FILED 

APRIL 9, 2015 

In the Office of the Clerk of Court 

WA State Court of Appeals, Division III 

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

DIVISION THREE 

THE COLLECTION GROUP, LLC, a ) 

Washington Limited Liability Company, ) No. 32020-1-III 

) 

Respondent, ) 

) 

v. ) 

) 

DAVID R. COOK AND JANE DOE ) 

COOK, husband and wife, and their ) UNPUBLISHED OPINION 

marital community composed thereof, ) 

) 

Appellants. ) 

SIDDOWAY, C.J. David Cook appeals the trial court's refusal to set aside a 2006 

default judgment entered in a collection action by the Collection Group (TCG), which he 

claims is void for insufficient service ofprocess. He contends the trial court erred in 

applying the presumption that a facially correct affidavit ofservice is valid and refusing 

to vacate the default judgment based on his evidence that the address listed on the return 

of service was not his usual place of abode. Because the return ofservice was sufficient 

as to the matters it addressed and was supplemented by additional evidence, and because 

Mr. Cook's own evidence fell short of demonstrating insufficient service ofprocess by 

even a preponderance ofthe evidence, we affmn. 
No. 32020-1-II1 

Collection Grp. v. Cook 

PROCEDURALBACKOROUND 

On July 2, 2006, TCO commenced this action against David Cook to collect 

$5,993.80 he allegedly owed on a credit card account, by delivering two summonses and 

complaints to an adult at the home located at 1515 S. Lilac Lane in Liberty Lake, 

Washington-the address listed on Mr. Cook's latest billing statement for the delinquent 

account. 

After Mr. Cook failed to timely respond, TCO moved for an order of default, 

which the Spokane County District Court entered on August 30,2006. With prejudgment 

interest, attorney fees and costs, the judgment entered totaled $10,444.78. TCO 

thereafter transferred the judgment to the Spokane County Superior Court for collection. 

TCO commenced supplemental proceedings against Mr. Cook on June 12, 2009 

by serving copies ofthe pleadings on his "brother/co-resident," Richard Cook, at the 

Lilac Lane address. Clerk's Papers (CP) at 47. A few days later, one ofTCO's lawyers 

received a call from Ralph Van Camp, who identified himself as a lawyer and put in a 

verbal notice of appearance on behalf of Mr. Cook. The next day, TCO received a 

second call from a second lawyer, Dustin Deissner, who again provided a verbal notice of 

appearance and explained that Mr. Van Camp was his partner. On August 23,201 

four years after the telephonic appearances and nearly seven years after entry ofthe 

default-Mr. Deissner filed a motion on behalf of Mr. Cook to vacate the judgment under 

CR 60, alleging that it was void for lack ofpersonal service. 

2 

No. 32020-1-111 

Collection Grp. v. Cook 

A return of service had been filed with the district court on July 10, 2006. It stated 

that the process server had left two copies of the summons and complaint at the Lilac 

Lane address with "a white female, who would not give her name, approximately mid to 

late 40's, 5'2", glasses, above shoulder blond hair, who stated she lived there." CP at 

111. In support of his motion to vacate the judgment, Mr. Cook submitted his own 

declaration and that ofMarti Mortensen, who claimed to have personal knowledge as to 

the occupancy of the Lilac Lane house. Both declarations stated that at the time of 

service, Mr. Cook's brother was leasing the Lilac Lane house to Timber-Land-Ag, LLC, 

a limited liability company owned by Ms. Mortensen and her former husband, Vernon 

Mortensen. 

In his declaration, Mr. Cook denied residing at the Lilac Lane house at the time of 

service. He claimed he was in the process of buying a home in California in June and 

July 2006, that neither he nor his brother received copies of any legal papers, and that he 

did not know who the summons and complaint copies were supposedly served upon. Mr. 

Cook claimed that he first learned of this action when "some papers seeking 

supplemental proceedings were delivered [to the Lilac Lane address] in August 2012 to 

my mother who was there cleaning the house so it could be re-rented." CP at 17. 

Ms. Mortensen asserted in her declaration that the Timber-Land-Ag LLC that she 

jointly owned with Mr. Mortensen rented the house from Richard Cook from August 

2005 to August 2006, when her divorce from Mr. Mortensen became final. Nonetheless, 

3 

No. 32020-1-111 

Collection Grp. v. Cook 

she stated that during that timeframe she was living full time in Moyie Springs, Idaho. 

She claimed that she was in northern Idaho preparing for a hearing in the divorce trial on 

the day the summonses and complaints were allegedly served. 

In September 2013, TCG sent a letter to Mr. Deissner requesting that he withdraw 

the motion to vacate on the grounds that it contained "blatantly false" information, 

pointing out a number of discrepancies from information TCG had obtained from several 

sources.) CP at 93. Mr. Deissner later filed a declaration conceding that some of the 

information he and Ms. Mortensen provided about her divorce (in which Mr. Deissner 

had represented Ms. Mortensen) was mistaken. 

The trial court denied Mr. Cook's motion to vacate, concluding that "the affidavit 

of service is facially valid," even though it did not fill in "every conceivable blank." 

Report of Proceedings (RP) at 23. Mr. Cook timely appealed, seeking review of the 

court's order denying his CR 60 motion to vacate the default judgment. 

) We will not elaborate on the discrepancies, a number of which were revealed in 

Westlaw "CLEAR" investigative reports on Mr. Cook, Ms. Mortensen, and Mr. 

Mortensen that TCG filed with the court. While the reports contradict Mr. Cook's and 

Ms. Mortensen's sworn testimony in a number of respects, they are hearsay and TCG has 

not established their admissibility as market reports or commercial publications 

"generally used and relied upon by the public or by persons in particular occupations." 

ER 803(a)(l7). We have not relied upon them in our de novo review of the trial court's 

denial ofthe CR 60(b)(5) motion. 

4 

No. 32020-I-III 

Collection Grp. v. Cook 

ANALYSIS 

Mr. Cook contends the trial court erred in refusing to vacate the default judgment 

because he was never properly served with the summons and complaint. "Proper service 

of the summons and complaint is a prerequisite to the court obtaining jurisdiction over a 

party, and a judgment entered without such jurisdiction is void." Woodruffv. Spence, 76 

Wn. App. 207, 209,883 P.2d 936 (1994); In re Marriage ofMarkowski, 50 Wn. App. 

633,635-36, 749 P.2d 754 (1988). Under CR 60(b)(5), a court "may relieve a party" 

from a final judgment or order on the grounds that "[t]he judgment is void." A motion to 

vacate a void judgment under CR 60(b)(5) may be brought at any time after entry of the 

judgment. Markowski, 50 Wn. App. at 635; Allstate Ins. Co. v. Khani, 75 Wn. App. 317, 

323,877 P.2d 724 (1994). 

Because courts have a mandatory duty to vacate void judgments, we review a trial 

court's decision to grant or deny a CR 60(b)(5) motion to vacate a default judgment for 

lack ofjurisdiction de novo. Dobbins v. Mendoza, 88 Wn. App. 862, 871, 947 P.2d 1229 

(1997). Likewise, while "[r ]eview of a denial of a CR 60(b) motion is generally limited to 

the propriety ofthe denial, and is not a review of the original judgment[, ...] if questions 

are raised concerning lack of trial court jurisdiction and fundamental constitutional rights, 

these issues may be determined on appeal as justice may require." In re Marriage of 

Maxfield, 47 Wn. App. 699, 703, 737 P.2d 671 (1987). 

5 

No. 32020-l-III 

Collection Grp. v. Cook 

1. Standard ofproof 

Mr. Cook argues that the trial court applied the wrong standard of proof in 

deciding the jurisdictional issue. It is well settled that "[a] facially correct return of 

service is presumed valid and, after judgment is entered, the burden is on the person 

attacking the service to show by clear and convincing evidence that the service was 

irregular." Woodruffv. Spence, 88 Wn. App. 565, 571, 945 P.2d 745 (1997); see also, 

e.g., Vukich v. Anderson, 97 Wn. App. 684, 687, 985 P.2d 952 (1999); In re Dependency 

ofA.G.,93 Wn. App. 268, 277, 968 P.2d 424 (1998); Lee v. Western Processing Co., 35 

Wn. App. 466, 469, 667 P.2d 638 (1983) ("An affidavit of service, regular in form and 

substance, is presumptively correct.") Mr. Cook argues that the return of service in this 

case is not entitled to the presumption ofvalidity because it failed to state that the Lilac 

Lane address was his usual place of abode and it failed to identify the basis for that 

assertion. Br. ofAppellant at 8-9. As a result, he claims that he was required to prove 

insufficient service by only a preponderance ofthe evidence. He relies on John Hancock 

Mutual Life Insurance Co. v. Gooley, 196 Wash. 357, 360, 83 P.2d 221 (1938), in which 

a process server's original affidavit ofservice was found defective in part because it 

failed to state that the place of service was the defendants' usual place of abode. 

In Gooley, the plaintiff commenced an action against Edward and Pauline Gooley 

(among others). Mr. and Mrs. Gooley had lived for 30 years at their Lincoln County 

farm but at the time ofthe lawsuit were temporarily in Spokane, where Mrs. Gooley had 

6 

No. 32020-1-III 

Collection Grp. v. Cook 

been hospitalized. ld. at 359. Rather than await the Gooleys' return to the fann, the 

process server left a copy of the summons and complaint with the Gooleys' daughter-inlaw at the Englehorn hotel in Spokane, where Mr. and Mrs. Gooley temporarily occupied 

a light housekeeping room after Mrs. Gooley was released from the hospital. ld. at 358­

60. The affidavit of service stated that the Gooleys were served by leaving the 

documents with Mrs. August Gooley "at the Englehorn hotel ... , [the defendants] each 

being absent therefrom, and the said Mrs. August Gooley being a person of suitable age 

and discretion then resident therein." ld. at 359. 

A default judgment was entered, which the Gooleys attacked on the basis of 

insufficient service of process. They challenged in part the fact that the plaintiffs return 

of service did not recite that the Englehorn hotel was the Gooleys' house of usual abode. 

The plaintiff responded by filing an amended affidavit of service in which the process 

server testified that, at the time of service, the Englehorn hotel "was then the house of 

usual abode ofMr. and Mrs. Gooley." ld. at 360. 

The Washington Supreme Court found the original affidavit of service defective. 

As Mr. Cook argues, this was in part because it failed to state that the Englehorn hotel 

was the Gooleys' house of usual abode. In that respect, TCG's return of service also fell 

short of establishing all facts essential to effective substitute service. Cf CR 4(g)(7) (the 

return must state the manner of service); RCW 4.28.080(15) (authorizing substitute 

service by "leaving a copy of the summons at the house of [the defendant's] usual abode 

7 

No. 32020-1-111 

Collection Grp. v. Cook 

with some person of suitable age and discretion then resident therein"). But the more 

pertinent holding of Gooley for purposes of this case is that it is proper to permit the 

filing of an amended return of service "as the actual facts control; and ifjurisdiction was 

actually acquired over the persons of the defendants, that fact should govern." Id. at 363. 

The court added that "[i]t is the fact of service which confers jurisdiction, and not the 

return, and the latter may be amended to speak the truth." Id. 

A return of service that fails to include all facts essential to effective service is 

defective in the sense that it is incomplete. The plaintiff can address any shortcomings by 

amending the return or by additional evidence. Williams v. Steamship Mut. Underwriting 

Ass 'n, 45 Wn.2d 209, 226-27, 273 P .2d 803 (1954) (proper remedy would be to permit 

amended return of service); Burdick v. Powell Bros. Truck Lines, 1 F .R.D. 220 (N.D. Ill., 

1940) (return of service could be amended under parallel federal rule). 

Modem civil rules make clear that "[f]ailure to make proof of service does not 

affect the validity of the service." CR 4(g)(7); Scanlan v. Townsend, 181 Wn.2d 838, 

848,336 P.3d 1155 (2014). "A 'lack of return of service [neither] deprive[s] a court of 

jurisdiction, nor does it affect the validity of the service.'" Id. (quoting Jones v. Stebbins, 

122 Wn.2d 471, 482,860 P.2d 1009 (1993)). 

II. Insufficient proofofimproper service 

Mr. Cook has not shown by clear and convincing evidence, or even by a 

preponderance of the evidence, that the Lilac Lane house was not his usual place of 

8 

No. 32020-l-III 

Collection Grp. v. Cook 

abode. The initial submissions in support of the motion for an order of default 

demonstrated that the Lilac Lane address had been the address of record for Mr. Cook's 

credit card account. While Mr. Cook complains that the account address was several 

years old, TCG demonstrated that before commencing its collection action, it consulted 

the Spokane County assessor's website to confirm that Mr. Cook and his brother not only 

owned the Lilac Lane property, but that they listed it as their address. TCG's printout 

from the assessor's website is dated April 28, 2006, reflecting information as of April 27, 

2006. TCG established by declaration and exhibits that it thereafter sent demand letters 

to Mr. Cook at the Lilac Lane address twice, in May and June 2006, and that neither letter 

was returned as undeliverable. That serves as some evidence that the address was a usual 

place of abode for Mr. Cook. Cf Automat Co. v. Yakima County, 6 Wn. App. 991, 995, 

497 P .2d 617 (1972) (citing Avgerinion v. First Guar. Bank, 142 Wash. 73, 78, 252 P. 

535 (1927)) (once there is proof of mailing, it is presumed that the mails proceed in due 

course and that the letter is received by the person to whom it is addressed). 

In response, Mr. Cook provides a declaration stating that he was residing primarily 

in California and staying temporarily in North Idaho during the time of the service. But 

he provides no records of property ownership in California or Idaho, no rental agreement 

for a residence in either state, and no addresses for his ostensible "true" places of abode. 

"When a party fails to produce relevant evidence within its control, without satisfactory 

explanation, the inference is that such evidence would be unfavorable to the 

9 

No. 32020-1-111 

Collection Grp. v. Cook 

nonproducing party." Lynott v. Nat'l Union Fire Ins. Co. ofPittsburgh, PA, 123 Wn.2d 

678,689,871 P.2d 146 (1994) (citing Pier 67, Inc. v. King County, 89 Wn.2d 379,385­

86, 573 P .2d 2 (1977)). When a defendant challenging service fails to identifY his "true" 

place of abode, an adverse inference is reasonably drawn. An address would ordinarily 

be simple to provide and would demonstrate Mr. Cook's confidence that his claim as to 

his "true" place of abode would withstand investigation by TCO. A bald allegation as to 

a defendant's true place of abode is unlikely to be sufficient when weighed against a 

conflicting allegation that is backed by at least some substantiation. Cf Gooley, 196 

Wash. at 368 (rejecting process server's unsubstantiated allegation by amended return 

that hotel was defendants' usual place of abode in light of the conflicting, substantiated 

allegations of defendants). 

Ms. Mortensen's declaration is weak evidence for the same reason. And the 

factual discrepancies in Ms. Mortensen's and Mr. Cook's declarations that Mr. Deissner 

was required to concede reflect negatively on both witnesses' credibility. Finally, Mr. 

Cook's evidence that Mr. Mortensen's secretary made mortgage payments on the Lilac 

Lane home is neutral, since the record on appeal reveals that Ms. Mortensen was 

separated from her husband at the time of service and was in the process of divorce. 

Without more, the payments by the Mortensens' LLC that Mr. Mortensen was causing 

his secretary to make could have been on Ms. Mortensen's behalf, for housing that she 

cohabited with its owners. 

10 

No. 32020-1-111 

Collection Grp. v. Cook 

The term "usual abode" is to be liberally construed to effectuate service and 

uphold jurisdiction of the court. Sheldon v. Fettig, 129 Wn.2d 601,607,919 P.2d 1209 

(1996). "[U]nder certain circumstances a defendant can maintain more than one house of 

usual abode," id. at 611, and "one who asserts a change of residence bears the burden of 

proof." Sheldon v. Fettig, 77 Wn. App. 775, 779,893 P.2d 1136 (1995). 

Mr. Cook failed to demonstrate by even a preponderance of the evidence that the 

Lilac Lane address was not a usual place of abode for him at the time of service. The 

trial court did not err in denying his motion to vacate. 

III. Attorney fees 

TCO requests its attorney fees on appeal. RAP 18.1 permits recovery of 

reasonable attorney fees or expenses on review if applicable law grants that right. 

Washington law generally provides for an award of attorney fees "when authorized by a 

private agreement, a statute, or a recognized ground of equity." Labriola v. Pollard Grp., 

Inc., 152 Wn.2d 828, 839, 100 P.3d 791 (2004). "A party may be awarded attorney fees 

based on a contractual fee provision at the trial and appellate level." Renfro v. Kaur, 156 

Wn. App. 655, 666-67,235 P.3d 800 (2010). 

TCO is the assignee of Citibank, whose card agreement with Mr. Cook includes 

the following provision regarding collection costs: 

Ifwe refer collection of your account to a lawyer who is not our salaried 

employee, you will have to pay our attorney's fee plus court costs or any 

11 

No. 32020-1-III 

Collection Grp. v. Cook 

other fees, to the extent permitted by law. Ifwe sue to collect and you win, 

we will pay your reasonable legal fees and court costs. 

CP at 122. Such provisions are construed as entitling a prevailing party to reasonable 

attorney fees for all services required to prosecute the action to its "ultimate conclusion." 

Puget Sound Mut. Sav. Bank v. Lillions, 50 Wn.2d 799, S07, 314 P.2d 935 (1957). We 

award TCO its reasonable fees and costs on appeal subject to its compliance with RAP 

IS.I(d). 

Affirmed. 

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040. 

WE CONCUR: 

Sid o· ay, Clj 

Kors~J. 

Lawrence-Berrey, J. 

I 


1 


! 

i 

12