### FILED APRIL 9, 2015 In the Office ofthe Clerk ofCourt WA State CourtofAppeals, 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Company, ) No. 32020-1-III ) Respondent, ) ) v. ) ) DAVID R. COOKAND JANEDOE ) COOK, husband and wife, andtheir ) UNPUBLISHED OPINION marital community composedthereof, ) ) Appellants. ) SIDDOWAY, C.J. David Cook appealsthetrial court'srefusal to set aside a 2006 defaultjudgmententered in a collection action by the Collection Group (TCG), whichhe claims is void for insufficient service ofprocess. He contends the trial court erred in applying thepresumptionthat a facially correct affidavit ofservice is valid and refusing to vacatethe defaultjudgmentbased onhis evidencethat the address listed onthe return ofservice was not his usual place ofabode. Becausethe return ofservice was sufficient
as tothe matters it addressed andwas supplemented by additional evidence, and because 

### Mr. Cook's own evidence fell short ofdemonstrating insufficient service ofprocess by
even a preponderance ofthe evidence, we affmn.No. 32020-1-II1 Collection Grp. v. Cook
PROCEDURALBACKOROUND OnJuly 2, 2006, TCO commencedthis 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 ofdefault, whichthe Spokane County District Court entered on August 30,2006. With prejudgment interest, attorney fees and costs, thejudgment enteredtotaled $10,444.78. TCO thereafter transferred thejudgmentto the Spokane County Superior Court for collection. TCO commenced supplementalproceedings against Mr. Cook on June 12, 2009 by serving copies ofthepleadings on his "brother/co-resident," Richard Cook, at the Lilac Lane address. Clerk'sPapers (CP) at 47. A few days later, one ofTCO's lawyers received a call from Ralph Van Camp, who identified himselfas a lawyer and put in a verbal notice ofappearance on behalfofMr. 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 behalfofMr. Cookto vacate thejudgmentunder CR60, alleging that 

### itwas void for lack ofpersonal service. 2No. 32020-1-111 Collection Grp. 

### v. Cook
A return ofservicehadbeen filed with the district court on July 10, 2006. It stated thatthe process server had left two copies ofthe summons and complaint at the Lilac Lane address with "awhite 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 ofhis motion to vacate thejudgment, Mr. Cook submitted his own declaration and that ofMarti Mortensen, who claimed to have personal knowledge as to the occupancy ofthe Lilac Lane house. Both declarations stated that at the time of service, Mr. Cook's brotherwas leasing the Lilac Lanehouse 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 theLilac Lanehouse at the time of service. He claimed he was in the process ofbuying a home in California in June and July 2006, that neither he nor his brotherreceived copies ofany 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 ofthis action when "some papers seeking supplementalproceedings were delivered [to the Lilac Lane address] in August 2012 to my motherwho 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, 3No. 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 September2013, TCG sent a letter to Mr. Deissnerrequesting that he withdraw the motion to vacate on the grounds that it contained "blatantly false" information, pointing out a number ofdiscrepancies from information TCG had obtained from several sources.) CP at 93. Mr. Deissner later filed a declaration conceding that some ofthe information he and Ms. Mortensen provided abouther 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 ofservice is facially valid," even though it did not fill in "every conceivable blank." Report ofProceedings (RP) at 23. Mr. Cook timely appealed, seekingreview ofthe court's order denying his CR 60 motion to vacate the defaultjudgment.

)We will not elaborate on the discrepancies, a number ofwhich were revealed in Westlaw "CLEAR" investigativereports on Mr. Cook, Ms. Mortensen, and Mr. Mortensen that TCG filed with the court. While the reports contradictMr. Cook's and Ms. Mortensen's sworn testimony in a number ofrespects, 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 notrelied upon them in our de novo review ofthe trial court's denial ofthe CR 60(b)(5) motion. 

### 4No. 32020-I-III Collection Grp. v. Cook
ANALYSIS Mr. Cook contends the trial court erred in refusing to vacate the defaultjudgment because he was never properly served with the summons and complaint. "Proper service ofthe summons and complaint is a prerequisite to the court obtainingjurisdiction over a party, and ajudgmententered without suchjurisdiction is void." Woodruffv. Spence, 76 Wn. App. 207, 209,883 P.2d 936 (1994); In re Marriage of Markowski, 50 Wn. App. 633,635-36, 749 P.2d 754 (1988). Under CR 60(b)(5), a court "may relieve a party" from a finaljudgment or order on the grounds that "[t]hejudgment is void." A motion to vacate a voidjudgmentunder CR 60(b)(5) may be brought at any time after entry ofthe judgment. Markowski, 50 Wn. App. at 635;AllstateIns. Co. v. Khani, 75 Wn. App. 317, 323,877P.2d 724 (1994). Because courts have a mandatory duty to vacate voidjudgments, wereview a trial court's decision to grant or deny a CR60(b)(5) motion to vacate a defaultjudgment for lack of jurisdiction de novo. Dobbins v. Mendoza, 88 Wn. App. 862, 871, 947 P.2d 1229 (1997). Likewise, while "[r ]eview ofa denial ofa CR60(b) motion is generally limited to the propriety ofthe denial, and is not a review ofthe originaljudgment[,
...] ifquestions
are raised concerning lack oftrial courtjurisdiction and fundamental constitutional rights, these issues may be determined on appeal asjusticemay require." In re Marriage of Maxfield, 47 Wn. App. 699, 703, 737 P.2d 671 (1987).



### 5No. 32020-l-III Collection Grp. v. Cook
1. Standardof proof Mr. Cook argues thatthe trial court applied the wrong standard ofproofin deciding the jurisdictional issue. 

### It is well settled that "[a] facially correctreturn of service is presumed valid and, afterjudgment 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 of A.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 ofservice, regular in form and substance, is presumptively correct.") Mr. Cook argues that the return ofservice in this
case is not entitled to the presumption ofvalidity because it failed to state thatthe Lilac Lane address was his usual place ofabode and it failed to identify the basis for that assertion. Br. ofAppellant at 8-9. As a result, he claims thathe was required to prove insufficient service by only a preponderance ofthe evidence. He relies on John Hancock MutualLife Insurance Co. v. Gooley, 196 Wash. 357, 360, 83 P.2d 221 (1938), in which
aprocess server's original affidavit ofservice was found defective in partbecause it failed to state that the place ofservice was the defendants' usual place ofabode. In Gooley, the plaintiffcommenced 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 6No. 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 ofthe 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 afterMrs. Gooley was released from the hospital. 

### ld. at 358­ 60. The affidavit ofservice statedthat the Gooleys were servedby leaving the documents with Mrs. August Gooley "atthe Englehorn hotel
... , [the defendants] each being absent therefrom, and the said Mrs. August Gooley being a person ofsuitable age and discretion then resident therein." 

### ld. at 359. A defaultjudgmentwas entered, which the Gooleys attacked on the basis of insufficient service ofprocess. They challenged in part the fact that the plaintiffsreturn ofservice did notrecite that the Englehorn hotel was the Gooleys' house ofusual abode. The plaintiffresponded by filing an amended affidavit ofservice in which theprocess
servertestified that, at the time ofservice, 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 ofservice defective. As Mr. Cook argues, this was in part because it failed to state that the Englehorn hotel
was the Gooleys' house ofusual abode. In that respect, TCG's return ofservice also fell short ofestablishing all facts essential to effective substitute service. 

### CfCR4(g)(7) (the return must state the manner ofservice); RCW 4.28.080(15) (authorizing substitute service by "leaving a copy ofthe summons atthe house of[the defendant's] usual abode 7No. 32020-1-111 Collection Grp. v. Cook
with some person ofsuitable age and discretion then resident therein"). Butthe more pertinent holding ofGooley for purposes ofthis case is that it is proper to permit the filing ofan amended return ofservice "as the actual facts control; and if jurisdiction was actually acquired over the persons ofthe defendants, that fact should govern." Id. at 363. The court added that "[i]t is the fact ofservice which confersjurisdiction, and not the return, and the latter may be amended to speak the truth." Id. A return ofservice that fails to include all facts essential to effective service is defective in the sense that it is incomplete. The plaintiffcan 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 ofservice); Burdick v. PowellBros. TruckLines, 1 F.R.D. 220 (N.D. Ill., 1940) (return ofservice could be amended under parallel federal rule). Modem civil rules make clear that "[f]ailure to make proofofservice does not affect the validity ofthe service." CR4(g)(7); Scanlan v. Townsend, 181 Wn.2d 838, 848,336 P.3d 1155 (2014). "A 'lack ofreturn ofservice [neither] deprive[s] a court of jurisdiction, nor does it affect the validity ofthe service.'" Id. (quotingJones v. Stebbins,

122 Wn.2d 471, 482,860 P.2d 1009 (1993)). II. Insufficientproof of improper service Mr. Cook has not shown by clear and convincing evidence, or even by a preponderance ofthe evidence, that the Lilac Lane house was not his usual place of 8No. 32020-l-III 

### Collection Grp. 

### v. Cook
abode. The initial submissions in support ofthe motion for an order ofdefault demonstrated thatthe Lilac Lane address had been the address ofrecord for Mr. Cook's credit card account. While Mr. Cook complains thatthe 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 Laneproperty, but thatthey listed it as their address. TCG's printout from the assessor's website is dated April 28, 2006, reflecting information as ofApril 27, 2006. TCG established by declaration and exhibits that itthereafter sent demand letters to Mr. Cook at the LilacLane 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 ofabode for Mr. Cook. 

### CfAutomat 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 proofofmailing, it is presumed thatthe mails proceed in due
course and thatthe letter is received by the person to whom it is addressed). Inresponse, Mr. Cookprovides a declaration statingthat he was residing primarily in California and staying temporarily in North Idaho during the time ofthe service. But he provides no records ofproperty ownership in California or Idaho, no rental agreement for a residence in either state, and no addresses for his ostensible "true"places ofabode. "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 

### 9No. 32020-1-111 Collection Grp. v. Cook nonproducing party." Lynott v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA, 123 Wn.2d 678,689,871 P.2d 146 (1994) (citingPier 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 ofabode, 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 ofabode would withstand investigation by TCO. A bald allegation as to
a defendant's trueplace ofabode is unlikely to be sufficientwhen weighed against a conflicting allegation that is backed by at least some substantiation. CfGooley, 196 Wash. at 368 (rejecting process server's unsubstantiated allegation by amendedreturn that hotel was defendants' usual place ofabode in light ofthe conflicting, substantiated allegations ofdefendants). 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 concedereflect negatively on both witnesses' credibility. Finally, Mr. Cook's evidencethat Mr. Mortensen's secretary made mortgage payments on the Lilac Lane home is neutral, since therecord on appeal reveals that Ms. Mortensenwas separated from her husband atthe time ofservice and was in the process ofdivorce. Without more, the payments bytheMortensens' 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. 10No. 32020-1-111 Collection Grp. v. Cook
The term "usual abode" is to be liberally construed to effectuate service and upholdjurisdiction ofthe 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 "onewho asserts a change ofresidence 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 ofthe evidence that the Lilac Lane address was not a usual place ofabode for him at the time ofservice. 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 orexpenses on review ifapplicable law grants that right. Washington law generally provides for an award ofattorney fees "when authorized by a private agreement, a statute, or a recognized ground ofequity." Labriola v. PollardGrp., Inc., 152 Wn.2d 828, 839, 100 P.3d 791 (2004). "Aparty 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 ofCitibank, whose card agreement with Mr. Cook includes the following provision regarding collection costs: Ifwerefer collection ofyour accountto a lawyer who is not our salaried employee, you will have to pay our attorney's fee plus court costs or any
11No. 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 yourreasonable legal fees and court costs. CP at 122. Such provisions are construed as entitling aprevailingparty to reasonable attorney fees for all services required toprosecute the action to its "ultimate conclusion." PugetSoundMut. Sav. Bankv. Lillions, 50 Wn.2d 799, S07, 314 P.2d 935 (1957). We award TCO its reasonable fees and costs on appeal subjectto its compliance with RAP IS.I(d). Affirmed. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040.

WE CONCUR: Sid o· ay, 

## Clj**Kors~J.** Lawrence-Berrey, J. 

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