, like the Larsons are precluded from making a record of the evidence they present to Washington courts, then many people will lose hope that justice is achievable here. The Larsons would also appreciate this Court addressing their claim that Judge Svaren’s continuing refusal to recuse himself, first, without explanation, and then because he subjectively believed “I don’t have a dog in that fight,” does not comply with 25 App. 83 Supreme Court precedent requiring judges apply an objective analysis to this issue. The operative inquiry the judge must make being: whether, “considering all the circumstances alleged,” Rippo, 580 U. S. Baker, 197 L. Ed. 2d 167 at 168, “the average judge in [the same] position is likely to be neutral, or whether there is an unconstitutional potential for bias,” Williams v. Pennsylvania, 195 L. Ed. 2d 132 at 134 (2016) This Court of Appeals appears to excuse Judge Svaren not applying an objective analysis to the recusal request against him based on its conclusion the “rule of necessity” applies in this case. The Larsons position is that at a minimum a judicial officer being challenged for a conflict should be required to apply an objective test to the conflict alleged so that such conflict is identified for the parties and any reviewing courts. The Larsons also respectfully request this Panel reconsider whether the “rule of Necessity” applies in Washington State. See App. 53. Both Article IV, section 7 of our Constitution, and RCW 2.56.030 provide for better and more superior relief, which is the appointment of a pro tem judge who has no conflict. V. Conclusion The Larsons humbly and respectfully ask this Court reconsider its application of the absence of fact component of CR 56 and those aspects of its judicial neutrality rulings as are set forth herein. 26 App. 84 Certificate of Compliance I certify the foregoing Motion for Reconsideration was produced by using word processing software and includes 5,840 words, which is in compliance with RAP 18.17(8). Respectfully submitted by: x s/ Scott E. Stafne x Scott E. Stafne, WSBA No. 6964 STAFNE LAW Advocacy & Consulting 239 N. Olympic Avenue Arlington, WA 98223 360.403.8700 scott@stafnelaw.com Attorney for Petitioners-Appellants Certificate of Service I hereby certify that on this day, December 27, 2021, I filed the Appellants’ Motion for Reconsideration, with this Court’s electronic case filing system which served the document to the parties of record. Dated on this 27th day of December 2021, in Mount Vernon, Washington. By: /s/ LeeAnn Halpin x LeeAnn Halpin, Paralegal 27 App. 85 Table of Appendices Appendix No. Title Page No. Appendix 1 Order pp. 1–45 Appendix 2 Declaration of Joseph Vincent pp. 46–70 28 App. 86 l 2 3 4 5 6 STATE OF WASHINGTON SKAGIT COUNTY SUPERIOR COURT 7 8 9 CHRJSTOPHER E. LARSON, a manied man as his separate estate, and ANGELA LARSON, a married woman 10 NO. 18-2-01234-29 DECLARATION VINCENT OF JOSEPH M. Plaintiffs, 11 12 V, SNOHOMISH COUNTY, et al., 13 Defendants. 14 I, JOSEPH M. VINCENT, am over the age of eighteen years old. I make the following 15 16 declaration based on my personal lmowledge and I am competent to testify to the facts set fmth herein. 17 18 19 20 21 22 23 24 25 26 1. I am the Director of Regulatory and Legal Affairs at the Washington State Department of Financial Institutions. I have been in this position since March 3, 2003, Originally, my official title was "Legal Counsel," and I was addressed as "General Counsel." However, my position and duties have always been the same as my present title of Director of Regulatory and Legal Affairs. 2. In my role as the Director of Regulatory and Legal Affairs, I serve as a member of the Department's Executive Team and pa1t of my responsibilities include providing counsel, policy, coordination and oversight, and review and recommendation related to overall administrative enforcement and procedure as to the Division of Banks and Division of Credit Unions; reviewing and drafting of and making of recommendations in relation to the Agency · DECLARATION OF JOSEPH M. VINCENT · l · App. 87 Error! AntoTnt entry not tleJi11ed, Director (in the Director's capacity as Presiding Officer) issuing uncontested :final default orders, 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 orders on petition for reconsideration of :final orders, and :final orders on petition for review of Initial Orders from the Office of Administrative Hearings; certifying administrative records on judicial appeal; drafting and reviewing general administrative policies and prncedures; and acting as liaison to the Attorney General's Office. 3. In March 2007, DPT entered into an Agreed Order to Cease and Desist with New Century Mortgage Corp., New Century Mortgage Ventures, LLC, New Centul'y Credit Coq1., and Home 123 Corp. (collectively, "New Century"). A copy of the Agreed Order is available on DFI's website and a tme and correct copy is attached as Exhibit 1. 4. The records retention period for the files relating to the investigation and enforcement action against New Century is six (6) years. After six years, the files can be destroyed. Administi·ative orders are typically made available on DFI's website and transferred to the Washington State Archives for appraisal and selective retention. A true and correct copy of DFI's records retention schedule, as available from the Washington State Archives website, https://www.sos.wa.gov/archives/recordsmanagement/state-agencies-records-retentionschedules.aspx, is attached as Exhibit 2. 5. The records retention period for the New Century investigation and enforcement files expired in 2013. A copy of the Agreed Order is available on DFl's website; however, the files were destroyed in 2016, pursuant to the l'ecords retention schedule. 6. The enforcement action against New Century occmTed in 2007. There is no one at DFI with independent knowledge of the underlying facts of the investigation or enforcement action, and because the files were destrnyed in 2016, research would not reveal any facts outside of those stated in the Agreed Order. 7. The stipulated facts in the Agreed Order are labeled as such because the parties likely agreed that the facts, as stated, are true. While I do not have any independet1t knowledge of the .stipulated facts, I believe they are likely accurate, as it would be DFI's general course to ' DECLARATION OF JOSEPH M.VINCENT ·· 2 · .. ·· ... App. 88 Error!AutoTcx.1 cu try 11ot dcJincll. I 2 3 4 5 6 1 g 9 10 11 incJ'ucje iµ an Agree!{ Orde1· fads cjesignat,ed as ''~tipulat¢d facts'' when. itbelfoy~ those facts to .be. true anci the othel' party agte.es to lrtdude them. 8. Because of my role and the contingentprospe~t- of any eµforcem,mt matter fron:1. the Division ofConsµtnet ;'>ervices (in¢1uding; the mattetresulting jt\ tip Ag;teetl Order identifie(i in pt,.rag;,·aph 3 above) coiri11ig up on pdhfon fol' 1'eview fo . th~.Ai!;ericy Director, I had no direct involvement in or ex pane communication in reh1tfon fo tµe prose9l!t\9n ,of any erµo1'ce1neµt matters by theJ:liyjsion ofCQ!JS]iPJer. Services, inc)1idJng,withou,( li;(n[tati/in, the hiatt1'i: i'esulti.ng intlie Agreed Ordetidentified in pah1gt'itjJhJ .above, I declru·e under penalty ofpetj'ury under ihe laws ,of the State of Washington tha.t the foregoJng is true and cqn-eqt, . . . . -Ii . Signed iltTutnwate1·, Washington, i:his_RO day of'Aug11sr261·9,. 1.2 :r--,,,,· /.f. l3 d:;u~: s 14 15 l<'i i7 18 19 20 2J z;z 2:3 24 25 26 DECL,:l.RA TJQ]'/ OF JO~EP)l:MI VlNC;:fll\lT · ··~· · App. 89 Ert'ifr!.AiitOTei:fClltr)' l16f.dcfiilcif. . ) EXHIBIT 1 App. 90 STATE OF WASHINGTON DEPARTMENT OF FINANCIAL INSTITUTIONS CONSUMER SERVICES DIVISION l 2 3 4 5 6 IN THE MATTER OF DETERlvllNING Whether there has been a violation of the Consumer Loan Act of Washington by: C-07-068-07-TD0I New Century Mortgage Corp., New Century Mortgage Ventures, LLC, New C~tury Credit Corp., and Home 123 Corp., AGREED ORDER TO CEASE AND DESIST 7 Res ondents 8 9 COMES NOW 1he Director of the Washington State Department of Financial Institutions (Director), by 10 and through his designee Deborah Bortner, Division Director, Division of Consumer Services (designee), and 11 New Century Mortgage Corp., New Century Mortgage Ventures, LLC, New Century Credit Corp., and Home 12 123 Corp., (Respondents) by and through their undersigned representative(s), and agree to entry of this A~ed 13 Order to Cease and Desist pursuant to chapte1'3!.04RCW, theConsumerLoanAct(Act), andRCW 34.05,060 14 of the Administrative Procedure Act,-based on the following: AGREEMENT AND ORDER 15 16 17 18 19 A. Jurisdiction. It is AGREED that the Department has jurisdiction over the subject matter of the activities discussed herein. . B. Authority. It is AGREED that the Department has authority pursuant to RCW 31.04.093(5) to issue an order directing Respondents to: 20 I. Cease aod desist from conducting business in a manner that is injurious to the public, 21 2. Take such affirmative.action as is necessary to comply with 1he Act, and 22 3. Make restitution to any borrower or other person who is damaged as a result of a violation 23 of the Act. 24 25 AGREBD ORDER TO CEASE AND DESIST C-07--068-07-IDOJ New Centwy Mortgage Corp., New Century Mortgage Ventures, LLC, New Century Credit Corp., and Home 123 Corp. App. 91 DBPARThlENT OF FINANCIAL INSTIT1JTIONS 150 J,mel Rd SW PO Box 41200 Olympia, WA 98504-!200 0 - - - - - - - - - - - - - - - · - - - - -------·--- I . 1 ,. C. StllteJ/lents of Fact. It is AGREED !bat this Order is based on the following stipulated facts; I. 2 ' New Century Mortgage Corp. is a subsidiary of New Century Financial Corporation 3 and is located at 18400 Von Kaman Ave., Ste.1000, Irvine, CA 92612. It is licensed in Washington as a 4 consumer loan, company under license no. 17969. 2. 5 New Century Mortgage Ventures, LLC, is a subsidia,y of New Century Financial 6 Corporation and is located at 210 Commerce, Ste. 100, Irvine, CA 926\2. It is licensed in Washington as a 7 consumer loan company under license no. 27629. 3. 8 9 10 located at 18400 Von Kaman Ave., Ste. 1000, Irvine, CA 92612. It is licensed in Washington as a consumer loancompanyunderlicenseno.18429. 11 12 4. 5. 6. 19 20 21 22 . The stock of New Century Financial Corporation bas dropped considerably and all trading of the stock has been suspended by the New York Stock Exchange. ( 1. 17 18 i New Century Financial Corporation does not have sufficient warehouse lines of credit to fund loans that Respoadent's closed or intended to close with Washington Con,sumers. 15 16 Home 123 Corp. is a subsidiary of New Century Financial Corporation and is located in Irvine, CA. It was fonnerly licensed in Washington as a consumer loan company under license no. 23732. 13 14 New Century Credit Corp. is a subsidiary ofNew Century Financial Corporation and is Respondents presently have closed and unfiu)ded loans outstanding for Washlngton Consumers. 8. Respondents are in such financial condition that they ·cannot continue in business in Washington without there being a substantial likelihood that Washington Consumers will be injured. C. Consent to Be Bound By Order. It is AGREED that the parties shall be bound by the following tenns and conditions of this Order: 23 I. Respondents shall immediately cease aod desist accepting, from either consumers, mortgage 24 brokers, or other consumer lenders, any applications for residential first oi- secondary mortgage loans or home 25 AGREED ORDER TO CEASE AND DESIST C-07-068-07-TDOl 2 New·Cwtury Mortgage Corp., New Cenrury Mortgage Ventures, LLC, New Century Credit Corp., and Home 123 Corp. DEPARTMENT OF FINANCIAL INSTII1JTIDNS l50 Israel Rd SW POBox41200 Olympia, WA 98504-1200 App. 92 equity lines of credit secured by Washington real property or from Washington consumers. For the purposes of 2 - this Order, "Washington Consumers" shall include_ Washington residents and persons that have submitted 3 applications for loans which are, or are intended to be, secured by Washington real property. 2. Respondents shall immediately cease and desist from advertising its wholesale and retail 4 s bnsinesses in Washington or to Washington Consumers. 3. Respondents shall make all reasonable efforts to obtain funding for, or place with another 6 7 ' lender, loans to Washington Consumers that have closed but not yet been 1\mded. 4. Respondents shall immediately notify all Washington mortgage applicants or the mortgage 8 9 applicant's broker of the status of any applications or loans with Respondents and the likelihood of funding. 10 S. Respondents shall either (a) obtain funding for and close or (b) place with other lenders, 11 applications from Washington Consumers to whom loan commitments have been issned. Respondents shall 12 _transfer to any new lender all fees paid by consumers whose loans will be placed with other lenders. 13 6. For loan applications from Washington Consumers for which no commitment bas been 14 issued, Respondents shall either(a) obtain funding for the loans, or (b) place tlie loan applications with other IS lenders, or (c) deny the loan applications for cause. Respondents shall return all fees paid by consumers whose 16 loans are denied, Respondents shall transfer to any new lender all fees paid by consumers whose loans will be 17 placed with oilier lenders. 18 19 _7. Respondents shall seek out other lenders with whom they can place Washington Consumer loans or applications to the benefit of the Washington Consume!', 20 8. Respondents shall provide to the Department a daily list of all loans to Washington 21 Consumers that have closed but not funded or loan applications from Washington Consumers ilia! have not 22 closed. This list shall be updated as stated above until all Washington Consumers have either had their loans 23 -funded or all issues regarding Washington loan applications have been resolved. a. This list shall include, but is not limited to: 24 2S AGREED ORDER TO CEASE AND DESJST J C-07-068-07-TDOI New Century Mortgage Corp., New Century Mortgage Ventures, LLC, New Century Credit Corp., and Home 123 Corp. App. 93 DEPARlMENT OF FINANCIAL INSTITUTIONS 150 urael Rd SW POBox41200 Olympi~ WA 98504-1200 i. The names of all Washington Consumers that have closed but not 2 funded loans from Respondents or who have submitted an application to Respondents 3 that has not yet closed; 4 ii. The address and telephone numbers of the consumers listed in (i); s iii. The loan number; 6 iv. The amount of all prepaid loan fees submitted; 7 v. The amount of each loan; g vi. The current application status; 9 vii. The rate lock status; 10 viii. The actual closing dates; 11 ix. Whether the loan was a purchase or refmance; 12 x. The identification of the applicable lender with whom each loan will 13 be placed and contact information for that lender. 14 b. Any changes in the list shall be explained in writing. 15 c. The list shall be sent to James R. Brusselback, Program Manager and Enforcement 16 Cbie~ Consumer Services Division, at jbrusselback@dfi.wa.gov, by 5:00 PM PST on 17 each business day. IS 19 20 · 9. Respondents shall provide to the Department on a weekly basis a l\quidity schedule that lists the anticipated Washington loans to be closed and the anticipated funding available. 10. Respondents shall, as soon as possible, place any fees previously collected from 21 Washington Consumers relative to any first or secondary mortgage loan applications in a separate escrow 22 account maintained at a federally insured deposito1-y institution. 23 24 11. Respondents shall release any liens filed on any Washington i:eal property or filed on property owned by any Washington Consumer as a result of a residential mortgage loan closing with 25 AGREED ORDER TO CEASE AND DESIST C-07-06S-07-TDOI 4 New Century Mortgage Corp., Now Century Mortgage Ventures, LLC, New Century Credit C',orp., and Home 123 Corp. App. 94 DEPARTMENT OF FINANCIAL INSTITUTIONS 1501sne1 Rd SW PO Box 41200 Olympia, WA 98504-1200 Respondents but not being funded. In the event that the loan subsequently funds, Respondents may file a lien 2 3 agairu.'t the property at that time. 12. In the event tbat interest on a Washington residential mortgage loan closed or originated 4 by. Respondents starts on any day other than the day of funding, or if there is any change of terms from the S signed loan document, Respondents must notify the Department immediately at the contact infol"Jll'!tion 6 provided in subsection 8c. 7 8 9 IO 11 12 i 13 Respondents shall use every best effort to resolve their current inability to fund loans. D. Authorized Business. It is AGREED that nothing in this Order shall prevent Respondents from selling or assigning residential lllOrtgage loans to another entity, servicing closed mortgage loans, or engaging in other lawful activity not prohibited herein. E. Compliance with the Law •. It is AGREED that Respondent shall comply with the laws pertaining to consumer lending, including but not limited to the Consumer Loan Act (chapter 31.04 RCW) and the rules 13 ··adopted thereunder (chapter 208-620 WAe). 14 F. Non-Compliance with Orde,:-, It is AGREED that Respondent understands that failure to abide by 15 the terms and conditions of this Order may result in further legal action by the Department.- In the event of 16 such legal action, Respondent may be responsible to reimburse the Department for the cost incurred in 17 pursuing such action, including but not limited to, attorney fees. 18 19 20 G. Voluntarily Entered. It is AGREED that the undersigned Respondent has voluntarily entered into this Consent Order, which shall be effective when signed by 1he Director or the Director's designee. H. Entire Agreement, It is AGREED that this Order contains the whole agreement between the 21 parties. There are no other terms, obligations, covenants, representations, statements, conditions, or otherwise, 22 of an)' kind whatsoever conceming this Order, This Order may be amended in writing by mutual agreement by 23 the Department and Respondents. 24 25 AGREED ORDER TO CEASE AND DESIST C·01-068·07-1'll0l 5 New Century Morts•!ll' Corp., New Century Mortgage Ventures, LLC, New Century Credit Corp,, and Home 123 Corp. App. 95 DEPARTMENT OF FJNANCIAL INSTmmoNs 150 lsxael Rd SW P0Box41200 Olympi,, WA 98504-1200 l' · MAIH $-67 11: 19AM T-112 P.OZ/02 MOO iJi its emjrety llll.d tll!Jy underS!llllds an.d Jgrees to all ohhe same. L Aulh.ority lo Sign. 'R.e!lpOl\denls A OREE that die ll!lder.>igned n;presenlalive lbr eacll Respondent has · 3 4 949-743·7105 H. Qimpll!iely Read, Unde~, and Agro,(!<). .lt ili AGREED dun Respondent!! have read tms Order 1 2 FROM-NEW CENTURY l,llRTGAJ:E lhe aillborlty to bl!l.d said Respondent to ttie.·llln1lS ofi!riB Otder. s 6 N•w • ootmy . B)l: .· ·. 7 •8 Aut Ropr~sentalive DATE 3/10/07 PATE PAT.E DATE no NOT WRIT? 'BELOW rm:s LJllll;; 19. ORDER J>NTERED THIS ~ KoAY cit March, 2001. DEBOR.AH aORTNER :Oivision Director Division l\<lReia:D p .~ C-<17--<17•TOOI r<:1 CAASE /\NO DESIST 6 'Nov,·CeJl!IU;YMoitl!'lflO•Carp.,'Now Century M<»'l!l"i• V<lll'llros,LLC, NewCemuty ~dfr Corp.,'and Haine 123 C.?'1'• ofConsumer ~rvkes Pli!'ARTMENT OF l'INANCW. lNSTIIDTIONS . l<Olffll:IR!ISW PO,itox; 41200 Olymp111, WA 98.S(»--1200 . PAGE212' RC\ID AT 311612007 12:14:19 PM,acffic Dayfl,qhf Time)' SVR:DFll'XTUM0001l3 '.DNIS:7030' CSID:949 7-13 7805 'DililATION (mm,-;s):OOA8 App. 96 . ·-· ·-·--~~"··-·-----···-··-"··--·--- ··-·"··--········ .... "if j.. i. EXHIBIT 2 App. 97 Washington State Archives Department of Financial Institutions Records Retention Schedule Office of the Secretary of State ,(1 //'-~'··•: J-:-;•.~•-'--'f', .--, •··, _',,,~:--... -~ ~ _. ,. t .• ·d·-y- :,-,· - /Y ,- c -·•.., ~ . · --~-• •.. ·· ~: _-., _,; '; ---'; . ~ · Jµ •,;pii.P•":~1--111;. ·:J.,1·\"[7" _'i::;•::,1•i': :0:.,.,.~..- . -.-a/-'';;_:-.-_. -'_ -j,~-- · r!' ·:: ··-"·- ,c·· - ·.c:,1 '•,:-·• -~ Version 1.0 (December 2012} ~11;-'°~';'f i'iE',~1:,J:~~[~:j~:;1a•,1!i'!:1;1_~ 1::!;•-~:•,,·,s.,-:•.ar::ce•i:'s:,1~1 :,,.,.:,a:,:.:•Cc•.:·, ,:.:."•,-..;-" 1'; ~:-:··.{r.'•-~~c~:. ~"i!',' ..: ::'! : This schedule applies to: Department of Financial Institutions Scope of records retention schedule This records retention schedule authorizes the destruction/transfer of the public records of the Department of Financial Institutions relating to the unique functions of regulating and examinations of state chartered financial services and to protect consumers from financial fraud. The schedule is to be used in conjunction with the State Government General Records Retention Schedule (SGGRRS), which authorizes the destruction/transfer of public records common to all state agencies. Disposition of public records Public records covered by records series within this records retention schedule (regardless of format) must be retained for the minimum retention period as specified in this schedule. Washington State Archives strongly recommends the disposition of public records at the end of their minimum retention period for □ l l ) . S) ,.) the efficient and effective management of state resources. Public records designation as "Archival (Permanent Retention)" must not be destroyed. Records designated as "Archival (Appraisal Required)" must be appraised by the Washington State Archives before disposition .. Public records must not be destroyed if they are subject to ongoing or reasonably anticipated litigation. Such public records must be managed in accordance with the agency's policies and procedures for legal holds. Public records must not be destroyed if they are subject to an existing public records request in accordance with chapter 42.56 RCW. Such public records must be managed in accordance with the agency's policies and procedures for public records requests. Revocation of previously issued records retention schedules All previously issued records retention schedules to the Department of Financial Institutions are revoked. The Department of Financial Institutions must ensure that the retention and disposition of public records is in accordance with current, approved records retention schedules. Authority This records retention schedule was approved by the State Records Committee in accordance with RCW 40.14.050 on December 5, 2012. Signature on File Signature on Ale For the State Auditor: Cindy Evans For the Attorney General: Kathryn McLeod Signature on File For the Office of Financial Management: Cherie Berthon The State Archivist; Jerry Handfield Page lof 18 App. 98 ------- -----·----·- - - - - - • Washington State Archives Department of Financial Institutions Records Retention Schedule Version 1.0 (December 2012} Office of the Secretary of State . REVISION HISTORY 1.0 December 5, 2012 Consolidation and revision of all existing disposition authorities. Cl l l l " .) .J For assistance and advice in applying this records retention schedule, please contact the Department of Financial Institutions' Records Officer or Washington State Archives at: recordsmanagement@sos.wa.gov Page2 of 18 App. 99 .~ ,"'- Washington State Archives Department of Financial Institutions Records Retention Schedule Office of the Secrewy of Smte \ ~l.t ,2~-,1; Version 1.0 (December 2012} • .,,,,;.•''-:,:,'.'':i~~-'":.-!-'.:;"Jl!'~~:ru~u:,.rw.:;;,m;~";:[-if:>1<~'.~;r.>;r.-"~~"'li:i!l!!,a~;)'F'!'!;t-::i:~""'ti~•,i:i::.ir,~s:'.:F:rn,.:.~.:.Tif':'~,~;;r..;..;;1~:·1'S/~'"":"'~?'J';!l'~<r"'is.:.~•¥-~~,~-ti',:<,,~~:::,~~~~1~1~j~f~:~•1i1\~~•1•.~c~1-~7~~~:i:~~•·~~~~~T.~~~:s~'.'~',;~,!t;•J;\,,,i,111~:•\,~~:·.:~ TABLE OF CONTENTS 1. AGENCY MANAGEMENT ........................................................................................................................................................................... 4 1.1 LEGISIATIVE FILES ....................................................................................................................................................................·---························· 4 2. , ENFORCEMENT......................................................................................................................................................................................... 5 2.1 ENFORCEiMENT ···········-----·······-························-...- -............_ _ _ ••••••..•.••.•...•....•...••.... _ _ .••..•......•.. _ .... _ ..••...........•........•. 5 2.2 INVESTIGATIONS·------·····························"··---······························............................................................................................. 6 3. EXAMINATIONS ........................................................................................................................................................................................ 7 3.1 EXAMINATIONS ............................................· - - - - -.. - - - ·..- -..·-·..········------······························································ 7 4. LICENSING, CHARTERiNG, AND REGISTRATION ......................................................................................................................................... 9 CJ ) l ) I) ,J ,J 4.1 LICENSING, CHARTERING AND REGISTRATION-··--·······•·····················-···················································································································· 9 GLOSSARY ..................................................................................................., ..................................................................................................... 13 INDEXES .......................................;.....................................................................................................................................................................16 Page 3 of 18 J App. 100 Department of Finandal Institutions Records Retention Schedule Version 1..D (December ZD12} Washington State Archives Office of the Secretary of State 1. AGENCY MANAGEMENT This section covers records relating to the overarching management of agency business and its general administration which are not covered by the State Government General Records Retention Schedule. See State Government General Records Retention Schedule for additlonol records relating to agency management. 1.1 LEGISLATIVE FILES The activi a en rulemakin and le islative activities. r;;"w"o"'is"p•cfoscc·=rr"-'"1i""'·' 1it1i1:,i· 0 ) l ) I) . ,J 12-12-68358 Rev. 0 Rulemalcing Fifes Documents agency rulemaking (WAC) as described in RCW 34.05.370 (the Washington Administrative Procedures Act). Includes but is not limited to: • The text of proposed rules with documents of agency internal review and comments; • • • • Mailroom distribution records; Rulemaking hearing sign-in sheets (including names and addresses of persons attending the hearing or giving testimony); Summary of public rule hearing; written comments received regarding the proposed rule (regardless of when received), as well as any DFI response; Original ru!emaking orders and documents showing adoption date and record of filing with the Code Reviser (as we!! as assignment of WSR number). Retain for 6 years after effective date of rule or date rulemaking was cancelled or expired ARCHIVAL (Appraisal Required} NON-ESSENTIAL OPR then Transfer to Washington State Archives for appraisal and selective retention. Page4of18 App. 101 -~ Department of Finandaf Institutions Records Retention Schedule Verslan 1.0 (December 2012) Washington State Archives Office of the Sccrcta<y of State . ~:S.!'.':l'd,s;;,,.,a,;i;·,,>J,;:c......,;w';,,;.,,;:,,,.,,,"':f'f::t'""s;,7";·,a;:··•~.;::.a:,lf!-~7.;.';"',.i..,;.',,a!l',';,.--,.-~~-,-;,-,;;;,~.,.,.."lilEir:l~,,.3,.,,.,',:.,.<W"'z:t-'.;,'i~':[''lf;J'. .. -.,.~s.;s.-:,C. ~:\b,:;,·f-.w•~···"··;·.i:~~;,.,•.,.,.,";~:,--:-.:-~.~,..:;,.-::.,o:~~;,.,., '"":'::;;:r~ 2. ,_,i ...\, \S3!;;1''::;,:·;,;~_,;:·::: .._._~,::-,-·•.::;:--'8•ffi,& ENFORCEMENT This section covers records relating to enforcement actions and investigations against regulated or unregulated financial entities. 2.1 ENFORCEMENT ' offinancial Institutions . chartered fn the state. The activity af enforcing the regulatory and statutory requirements ====== =·===== ·:;rlf~i\tl- ;;:~;: 12-12-68359 Rev. 0 Administrative Orders Orders issued by the Director of Financial Institutions or a Division Director against a financial entity pursuant to an enforcement action. □ ) ) ) D "n 12--12-68360, Rev, 0 R-in for 6 years after receipt then Transfer to Washington State Archives for appraisal and selective retention. Complaints Retain for 6 years after case rRecords relating to ronsumerorother romplaints filed with Department of financial Institutions, including those referred by other state agencies or agencies in other states. • Includes, but is not limited to: closed then Destroy. ARCHIVAL (Appraisal Required) NON-ESSEt,!nAL OPR NON-ARCHIVAL NON-ESSENTIAL OPR · • • • • • Correspondence, including complaint intake forms; Notes and memoranda; Compiled evidence; Resolution documents not rising to the level of an administrative order; case-specific information sharing agreements between the Department and other agencies, state or federal. Note: complaint files are held separate from investigations files, secondary copies of complaints leading to investigations become part of the_investigatlon file. ~ages of18 App. 102 Department of Financial Institutions Records Retention Schedule Version 1.0 (December 20!2) Washington State Archives Office of the Secretary of State 2.2 INVESTIGATIONS The activity of investigating financial institutiOns chartered in the state. ~c!~iffll . 12-12-68361 Rev. 0 Investigations-Non-Securities Retain for 6 years after case Records of investigations conducted against non-securities entities. closed then Includes, but is not limited to: • Cl ) Correspondence, notes, and memoranda used as part of investigation; • Compilation of evidence; • Statements of Charges not attached to Administrative Orders. l Excludes records covered by Administrative Orders (DAN 12-12-68359). fl Note: Investigation files are held separate from original complaint files, secondary copies of complaints leading to investigations become part of the investigation files. ) ,J NON-ARCHIVAL NON-ESSENTIAL OPR Destroy. fl 12-12-68362 Rev. 0 Investigations -Securities Retain for 15 years after case Records of investigations against securities entities conducted by the Division of Securities. closed then Includes, but is not limited to: Destroy. • Correspondence, notes, and memoranda used as part of investigation; • Compilation of evidence; • Statements of Charges not attached to Administrative Orders; Case-specific information sharing agreements between the Department and • NON-ARCHIVAL NON-ESSENTIAL OPR other agencies, state or federal. Excludes records covered by Administrative Orders (DAN 12-12-68359). Note: investigation files are held separate from original complaint files, st;condary copies of complaints leading to investigations become part of the investigation files. 1-iiiiH+ii:hiil Page 5 of 18 App. 103 Department of Financial Institutions Records Retention Schedule Version 1..0 (December 20:12} Washington State Archives Office of the Secretitty of State 3. EXAMINATIONS This section covers records relating to the examinations of regulated financial entities. 3.1 EXAMINATIONS The activity relating ta the examinations and compliance of regulated financiol·entities. Also indudes entities potentially subject to regulation. 3 = 1,~"'~"~"~"~"~"'m"·:"0'"· ··"· 12-12-68363 Rev. o □ ) l ) D .:> .J Examinations Documents created, received, or maintained that relate to examinations of any regulated entity or entity potentially subject to regulation. This includes all Reports of Examination (ROEs), as well as all documentation received or created necessary _to support an ROE and is the evidence of the business practices and evidence of violations of deficient business practices. Retain for 6 years after created or received then NON-ARCHIVAL NON-ESSENTIAL OPR. Destroy. This includes, but is not limited to examinations of: • • • • • • • • • Consumer Loan Companies; Mortgage Brokers; Banks and Mutual Savings Banks; Money Services Businesses; Trust Companies; Credit Unions and Credit Union Subsidiaries; Check cashers and sellers, and small loan lenders; Escrow agents and broker-dealers; Investment advisors; This also includes, but is not limited to: • • Entity- or individual-specific information sharing agreements between the Department and other agencies, state or federal; Supervisory agreements and directives. HiiMii/Hli·HI Page 7 of18 App. 104 Department of Financial Institutions Records Retention Schedule Washington State Archives Version 1.0 {December 2012} Office of the Secretat:y of State 3.1 EXAMINATIONS The activity relating to the examinations and compliance of regulated financial entities. Also indudes entities potentially subject ta regulation. "j":~~,, -~:""~~'"'~P"''.'$,.,)T"'.J 'f•;1llutll0R t~VM-~~t 12-12--68364 Rev. 0 Examinations - Transitory/Temporary Documents Non-essential documents and copies of records for information gathering purposes and do not contain evidence of violations of deficient business practices, and are not specifically referenced in the Report of Examination (ROE). Excludes records covered by Examinations {DAN 12-12-68363). Retain until no longer needed for agency business after final report of examination is completed NON-ARCHIVAL NON-ESSENTIAL OFM then Destroy. □ ) l l I) ,) 0 "',, HWii:iiMIH+H Page8of18 App. 105 ·-·-··-·- ·--- -·-·-. ··:'. -~,';i Department of Financial Institutions Records Retention Schedule Washington State Archives Office of the Secretru:y of State 4. Version :l.O(December 2012} LICENSING, CHARTERING, AND REGISTRATION This section covers records relating to the licensing, chartering, and registration of firlancial institutions and individuals such as banks, credit unions, mortgage brokers, payday lenders and securities issuers and salespeople. 4.1 LICENSING, CHARTERING AND·REGISTRATION The activity relating to the applications, licensing, chartering and registration of financial Institutions and entities doing business in the state. '==== llii- ~:~·t;·- 12-12-68365 Cl l l ) .,::, r, Rev.O Criminal History Reports Documents created, received, or maintained regarding the criminal history or background checks of applicants, employees of existing regulated entities, and any other persons requiring licensure through the Department of Financial Institutions. Retain until a licensing, chartering, or registration decision ls made NON-ARCHIVAL NON-ESSENTIAL OPR then Destroy. Page9of 18 App. 106 I Department of Financial Institutions Records Retention Schedule Washington State Archives Version 1.0 (December 2012} Office of the Secretary of State 4.1 b=="" LICENSING, CHARTERING AND REGISTRATION The activity relating ta the applications, licensing, chartering and registration of financial institutions and entities doing business in the state. ~=====" Retain for 6 years after Rev.0 I Records relating to specific regulated entities (firms or individuals) or offerings. !Includes, but is not limited to: • □ ) l ) • ,. I) . Granted, denied, abandoned, rejected, surrendered, revoked, suspended, expired, or withdrawn applications for licenses, charters, or registered offerings, as well as all documents related to such applications; · Licensing files for consumer foan companies, mortgage brokers, to.an originators, check cashers and sellers and payday lenders, money services businesses, escrow license,, charter, or registration ends, NON-ARCHIVAL ESSENTIAL OPR application is denied, or an application for additional authority is granted then Destroy. agents1 escrow officers, broker~deafers, securities salespersons, investment advisor :, representatives, and investment advisors; • • • • • • Registration files for the offering of securities, business opportunities, or franchises; Chartering files for banks, savings banks, trust companies, and credit unions; Records of major events in the life of a depositary financiaf institution; , Articles of incorporation, bylaws, and bonds for deposit~ry financial institutions; CrE!dit union rosters; Bond files for licensed, registered, or chartered institutions not otherwise maintained as part of a licensin& registration, or chartering file; Notification filings for investment companies. UlliklApp. 107 Page lOof 18 Department of Financiof Institutions Records Retention Schedule Version 1.0 (December 2012) Washington State Archives Office of the Seo:et:i,y of State LICENSING, CHARTERING AND REGISTRATION The activity relating to the applications, licensing, chartering and registration offinancial institutions and entities doing business in the state. h::':===m 12-12-68367 Rev. 0 "''.!,"'[~"':~"' f ~(t"'t"'~"'1r""~rc,i~ Reports by Regulated Entities Reports, forms, worksheets, and documents submitted as required or as voluntarily submittad by regulated and unregulated entities. Includes, but is not limited to: • Periodic reports of regulated activities;. • Annual assessment forms, worksheets, and reports; l • • Shareholder meeting reports; Surveys of non-regulated entities conducted by OeP!'rtment of Financial ) ,.I) ... then NON-ARCHIVAL NON-ESSENTIAL OPR Destroy. 0 ) Retain for 6 years after receipt Institutions. lti@JII App. 108 Page 11 of18 Department of Financial Institutions Records Retention Schedule Washington State Archives Version 1.0 (December 2012} Office of the Secretaty of State LICENSING, CHARTERING AND REGISTRATION The a · · re/atin to the a rc:"7"= 12-12-68368 Rev. O lications /icensin ·charterin and re istratioh o mancialinstitutions ond entities doin business in the state. Testing and Continuing Education Retain for 6 years after Documents created, received, or maintained regarding testing by individuals seeking professional licenses and records of compliance with continuing education requirements. Testing may be administered by the Department of Financial Institutions or by a vendor. Includes, but it not limited to licensure for. • Mortgage brokers, loan originators; • Check cashers and sellers and payday lenders; receipt • • then NON-ARCHIVAL NON-ESSENTIAL . OPR Destroy. Escrow agents., escrow officers, broker-df::alers, securities salespersons; Investment advisor representatives, and investment advisors. Includes, but is not limited to: • Completed test documents; • Continuing education sign-in sheets; • Materials generated and used during creation and revision of tests. Note: Documentation offtnoi license requirements and certifications are held in the applicants licensing ft/es. Page 12of 18 App. 109 Department of Financial Institutions Records Retention Schedule Washington State Archives Office of the Secretary of Smte Version 1.0 {December 2012) GLOSSARY Appraisal The process of determining the value and disposition of records based on their current administrative, legal, and fiscal use; their evidelltial and informational or research value; and their relationship to other re·cords. Archival (Appraisal Required) □ l l ) ,.r., ,l ., Public records which may possess enduring legal .and/or historic value and must be appraised by the Washington State Archives on an individual basis. Public records will be evalu,ated,, sampled, and vyeeded according to archival pdnciples by archivists from Washington State Archives (WSA). Records not selected for retention by WSA may be disposed of after appraisal. Archival {Permanent Retention} Public records which possess enduring legal and/or histOric value and must not be destroyed. State government agencieS must transfer these records to Washington Stati,, Archives (WSA) at the end of the minimum retention period. WSA will not sample, weed, or otherwise dispose of record5 fitting the records series description designated as ""Archival (Permanent Retentionr other than tht? removal of duplicates. Disposition Actions taken with records when they are no longer required to be retained by the agency. Possible disposition actions i~clude transfer to Washington State Archives and destruction. Disposition Authority Number {DAN} Control numbers systematically assigned to records series or records retention schedules when they are approved by the State Records Committee. Page 13 of 18 App. 110 --.-- Department of Financial Institutions Records Retention Schedule Version l.0 (December 2012) ·washington State Archives Office of the Secrewy of State T~,;. W;f. · 3-.,T\i.l.\,,,_._ ·c-..,;;.c,;i'b,.~,:Lifu,fi•~V-T"J.,'."e't1t.&:h7v.::Y. r ✓ ,- . _·:,; f ,LB i,",.,., ~~·.t ~J/'.'[!"t:1:"dJ:1,T2T".'-::$""1J;Z :_,,;. +:::<. ,;¼_:cr:·n.,;:;,;;,.;.::,_p {"7f' · ·,1, ;>,. "- A#+ 7._: -~:;--~,,..rr:;,-,-::-:· :'T:-J \',½{'-2· ..c;:.no.,:.<3..'T.,;:'./' ".,I . -- ,:· ',./:."'. ':'"'\'i=. - ---.. : ·· - Essential Records Public records that state government agencies must have in order to m~intain or resume business continuity following a disaster. While the retention requirements for essential records may range from very short•term to archival, these records are necessary for an agency to resume its core functions following a disaster. Security backups of these public records should be created and may be dep'osited with Washington State Archives in accordance with Chapter 40.10 RCW. Non-Archival □ l Public records which do not possess sufficient historic value to be designated as "Archivar. Agencles must retain these records for the minimum retention period specified by the appropriate, current records retention schedule. Agendes should destroy- these records after their minimum retention period expires, provided that the records are not required for litigation, pubric records requests, or other purposes required by law. l ) ". :,. Non-Essential Records Public records which are not required in order for an agency to resume its core functions following a disaster, as described in Chapter 40.10 RCW. . OFM {Office Files and Memoranda} Public records which have been designated as "Office Files and Memoranda" for the purposes of RCW 40.14.010. RCW 40.14.010-Definition and dassificatian af public records. (2) nOfflce files and memoronda include such records as correspondence, exhibits, drawings, maps, completed forms, or documents not above dtfined and dassified as official public records; duplicate copies of official public records filed with any agency of the state of Washington; documents and reports made for the internal administration of the office to which they pertain but not required by law to be filed ar kept with such agency; and other documents or records as determined by the records committee to be office files and memorand~ 0 OPR (Official Public Records) Public records which have been designated as uOfficial Pubr.c Records" for the purposes of RCW 40,14.010. RCW 40.14.0W- Definition and classification of public records. (1) NOfflda/ public records shall include an original vouchers, receipts, and other documents necessary to isolate and prove the validity of every transaction relating to the receipt. use.. and disposition of all public property and public income fro(n all sources whatsoever; aft af/reements and contracts to which the state of Washington or any agency thereof may be a potty; all fidelity, sui-ety, and performance bonds; all daims filed againsi the state of Washington or any agency thereof; alt records or llihffH~ App. 111 Page 14 of 18 FILED Court of Appeals Division I State of Washington 711312020 8:00 AM No. 80968-7 On Appeal from Snohomish County No.19-2-01383-31 IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON DIVISION I CHRISTOPHER and ANGELA LARSON, Plaintiff-Appellant, v. SNOHOMISH COUNTY et al., Defendant-Respondents. APPELLANTS’ REPLY TO SNOHOMISH COUNTY AND WASHINGTON STATE DEFENDANTS’ RESPONSE TO MOTION TO MODIFY Scott E. Stafne, WSBA No. 6964 Stafne law Advocacy & Consulting 239 N. Olympic Avenue Arlington, WA 98223 360-403-8700 scott@stafnelaw.com Attorney for Plaintiff-Appellant App. 112 I. Introduction On June 19, 2020, Appellants Larsons filed their Motion to Modify the Commissioner's ruling requiring the designation of Clerk’s Papers (CP) and Opening Brief (OB) to be filed on June 19, 2020, while their attorney was required to be sheltered at home. Because of technical problems, the Larsons did not get their motion filed with this Court’s electronic filing system until 5:03 p.m. that day. The Larsons were later notified by this Court that because their filing was late it would not be considered as being filed until Monday, June 22, 2020 at 9:00 a.m. On Monday June 22, 2020, at approximately 11:30 a.m. the Larsons filed an amended motion that included as part of that filing (a) the rulings the Larsons requested be modified; (b) the declaration of the Larson’s attorney; and (c) the Skagit County court filing, i.e. CPs, designated as Index entry one by the Snohomish County Clerk, a Defendant/Appellant in this Appeal. On June 24, 2020, Richard D. Johnson, this Court’s “Court Administrator/Clerk” issued a letter order stating: On June 22, 2020, an amended motion to modify was filed in the above-referenced case. Any response to the motion is due by July 6, 2020. Any reply to the response is due 10 days after the response is filed. After the time period for the reply has passed, the motion will be submitted to a panel of this court for determination without oral argument. RAP 17.5(b). The parties will be notified when a decision on the motion has been entered. 1 App. 113 On June 29, 2020, the Snohomish County Defendants/Respondents (including the Snohomish County Superior Court Judges and Court Clerk) responded to the Larsons’ motion. The judges and Clerk did not dispute any of the facts set forth in Larson’s motion to modify with regard to the CPs not being appropriately certified. Indeed, the Snohomish County Defendants did not oppose the motion; they only requested this Court set September 1 2020, as the “date certain on which their brief will be due. . . .” Response, p. 1. Snohomish County Defendants asserted in favor of this date that Larson’s attorney, who is 71 and suffers from several secondary conditions was already “allowed back to work” by Governor Inslee’s phased reopening plan. On July 2, 2020, the Washington State Defendants (Governor Inslee and Attorney General Robert Ferguson) joined in this response. They also did not dispute any of the factual allegations in the Larsons’ motion. The private Defendant/Respondents chose not to respond to the Larsons’ motion for a modification. The Larsons’ now Reply; asking for appropriate relief. II. Argument A. The Larsons have established judicial irregularity by the County Clerks, one of which is a party to this Appeal No party disputes the certification by Melissa Brown— “county Clerk and ex-officio clerk of the superior court of the state of Washington in and for Skagit County” App. p. 2—is false and does not accurately certify 2 App. 114 those pleadings she actually sent to the Snohomish County Superior Court on February 14, 2020. What is troubling about the Skagit County Superior Court Clerk’s false statement is the fact that it is false, but also that the Skagit County Superior Court apparently did not have all the pleadings that had been filed in the Clerk’s record. Thus, any person would wonder why these seventeen pleadings that were previously filed with the court were missing when the record was transferred. See Beaton’s handwritten note App. 1 And most fact finders would also wonder why when the Snohomish County Clerk became aware of this certification problem, she did not take steps to have the certification corrected by the Skagit County Clerk. The Larsons are not accusing the Clerks of Skagit County and Snohomish County of anything improper at this point—other than their false certification—which they request be explained and accurately certified before proceeding with this Appeal. B. This Court should order the Snohomish County Clerk to pay for the costs of having to designate all pleadings filed in the Skagit County Clerk as one index Thus far Defendant/Respondent Snohomish County Clerk has failed to request payment for the CPs designated by Larsons under protest of the Commissioner’s first order. See RAP 9.7. After the Larsons are provided by Defendant Snohomish County Court Clerk with the cost bill for such CP, the Larsons have two weeks to pay them. Id. Designating all the court records filed with the Clerk of the Skagit County Clerk as a single docket entry was obviously necessary because the 3 App. 115 first seventeen docket entries were missing when that Court record was certified to have been filed. The only way the filing of this court record could have been handled on the day it was filed by the Defendant/Respondent Clerk was as a single docket entry so that the record could be manipulated later to include the additional pleadings that were lost from the Skagit County court file when it was transferred. There is no reason that Larsons should have to pay the extra costs for the Clerks’ mishandling of the record and improper certification of the record below. C. This Court should not order the Larsons’ attorney, an individual vulnerable to the Covid-19 virus, to file an Opening Brief until he is able to do so. Snohomish County Superior Court Judges and Clerk, as well as Defendants/Respondents Washington Governor and Attorney General argue that the COVID-19 Pandemic is less serious now in Snohomish County than in phase 1. The Larsons ask the Court to extend the time for filing their brief until sometime after the point when vulnerable persons, including their counsel, are "allowed back to work." Mot. at 1. But such persons are already allowed to work. Governor Inslee's Proclamation 20-25.4, of which this Court may take judicial notice, states that the “Stay Home, Stay Healthy" exceptions in the Safe Start Washington Phased Reopening County-by-County Plan are in effect as each county enters the different phases. Snohomish County (where opposing counsel works and resides) is in Phase 2, which permits professional services and office-based businesses, such as legal services, to operate. 4 App. 116 In spite of the COVID-19 Pandemic, Counsel has demonstrated his ability to effectively communicate with the Court. The motion before the Court includes a 20-page motion, declaration, and numerous attachments. Clearly, counsel has found ways to work from his office and coordinate with his paralegal that do not put him at risk of COVID-19 exposure. Response by Snohomish Superior Court Judges, Clerk, and other Respondents, p. 1. This argument misstates the evidence. The attorney and paralegal put themselves at risk to respond to the Commissioner’s inappropriately timed order when they would have preferred not to. This amended motion asks this Court to modify the Commissioner’s rulings in such a way as to provide justice for the Larsons, i.e. to allow their elderly, disabled attorney a fair chance without hurting himself to prepare a competent Opening Brief. The Government Defendants in this Appeal do not dispute that Larson’s 71-year-old attorney (who suffers from diabetes, heart disease, and immune deficiencies, see Stafne declaration, ¶¶ 23–34 and Exhibit 3 thereto) is a vulnerable person under these proclamations; instead, they argue he is entitled to work even if working might hurt him. The Larsons claim this is not true. Under the Safe Start Washington Phased Reopening County-by-County Plan 1 issued by the Office of the Governor on July 7, 2020, High-Risk populations are “strongly encouraged, but not required, to stay home . . . ”, Id. p. 8 & 10, unless “they are sick” or 1 This proclamation is accessible at: https://www.governor.wa.gov/sites/default/files/SafeStartPhasedReopening.pdf 5 App. 117 are put in a position that may exacerbate their underlying medical conditions. Id. at p. 5. See also Proclamation 20-46.1 (High-Risk Employees —Workers’ Rights); WAC 296-800-12005 Cf. June 24 Order of the Secretary of Health 20-03 2 (mandating the wearing of face masks statewide because “the worldwide COVID-19 Pandemic and its progression in Washington State continue to constitute an emergency threatening the safety of the public Health . . .”. Id., p. 1.) Proclamation 20-46.1 is clear that employers and unions cannot put vulnerable workers, like the Larsons’ attorney, in situations that might harm them. This proclamation states in pertinent part: WHEREAS, as a result of the continued worldwide spread of COVID-19, its significant progression in Washington State, and the high risk it poses to our most vulnerable populations, I have subsequently issued amendatory Proclamations 20-06 through 20-53 and 20-55 through 20-57, exercising my emergency powers under RCW 43.06.220 by prohibiting certain activities and waiving and suspending specified laws and regulations; and WHEREAS, the COVID-19 disease, caused by a virus that spreads easily from person to person which may result in serious illness or death and has been classified by the World Health Organization as a worldwide pandemic, has broadly spread throughout the state of Washington, significantly increasing the threat of serious associated health risks statewide; and * * * WHEREAS, the threat of severe illness and death from COVID-19 to Washington State’s public and private sector workers who are in 2 This Order of the Secretary of Health, 20-03, mandating the wearing of Face Coverings by people Statewide, is accessible at: https://www.governor.wa.gov/sites/default/files/Secretary_of_Health_Order_2003_Statewide_Face_Coverings.pdf 6 App. 118 these higher-risk groups is recognized, and action must be taken to protect them from working conditions that require them to be placed in situations where they may be exposed to infection by the virus that causes the COVID-19 disease; and WHEREAS, during this critical period of virus spread throughout our state, public and private sector workers in these high-risk groups must have access to accommodations to prevent greater risk of contracting COVID-19, and these decisions cannot be left solely to the employer; and * * * NOW, THEREFORE, I, Jay Inslee, Governor of the state of Washington, . . . * * * . . . continue to prohibit all public and private employers in Washington State from taking any action that is inconsistent with practices related to high-risk employees, as described in Emergency Proclamation 20-46. This prohibition shall remain in effect until 11:59 PM on August 1, 2020, unless extended beyond that date. FURTHERMORE, based on the above situation and under the provisions of RCW 43.06.220(1)(h), to help preserve and maintain life, health, property or the public peace and to support implementation of the above prohibited activities by employers, I also hereby continue to prohibit all public and private employers in Washington State and labor unions representing employees in Washington State from applying or enforcing any employment contract provisions that contradict or otherwise interfere with the above prohibitions and the intent of this Proclamation as described herein until 11:59 PM on August 1, 2020, unless extended beyond that date. It is the Larsons position that this Court should take into account the vulnerability of their attorney’s condition and the status of the Pandemic before ordering him to file an Opening Brief, before he is capable of doing 7 App. 119 so. Alternatively, the Larsons request that their Opening Brief be required to be filed 60 days after the Clerk’s Papers become available. III. Conclusion The Larsons’ motion to modify should be granted so as to award the following relief: (1) require Defendant Snohomish County Clerk and Skagit County Clerk to properly certify the record and explain why it was not accurately certified in the first instance; (2) require Defendant Snohomish County Clerk to pay the cost of reproducing Index one as part of the CP’s; and (3) take into account the vulnerable status of their attorney to the Pandemic—as well as the Pandemic itself—before requiring him to file an Opening Brief in this case. DATED this 12th day of July 2020, at Arlington, WA. By: /s / Scott E. Stafne x Scott E. Stafne, WSBA No. 6964 Stafne law Advocacy & Consulting 239 N. Olympic Avenue Arlington, WA 98223 360-403-8700 scott@stafnelaw.com Attorney for Plaintiff-Appellant 8 App. 120 FILED Court of Appeals Division I State of Washington 612912020 10: 16 AM NO. 80968-7 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION I CHRISTOPHER E. LARSON, a married man as his separate estate, and ANGELA LARSON, a ma1Tied woman, Appellants, V. SNOHOMISH COUNTY et al., Respondents. SNOHOMISH COUNTY'S RESPONSE TO APPELLANTS' AMENDED MOTION TO MODIFY THE COMMISSIONER'S RULING REQUIRING THE DESIGNATION OF CLERK'S PAPERS AND OPENING BRIEF TO BE FILED ON JUNE 19, 2020, WHILE LARSONS' ATTORNEY MUST BE SHELTERED AT HOME BECAUSE OF THE PANDEMIC ADAM CORNELL Prosecuting Attorney LYNDSEY DOWNS, WSBA #37453 GEOFFREY A. ENNS, WSBA #40682 Deputy Prosecuting Attorneys Attorneys for Snohomish County 3000 Rockefeller Avenue, MIS #504 Everett, Washington 98201 Telephone: (425) 388-6330 App. 121 ARGUMENT Respondent Snohomish County does not oppose the Larsons' motion to extend their deadline for filing their opening brief. But the County asks the Court to set a date certain on which their brief will be due, rather than the unspecified deadline proposed by the Appellants. The Larsons ask the Court to extend the time for filing their brief until sometime after the point when vulnerable persons, including their counsel, are "allowed back to work." Mot. at 1. But such persons are already allowed to work. Governor Inslee's Proclamation 20-25.4, of which this Court make take judicial notice, states that the "Stay Home, Stay Healthy" exceptions in the Safe Start Washington Phased Reopening County-byCounty Plan are in effect as each county enters the different phases. Snohomish County (where opposing counsel works and resides) is in Phase 2, which pennits professional services and office-based businesses, such as legal services, to operate. In spite of the COVID-19 pandemic, Counsel has demonstrated his ability to effectively communicate with the Court. The motion before the Court includes a 20-page motion, declaration, and numerous attachments. Clearly, counsel has found ways to work from his office and coordinate with his paralegal that do not put him at risk of COVID-19 exposure. 1 App. 122 The County asks for a filing date of September 1, 2020, for the Larsons' brief so that this case is not delayed any more than it already has been. Respectfully submitted on June 29, 2020. ADAM CORNELL Snohomish County Prosecuting Attorney By: LOSEY DOWNS, WSBA #37453 GEOFFREY A. 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122ÿ33343567ÿ "9'*:;ÿ/*-<+"!%'ÿ!'ÿ&))%+"ÿ%9ÿ =+;%';:ÿ>%"!%'ÿ9%+ÿ=*?*ÿ"%ÿ@!<*ÿ ÿ8ÿ &))<*A*'"<ÿ'.ÿBA*'.*.ÿ$%A)<!'"ÿ122ÿ356C43DCDÿ >%"!%'ÿ"%ÿE!"F.+Gÿ;ÿ"F*ÿB""%+'*(ÿ ÿ6ÿ 9%+ÿH<!'"!99;ÿ 122ÿ3DCI433Jÿ ÿ App. 165 f 19-'2-01383-31 RCDCHV 1 - ,Record on Change of Venue ~f95013J I ~ 1111~11mmim11111Hm11m ~ MELISSA BEATON SKAGIT COUNTY CLERK ~ OFFICE OF THE ~ KRIS DESMARAIS r-- CHIEF DEPUTY CLERK -...._ DATE: February 12, 2019 -- 205 W KINCAID, ROOM 103 MOUNT VERNON, WA 98273 PHONE (360) 416-1800 SKAGIT COUNTY CLERK SNOHOMISH COUNTY CLERKS OFFICE 3000 ROCKEFELLER AVE 19 2 0138 3 31i-> EVERETT, WA 98201 -...,, c:::, . .0 RE: 18-2-01234-29 CHRISTOPHER E LARSON et al vs JANE DOE et al ORDER CHANGING VENUE TO SNOHOMISH COUNTY Dear Clerk: ~ lll!ilP.-~1tA f'lll~L11'1 i 0 (.,J An Order Granting Change of Venue to SNOHOMISH COUNTY was signed on January 24, 2019. Enclosed please find a certified copy of the record on Change of Venue and the attorney's check#604152876 in the amount of $240 for your filing fee. Please conform and stamp the new cause number on the enclosed copy of this letter and return it in the self-addressed stamped envelope provided, thank you. Respectfully, MELI Eli y Clerk MELISSA BEATON, SKAGIT COUNTY CLERK Enclosures: Record on Change of Venue Ck# App. 166 19 2 01383 31 MELISSA BEATON SKAGIT COUNTY CLERK ~ OFFICE OF THE ~ KRIS DESMARAIS 205 W KINCAID, ROOM 103 MOUNT VERNON, WA 98273 PHONE (360) 416-1800 SKAGIT COUNTY CLERK CHIEF DEPUTY CLERK CC: TO FILE TO ATTORNEY 18 -2-01234-29 ~-·I · rr, ....fflt,. 0 CERTIFICATION: I, MELISSA BEATON, COUNTY CLERK AND EX-OFFICIO CLERK OF THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR SKAGIT COUNTY, DO CERTIFY THAT THE FOREGOING ARE AND CONSTITUTE THE ORIGINAL RECORD IN THE ABOVE NUMBERED CASE AS THE SAME WERE ORIGINALLY FILED AND NOW APPEAR OF RECORD IN SAID CASE IN MY OFFICE. I FURTHER CERTIFY THAT THE ORDER TRANSFERRING VENUE IS A FULL, TRUE AND CORRECT COPY OF THE ORIGINAL THEREOF AS IT APPEARS ON FILE AND OF RECORD IN MY OFFICE. EREUNTO SET MY HAND AND AFFIXED THE SEAL OF THE BY App. 167 SKAGIT CASE SUMMARY CASE No. 18-2-01234-29 CHRISTOPHER E LARSON et al § § § VS JANE DOE et al 19 2 0138 3 31 Location: Skagit Filed on: 10/18/2018 JIS/SCOMIS Case Number: 18-2-01234-4 § § CASE INFORMATION Case Type: MSC2 Miscellaneous - Civil Case Status: 10/18/2018 Active Case Flags: Affidavit of Prejudice CASE ASSIGNMENT Current Case Assignment Case Number Court Date Assigned 18-2-01234-29 Skagit 10/18/2018 PARTY .INFORMATION Plaintiff Lead Attorneys Stafne, Scott Erik Retained 360-403-8700(W) LARSON, ANGELA et al Defendant APPEL, GEORGE F DI VITTORIO, SARA J Retained 425-388-6343(W) et al DATE EVENTS & ORDERS OF THE COVRf INDEX I 0/18/2018 fil Complaint Index# I 10/24/2018 fil Notice of Appearance Index# 2 Party: Attorney McDonald, Robert William; Defendant QUALITY LOAN SERVICE CORP OF WA 10/24/2018 n Affidavit Declaration Certificate Confirmation of Service 'did Index# 3 11/05/2018 fil Notice of Appearance Index # 4 Party: Assistant Attorney General YOUNG, ALICIA O; Assistant Attorney General SIMPSON, R JULY; Defendant WASHINGTON, STATE OF; Defendant INSLEE, WA/ST GOVERNOR, JAY; Defendant FERGUSON, WA/ST ATTY GENERAL, ROBERT 11/14/2018 fil Notice of Appearance Index# 5 Party: Attorney Courser, Donald Jeffrey; Defendant DEUTSCHE BANK NATIONAL TRUST CO 11/15/2018 L7'I Index #6 ',d.J Notice of Appearance Party: Deputy Prosecuting Attorney DI VITTORIO, SARA J; Deputy Prosecuting Attorney DOWNS, LYNDSEY MARIE; Deputy Prosecuting Attorney ENNS, GEOFFREY ALAN App. 168 PAGE I OF4 Printed on 02/1212019 at 3,' 58 PM SKAGIT CASE SUMMARY CASE No. 18-2-01234-29 11/30/2018 fil Motion to Dismiss Index# 7 Party: Assistant Attorney General SIMPSON, R JULY 11/30/2018 (;i) Note for Motion Docket Index# 8 SIMPSON: MT TO DISMISS 12/03/2018 fil Motion to Dismiss Index# 9 & CHANGE OF VENUE Party: Defendant SNOHOMISH, COUNTY OF 12/03/2018 QJ Note for Motion Docket index# IO ENNS: DISMSS & CHG VENUE 12/06/2018 .SJ Motion to Dismiss Index# I I FOR JUDICIAL NOTICE & MTN TO DISMISS NOTICE OF JOINDER Party: Defendant QUALITY LOAN SERVICE CORP OF WA 12/06/2018 fil Note for Motion Docket index# 12 MCDONALD: TRST'S JOJNDER OF MTN & MTN FOR DISMISSAL 12/06/2018 .SJ Affidavit Declaration Certificate Confirmation of Service Index# /3 12/14/2018 Ii) Motion Index# /4 EMERGENCY MTN FOR EXTENSION OF TIME Party: Attorney Stafne, Scott Erik; Plaintiff LARSON, CHRISTOPHER E; Plaintiff LARSON, ANGELA 12/14/2018 n'.:LI Response Index# 15 TO STATE/WA MTN TO DISMISS & QUALITYS JOIN DER & SNOH CO MTN TO DISMISS Party: Attorney Stafne, Scott Erik; Plaintiff LARSON, CHRISTOPHER E; Plaintiff LARSON, ANGELA 12/14/2018 n Response 'i::U Index# 16 LARSONS RESPONSE TO SNOH CO DFTS MTN TO TRANSFER VENUE Party: Attorney Stafne, Scott Erik; Plaintiff LARSON, CHRISTOPHER E; Plaintiff LARSON, ANGELA 12/14/2018 n Index# 17 'd.J Declaration Affidavit OFA LARSON I 2/14/2018 (r:::>i Index# 18 ·d..J Declaration Affidavit OF CHRIS LARSON 12/14/2018 n Declaration Affidavit 'di;J OF MJCHAH ANDERSON Index# 19 12/14/2018 tc"' 1 ,:LI Declaration Affidavit Index# 20 IN SUP PT OF OPPOS TO MTNS TO DJSM & TRANSFER VENUE & IN SUP PT OF MTN FOR CONTINUANCE Party: Attorney Stafne, Scott Erik 12/17/2018 ~ Index# 21 Notice of Association of Counsel App. 169 PAGE 2 OF 4 Printed on 02/12120 I 9 at 3: 58 PM SKAGIT CASE SUMMARY CASE No. 18-2-01234-29 12/17/2018 Index# 22 gJ Motion FOR JOINDER OF TRUST,SPS, & MERS IN MTN TO DISMISS Party: Attorney Courser, Donald Jeffrey 12/18/2018 fil Affidavit of Prejudice Index# 23 Party: Attorney Stafne, Scott Erik 12/18/2018 ill Declaration Affidavit Index# 24 Party: Plaintiff LARSON, ANGELA 12/18/2018 ill Affidavit Declaration Certificate Confirmation of Service Index# 25 12/18/2018 ill Reply Index# 26 SNO CO. DEFTS MTN TO DISMISS & TRANSFER VENUE 12/18/2018 Index# 27 •1.i:J Declaration Affidavit IN SUPP'T OF OF QUALITY'S MTN FOR JUDICIAL NOTICE Party: Attorney McDonald, Robert William; Defendant QUALITY LOAN SERVICE CORP OF WA 12/18/2018 gJ Reply Index# 28 NOTICE OF JOINDER & SUPPLEMENTAL ER 20/ REQUEST Party: Defendant QUALITY LOAN SERVICE CORP OF WA 12/18/2018 fil Reply Index# 29 IN SUPP'T OF MTN TO DISMISS Party: Defendant QUALITY LOAN SERVICE CORP OF WA 12/18/2018 ill Response Index# 30 TO PLAINTIFF MTN FOR EXTENTION Party: Defendant QUALITY LOAN SERVICE CORP OF WA 12/20/2018 CANCELED Summary Judgment (9:30 AM) (Judicial Officer: Svaren, David A) SIMPSON: MT TO DISM CR I 2(B)(6) Duplicate Hearing 12/20/2018 CANCELED Summary Judgment (9:30 AM) (Judicial Officer: Svaren, David A) ENNS: DISMISS & CHANGE VENUE Duplicate Hearing 12/20/2018 Summary Judgment (9:30 AM) (Judicial Officer: Svaren, David A) MCDONAD: TRST'S JOINDER OF MTN & MTN FOR DISMISSAL ENNS: DISMISS & CHANGE VENUE SIMPSON: MT TO DISM CR I 2(8)(6) Resource: Court Admin Default, Default Events: 11/30/2018 Note for Motion Docket 12/03/2018 Note for Motion Docket 12/06/2018 Note for Motion Docket 12/20/2018 {i) Motion Hearing (Judicial Officer: Svaren, David A) Index# 31 3/9:30 (not recorded) - II: 14 (not recorded), II :20 - II: 55 12/20/2018 Ii:] Order of Dismissal Without Prejudice (Judicial Officer: Svaren, David A) Index# 32 ONLY REGARDING SNO CO. & STATE DEFT'S App. 170 PAGE3OF4 Printed on 02/1212019 at 3:58 PM SKAGIT CASE SUMMARY CASE No. 18-2-01234-29 01/04/2019 .J::1'1 index# 33 't:U Notice of Association of Counsel Party: Attorney Courser, Donald Jeffrey; Attorney Marsha11, Ann T.; Attorney DELTCHEV, DELIAN PETROV; Defendant DEUTSCHE BANK NATIONAL TRUST CO 01/24/2019 'd.J Order for Change of Venue (Judicial Officer: Needy, David R) ~ index #34 & PATJAL ORDER OF DISMISSAL (FEES NOT PAID) 01/29/2019 lt"i ..;u Letter RE CHANGE OF VENUE FEE DATE index # 35 FINANCIAL INFORMATION Plaintiff LARSON, CHRISTOPHER E Total Charges Total Payments and Credits Balance Due as of 2/12/2019 270.00 270.00 0.00 App. 171 PAGE40F4 Printed on 02/12/2019 at 3:58 PM 1/30/2019 SKAGIT COUNTY WASH FILED' JAN 29 2019 MELISSA BEATON, CO. CLERK Deputy MELISSA BEATON SKAGIT COUNTY CLERK ~ OFFICE OF THE ~ SKAGIT COUNTY CLERK KRIS DESMARAIS CHIEF DEPUTY CLERK 205 W KINCAID, ROOM 103 MOUNT VERNON, WA 98273 PHONE (360) 416-1800 01/29/2019 ROBERT MCDONALD ATTORNEY AT LAW 108 1sr AVES., STE 202 SEATTLE, WA 98104-2538 JEFF COURSER ATTORNEY AT LAW 600 UNIVERSITY STREET, SUITE 3600 SEATTLE, WA 98101 SCOTT STAFNE ATTORNEY AT LAW 239 N. OLYMPIC AVE. ARLINGTON, WA 98223 SARA DI VITTORIO ATTORNEY AT LAW 3000 ROCKEFELLER AVE #MS504 EVERETT, WA 98201-4046 Re: CHRISTOPHER LARSON & ANGELA LARSON VS SNOHOMISH COUNTY, ET AL., CASE# 18-2-01234-29 Counsel, Please be advised that an order on Partial Order of Dismissal and Order on Change of Venue was signed on 01/24/2019 by Judge Dave Needy in the above referenced case. Actual transfer of the file on Change of Venue cannot proceed until we receive from your office: 1. A check made out to Skagit County Superior Court for $20.00, Change of Venue Fee; 2. A check made out to Snohomish County Superior Court for $240.00 for their filing fee. Upon receipt of the above fees, the Change of Venue will be prepared promptly and transmitted to Snohomish County. Thank you for your consideration. Sincerely, JESSICA CARTER Deputy Clerk Skagit County Superior Court DUPLICATE ORIGINAL App. 172 COA FILING 191107 (021420c) Media Transcription 1 IN THE COURT OF APPEALS 2 FOR THE STATE OF WASHINGTON 3 DIVISION I 4 80968-7-I FILED Court of Appeals Division I State of Washington 411012020 2:14 PM 5 6 7 CHRISTOPHER and ANGELA LARSON,) Appellant, 8 9 10 11 vs. Snohomish County Cause No. 19-2-01383-31 SNOHOMISH COUNTY, et al., Respondents. 12 13 VERBATIM REPORT OF PROCEEDINGS 14 BEFORE THE HONORABLE 15 DAVID A. SVAREN 16 17 NOVEMBER 7, 2019 18 19 20 21 22 23 TRANSCRIBED FROM RECORDING BY: 24 CHERYL J. HAMMER, RPR, CCR 2512 25 Page 54 YOM: Full Service Court Reporting, A Veritext Company 800.831.6973 App. 173 COA FILING 191107 (021420c) Media Transcription 1 that were before the court at this time inasmuch as 2 the court has already made a determination with 3 respect to the quiet title action. 4 motions for summary judgment are granted. 5 ' MALE VOICE: 6 FEMALE VOICE: 7 Thank you, Your Honor. Your Honor, we have a proposed order. THE COURT: 8 9 Bottom line, I haven't addressed in my oral comments the request that was brought to have me 10 disqualify myself. 11 have a dog in this fight. 12 That request is denied. I don't And to the extent I'm being asked to 13 continue the hearing based upon what is occurring in a 14 separate action, 15 as well. 16 based upon documents that were filed this last summer. 17 I am going to be denying that request This is a timely summary judgment hearing At this time, I am signing the 18 proposed order presented by the trust, SPS, and MERS' 19 motion for summary judgment. 20 21 Mr. McDonald, does QLS have a proposed order? 22 MR. McDONALD: 23 THE COURT: I do, Your Honor. And the court has signed 24 the order of dismissal submitted by Quality Loan 25 Service of Washington. That will conclude the Page 93 YOM: Full Service Court Reporting, A Veritext Company 800.831.6973 App. 174 FILED Court of Appeals Division I State of Washington 41612020 3:37 PM No. 80968-7 On appeal from Snohomish County No.19-2-01383-31 IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON DIVISION I CHRISTOPHER and ANGELA LARSON​, Plaintiff-Appellant​, v​. SNOHOMISH COUNTY​ et al​., Defendant-Respondent. APPELLANTS’ REPLY TO SNOHOMISH COUNTY AND ITS OFFICIALS RESPONSE TO LARSONS’ MOTION REQUIRING DEFENDANT/APPELLEE CLERK TO COMPLY WITH RAP 9.6 ​ Scott E. Stafne​, WSBA# 6964 STAFNE LAW ​Advocacy & Consulting 239 N. Olympic Avenue Arlington, WA 98223 360-403-8700 ​scott@stafnelaw.com Attorney for Defendant-Appellant. App. 175 I. The Snohomish Snohomish County Auditor, Introduction to Reply County defendant County and on behalf of presumably the other Snohomish officials, Snohomish Prosecutor the Snohomish County Clerk, Snohomish County i.e. County Examiner of Titles and Legal Advisor to the Registrar, and the Snohomish County Superior Court Judges, argues in the “Introduction and Relief Requested” section of its Response to the Larsons’ “Motion to Require its Clerical Personnel to Comply with RAP 9.6” that this Court should deny the motion ​ as moot. S ​ ee Snohomish County’s Response to Motion to Require Clerical Personnel to Comply with RAP 9.6 (SC Response) p. 1. In the “Argument” section of these parties’ Response, the Prosecutor appears to argue that the Defendant County Clerk’s procedures, as comply with RAP 9.6. outlined in the Larsons’ motion, In this regard, Snohomish County’s Response states: While counsel for the County was not privy to 1 App. 176 the conversations Stafne's office, office the Appellants between and personnel County were members does likely in not told that the of Clerk's doubt the Mr. that typical process is that parties can only designate an entire entry in the docket rather than individual pages thereof, in compliance with RAP 9.6. SC Response, p. 1 The Larsons were not told by the Snohomish County Clerk’s office that this was the typical procedure. They were told this was the procedure they must comply with. See Declaration of LeeAnn Halpin in support of Motion. II. Reply Argument A. This Motion is Not Moot. An issue is m ​ oot if the matter is “purely academic.” ​ State v. Turner, 98 Wn.2d 731, 733, 658 P.2d 658 (1983) ​ (quoting G ​ rays Harbor Paper Co. v. Grays Harbor County, 74 Wn.2d 70, 73, 442 P.2d 967 (1968)). “However, an issue is ​ not m ​ oot if a court can provide any effective relief.” T ​ urner, 98 ​ Wn.2d at 733 (citing P ​ entagram Corp. v. City of Seattle, 28 Wn. App. 219, 223, 622 P.2d 892 (1981)). “‘The central question of all ​mootness ​problems is whether changes in the circumstances that prevailed at the 2 App. 177 beginning of litigation meaningful relief.’” ​City have of forestalled Sequim v. any occasion ​ Malkasian, for 157 Wn.2d 251, 259, 138 P.3d 943 (2006) (quoting 13A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3533.3, at 261 (2d ed. 1984)). “As long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot.” ​ Chafin, ​Chafin v. 568 U.S. 165, 172, 133 S. Ct. 1017, 185 L. Ed. 2d 1 (2013) (quoting ​Knox v. Serv. Emps. Int'l Union, Local ​ 1000, 567 U.S. 298, 307-08, 132 S. Ct. 2277, 183 L. Ed. 2d 281 (2012)). Obviously question with this case, regard to as this a whole, motion is not moot. is whether The these government Defendants can force the Larsons to go to their Snohomish government adversaries to request they perform their jobs as judicial officials, or can simply come to this Court and obtain an order compelling these judicial clerks to follow the mandates of RAP 9.6. This is an important question in this Appeal because 3 App. 178 these same government Defendants who have control of the Snohomish violating County the courts Torrens Act are in being a sued way that for is purposely designed to 1 economically benefit each of them . This, the Larsons argue, makes these officials and the County they represent an inappropriate forum in which to adjudicate the meaning of this court rule. In this Appeal, Snohomish County and its Clerk (a defendant in the underlying action) argue that they should not be required by this Court to follow RAP 9.6 because counsel for the Larsons should have simply asked their attorney, the Snohomish Prosecutor, to simply relax the rule in this case. Having been made aware of Appellant’s predicament through their motion, counsel for the County discussed available options with the Clerk's 1 ​After office. The Clerk’s office informed the this case was transferred from the Skagit County Superior Court to the Snohomish County Superior Court the Larsons moved to disqualify all of Snohomish County superior court judges from adjudicating their case based on federal Due Process and RCW 2.28.030(1). ​See Stafne declaration in support of this Reply. Shortly thereafter all of Snohomish County’s superior court judges and commissioners recused themselves from adjudicating this case. The Clerk, however, did not recuse herself notwithstanding she was charged with the same disqualifying conduct as ​ were Snohomish County judges and commissioners.​ Id. 4 App. 179 undersigned counsel that Appellants could select the particular pages they desired from the Skagit pages County under Superior Court file, file those a cover letter in the Snohomish County Superior Court docket (indicating they are excerpts from the docket entry containing the entire Skagit County court file), and then designate excerpts the as docket their number designation containing of the the clerk's papers. The County is confident this process will serve the needs of both the Court and Appellants. I ​ f it does not, Appellants simply need to contact counsel for the County to work out a different compromise. SC Response, pp. 1–2 (Emphasis Supplied) As can be seen from and the its above officials quoted are Response Snohomish County reserving for themselves, rather than allowing this Court to determine, how RAP 9.6 (a state Rule of Appellate Procedure) should be interpreted in this Court. Under the Separation of Powers principles incorporated into Washington’s Constitution local officials in the Executive Branch of County government do not have authority to judicially interpret the meaning of court ​ rules. This is because it is up to the judges of our Courts, not county clerks, to ultimately interpret Washington Court rules. See e.g. ​ Waples v. Yi, 169 Wn.2d 152, 155, 234 P.3d 187 5 App. 180 ​ (2010)​; P ​ utnam v. Wenatchee Valley Medical Center, P.S., 166 Wn.2d 974, 977-78, 216 P.3d 374 (2009). Because this Court can provide the Larsons with the relief they requested in their motion, i​ .e. that the Court order Snohomish County and the Snohomish County Clerk to comply with the language of RAP 9.6 as it is written, the Larsons’ Motion is not moot. B. Even if the Motion is Moot, it is in the Public Interest that it be Adjudicated. If an issue presented is of continuing and substantial public importance, an appellate Court should review an ​ otherwise moot issue. I​ n re Marriage of Horner, 151 Wn.2d 884, 891, 93 P.3d 124 (2004). To determine whether the contested issue is of substantial and continuing public importance, courts should consider whether “(1) the issue is of a public or private nature; (2) whether an authoritative determination is desirable to provide future guidance to public officers; and (3) whether t ​ he issue is likely to recur.” Id. at 892 (quoting ​Westerman v. ​ Cary, 125 Wn.2d 277, 286-87, 892 P.2d 1067 (1994)). 6 App. 181 Division II recently applied these principles in I​ n re ​ Dependency of T.P., No. 52928-9-II, 2020 Wash. App. LEXIS unpublished​). 437 (Ct. App. Feb. 25, 2020) (​ There the issue before the Court of Appeals was the whether the juvenile court violated RCW 13.34.065(1)(a) by continuing the shelter care hearing for 22 days after the child had been taken into custody and, if so, whether that violation of this statute was moot for purposes of the child’s father obtaining relief from the Court of Appeals. A panel of Division II held: [T]his case may be reviewed under the public interest exception because (1) this issue [removal of a child from his or her parents’ care] is a matter of public interest, (2) guidance to lower courts is desirable, and (3) this issue is likely to recur but continually escape our review. ​ Id. at *9. The same is true here. The issue as to whether counties and their elected court clerks and staff must follow the court rules as they are written or can interpret them as they please is a matter of public importance. Guidance by this Court to the lower superior courts and subordinate counties (and county officials) is desirable. And as the Snohomish County’s 7 App. 182 Response request indicates this issue has previously long evaded review, and will likely do so in the future, if the County and its clerk can simply moot the issue by offering to make the issue go away. C. The Interpretation of the Meaning of RAP 9.6 Remains a Live Issue. Snohomish Defendant County officials, and and its Defendant Defendant judges Clerk, appear other to be arguing that RAP 9.6 allows deputy clerks to determine the meaning of RAP 9.6 because they say at the end of their response attorney that to this work Defendants’ interpretation out interest a in allows the prosecuting compromise with regard to these this case. The Larsons’ strongly disagree. The attorney for the Snohomish County Clerk—no more than the attorney for any adversary—does not have the right to make judicial decisions in this Appeal because his client is acting as a judge interpreting an applicable court ​ rule. S ​ ee e.g. Williams v. Pennsylvania, 136 S. Ct. 1899 (2016) ( . . .“[N]o man can be a judge in his own case and no man is permitted to try cases where he has an interest in the 8 App. 183 ​ outcome.” Id. at 1905–06 quoting I​ n re Murchison, 349 U.S. 133, 137, 75 S. Ct. 623, (1955)​.) The Larsons are entitled to have RAP 9.6 interpreted according to its language by constitutional judges who have no stake in the outcome of this case. Snohomish County, its officials, and judges have not offered any argument as to why the Larsons’ interpretation of RAP 9.6 is not correct; most likely because the Larsons’ interpretation of this Rule is correct. III. Conclusion This Court should interpret the meaning of RAP 9.6. After doing so this Court should order defendant Snohomish County and defendant Snohomish County Clerk to comply with RAP 9.6 as it is written; not as these defendants want it to have been written. Dated this 6th day of April 2020, at Arlington, Washington. Respectfully submitted by, ​ ​ /s / Scott E. Stafne ​x S ​ cott E. Stafne​, WSBA# 6964 STAFNE LAW ​Advocacy & Consulting 239 N. Olympic Avenue 9 App. 184 FILED Court of Appeals Division I State of Washington 41612020 3:37 PM No. 80968-7 On appeal from Snohomish County No.19-2-01383-31 IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON DIVISION I CHRISTOPHER and ANGELA LARSON​, Plaintiff-Appellant​, v​. SNOHOMISH COUNTY​ et al​., Defendant-Respondent. STAFNE’S DECLARATION IN SUPPORT OF APPELLANTS’ REPLY TO SNOHOMISH COUNTY AND ITS OFFICIALS RESPONSE TO LARSONS’ MOTION REQUIRING DEFENDANT/APPELLEE CLERK TO COMPLY WITH RAP 9.6 ​ Scott E. Stafne​, WSBA# 6964 STAFNE LAW ​Advocacy & Consulting 239 N. Olympic Avenue Arlington, WA 98223 360-403-8700 ​scott@stafnelaw.com Attorney for Defendant-Appellant. App. 185 1. My name is Scott E. Stafne. I am the attorney for the Larsons in this matter. I am over the age of majority and competent to make this declaration. I make this declaration both as the Larsons’ attorney and/or on the basis of personal knowledge which appears more fully herein. 2. I have attached hereto as Exhibit 1 a copy of the original complaint without exhibits the Larsons filed against Snohomish County, its officials, and judges in the Skagit County Superior Court pursuant to 1 Exhibit 1, ¶¶ 2.2. In that complaint RCW 36.01.050. ​See the Larsons prayed for different types of relief: Including without limitation ​recusal of all superior court judges in any county which has failed to comply with the provisions of the Torrens Act and/or whom are in a similar position to these Snohomish County judicial defendants with regards to the issues being raised in this judges acts litigation; and ​i.e​. omissions superior have court prevented landowners within their respective county from availing themselves of the protections afforded persons with interests in land by the public and transparent land registration system established 1 ​The Larsons also filed a proposed amended complaint which a Skagit Superior Court judge denied acting as a pro tem judge for the Snohomish County Superior Court. This denial of the Larsons’ motion to file this amended complaint remains a potential issue in this Appeal. App. 186 by the Torrens Act. Exhibit 1, at pp. 46–7, ¶ M. 3. The Larsons complaint filed a motion to amend their original after the case was transferred back to Snohomish County by the Skagit County Superior Court Judge based on Snohomish County and its officials and judges’ contested motion to transfer venue. A copy of the amended complaint and exhibits is attached as Exhibit 2 hereto, where it appears as Attachment 1 to my declaration.. 4. This proposed amended complaint requests the Snohomish County Superior Court judges recuse themselves based on Fourteenth Washington State’s 2.28.030(1). ​See Amendment Due e.g. Due Process Exhibit Process grounds, 2, grounds, and Proposed RCW Plainitffs’ Supplemental and Amended Complaint, ¶ 2.3. The proposed complaint also seeks damages from Snohomish County Defendants for the acts and omissions of Snohomish County officials, including the Snohomish County Clerk, for violating the Torrens Supplemental Act. See and e.g. Exhibit Amended App. 187 2, Proposed Complaint, ¶¶ Plainitffs’ 1.6; 2.3; 3.34–3.40; 4.4–48; 5.3-5.6; 8.1–8.5. 6. As the Court can see the proposed complaint alleges at ¶ 4.45 that: 4.45 On information and belief the pension funds of Snohomish County officials and judges are heavily dollars invested (more than ($1,000,000,000.00)) one in billion mortgage backed securities. Thus, when peoples’ homes are taken from them pursuant to securitized obligations public officials and judges benefit. If, on the other hand, the foreclosures are not allowed to be completed against people like the Larsons the Snohomish financial County interest officials of and these same judges are diminished. This creates a pecuniary conflict of interest between the government, its officials, and a large number of people. 7. In the Larsons’ opposition to the private Defendants’ motion for summary judgment the Larsons further clarified this argument at pages 20–22 by setting forth facts tending to establish that Snohomish County officials and judges benefit economically from superior courts routinely allowing foreclosures to proceed. A copy of this opposition is attached as Exhibit 3. App. 188 8. I have attached as Exhibit 4 a copy of the recusal order of the judges and commissioners in Snohomish County. It is the Larsons position that if clerks are going to be interpreting laws they should not be allowed to do so in cases and appeals where they are named parties. I declare under the penalty of perjury for the laws of Washington that the foregoing is true and correct to the best of my information and belief. Dated this 6th day of April 2020, at Arlington, Washington. By:​ ​ ​Scott /s / Scott E. Stafne E. Stafne​, WSBA# 6964 ​x STAFNE LAW ​Advocacy & Consulting 239 N. Olympic Avenue Arlington, WA 98223 360-403-8700 ​scott@stafnelaw.com Attorney for Defendant-Appellant. App. 189 19-2-01a83-31 ORP 68 Order of Preasslg nment 'F \L·EO .iiililllllllllllllllllll 1111 • • " .... ~ w ., • · - . . . . . . . . "" . . ,. • 1Ul9 Sf.P 25 MHO; 5~ so\sl'< A \IS,; ASK\ 1 - .. . . . . . - . - - · · ' SH~~gm~c~ll~f{),stl IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF SNOHOMISH Larson et al ,,. Plaintiff vs ORDER OF ASSIGNMENT Snohomish County et al Defendant. ALL Snohomish County Judges and Commissioners, having recused themselves from hearing the above-referenced matter, and Skagit County Judge David A. Svaren has agreed to handle motions and trial in the above-referenced matter, now, therefore, IT IS HE~EBY ORDERED that the above-entitled matter is hereby assigned to Skagit County for trial and all pre-trial motions. DATED this· 2-;rt day of September, 2019. .a BRUCEi.wEISS Presiding Judge ORDER OF ASSIGNMENT· 1 App. 190 ,~~\ FILED Court of Appeals Division I State of Washington 311312020 4 :53 PM No. 80968-7 IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON DIVISION I CHRISTOPHER E. LARSON, a married man as his separate estate, and ANGELA LARSON, a married woman Appellant, v. SNOHOMISH COUNTY et al., ​ Respondent. DECLARATION OF LEEANN HALPIN IN SUPPORT OF MOTION TO REQUIRE CLERICAL PERSONNEL TO COMPLY WITH RAP 9.6 Snohomish County Superior Court No. 19-2-01383-31 Scott E. Stafne, WSBA # 6964 STAFNE LAW A ​ dvocacy & Consulting 239 N. Olympic Avenue Arlington, WA 98223 360.403.8700 ​Scott@Stafnelaw.com Attorney for Appellants App. 191 1. My name is LeeAnn Halpin. I am the paralegal for the Appellant/Plaintiff Larsons in this Appeal and the case below. 2. I am competent to make this declaration and do so on the basis of that personal knowledge which is reflected herein. 3. I decided to begin work on the Larsons’ Clerks Papers in late January of this year because I knew the process may be more complicated due to the change of venue. 4. I had previous knowledge the record sent from the Skagit County because County Clerk I was had Clerk to transferred viewed the the as Snohomish one record volume on the Snohomish County Odyssey portal following the change of venue. 2 App. 192 5. On or about January 31, 2020, I went directly to the Skagit County Clerk’s office to speak with the clerk and to review the information on the Skagit County Odyssey portal related to the Larsons case. 6. I had previously noted a handwritten comment on the left-hand side of the cover letter written by Melissa Beaton, who is a Skagit County Clerk, to the Clerk of Snohomish County related to the Order Changing Venue that I did not understand. The comment indicates “T/C Clerk – we didn’t [not discernible] sub 1-17 sub 1​-​17 ＞ on [not discernible] 2/22.” A certified copy of the record on ​ Change of Venue is attached hereto as E ​ xhibit 1. 7. Following the cover letter for the record is a case summary that includes the date of each filing, the Events & Orders of the 3 App. 193 Court, and the Index number assigned to the record. The index number is synonymous with the subnumber. ​See ​Exhibit 1​. 8. The index numbers on the Case Summary for Case No. 18-2-01234-29 range from 1–35 and are dated 10/18/2018 through 1/29/2019. 9. I was aware the numbers shown above the bar code stamp on each document filed in Snohomish County also started with subnumber (index) one which would result in duplicate subnumbers for the record at Skagit and upper left corner of Snohomish County. ​Exhibit 1 Skagit ​See County record on change of venue is stamped “RCDCHV 1”. 10. Knowing I could not identify duplicate numbers following the change of venue I decided to discuss the matter with the clerk. The clerk indicated that 4 App. 194 I could not use the numbers listed in the case summary directions and that provided I would by the need to follow Snohomish the County Clerk related to subnumbers. 11. I called the Snohomish County Clerk’s office the following Monday, February 3, 2020, to determine how I should identify individual filings. The first person I spoke with could not assist me and transferred my call to someone who worked in the Appeals department. 12. This employee was also not able to assist me, but advised me that she would locate an Appeals Manager who would return a call to me on the same day. 13. I received a call back on the same day from the Snohomish County Clerk’s office. I explained that the record from Skagit County had been sent to 5 App. 195 Snohomish County and that I was not able to identify specific subnumbers related to each filing before the change of venue because the record on change of venue was one volume and the Skagit County record had duplicate index numbers. 14. The Appeals Manager explained that I would need to designate the record from the change of venue as one Index. She also stated “we won’t pull out individual filings for you.” 15. I explained to Mr. Stafne that I would not be able to designate individual filings from the record in Skagit County. 16. I drafted most of the Designation of Clerk’s Papers on February 9, 2020, and my coworker completed based on the the process on information February I had 11, received 2020, from Snohomish County Clerk’s office. A copy of the 6 App. 196 Designation was provided to Mr. Stafne on the ​ same day and is attached hereto as E ​ xhibit 3. I declare under the penalty of perjury of the laws of the State testimony is of true Washington and correct that to the the foregoing best of my information and belief. Dated this 13th day of March, 2020, at Mount Vernon, Washington. By:​ s/​LeeAnn Halpin LeeAnn Halpin, Declarant 7 App. 197 ​x Exhibit 1 Larson v. Snohomish County et al. Case No. 80968-7 App. 198 f 19-'2-01383-31 RCDCHV 1 - ,Record on Change of Venue ~f95013J I ~ 1111~11mmim11111Hm11m ~ MELISSA BEATON SKAGIT COUNTY CLERK ~ OFFICE OF THE ~ KRIS DESMARAIS r-- CHIEF DEPUTY CLERK -...._ DATE: February 12, 2019 -- 205 W KINCAID, ROOM 103 MOUNT VERNON, WA 98273 PHONE (360) 416-1800 SKAGIT COUNTY CLERK SNOHOMISH COUNTY CLERKS OFFICE 3000 ROCKEFELLER AVE 19 2 0138 3 31i-> EVERETT, WA 98201 -...,, c:::, . .0 RE: 18-2-01234-29 CHRISTOPHER E LARSON et al vs JANE DOE et al ORDER CHANGING VENUE TO SNOHOMISH COUNTY Dear Clerk: ~ lll!ilP.-~1tA f'lll~L11'1 i 0 (.,J An Order Granting Change of Venue to SNOHOMISH COUNTY was signed on January 24, 2019. Enclosed please find a certified copy of the record on Change of Venue and the attorney's check#604152876 in the amount of $240 for your filing fee. Please conform and stamp the new cause number on the enclosed copy of this letter and return it in the self-addressed stamped envelope provided, thank you. Respectfully, MELI Eli y Clerk MELISSA BEATON, SKAGIT COUNTY CLERK Enclosures: Record on Change of Venue Ck# App. 199 19 2 01383 31 MELISSA BEATON SKAGIT COUNTY CLERK ~ OFFICE OF THE ~ KRIS DESMARAIS 205 W KINCAID, ROOM 103 MOUNT VERNON, WA 98273 PHONE (360) 416-1800 SKAGIT COUNTY CLERK CHIEF DEPUTY CLERK CC: TO FILE TO ATTORNEY 18 -2-01234-29 ~-·I · rr, ....fflt,. 0 CERTIFICATION: I, MELISSA BEATON, COUNTY CLERK AND EX-OFFICIO CLERK OF THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR SKAGIT COUNTY, DO CERTIFY THAT THE FOREGOING ARE AND CONSTITUTE THE ORIGINAL RECORD IN THE ABOVE NUMBERED CASE AS THE SAME WERE ORIGINALLY FILED AND NOW APPEAR OF RECORD IN SAID CASE IN MY OFFICE. I FURTHER CERTIFY THAT THE ORDER TRANSFERRING VENUE IS A FULL, TRUE AND CORRECT COPY OF THE ORIGINAL THEREOF AS IT APPEARS ON FILE AND OF RECORD IN MY OFFICE. EREUNTO SET MY HAND AND AFFIXED THE SEAL OF THE BY App. 200 SKAGIT CASE SUMMARY CASE No. 18-2-01234-29 CHRISTOPHER E LARSON et al § § § VS JANE DOE et al 19 2 0138 3 31 Location: Skagit Filed on: 10/18/2018 JIS/SCOMIS Case Number: 18-2-01234-4 § § CASE INFORMATION Case Type: MSC2 Miscellaneous - Civil Case Status: 10/18/2018 Active Case Flags: Affidavit of Prejudice CASE ASSIGNMENT Current Case Assignment Case Number Court Date Assigned 18-2-01234-29 Skagit 10/18/2018 PARTY .INFORMATION Plaintiff Lead Attorneys Stafne, Scott Erik Retained 360-403-8700(W) LARSON, ANGELA et al Defendant APPEL, GEORGE F DI VITTORIO, SARA J Retained 425-388-6343(W) et al DATE EVENTS & ORDERS OF THE COVRf INDEX I 0/18/2018 fil Complaint Index# I 10/24/2018 fil Notice of Appearance Index# 2 Party: Attorney McDonald, Robert William; Defendant QUALITY LOAN SERVICE CORP OF WA 10/24/2018 n Affidavit Declaration Certificate Confirmation of Service 'did Index# 3 11/05/2018 fil Notice of Appearance Index # 4 Party: Assistant Attorney General YOUNG, ALICIA O; Assistant Attorney General SIMPSON, R JULY; Defendant WASHINGTON, STATE OF; Defendant INSLEE, WA/ST GOVERNOR, JAY; Defendant FERGUSON, WA/ST ATTY GENERAL, ROBERT 11/14/2018 fil Notice of Appearance Index# 5 Party: Attorney Courser, Donald Jeffrey; Defendant DEUTSCHE BANK NATIONAL TRUST CO 11/15/2018 L7'I Index #6 ',d.J Notice of Appearance Party: Deputy Prosecuting Attorney DI VITTORIO, SARA J; Deputy Prosecuting Attorney DOWNS, LYNDSEY MARIE; Deputy Prosecuting Attorney ENNS, GEOFFREY ALAN PAGE 201 I OF4 App. Printed on 02/1212019 at 3,' 58 PM SKAGIT CASE SUMMARY CASE No. 18-2-01234-29 11/30/2018 fil Motion to Dismiss Index# 7 Party: Assistant Attorney General SIMPSON, R JULY 11/30/2018 (;i) Note for Motion Docket Index# 8 SIMPSON: MT TO DISMISS 12/03/2018 fil Motion to Dismiss Index# 9 & CHANGE OF VENUE Party: Defendant SNOHOMISH, COUNTY OF 12/03/2018 QJ Note for Motion Docket index# IO ENNS: DISMSS & CHG VENUE 12/06/2018 .SJ Motion to Dismiss Index# I I FOR JUDICIAL NOTICE & MTN TO DISMISS NOTICE OF JOINDER Party: Defendant QUALITY LOAN SERVICE CORP OF WA 12/06/2018 fil Note for Motion Docket index# 12 MCDONALD: TRST'S JOJNDER OF MTN & MTN FOR DISMISSAL 12/06/2018 .SJ Affidavit Declaration Certificate Confirmation of Service Index# /3 12/14/2018 Ii) Motion Index# /4 EMERGENCY MTN FOR EXTENSION OF TIME Party: Attorney Stafne, Scott Erik; Plaintiff LARSON, CHRISTOPHER E; Plaintiff LARSON, ANGELA 12/14/2018 n'.:LI Response Index# 15 TO STATE/WA MTN TO DISMISS & QUALITYS JOIN DER & SNOH CO MTN TO DISMISS Party: Attorney Stafne, Scott Erik; Plaintiff LARSON, CHRISTOPHER E; Plaintiff LARSON, ANGELA 12/14/2018 n Response 'i::U Index# 16 LARSONS RESPONSE TO SNOH CO DFTS MTN TO TRANSFER VENUE Party: Attorney Stafne, Scott Erik; Plaintiff LARSON, CHRISTOPHER E; Plaintiff LARSON, ANGELA 12/14/2018 n Index# 17 'd.J Declaration Affidavit OFA LARSON I 2/14/2018 (r:::>i Index# 18 ·d..J Declaration Affidavit OF CHRIS LARSON 12/14/2018 n Declaration Affidavit 'di;J OF MJCHAH ANDERSON Index# 19 12/14/2018 tc"' 1 ,:LI Declaration Affidavit Index# 20 IN SUP PT OF OPPOS TO MTNS TO DJSM & TRANSFER VENUE & IN SUP PT OF MTN FOR CONTINUANCE Party: Attorney Stafne, Scott Erik 12/17/2018 ~ Index# 21 Notice of Association of Counsel PAGE202 2 OF 4 App. Printed on 02/12120 I 9 at 3: 58 PM SKAGIT CASE SUMMARY CASE No. 18-2-01234-29 12/17/2018 Index# 22 gJ Motion FOR JOINDER OF TRUST,SPS, & MERS IN MTN TO DISMISS Party: Attorney Courser, Donald Jeffrey 12/18/2018 fil Affidavit of Prejudice Index# 23 Party: Attorney Stafne, Scott Erik 12/18/2018 ill Declaration Affidavit Index# 24 Party: Plaintiff LARSON, ANGELA 12/18/2018 ill Affidavit Declaration Certificate Confirmation of Service Index# 25 12/18/2018 ill Reply Index# 26 SNO CO. DEFTS MTN TO DISMISS & TRANSFER VENUE 12/18/2018 Index# 27 •1.i:J Declaration Affidavit IN SUPP'T OF OF QUALITY'S MTN FOR JUDICIAL NOTICE Party: Attorney McDonald, Robert William; Defendant QUALITY LOAN SERVICE CORP OF WA 12/18/2018 gJ Reply Index# 28 NOTICE OF JOINDER & SUPPLEMENTAL ER 20/ REQUEST Party: Defendant QUALITY LOAN SERVICE CORP OF WA 12/18/2018 fil Reply Index# 29 IN SUPP'T OF MTN TO DISMISS Party: Defendant QUALITY LOAN SERVICE CORP OF WA 12/18/2018 ill Response Index# 30 TO PLAINTIFF MTN FOR EXTENTION Party: Defendant QUALITY LOAN SERVICE CORP OF WA 12/20/2018 CANCELED Summary Judgment (9:30 AM) (Judicial Officer: Svaren, David A) SIMPSON: MT TO DISM CR I 2(B)(6) Duplicate Hearing 12/20/2018 CANCELED Summary Judgment (9:30 AM) (Judicial Officer: Svaren, David A) ENNS: DISMISS & CHANGE VENUE Duplicate Hearing 12/20/2018 Summary Judgment (9:30 AM) (Judicial Officer: Svaren, David A) MCDONAD: TRST'S JOINDER OF MTN & MTN FOR DISMISSAL ENNS: DISMISS & CHANGE VENUE SIMPSON: MT TO DISM CR I 2(8)(6) Resource: Court Admin Default, Default Events: 11/30/2018 Note for Motion Docket 12/03/2018 Note for Motion Docket 12/06/2018 Note for Motion Docket 12/20/2018 {i) Motion Hearing (Judicial Officer: Svaren, David A) Index# 31 3/9:30 (not recorded) - II: 14 (not recorded), II :20 - II: 55 12/20/2018 Ii:] Order of Dismissal Without Prejudice (Judicial Officer: Svaren, David A) Index# 32 ONLY REGARDING SNO CO. & STATE DEFT'S PAGE3OF4 App. 203 Printed on 02/1212019 at 3:58 PM SKAGIT CASE SUMMARY CASE No. 18-2-01234-29 01/04/2019 .J::1'1 index# 33 't:U Notice of Association of Counsel Party: Attorney Courser, Donald Jeffrey; Attorney Marsha11, Ann T.; Attorney DELTCHEV, DELIAN PETROV; Defendant DEUTSCHE BANK NATIONAL TRUST CO 01/24/2019 'd.J Order for Change of Venue (Judicial Officer: Needy, David R) ~ index #34 & PATJAL ORDER OF DISMISSAL (FEES NOT PAID) 01/29/2019 lt"i ..;u Letter RE CHANGE OF VENUE FEE DATE index # 35 FINANCIAL INFORMATION Plaintiff LARSON, CHRISTOPHER E Total Charges Total Payments and Credits Balance Due as of 2/12/2019 270.00 270.00 0.00 PAGE40F4 App. 204 Printed on 02/12/2019 at 3:58 PM 1/30/2019 SKAGIT COUNTY WASH FILED' JAN 29 2019 MELISSA BEATON, CO. CLERK Deputy MELISSA BEATON SKAGIT COUNTY CLERK ~ OFFICE OF THE ~ SKAGIT COUNTY CLERK KRIS DESMARAIS CHIEF DEPUTY CLERK 205 W KINCAID, ROOM 103 MOUNT VERNON, WA 98273 PHONE (360) 416-1800 01/29/2019 ROBERT MCDONALD ATTORNEY AT LAW 108 1sr AVES., STE 202 SEATTLE, WA 98104-2538 JEFF COURSER ATTORNEY AT LAW 600 UNIVERSITY STREET, SUITE 3600 SEATTLE, WA 98101 SCOTT STAFNE ATTORNEY AT LAW 239 N. OLYMPIC AVE. ARLINGTON, WA 98223 SARA DI VITTORIO ATTORNEY AT LAW 3000 ROCKEFELLER AVE #MS504 EVERETT, WA 98201-4046 Re: CHRISTOPHER LARSON & ANGELA LARSON VS SNOHOMISH COUNTY, ET AL., CASE# 18-2-01234-29 Counsel, Please be advised that an order on Partial Order of Dismissal and Order on Change of Venue was signed on 01/24/2019 by Judge Dave Needy in the above referenced case. Actual transfer of the file on Change of Venue cannot proceed until we receive from your office: 1. A check made out to Skagit County Superior Court for $20.00, Change of Venue Fee; 2. A check made out to Snohomish County Superior Court for $240.00 for their filing fee. Upon receipt of the above fees, the Change of Venue will be prepared promptly and transmitted to Snohomish County. Thank you for your consideration. Sincerely, JESSICA CARTER Deputy Clerk Skagit County Superior Court DUPLICATE ORIGINAL App. 205 FILED Court of Appeals Division I State of Washington 41312020 4:59 PM NO. 80968-7 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION I CHRISTOPHER E. LARSON, a married man as his separate estate, and ANGELA LARSON, a married woman, Appellants, V. SNOHOMISH COUNTY et al., Respondents. SNOHOMISH COUNTY'S RESPONSE TO MOTION TO REQUIRE CLERICAL PERSONNEL TO COMPLY WITH RAP 9.6 ADAM CORNELL Prosecuting Attorney LYNDSEY DOWNS, WSBA #37453 GEOFFREY A. ENNS, WSBA #40682 Deputy Prosecuting Attorneys Attorneys for Snohomish County 3000 Rockefeller Avenue, MIS #504 Everett, Washington 98201 Telephone: (425) 388-6330 App. 206 INTRODUCTION AND RELIEF REQUESTED Respondent Snohomish County asks the Court to deny as moot Appellants' Motion to Require Clerical Personnel to Comply with RAP 9.6 because Appellants have the option to designate only those clerk's papers they deem relevant to their claim. Appellants would have learned this had they simply contacted counsel for the County to discuss the issue rather than seeking relief from the Court without attempting to meet-and-confer to explore ways to resolve the dispute. ARGUMENT Appellants are correct that the court file from Skagit County Superior Court was transferred to Snohomish County and entered as a single docket number in the record. See Deel. of Scott E. Stafue in Supp. of Mot. to Require Clerical Personnel to Comply with RAP 9.6 ("Stafue Deel.") ,r 4. While counsel for the County was not privy to the conversations between members of Mr. Stafue's office and personnel in the Clerk's office, the County does not doubt that Appellants were likely told that the typical process is that parties can only designate an entire entry in the docket rather than individual pages thereof, in compliance with RAP 9.6. Having been made aware of Appellant's predicament through their motion, counsel for the County discussed available options with the Clerk' s office. The Clerk's office informed the undersigned counsel that Appellants 1 App. 207 could select the particular pages they desired from the Skagit County Superior Court file, file those pages under a cover letter in the Snohomish County Superior Court docket (indicating they are excerpts from the docket entry containing the entire Skagit County court file), and then designate the docket number containing the excerpts as their designation of the clerk's papers. The County is confident this process will serve the needs of both the Court and Appellants. If it does not, Appellants simply need to contact counsel for the County to work out a different compromise. CONCLUSION Counsel for Appellants and counsel for the County have worked cooperatively throughout this litigation, and the County is committed to continuing that approach throughout this appeal. Given the workaround available to Appellants, the Court may deny as moot Appellants' motion to compel different action by the Clerk. Ill Ill Ill Ill Ill Ill 2 App. 208 Respectfully submitted on April 3, 2020. ADAM CORNELL Snohomish County Prosecuting Attorney By: r.;l)SEy DOWNS, WSBA #37453 GEOFFREY A. ENNS, WSBA #40682 Deputy Prosecuting Attorneys Attorney for Respondent Snohomish County 3 App. 209 FILED Court of Appeals Division I State of Washington 311312020 4 :53 PM No. 80968-7 IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON DIVISION I CHRISTOPHER E. LARSON, a married man as his separate estate, and ANGELA LARSON, a married woman Appellant, v. SNOHOMISH COUNTY et al., ​ Respondent. MOTION TO REQUIRE CLERICAL PERSONNEL TO COMPLY WITH RAP 9.6 Snohomish County Superior Court No. 19-2-01383-31 Scott E. Stafne, WSBA # 6964 STAFNE LAW A ​ dvocacy & Consulting 239 N. Olympic Avenue Arlington, WA 98223 360.403.8700 ​Scott@Stafnelaw.com Attorney for Appellants App. 210 IDENTITY OF MOVING PARTY Appellants are CHRISTOPHER E. LARSON, a married man as his separate estate, and ANGELA LARSON, a married woman, hereafter referred to as the “Larsons” herein. The Larsons were the Plaintiffs in the trial court and are the Appellants in this Court of Appeals. RELIEF REQUESTED The allow Larsons them to respectfully designate request those this Court specific to Clerk’s Papers which they want reviewed from the Skagit County Superior Court which transferred the case below to Snohomish County Superior Court. If this allowed they to want Court determines designate to rely those upon the App. 211 are not specific clerk’s papers from 2 Larsons the Skagit County Superior Court, the Larsons respectfully request this Court issue an order mitigating the economic costs and effects of the clerical staff’s instruction that numerous clerk’s papers must be filed as if they were a single index. ISSUES 1) Should those basis the Larsons specific of their be clerk’s Appeal allowed papers to that pursuant to designate form RAP the 9.6? (Short Answer: YES) 2) If the Larsons are not allowed to designate only those clerk’s papers they want to rely upon from the Skagit County Superior Court should this Court issue an order mitigating the economic and other costs this will impose on the Larsons? (Short Answer: YES) 3 App. 212 FACTS RELEVANT TO MOTION ​ Larson v. Snohomish County, et. al, Skagit County Case No. 18-2-01234-29, was filed against Snohomish County, several of its officials including all its superior court judges, and other private defendants in the Skagit County Superior Court on October 18, 2018, pursuant to RCW 36.01.050. This complaint was filed after the Larsons had filed their registration of land title (Torrens) application on June 5, 2018, with the Snohomish County Superior Court. The Torrens application proceeding was docketed as Snohomish County Case No. 18-2-04994-31. On December 3, 2018, Snohomish Deputy County Prosecutor Geoffrey Enns moved to change venue of Skagit County Case No. 18-2-01234-29 to the Superior Court of Snohomish County. Skagit 4 App. 213 County Superior Court Judge David Svaren granted this motion Snohomish and the County 19-2-01383-31. case was Superior Thereafter transferred Court the as public to the Case No. and private defendants moved for a summary judgment and the Larsons’ moved to amend their complaint to, among other things, (1) name additional Washington State and Snohomish County defendants and (2) allege additional causes of action pursuant to Ch. 65.12 RCW. Faced with these motions the entire Snohomish County superior commissioners, adjudicating Superior appointed the Court, Skagit court bench, recused case. Then through County both judges and themselves from Snohomish County its presiding Superior Court judge, Judge David Svaren (the same judge who transferred the 5 App. 214 case to the Superior Court of Snohomish County) to adjudicate the same case as a pro tempore Snohomish Superior Court Judge. Judge Svaren, now acting as a pro tempore judge of Snohomish defendants’ County motion Superior for Court, summary granted judgment on November 14, 2019. Judge Svaren had granted the Larsons’ motion to amend their complaint in part on October 23, 2019. The January Larsons 13, filed 2020. their All Notice of Appeal arrangements for on the preparation of transcripts by court reporters were promptly papers completed. But the designation of clerk’s stalled. Indeed, the designation of clerk’s papers is not yet complete and is presently overdue. The reason designated is the clerk’s because papers the 6 App. 215 have not Snohomish been County Superior Court, through its clerical personnel, have advised them Larsons’ to counsel designate that they will not allow the pleadings, filings, and declarations in the Skagit County Superior Court as anything but a single clerk’s paper—when in fact they constitute many clerk’s papers—clerk’s papers that the rules require should be designated individually. ARGUMENT I. RAP 9.6 requires the designation of single pleadings and orders RAP 9.6 provides: (a) ​, appeal granted, with is serve the party days or on trial clerk's wants 30 filed ​ the those The within should the ​ Generally. all papers clerk. also . . designate be . ​ filed Each only other clerk and court appellate court. shall after the discretionary court trial seeking notice of review is parties a and file designation exhibits clerk review to the of party transmit to A copy of the designation with the party is clerk's 7 App. 216 appellate court encouraged papers and to exhibits needed to review the issues presented to the appellate court. (b) Designation and Contents. (1) The clerk's papers shall include, at a minimum: (A) the notice of appeal or the notice for discretionary review; * (C) * the summons * and complaint or case initiating petition in a civil case; (D) any written order or ruling not attached to the notice of appeal, of which a party seeks review; (E) the final complaint pretrial and order, answer or or the other final pleadings setting out the issues to be tried if the final pretrial order does not set out those issues; (F) any written opinion, findings of fact, or conclusions of law; * (2) ​Each * * designation or supplement s ​ hall specify the full title of the pleading, the date filed, subnumbers and, in counties are used, the where clerk's subnumber. Approximately two or more weeks before the designation of the clerk’s papers was due LeeAnn 8 App. 217 Halpin, the paralegal for the Larsons’ attorney, began preparing to help Mr. Stafne designate the clerk’s papers. ​See Halpin declaration. She learned that the Snohomish County Superior Court clerical staff took the position that the Larsons’ could not designate any of those individual pleadings and orders that had been originally filed in this case in the Skagit County Superior Court. Ms. Halpin was told the Larsons could only file the pleadings and orders filed in the Skagit County Superior Court as a single group of pleadings approximately 10 days before the designation was due. When Ms. Halpin informed the Larsons’ attorney of this, the attorney told Ms. Halpin that this was unacceptable. Unfortunately, the attorney was ill at this time and his schedule was full. of Scott E. Stafne. 9 App. 218 ​See declaration The attorney knew from his previous appellate experience that what would happen next was this Court would likely send him a sanctions notification; i​ .e. a notice threatening to sanction the Larsons if the designation was not made before a certain date. Given his illness and other obligations the attorney decided to forego filing the designation when due so that he could carefully contemplate what to do. Ultimately he decided to file these ​ alternative motions. I​ d. II. If this Court orders the Larsons must designate numerous pleadings as a single clerk’s paper it should order the expense of doing so be borne by the Court of the public. As that previously a demonstrated designation or RAP 9.6 supplementation provides of clerk’s papers must be of single documents, i​ .e. pleadings, declarations, court orders, etc. Other RAPs indicate 10 App. 219 that this Court should not require the Larsons to bear the cost of this Court requiring the Larsons to violate RAP 9.16. RAP 9.7 provides in pertinent part: (a) Clerk’s court ​The Papers. shall make clerk copies at of the cost, trial not to exceed 50 cents a page, of those portions of the clerk’s papers designated by the parties and prepare them for transmission to the appellate ​The court. clerk shall assemble the copies and number each page of the clerk’s papers in chronological order of filing, and bind in volumes of no more than 200 pages, or, as authorized by the appellate court, assemble clerk’s papers electronic cover and to format. sheet for transmit the numbered the The the appellate clerk shall papers with court in prepare the a title “Clerk’s Papers” and prepare an alphabetical index to the papers. The clerk shall promptly send a copy of the index to each party. T ​ he reproduction costs must be paid to the trial court clerk within 14 days of receipt of the index. Failure to do so may result in sanctions under rule 18.9. Within 14 days of receiving payment, the clerk shall forward the clerk’s papers to the appellate court. RAP 9.8 provides in pertinent part: 11 App. 220 (a) Duty of Trial Court provided in section (b), court shall exhibits clerk of to send the receives the Clerk. ​ the the clerk clerk's appellate payment documents. Except of the trial papers and court for the as when the preparation The clerk shall endorse on the face of the record the date upon which the clerk’s papers are transmitted to the appellate court. (b) ​ Cumbersome trial court court shall exhibits unusually appellate exhibits requesting weapons, which court with the to directs at The transmit expensive arrangements the ​. ​ Exhibits the the are or if a of the appellate only party clerk expense of difficult transmit the transfer controlled to clerk to of the or if the makes transmit the party exhibits. substances, No hazardous items, or currency shall be forwarded unless directed by the appellate court. The pleadings County Superior and exhibits Court “clerk’s filed in paper” the Skagit totals 735 1 pages, costing 50 cents per page for each copy . The Larsons 1 cannot afford this unnecessary cost that The Larsons’ attorney testifies in his declaration that it is his custom to order a copy of the clerk paper documents the Superior Court files with the Court of Appeal to ensure that he has an accurate copy of the Clerk’s Papers this Court is considering. ​See​ Stafne declaration. 12 App. 221 court clerical staff have imposed upon them in violation of RAP 9.6. RAP 9.8 allows this Court to make orders to allow for its consideration of difficult or expensive exhibits. The same procedure should be used here if this Court decides that the Larsons are not allowed to designate specific clerk’s papers filed with the Skagit County Superior Court. Such Order should, among other things, mitigate the cost necessary to prepare the oversized Skagit County Superior Court clerks paper for both this Court and a copy of that Clerk’s paper for the Larsons. CONCLUSION This Court should order the clerks and clerical personnel of the Snohomish County Superior Court to comply with RAP 9.6. 13 App. 222 Alternatively, this Court should issue an Order mitigating the economic impact on the Larsons of not being able to file clerk’s papers in the manner prescribed by RAP 9.6. Dated this 13th day of March 2020, at Arlington, Washington. Respectfully submitted, By:​ s/​Scott E. Stafne ​x Scott E. Stafne, WSBA # 6964 STAFNE LAW A ​ dvocacy & Consulting 239 N. Olympic Avenue Arlington, WA 98223 360.403.8700 ​Scott@Stafnelaw.com Attorney for Petitioner 14 App. 223 FILED Court of Appeals Division I State of Washington 311312020 4 :53 PM No. 80968-7 IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON DIVISION I CHRISTOPHER E. LARSON, a married man as his separate estate, and ANGELA LARSON, a married woman Appellant, v. SNOHOMISH COUNTY et al., ​ Respondent. DECLARATION OF SCOTT E. STAFNE IN SUPPORT OF MOTION TO REQUIRE CLERICAL PERSONNEL TO COMPLY WITH RAP 9.6 Snohomish County Superior Court No. 19-2-01383-31 Scott E. Stafne, WSBA # 6964 STAFNE LAW A ​ dvocacy & Consulting 239 N. Olympic Avenue Arlington, WA 98223 360.403.8700 ​Scott@Stafnelaw.com Attorney for Appellants App. 224 1. My name is Scott E. Stafne. I am the attorney for the Appellant/Plaintiff Larsons in this Appeal. 2. I am competent to make this declaration and do so on the basis of that personal knowledge which is reflected herein or on the basis of my status as the Larsons’ attorney. 3. I affirm through that seven the facts set forth on pages four of this declaration are true and correct based on my personal knowledge and as the Larsons’ attorney in the underlying action. 4. My office began preparing to timely file the “clerk’s papers” and “statements of arrangement” within the time parameters of the RAPs. In this regard, my paralegal LeeAnn Halpin obtained a copy of docket the Snohomish and subnumbers noticed were County that specified 2 App. 225 Superior Court no with individual regard to the Skagit the County entire Superior record Court before docket. Instead, Skagit County that Superior Court prior to the case transferring to the Snohomish County Superior Court is identified as a single docket number. 5. It is my understanding Ms. Halpin investigated this lack of of subnumbers by contacting clerical personnel at the Skagit County Superior Court and the Snohomish County Superior Court. ​See Declaration of LeeAnn Halpin filed simultaneously with this declaration (Halpin Declaration). 6. Ms. Halpin told me these clerical personnel had told her specific that our individual office could clerk’s paper not designate pleadings filed with the Skagit County Superior Court before the case was transferred to Snohomish County Superior Court. Further, Ms. Halpin told me these 3 App. 226 instructions by clerical superior courts were Appeals Manager personnel confirmed who County Superior Court. works ​See​ to at of her these by an Snohomish Halpin Declaration. 7. When Ms. Halpin informed me that the clerks would not allow us to designate any specific subnumbers to prepare the “clerk papers” related to the case records that were filed in the Skagit County Superior Court, I told her that she must be mistaken and we argued to some extent about what I must do. 8. At the time I was very busy. I was writing several appellate briefs—one in the Ninth Circuit and one in the Washington Supreme Court—both of which I considered raised important legal issues on par with many of the issues raised in this Appeal. 4 App. 227 9. I believe the designation of clerk’s papers generally and in this Appeal particularly involves very important legal skills which should be exercised by attorneys pursuant to RAP 9.6. In this appeal one of the reasons for this is the case below raises constitutional very important issues with statutory regard to and the relationship between Washington’s Registration of Land Titles (Torrens) Act, Chapter 65.12 RCW (Torrens Act) enacted in 1907 and Washington’s Deed of enacted Trust in Act, 1965, Chapter and 61.24 RCW (DTA) recently amended on an almost yearly basis to allow peoples’ homes to be taken from them without the necessity for judicial supervision or the possibility of equitable relief. 10. I am familiar with many of Washington’s recent cases involving the interrelationships between the 5 App. 228 Torrens Act and Washington’s DTA because I have been counsel in several of those litigations, including those cases, appeals, and original writ actions described below. 11. Recent cases considering the application of the ​ Torrens Act v ​ is à vis the DTA began with a p ​ ro se mandamus action filed directly in the Washington Supreme Court against all of Thurston County’s superior court judges. In that original writ action, ​ Schnarrs v. Murphy, et al, Washington Supreme Court No. 95545-O, the Petitioner Warren Frank Schnarrs, who is now deceased, maintained the Thurston County Superior Court judges’ failure to comply with their ministerial duties under the Torrens Act caused Thurston County to not have a working Torrens System. Schnarrs maintained and alleged that these 6 App. 229 acts and omissions exposed him and his wife to a nonjudicial foreclosure based on secret liens, hidden equities, and fraudulent registered​, ​recorded​, as opposed to truthful filings. 12. Mr. Schnarrs asked me to represent him in this original action after his writ was filed and I agreed to do so. 13. During oral argument before the Commissioner I argued that few, if any, Washington judges had complied with their ministerial duties under the Torrens Act. 14. With regard to this contention, the Supreme Court’s Commissioner wrote in his Ruling dismissing this original action: Mr. Schnarrs expresses a belief (unsupported by any evidence) that only one county in Washington utilizes the Torrens Act system. The act has apparently fallen into disuse as a result of the practicality 7 App. 230 and efficiency of modem title recording systems, including the use of title companies. Of particular note, the attorney who was later appointed to be Thurston County's examiner of titles asserted at a superior court hearing in cause number 17-2-0306-34 that he was not aware of anyone registering title under the Torrens Act in at least 40 years. In light of the apparent long-term dormancy of the Torrens Act, Mr. Schnarrs has not shown him that is a this issue as it relates to continuing matter of substantial public interest or that it will recur with decision by such this frequency court on that the a moot mandamus claim is necessary. Furthermore, Torrens Act foreclosure with issue respect as proceedings it to relates affecting the to his interests, Mr. Schnarrs has a potentially adequate remedy by way of the appeal currently pending in the Court of Wash. State Council of County & City Emps.​ Appeals. ​ , 151 Wn.2d at 167. In this connection, Mr. Schnarrs does not show that his interests will not be protected absent Kirkland​ issuance of a writ. , 82 Wn. App. at 827. 8 App. 231 City of ​ Ruling Terminating Review, which is attached ​ hereto E ​ xhibit 1. 15. Before Schnarrs’ mandamus action was ultimately dismissed he and his wife asked me to represent them Commissioner which was decision, with refers decided regard to the appeal the to above. after In the that appeal, Commissioner’s Division Two of the Washington State Court of Appeals held that Schnarrs could not file a Registration of Land Title application under Chapter 65.15 RCW because their home had been sold pursuant to the DTA before they filed their land title ​ Schnarrs, registration 10 Wn. App. application. 2d 596, ​See 448 In P.3d re 820 (2019). 16. The next Chapter 65.12 RCW case, S ​ ingleton v. ​ West Valley Enterprises, Mason County Cause No. 9 App. 232 18-2-358-23, was filed against Thurston County, several of its officials including all of its superior court judges, and several private defendants in the Mason County Superior Court on June 8, 2018, pursuant to the venue established by RCW 36.01.050. 17. Several of the private and public defendants in that action are represented by the same attorneys who have appeared on behalf of Defendants in this Appeal. I represented the Singletons. No one objected that the venue for the Singleton case was not appropriately brought in the Mason County Superior Court against Thurston County and its officials, including its superior court judges. 18. Unfortunately, all of the Mason County Judges recused themselves complaint. One of based these 10 App. 233 on judges, the the Singleton’s Honorable Judge Monty Cobb, who had was appointed to the bench by Governor Jay Inslee in 2018, stated in his recusal: The undersigned Judge is hereby recused from the hearing the above matter. REASON prior work FOR RECUSAL: employment on behalf involved of Judge’s legislative several named [County defendants] and also included legislative advocacy involving a central issue identified in the complaint. [i.e. lobbying for repeal of Torrens Act] Dated this 18th day of July 2018, Monty D. Cobb Superior Court Judge A copy of this all the recusal is attached hereto as Exhibit 2​. 19. After Mason County Superior Court judges and another judge in the Pierce County Superior Court (Judge Spier) recused themselves, the Chief Justice of the 11 App. 234 Washington Supreme Court Mary Singletons Court case Fairhurst appointed Judge Jeanette ​to its conclusion without notice Kitsap County Dalton to to the Superior adjudicate the without regard to whether she was qualified to do so under the Due Process Clauses of the Washington Constitution, the Fourteenth Amendment to the U.S. Constitution, and RCW 2.28.030(1). 20. After the Chief Justice issued this order Heather Singleton filed an original prohibition action against the Chief Justice and Judge Dalton in the Washington Fairhurst Supreme recused Court. herself Chief Justice from consideration of this original action and shortly thereafter a panel of the Washington Supreme Court denied review. The Singletons then filed a petition for certiorari with the United States Supreme Court, based on 12 App. 235 federal due process. That petition was declined. As of yet no final appealable decision has been issued in the S ​ ingleton case by pro tem Mason County Superior Court Judge Dalton. ​ 21. This case, the L ​ arson v. Snohomish County, et. al. case, court, which was brought. described the Its at is currently next Torrens history pages on is briefly four Appeal Act and through in case this to be accurately seven in the motion that this declaration supports. 22. Thereafter, another case potentially raising similar issues in Benton County was removed to federal court. grounds, A motion including to remand abstention, is on several currently pending in the United States District Court for the Eastern District of Washington. 13 App. 236 23. This Appeal involves the same recusal issues as are involved in all those Torrens Act cases where superior court judges are sued personally for not complying with those ministerial duties which are necessary working for county government to create a Torrens landowners. refusal a to system Judicial comply for the protection disqualification with the based provisions of of on the Torrens Act is one of several issues which I am contemplating raising on appeal because Skagit County Superior Court Judge Svaren has also failed to comply with the Torrens Act in the same way as Court have judges, the Snohomish but has County refused to Superior disqualify himself for violating the Torrens Act. 24. This recusal issue relates directly to the venue decision made by Judge Svaren transferring this 14 App. 237 case from knew, or Skagit should County have to a known, court that where all he judicial officers who had been sued personally would be required to recuse themselves, as happened here promptly after the case was transferred. 25. Given the importance of this issue the Larsons should not be prejudiced by clerks deciding to ignore RAP 6.9 clerks were not capable of accommodating this for their own benefit. If these transfer in such a way as to preserve the Larsons appeal rights, then justice did not support Judge Svaren’s transfer of this case to the Snohomish County Superior Court. 26. There are many other important issues that the Larsons raised below and which can be asserted on Appeal. The problem for me, as the attorney for the Larsons, is deciding which ones to raise. 15 App. 238 27. For example, the Larsons argued that given the vast judicially Washington created State had homelessness become a magnet in for disease which exposed its victims to injury and death. The Larsons argued that they and others faced with the sheriff evicting them into the streets through state action should be afforded full from due process them by a before private their homes trustee, are who is taken not a judicial officer. 28. In this regard, the Larsons’ proposed amended complaint alleges: 3.17 Another major difference between registration of a land interest under a public land titles system as mandated by Ch. 65.12. interests RCW under and recording Washington’s such general recording system pursuant to C ​ h. 65.08 1 RCW , 1 is that “chain of title” mistakes Last accessed August 8, 2019, at ​https://app.leg.wa.gov/RCW/default.aspx?cite=61.24 16 App. 239 made by the Registrar of Titles or the Examiner of Titles as the result of false assignments can result in damages being awarded against Snohomish County’s treasurer in favor of any injured party. See e.g. RCW 65.12.680, 65.12.690, and 65.12.700. 3.18 was Washington’s enacted and is Deed of Trust Act by the legislature in 1965 presently codified at 2 ​Ch. 61.24 RCW . The Deed of Trust Act (DTA) was enacted by the Washington legislature to benefit wealthy corporations at the expense of the people. The DTA does not provide sufficient judicial oversight of the trustee and the nonjudicial foreclosure process to comply with Wash. Const. art. IV, § 6. Sufficient judicial involvement in the nonjudicial Wash. Const. same or process art. similar IV, § to 6 comply requires involvement by with the the judiciary over officials who are acting on behalf of the State as is afforded by the Torrens Act. 3.19 88 ​ In K ​ ennebec, Inc. v. Bank of the W., Wn.2d 718, 565 P.2d (1977)​, 812 borrowers challenged the nonjudicial sale of real property lender/beneficiary Due 2 Process d violated Clause of the by the the Federal Fourteenth Last accessed August 8, 2019, at ​https://app.leg.wa.gov/RCW/default.aspx?cite=61.24 17 App. 240 Amendment. The trial court rejected that claim without considering whether the DTA violated Wash. Const. art. IV, § 6. On appeal, Court the affirmed, Washington stating Supreme that no state official was involved in the matter other than in the most ministerial manner. The court held that the foreclosure actions taken pursuant to Washington’s Deed of Trust Act, Chapter constituted 61.24 only RCW (DTA) passive state involvement which did not violate the Due Process Clause Amendment. reconsidered. of the ​Kennebec The Fourteenth should decisions of be DTA trustees today are the basis for the exercise of arbitrary governmental power which can and often does cause death, reduced life expectancy, disease, injury, and loss of liberty as well as property documents and based fraud. on This false is not consistent with justice or the norms of a civilized society.​ F ​ urthermore, since the Great Recession the political branches have used legislation as a way of materially changing the terms of the such a deed of extent significant trust that “state agreements it amounts action.” to to ​Moreover, Washington’s governments, and public employees are now betting against the people and Washington by communities investing 18 App. 241 in of asset backed securities which are based on the investors’ rights to foreclose on people’s homes regardless of whether they actually own the loan and deed of trust as an investor. See RCW 61.24.005 (2) enacted in 1998. * 3.27 * * In 2006, before the effects of the great recession were being felt by the people of Washington State and this nation, it was well known that: Homelessness elevates dramatically one’s risk of illness, injury and death. For every persons likely age are to group, homeless three die times than the population. more general Middle-aged homeless men homeless and women young are at particularly increased risk. The average homeless years, of persons is the Americans 1900. age age death about at commonly Today, of 50 which died in non-homeless Americans can expect to live to age 78. Homeless persons die from illnesses that can be treated or prevented. Crowded, 19 App. 242 poorly-ventilated conditions, living found in many shelters, promote the spread of communicable Research death diseases. shows on the risk streets moderately is abuse which by or must of only affected substance illness, that mental also be understood as health problems. Physical health conditions such as heart problems or cancer are more likely to lead to an early death for homeless persons. The difficulty getting rest, maintaining medications, eating well, staying clean and staying warm prolong and exacerbate illnesses, sometimes to the point where they are life threatening. Homeless streets cold. persons from In die on the exposure to the the coldest areas, homeless persons with a history of frostbite, hypothermia immersion have an foot, or eightfold risk of dying when compared to matched non-homeless controls. Homeless persons die streets from unprovoked violence, crimes. through also For known the 2005, 20 App. 243 on as years the the hate 1999 National Coalition for the Homeless has documented 472 acts of violence against homeless housed people, people by including 169 murders of homeless people and 303 incidents violence in 165 of non-lethal cities from 42 states and Puerto Rico. Poor access care reduces to quality the possibility recovery from injuries. Nationally, Health Care clients are for health illnesses the of and 71% of Homeless uninsured, as were 46.6 million other Americans in 2005. National Health Care for the Homeless Council, “​Homeless Persons’ Memorial Day, 2006: T ​ HE HARD, COLD FACTS ABOUT THE DEATHS OF HOMELESS ​ ​ 3 ​ ​ PEOPLE” (2006) . See also NHS.UK, “​Homeless Die 30 Years Younger than ​​ 4 Average” (December 21, 2011) . 3.28 Attached hereto as ​Exhibit 1 is a list of studies and articles that establish the 3 ​Last accessed on August 6, 2019, at https://www.google.com/search?q=Homeless+Persons%E2%80%99+Me morial+Day,+2006:+THE+HARD,+COLD+FACTS+ABOUT+THE+DEATHS+ OF+HOMELESS+PEOPLE&tbm=isch&source=univ&sa=X&ved=2ahUKEw j8kJyvoI3kAhVSLX0KHSfYD8cQ7Al6BAgGECQ&biw=1920&bih=888#img rc=eks9v45eEw7bpM: 4 Last accessed on August 6, 2019, at https://www.nhs.uk/news/lifestyle-and-exercise/homeless-die-30-years -younger-than-average/ 21 App. 244 health effects of homelessness. The Larsons request this Court judicially notice that homelessness dramatically can decreased cause life death, expectancy, loss of health, exposure to injury, loss of liberties, and property which occurs without due process of law in the case of nonjudical foreclosures in Washington. * 3.36 * * On information and belief modern methods of documents Snohomish recording do not County and preserving adequately landowners protect from the recording of secret liens, hidden equities, and fraudulent documents. Furthermore, the title companies WSACA wants to take the place of the Snohomish County Registrars of Titles and Examiner of Titles are biased liens, in hidden favor of promoting equities, and secret use of fraudulent documents to create chains of title after the fact and without regard to whether they are accurate. In fact, private title companies profit when government Defendants do not comply with the Torrens Act. 3.37 Snohomish County, its officials and judges who are referenced as Defendants herein, purposely refused to comply with their statutory duties under the Torrens Act in order to support the MERS registry because it benefited them and their own pecuniary interests. 22 App. 245 3.38 Alternatively, Snohomish County, its officials and judges were negligent in refusing to comply with their duties under the Registration of Land Titles (Torrens) Act. 3.39 and In either event, Snohomish County its officials and judges have robbed Snohomish County residents, and owners of interests in land, of the benefits of the public registration system established by Washington’s prevent upon founders against the injustices people documents, via statute being because secret liens, to visited of forged and hidden equities concealed in recorded documents. 3.40 Defendants Attorney Governor General acquiesced in Inslee Ferguson Snohomish and have County’s subversion of the people’s statutory right to register their interests in land pursuant to the terms of Ch. 65.12 by allowing it to enforce the DTA and Recording Acts and not implement the Torrens Act. This was not a policy choice these executives were allowed to make unconstitutional because for the the DTA reasons is stated herein. (Emphasis Supplied) 29. The alleged Larson’s the proposed DTA amended violated 23 App. 246 the complaint following constitutional provisions: Wash. Const. art. IV, § ​see 6, Amended Complaint ¶¶ 6.5–6.16; U.S. Const. Art. I, § 10 and Wash. Const. art. I, § 23, see ¶¶ 6.16–23; Wash. Const. art. I § 12, ​see Amended Complaint 6.24–6.27. 30. Within was months filed Washington the after the COVID-19 which now amended complaint coronavirus prevents my struck staff from coming to the office because I am in the high risk group for this serious illness. 31. When my paralegal first told me were dictating that I had to that clerks designate clerk’s papers in a manner contrary to the rules I refused to do so, and let the soft deadline pass because I had other significant cases I had to deal with at that time. I knew when I did so that if this Court 24 App. 247 followed its threatened normal with procedure sanctions I would unless I filed be the Larsons’ clerk’s papers by a certain date in the future. Because I needed time to think about what I should do, I decided that the best interest of my clients required I contemplate what course of conduct I should take regarding the unusual circumstances in which clerks had determined that they need not follow RAP 9.6. 32. In the they Larsons also including benefit allege judges financially proposed that and government court from amended clerical complaint workers, personnel, allowing money lenders and debt buyers to foreclose on debtors’ homes. In this regard, the proposed amended complaint states: 25 App. 248 1.14 Defendant Washington State Treasurer Duane Davidson is a member of Washington’s Const. art. Executive III, § Department. 1. The Wa. Washington Constitution provides “The treasurer shall perform such duties as shall be prescribed by law.” Wash. Const. art. III, § 19. ​Chapter 1.15 43.08 RCW establishes several of the legal duties the Treasurer is required to perform. C ​ hapter 2.12 RCW establishes for a judicial retirement system Defendant and other Washington State judges. The Washington’s Treasurer is the ex-officio treasure of the “judge’s retirement fund.” 1.16 ​See​ RCW 2.12.050. On April 29, 2019, Governor Inslee signed House Bill No. 1284 creating the capacity for the state treasurer’s office to provide separately portfolios entities. to ​Such managed eligible investment governmental governmental entities include any county, city, town, municipal corporation, quasi-municipal corporation, public corporation, political subdivision, or special purpose taxing district in the state. Washington’s Treasurer invests heavily in mortgage backed securities and assets. 1.17 ​The State Treasurer sits on the Washington State (SIB), manages which seventeen Investment retirement 26 App. 249 Board investments of plans for public sector and workers, other including school teachers workers, law enforcement, firefighters, and judges. Washington’s SIB also oversees eighteen more public investment funds for programs in industrial insurance, higher education, and developmental disabilities. 1.18 Defendant “public Washington fiduciary”. Like the SIB is a Washington State Treasurer's Office Washington’s SIB is heavily invested securities like in the mortgage one involved Larsons allege backed in this case. 1.19 The [mortgage ​investments backed] incentivize these Washinton’s public employees to support measures which insure the viability investments, such of as such enacting amendments to the DTA, and ensuring that litigation is resolved in favor of their interests enforced split even from in if its mortgages the note security has being been instrument and/or the actual owner of the note cannot be identified. 1.20 The Treasurer enjoined include and from request Defendants Washington’s investing mortgage containing because Larsons in funds backed Washington 27 App. 250 be which securities deeds Washington’s SIB of trust DTA is unconstitutional are legally because and and investments morally repugnant benefit wealthy they corporations, such government entities, and public employees by redistributing wealth away from the people. * * * PRAYER FOR RELIEF WHEREFORE, Angela Larson, Christopher their marital Larson, community, and two minor children as Plaintiffs pray for such relief as is just and fair and equitable under the circumstances of this case, including without limitation: * * C. Injunctive Washington Attorney Governor General Treasurer Washington official * and relief against Inslee, Washington Ferguson, Duane Washington Davidson, the SIB, and Snohomish County judicial defendants comply with the provisions of the Registration of Land Title facilitating Trust Act (Torrens) Act enforcement to the of and the extent to stop Deed of it is unconstitutional simply because it benefits the Washington government and officials; * * 28 App. 251 * its 31. I have Washington decisions, believed believe observed court like the clerical the should one have duty I on to occasions personnel involved been owe several made the making here, by courts that I judges. I and my clients requires me to object and I therefore do. I declare under the penalty of perjury of the laws of the State testimony is of Washington true and correct that to the the foregoing best of my information and belief. Dated this 13th day of March, 2020, at Arlington, Washington. By:​ s/​Scott E. Stafne Scott E. Stafne, Declarant 29 App. 252 ​x Exhibit 1 Larson v. Snohomish County et al. Case No. 80968-7 App. 253 L FILED JUN - 4 2018 VA>i · WASHINGTON STATE~ SUPREME COURT IN THE SUPREME COURT OF THE STATE OF WASHINGTON WARREN FRANK SCHNARRS, No. 9 5 5 4 5 - 0 Petitioner, v. CAROL ANN MURPHY, ANN HIRSCH, JAMES DIXON, ERIK PRICE, CHRISTINE SCHALLER, MARY SUE WILSON, JOHN C. SKINDER, and CHRISTOPHER LANESE, individuals who have been elected and/or appointed to, and now hold the office of Judge collectively and independently for the Superior Court for the State of Washington at the County of Thurston, RULING DENYING MOTION TO STRIKE AND DISMISSING ORIGINAL ACTION Respondents. Warren Frank Schnarrs, initially acting pro se, filed an original action in this court under article IV, section 4 of the Washington Constitution, seeking a writ of mandamus compelling the individual superior court judges of Thurston County to (1) approve a county auditor's bond, (2) appoint an attorney to be examiner of titles, and (3) designate a superior court judge to serve as a special inquiry judge. Mr. Scharrs, through counsel, also moves to strike the judges' "opposition"-effective ly disqualify the judges' counsel and strike their briefing-because they are represented by a App. 254 r --.J PAGE2 No. 95545-0 Thurston County deputy prosecutor. For reasons stated below, 'the motion to strike is denied and the original action is dismissed. Mr. Schnarrs, 1 acting pro se, filed three actions in Thurston County Superior Court relating to foreclosure proceedings on Mr. Schnarrs's real property: cause numbers 17-2-02356-34, 17-2-0306-34, and 17-2-06118-34. 'Mr. Schnarrs sought, among other things, to have title to the subject property registered under the Torrens Act, chapter 65 .12 RCW, a seldom used statute originally enacted in 1907. The superior court dismissed number 17-2-02356-34 with prejudice and denied Mr. Schnarrs's motion to appoint a title examiner under the Torrens Act. Mr. Schnarrs's appeal of those orders is now pending in Division Two of the Court of Appeals. No. 513 92-7. The other two superior court actions do not appear to be active at this time. Meanwhile, Mr. Schnarrs, again acting prose, filed the instant petition for a writ of mandamus, seeking to compel the superior court judges to (1) approve a sufficient county auditor bond pursuant to RCW 65.12.055, (2) appoint an attorney to serve as the county's examiner of titles and set compensation for said examiner, and (3) designate by majority vote of the superior court judges one of their members to be available to serve as a special inquiry judge pursuant to RCW 10.27.050. A Thurston County senior deputy prosecutor appeared on behalf of the judges and filed an answer opposing Mr. Schnarrs's petition. The judges later submitted a pleading with attached exhibits consisting of copies of court orders indicating that the Thurston County Superior Court had recently approved a bond for the county auditor, appointed an attorney to act as title examiner, and accepted that attorney's oath of office. Mr. Schnarrs, through newly retained counsel, moved to "STRIKE RESPONDENT 'S OPPOSITION," arguing that superior court judges may be represented only by an assistant attorney general. The matter proceeded to a 1 In his pro se pleadings, Mr. Schnarrs refers to himself as "warren frank: Schnarrs." App. 255 PAGE3 No. 95545-0 teleconference hearing at which the parties argued the motion to strike and the original action. 2 During oral argument, counsel for Mr. Schnarrs clarified that the motion to strike was intended to disqualify the prosecutor's office from representing the judges and to strike their pleadings. With regard to disqualification of counsel, Mr. Schnarrs contends that article IV, section 4 of the Washington Constitution provides that only an assistant attorney general may represent a superior court judge. That section of th~ constitution concerns solely jurisdiction in this court; there is nothing within its text relating to legal representation of superior court judges in mandamus actions. Furthermore, the judges are correct that in light of the dual county/state status of superior court judges, it is not unusual for a prosecuting attorney to represent a superior court judge served with a petition for writ of mandamus. See, e.g., Tacoma News v. Cayce, 172 Wn.2d 58, 256 P.3d 1179 (2011); Wash. State Council of County & City Emps. v. Hahn, 151 Wn.2d 163, 86 P.3d 774 (2004). Mr. Schnarrs is correct that RCW 43.10.010 authorizes the attorney general to represent all state officers, but the statute is not self-executing to the extent it does not explicitly preclude superior court judges from electing to rely on representation by the county prosecutor, particularly when the matter is of local concern. Mr. Schnarrs relies on Goldmark v. McKenna, 172 Wn.2d 568, 259 P.3d 1095 (2011 ), to argue that only the attorney general may represent th~ judges in this matter; but Goldmark is not controlling under these facts. In that case, the attorney general represented the state commissioner of public lands in a superior court action but refused to represent the commissioner on appeal of the adverse judgment entered by the trial In the meantime, Mr. Schnarrs moved for a disability accommodation in the form of being represented at oral argument by an individual who is not a licensed attorney. This court denied the motion. As indicated, a licensed attorney later appeared for Mr. Schnarrs and argued on his behalf at the hearing. 2 App. 256 PAGE4 No. 95545-0 court. This court held that in light of a statute expressly requiring that the commissioner of public lands be represented by the attorney general in litigation, the attorney general had a mandatory duty, actionable in mandamus, to represent the commissioner in appealing an adverse judgment. See id. at 576-82; see also RCW 43.12.075. Goldmark is inapplicable in these circumstances, where the judges elected to rely on their county's prosecutor. Mr. Schnarrs further asserts a conflict of interest exists between the judges and the prosecutor. Mr. Schnarrs's vague and unsupported assertions of corruption is unpersuasive. I perceive no actual or potential conflict in this matter. Mr. Schnarrs's motion to disqualify the Thurston County Prosecutor from representing the judges in this matter is therefore denied. 3 As for striking the pleadings, even if the prosecutor is disqualified from this case, I do not perceive anything improper in the briefing already submitted. The judges' briefing does not assert any arguments not properly before the court, nor does it include inadmissible evidence. Furthermore, the briefing puts forth the same arguments the attorney general would likely make if an assistant attmney general represented the judges. Accordingly, the motion to strike the briefing is denied. Turning to Mr. Schnarrs's original action, this court has .original jurisdiction in mandamus as to all state officers. CONST. art. IV,§ 4. It has the power to issue writs of mandamus, review, prohibition, habeas corpus, certiorari and all other writs necessary and proper to the exercise of its appellate and revisory jurisdiction. Id. With respect to this action, I must initially determine whether to retain the petiti?n for a decision on the The day before oral argument, Mr. Schnarrs filed in this court, in support of his motion to strike, two declarations and attached papers concerning Thurston County Superior Court ex parte Commissioner Rebekah Zinn, a part-time judicial officer who also works as the court's staff attorney. The point of these declarations is obscure and do nothing to aid Mr. Schnarrs's motion to strike. 3 App. 257 PAGES No. 95545-0 merits in this court, transfer it to a superior court for further proceedings, or dismiss it. RAP 16.2(d). This court may issue a writ of mandamus to compel a state officer to perform a nondiscretionary act that the law clearly requires as part of the official's duties. Cmty. Care Coal. of Wash. v. Reed, 165 Wn.2d 606, 614, 200 P.3d 701 (2009). A mandatory duty exists when a constitutional provision or statute directs a state officer to take some course of action. Brown v. Owen, 165 Wn.2d 706, 724, 206 P.3d 310 (2009). The mandate must define the duty with such particularity as to leave nothing to the exercise of discretion or judgment. Freeman v. Gregoire, 171 Wn.2d 316, 323, 256 P.3d 264 (2011). Furthermore, mandamus is available only where there exists no plain, speedy, or adequate remedy at law. Wash. State Council of County & City Emps., 151 Wn.2d at 167. A remedy is not inadequate merely because it causes delay, expense, or annoyance; instead, there must be something in the nature of the action that makes it apparent that the litigant's rights will not be protected without the issuance of a writ. City ofKirkland v. Ellis, 82 Wn. App. 819,827,920 P.2d 206 (1996). Finally, an individual is entitled to mandamus only if he or she is beneficially interested in compelling the performance of a state officer's duty beyond the interest that is shared in common with other citizens. See Retired Pub. Emps. Council of Wash. v. Charles, 148 Wn.2d 602,616, 62 P.3d470 (2003) (an individual has standing to bring an action for mandamus and is considered to be beneficially interested if he has an interest in the action beyond that shared in common with other citizens); RCW 7 .16.170 (requiring writ application by "party beneficially interested"). With respect to Mr. Schnarrs's claims concerning compliance with the Torrens Act, the judges have shown that their court recently entered or~ers cured the claimed shortcomings. In particular, the court (1) entered an order approving a bond of the Thurston County auditor pursuant to RCW 65.12.055, (2) entered an order appointing App. 258 PAGE6 No. 95545-0 a certain attorney to be examiner of titles and setting a bond amount and compensation standard pursuant to RCW 65.12.090, and (3) accepted for filing an oath of the appointed examiner of titles pursuant to the Torrens Act, chapter 65 .12 RCW. These filings render Mr. Schnarrs's original action moot as to these issues. See In re Marriage a/Horner, 151 Wn.2d 884, 891, 93 P.3d 124 (2004) (a case is moot if a court can no longer provide effective relief). At oral argument, Mr. Schnarrs asserted that the case is not moot because he had already lost his house in the foreclosure action. If anything, this line of argument reinforces the mootness of this original action: Mr. Schnarr is apparently relying on the Torrens issue as a means to collaterally challenge the foreclosure action. But he fails to show how challenging Thurston County's handling of the Torrens Act by way of a mandamus action is going to solve that problem. Again at oral argument, Mr. Schnarrs urged that if the Torrens Act issues are moot, this court should review them as a matter of continuing· and substantial public interest. A moot case will be reviewed if its issue is a matter of continuing and substantial public interest, it presents a question of a public nature which is likely to recur, and it is desirable to provide an authoritative determination for the future guidance of public officials. Soter v. Cowles Publ'g Co., 162 Wn.2d 716, 749-50, 174 P .3d 60 (2007). Since the increasing use of this exception threatens to swallow the basic rule of not issuing decisions in moot cases, actual application of these essential factors is necessary to ensure that an actual benefit to the public interest in reviewing the moot case outweighs the harm from an essentially advisory opinion. Ifart v. Dep 't ofSoc. & Health Servs., 111 Wn.2d 445, 759 P.2d 1206 (1988). Mr. Schnarrs expresses a belief (unsupported by any evidence) that only one county in Washington utilizes the Torrens Act system. The act has apparently fallen into disuse as a result of the practicality and efficiency of modem title recording App. 259 PAGE7 No. 95545-0 systems, including the use of title companies. Of particular note, the attorney who was later appointed to be Thurston County's examiner of titles asserted at a superior court hearing in cause number 17-2-03 06-34 that he was not aware of anyone registering title under the Torrens Act in at least 40 years. In light of the apparent long-term dormancy of the Torrens Act, Mr. Schnarrs has not shown that this issue as it relates to him is a continuing matter of substantial public interest or that it will recur with such frequency that a decision by this court on the moot mandamus claim is necessary. 4 Furthermore, with respect to the Torrens Act issue as it relates to foreclosure proceedings affecting his interests, Mr. Schnarrs has a potentially adequate remedy by way of the appeal currently pending in the Court of Appeals. Wash. State Council of County & City Emps., 151 Wn.2d at 167. In this connection, Mr. Schnarrs does not show that his interests will not be protected absent issuance of a writ. City ofKirkland, 82 Wn. App. at 827. Moving on to the designation of a special inquiry judge under RCW 10.27 .050, the statute does not plainly indicate that a judge be designated at any particular time pdor to identification of the need for such a judicial officer. Mr. ~chnarrs has not shown that such a need has arisen. Furthermore, choice of the judge to serve in such a role necessarily involves the exercise of judicial discretion. Freeman, 171 Wn.2d at 323 (statute must not allow exercise of discretion or judgment). In the absence of a clear mandatory duty to appoint a special inquiry judge at this time, an action in mandamus ' will not lie. Furthermore, Mr. Schnarrs fails to show that he has a current beneficial interest m appointment of a special inquiry judge. See Retired Pub. Emps. Council of In his motion to strike, Mr. Schnarrs urges this court to take judicial notice of attempted actions to repeal the Torrens Act and the political motivations for doing so. I decline to do so. ER 20l(b). 4 App. 260 ' No. 95545-0 PAGE8 Washington, 148 Wn.2d at 616. Mr. Schnarrs's bald and unsupported assertions of corruption surrounding the Torrens Act are insufficient to establish such an interest. The original action is dismissed. COMMISSIONER June 4, 2018 App. 261 Exhibit 2 Larson v. Snohomish County et al. Case No. 80968-7 App. 262 18-2-00358-23 REC 13 Recusal of Judge 3497693 111111111111111111111111111111111111111 SUPERIOR COURT OF WASHINGTON FOR MASON COUNTY HEATHER SINGLETON and PEARL SINGLETON, No. 18-2-358-23 RECUSAL Plaintiff, VS [REC] WEST VALLEY ENTERPRISES Inc Et al. Defendant. The undersigned Judge is hereby recused from hearing the above matter. REASON FOR RECUSAL: Judge's prior employment involved legislative work on behalf of several named defendants and also included legislative advocacy involving a central issue 13 identified in the complaint. DATED this 18th day of July 2018. Monty D. Superior RECUSAL Judge REC App. 263 STAFNE LAW ADVOCACY & CONSULTING February 14, 2022 - 3:41 PM Transmittal Information Filed with Court: Appellate Court Case Number: Appellate Court Case Title: Superior Court Case Number: Supreme Court 100,619-5 Christopher E. Larson, et ano. v. Snohomish County, et al. 19-2-01383-2 The following documents have been uploaded: 1006195_Motion_20220214153026SC023549_1778.pdf This File Contains: Motion 1 - Consolidation The Original File Name was 2022.02.14. Supreme Court Motion to Consolidate.pdf 1006195_Other_20220214153026SC023549_1955.pdf This File Contains: Other - Petition for Discretionary Review The Original File Name was 100619-5 Petition for Review.pdf A copy of the uploaded files will be sent to: Christine.Truong@atg.wa.gov Geoffrey.Enns@co.snohomish.wa.us Jacob.Giem@atg.wa.gov amy.edwards@stoel.com comcec@atg.wa.gov cryden@snoco.org gmarsh@snoco.org jeni.inirio@stoel.com jmcintosh@mccarthyholthus.com july.simpson@atg.wa.gov kblevins@lagerlof.com ldowns@snoco.org leeann@stafnelaw.com nicole.magill@snoco.org pam@stafnelaw.com rbailey@lagerlof.com rene.tomisser@atg.wa.gov rmcdonald@qualityloan.com rockymcdonald@gmail.com rrysemus@snoco.org Comments: Sender Name: Scott Stafne - Email: Scott@StafneLaw.com Address: 239 N OLYMPIC AVE ARLINGTON, WA, 98223-1336 Phone: 360-403-8700 Note: The Filing Id is 20220214153026SC023549