Defendant Northwest Trustee Services, Inc. (“NWTS”) submits the following in reply to
Plaintiffs Response and Objection to Motions for Summary Judgment Brought by Northwest
Trustee Services, Inc. and OneWest Bank (“Response”).
I. REPLY ARGUMENT
A. The Court Must Strike Claims Plaintiff Attempts t0 Plead For the First Time in Response to NWTS’ Motion for Summary Judgment.
A party who fails to plead a cause of action “cannot finesse the issue by later inserting the theory into trial briefs and contending it was in the case all along.” Lundberg v. Coleman, l 15 Wn. App. 172, 180 (2002) (because claims were “not substantiated in any ofthe pleadings" plaintiff was barred from raising them).
ln White v. Kent Medical Center, the Court 0f Appeals held that 0n summary judgment new issues may not be raised in rebuttal materials. See White v. Kent Medical Center, 61 Wn. 163, 168, 810 P.2d 4(1991). A pleading is insufñcient when it does not give the opposing`party fair notice of what the claim is and the ground upon which it rests. Lewis v. Bell, 45 Wn.
App. 192, 197, 724 P.2d 425 (1986). “Because the complaint failed to provide fair notice of the claims, the trial court's decision to strike the claims was not an abuse of discretion.” Salumeri-Maschersky v. Countrywide Funding Corp., 105 Wn. App. 846, 857, 22 P.3d 804, 810 (200l ).
Here, the Court should strike the claims Plaintiff pleads for the first time in her Response.
l. Plaintiff Claims NWTS’ Employee, Vonnie McElligott, Lacked AuthorityI to Sign on Behalf of MERS For the First Time in Response to NWTS’ Motion for Summary Judgement.
MUST SEE: Entire Deposition, CLICK HERE
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