IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

EGP INVESTMENTS, LLC, a 

Washington limited liability company,

Respondent,

v.

MARVIN R. FREAR JR, individually, 

and the marital community comprised of 

MARVIN R. FREAR JR and JANE DOE 

FREAR, husband and wife,

Appellants.

)

)

)

)

)

)

)

)

)

)

)

)

)

No. 35734-1-III

UNPUBLISHED OPINION

KORSMO, J. — Marvin and Laurie Frear appeal from a trial court ruling denying 

their request to vacate a 2011 default judgment against them. Concluding that the trial 

court did not err, we affirm.

FACTS

EGP Investments obtained a judgment in the Spokane County District Court 

against the Frears for unpaid credit card debt in 2011. The process server, Stanley 

Rhodes, filed a return of service indicating that he had served the summons and 

complaint on May 29, 2011, by leaving a copy with “Dave Nolan, roommate, a person of 

reasonable age and discretion, then resident therein.” Clerk’s Papers (CP) at 79. The 

FILED

APRIL 2, 2019

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 35734-1-III

EGP Invest., LLC v. Marvin Frear, et ux.

2

affidavit further identified Nolan as a white male, 30 years of age, standing 5’9” and 

weighing 150 pounds. CP at 79. 

The Frears did not appear and a judgment was entered against them. EGP mailed 

garnishment documents to the home a year later. Laurie Frear signed for them. CP at 44, 

49-51. Believing that they referred to another legal matter they had pending, the Frears 

did not respond to the garnishment. 

The clerk of the superior court advised the Frears about the judgment in 

September 2016, and they contacted EGP on September 23, 2016. Represented by 

counsel, they moved to vacate the judgment on October 10, 2017. They filed affidavits 

confirming that they lived at the house where service was allegedly made, that Nolan had 

never lived there, and that they had never received any papers from Nolan. Nolan filed 

an affidavit stating that he never lived with the Frears and had lived elsewhere at the time 

of service. He visited the Frears regularly, but denied ever being served with papers 

when visiting them. He also provided a copy of his driver’s license to confirm that his 

height was 6’4” and could not have been the person served by Rhodes.

Rhodes filed his own affidavit confirming that he had served a man claiming to be 

Nolan, a resident of the home, on May 29, 2011. Observing that residence in the summer 

of 2017, he believed that Mr. Frear fit the description of the man he had served six years 

earlier. He believed Frear was the one he had served.
No. 35734-1-III

EGP Invest., LLC v. Marvin Frear, et ux.

3

The trial court heard argument on the motion to vacate and denied the request. 

The court noted that the Frears had waited a long time and should have known about the 

judgment sooner than they claimed to know. The court determined that Rhodes did serve 

someone at the house, but declined the request by the Frears to name who that person was 

since “I don’t need to go there.”

The court awarded EGP its costs in accordance with a contractual provision. The 

Frears then timely appealed to this court. A panel considered the case without hearing 

argument.

ANALYSIS

This appeal presents contentions that the court erred in rejecting the motion to 

vacate and in awarding costs. Both parties seek costs in this court. We address the three 

issues in the order listed.

Motion to Vacate

The Frears argue that the original affidavit of service was shown to be erroneous, 

requiring the judgment to be set aside. However, they did not prove that argument.

CR 60 allows a party to challenge a judgment for a number of reasons, including 

when the judgment is void. CR 60(b). A judgment can be void for a number of 

interrelated reasons, including having been entered (1) without jurisdiction, (2) as a result 

of improper service, or (3) with inadequate notice in violation of due process. In re 

Marriage of Ortiz, 108 Wn.2d 643, 649, 740 P.2d 843 (1987); Sheldon v. Sheldon, 47 
No. 35734-1-III

EGP Invest., LLC v. Marvin Frear, et ux.

4

Wn.2d 699, 702, 289 P.2d 335 (1955); State v. Fishing Appliances, 170 Wash. 426, 428, 

16 P.2d 822 (1932). Although most challenges under CR 60 must be brought within one

year, a challenge to an allegedly void judgment need only be brought within a reasonable 

time. CR 60(b).1

This court normally reviews a decision under CR 60 for abuse of discretion, but a 

trial court must grant the motion where the judgment is void. Dobbins v. Mendoza, 88 

Wn. App. 862, 871, 947 P.2d 1229 (1997). Thus, this court reviews de novo whether a 

trial court erred by failing to grant a motion to vacate a void judgment. Id. It is the 

burden of the party claiming defective service to prove that there was no valid service. 

Woodruff v. Spence, 76 Wn. App. 207, 210, 883 P.2d 936 (1994). The post-judgment 

moving party has the same burden of upsetting an affidavit of service that the party would 

have prior to judgment. Id. Moreover, the fact that an affidavit of service may be 

defective in some manner is not the equivalent of saying that service was not properly 

accomplished. CR 4(g)(7). When an affidavit is insufficient, a plaintiff may file an 

amended affidavit or provide additional evidence. Williams v. S.S. Mut. Underwriting 

Ass’n, 45 Wn.2d 209, 226-227, 273 P.2d 803 (1954).

 

1 We do not read the trial court’s oral ruling as finding that the motion was 

untimely brought, so we do not discuss that concern.
No. 35734-1-III

EGP Invest., LLC v. Marvin Frear, et ux.

5

Here, the Frears demonstrated that Nolan was not the person served by Rhodes. 

However, this does not mean that service was not properly accomplished. The trial court 

found that Rhodes served someone at the house claiming to be Nolan. While the evidence 

suggested that the “someone” was in fact Mr. Frear, the trial court correctly noted that it 

did not have to specify who was served. The evidence presented did not establish that 

service was not properly accomplished. The fact that the person’s name was unknown 

does not diminish the fact that service was properly accomplished on a person living at the 

residence.

The trial court did not err in concluding that the Frears failed to demonstrate that 

service was invalid. They did not satisfy CR 60(b)(5); the trial court therefore correctly 

rejected the motion to vacate.

Attorney Fees and Costs in the Trial Court

The Frears also contend that the trial court erred in granting attorney fees to EGP, 

claiming that EGP was not properly licensed as a collection agency at the time. After 

briefs were filed in this appeal, we rejected this argument in Fireside Bank v. Askins, 6

Wn. App. 2d 431, 430 P.3d 1145 (2018). 

In order to pursue collection work in Washington, a collection agency must be 

properly licensed in this state. RCW 19.16.110; RCW 19.16.250(1). Violations of the 

collection agency act (ch. 19.16 RCW) also constitute violations of the consumer 

protection act (ch. 19.86 RCW). RCW 19.16.440. An entity that violates RCW 19.16.250 
No. 35734-1-III

EGP Invest., LLC v. Marvin Frear, et ux. 

6

may lose the right to collect interest and costs; recovery is limited to the amount of the 

original claim. RCW 19.16.450. 

In Askins, we recently concluded that a party cannot assert a collection agency act 

claim as a defense to a collection action. 6 Wn. App. 2d at 437-439. Instead, violations of 

the act must be pursued as consumer protection act claims by filing an action or 

counterclaim under chapter 19.86 RCW. Id. 

Accordingly, we reject the Frears’ challenge in light of Askins. 

Attorney Fees on Appeal

Both parties seek attorney fees in this court. Since the Frears do not prevail, we 

deny their claim. 

EGP claims fees under the original credit card contract. RCW 4.84.330. Although 

a copy of the contract is attached to the pleadings filed in the trial court, that copy is not 

signed by the Frears. The existence of the original judgment against the Frears, supported 

by a standard contract containing an attorney fees provision, allowed the trier of fact to 

conclude that the Frears were parties to the agreement. The trial court implicitly made 

such a determination here, a decision supported by the evidence.

However, this court declines at this time to make the same finding. In the absence 

of a contract signed by the Frears, we deny attorney fees on appeal to EGP. We caution 

the parties not to read more into this aspect of our ruling than the fact that we are denying 
No. 35734-1-III 

EGP Invest., LLC v. Marvin Frear, et ux. 

the fees. Neither party should consider this an invitation to further litigation of this 

matter. 

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: 

l,.._;�,_ W �W\_\� I 

Lawrence-Berrey, C C.' �' 

7