Concepcion Hermosillo v. Elias Haydari And Amir Bahandari ( 2017 )


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  •                                                                          FILED
    COURT OF APPEALS DIV I
    STATE OF WASIIINGT0:4
    2617 APR 24 AN 8:145
    IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
    ELIAS HAYDARI and AMIR
    BAHANDARI,                                       No. 74871-8-1
    Respondents,               DIVISION ONE
    V.                                        UNPUBLISHED OPINION
    CONCEPCION HERMOSILLO                            FILED: April 24, 2017
    AZADMANESH,
    Appellant.
    LEACH,J. —After Elias Haydari and Amir Bahandari purchased Concepcion
    Hermosillo's1 home at a trustee's nonjudicial foreclosure sale, she refused to
    move. Haydari and Bahandari filed an unlawful detainer action, and the trial court
    granted a writ of restitution. Hermosillo appeals this decision. Because she fails
    to show an issue of fact about Haydari and Bahandari's right to possession, we
    affirm and remand.
    FACTS
    We have described the facts about the foreclosure in the companion case,
    Hermosillo v. Quality Loan Service Corp. of Washington, No. 75020-8-1.
    After a lender foreclosed on Hermosillo's property, Haydari and Bahandari
    purchased the property at a trustee's sale. Three days later, they had a notice to
    1 We refer to the appellant as Hermosillo consistent with the parties' briefing.—
    No. 74871-8-1 /2
    vacate served on Hermosillo. But she continued to occupy the premises. Nearly
    two months later, Haydari and Bahandari filed an unlawful detainer action to evict
    Hermosillo.
    They attached the trustee's deed to their complaint. The trustee's deed
    identified Fidelity National Title Co. of Washington as the original trustee and
    Quality Loan Service Corp. of Washington as the current trustee.
    After a show cause hearing, a court commissioner ruled in favor of Haydari
    and Bahandari. She denied Hermosillo's request for a jury trial, entered findings
    • of fact and conclusions of law, and ordered the court clerk to issue a writ of
    restitution directing the sheriff to deliver possession of the property to Haydari and
    Bahandari.      The    commissioner     later denied     Hermosillo's    motion for
    reconsideration.
    A King County Superior Courtjudge stayed the writ of restitution conditioned
    on Hermosillo posting a supersedeas bond in the amount of $37,500. Hermosillo
    deposited the $37,500 and then appealed the order for the writ of restitution and
    denying her request for a jury trial.
    STANDARD OF REVIEW
    The purchaser at a trustee's -sale may file a statutory unlawful detainer
    action to resolve the right to possession of property.2 This action provides a
    summary process for resolving a dispute about the right to possession of property
    2 RCW 61.24.060(1).
    No. 74871-8-1 / 3
    purchased.3 At the beginning of this action or anytime later in the proceedings, the
    purchaser may ask the court for a writ of restitution restoring to it possession of the
    property.4 A purchaser who wants a writ of restitution must schedule a show cause
    hearing.5 At the show cause hearing, the court decides if the purchaser has shown
    that no substantial issue of material fact exists about its right to possession.6 If so,
    the court grants this relief. If not, the court sets the case for trial unless the court
    decides the purchaser has no legal right to the relief requested and dismisses the
    case.7
    On appeal, we review the record to decide whether an issue of fact exists
    about the purchaser's right to possession. If not, we will affirm the trial court's
    decision restoring possession. If the record shows a material issue of fact, we will
    reverse and remand for trial, unless we decide that the purchaser has no right to
    the legal relief requested.5
    ANALYSIS
    Hermosillo contends that Haydari and Bahandari are not entitled to
    possession. She also claims a right to a jury trial in this case.
    3 Munden v. Hazelrigq, 
    105 Wash. 2d 39
    , 45, 
    711 P.2d 295
    (1985); RCW
    59.12.030.
    4 RCW 59.12.090.
    5 Indigo Real Estate Servs., Inc. v. Wadsworth, 169 Wn. App. 412,421, 
    280 P.3d 506
    (2012).
    6 RCW 59.18.380.
    7 RCW 59.18.380.
    8 RCW 59.18.380.
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    No. 74871-8-1 /4
    First, Hermosillo asserts that the trustee's deed to Haydari and Bahandari
    did not show compliance with the deeds of trust act (DTA).° The trustee's deed
    identified Quality as the current trustee and stated that the deed of trust named
    Fidelity National as the original trustee. It did not explain how Quality became the
    successor trustee. Hermosillo claims that without information in the deed showing
    how Quality became the lawful trustee, one cannot know whether this sale was a
    valid sale under the DTA.
    Haydari and Bahandari respond that the trustee's deed contained sufficient
    recitals and is prima facie evidence of compliance with the DTA.               RCW
    61.24.040(7) states,
    [T]he trustee shall execute to the purchaser its deed; the deed shall
    recite the facts showing that the sale was conducted in compliance
    with all of the requirements of this chapter and of the deed of trust,
    which recital shall be prima facie evidence of such compliance and
    conclusive evidence thereof in favor of bona fide purchasers and
    encumbrancers for value.
    Haydari and Bahandari assert that a statement that Quality is the current trustee
    is sufficient. We agree.
    Hermosillo relies on Division Two's decision in Albice v. Premier Mortaage
    Services of Washington.1° Albice stated, "Legal conclusions without supporting
    facts are insufficient to demonstrate that the sale complied with all the statutory
    procedural protections."11     In that case, a conclusory statement that all
    9 Ch. 61.24 RCW.
    1° 
    157 Wash. App. 912
    , 239 P.3d 1148(2010), affd, 
    174 Wash. 2d 560
    , 276 P.3d
    1277(2012).
    11 
    Albice, 157 Wash. App. at 924
    .
    No. 74871-8-1 / 5
    requirements of the DTA had been complied with made it impossible to determine
    whether the sale in fact complied with the DTA.12 The recitals were insufficient
    because they did not include any information about the six continuances that
    postponed the sale beyond the period allowed by the DTA.13 The court was
    "unwilling to accept a trustee's legal conclusions contrary to the actual facts of the
    foreclosure process as conclusive evidence where an accurate reporting of the
    facts would have shown the legal conclusions to be incorrect."14
    This case is not like Albice. Here, the deed stated that Quality was the
    trustee. Hermosillo does not provide any evidence to contradict that recital. Nor
    does she cite any case supporting her claim that the deed must recite how Quality
    came to be trustee.
    Moreover, she does not deny that Haydari and Bahandari are bona fide
    purchasers (BFPs). RCW 61.24.040(7) states that the recitals in the trustee's
    deed provide conclusive proof of compliance in favor of BFPs.15 On appeal, the
    Supreme Court in Albice decided that the purchaser was not a BFP and thus could
    not benefit from BFP protection.16 "[I]ri considering whether a person is a BFP, we
    ask (1) whether the surrounding events created a duty of inquiry, and, if so,
    (2) whether the purchaser satisfied that duty."17 Here, the deed stated that Quality
    was the current trustee. This is not misleading or inconsistent with any other
    12 
    Albice, 157 Wash. App. at 923
    .
    13 
    Albice, 157 Wash. App. at 922-23
    .
    14 
    Albice, 157 Wash. App. at 925
    .
    15 RCW 61.24.040(7).
    16 
    Albice, 174 Wash. 2d at 573
    .
    17 
    Albice, 174 Wash. 2d at 573
    .
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    No. 74871-8-1 /6
    recital. Thus, Haydari and Bahandari had no reason to question that recital or
    investigate further. The absence of facts explaining how Fidelity ceased to be the
    trustee and Quality became the successor trustee did not create a duty to inquire.
    Next, Hermosillo challenges the commissioner's denial of her request for a
    jury trial. She claims RCW 59.12.130 entitles her to a jury trial on Haydari and
    Bahandari's right to possession claim. RCW 59.12.130 states, "Whenever an
    issue of fact is presented by the pleadings it must be tried by a jury." At the show
    cause hearing, Hermosillo had the opportunity to introduce some evidence to show
    the recitals in the trustee's deed were false. She did not. Because she failed to
    contradict the recitals, she did not create an issue of fact, and the commissioner
    correctly denied her request for a jury trial.
    For the first time in her reply brief, Hermosillo lists, without argument,
    several items in the record, including pleadings submitted to the trial court, that
    she claims raise issues of fact. "Passing treatment of an issue or lack of reasoned
    argument is insufficient to merit judicial consideration."18 Further, "trial court briefs
    cannot be incorporated into appellate briefs by reference."18 In addition, we
    generally do not consider arguments raised for the first time in a reply brief.20 For
    these reasons, we decline to consider whether these documents create an issue
    of fact.
    Holland v. City of Tacoma, 
    90 Wash. App. 533
    , 538, 954 P.2d 290(1998).
    18
    
    Holland, 90 Wash. App. at 538
    .
    19
    20
    Cowiche Canyon Conservancy v. Bosley, 
    118 Wash. 2d 801
    , 809, 828 P.2d
    549(1992).
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    No. 74871-8-1 / 7
    Finally, Hermosillo contends that Haydari and Bahandari acquired the
    property subject to the outcome in the companion case. But that case involved
    only a civil action for damages under the Consumer Protection Act.21 The sole
    question here is right to possession.22 And while a party in an unlawful detainer
    action may raise a counterclaim "that will void the sale and thus destroy any right
    to possession in the purchaser at that sale," a Consumer Protection Act claim does
    not directly relate to the question of possession.23 And we rejected Hermosillo's
    arguments in the companion case about the lender's authority to foreclose.24
    The trial court properly ordered a writ of restitution and denied Hermosillo's
    request for a jury trial.
    Haydari and Bahandari seek damages caused by this appeal, citing RCW
    59.12.100 and RAP 8.1(c) as authority for their request. They must seek this relief
    in the trial court on remand.
    21Ch. 19.86 RCW.
    22 Savings Bank of Puget Sound v. Mink, 
    49 Wash. App. 204
    , 208-09, 741
    P.2d 1043(1987).
    23 See Savings 
    Bank, 49 Wash. App. at 209
    .
    24 Hermosillo v. Quality Loan Serv. Corp., No. 75020-8-1.
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    No. 74871-8-1/ 8
    CONCLUSION
    Hermosillo does not create an issue of fact about the respondents' right to
    possession. We affirm the trial court and remand for a determination of damages.
    WE CONCUR:
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