Carl Cook, V. Curtis Thompson ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CARL COOK,
No. 82152-1-I
Appellant,
DIVISION ONE
v.
UNPUBLISHED OPINION
CURTIS THOMPSON,
Respondent,
MARINA OLEGOVNA KOVENA, AND
ALL OTHER OCCUPANTS,
Defendants.
CHUN, J. — Carl Cook appeals the trial court’s dismissal of his unlawful
detainer action to evict Curtis Thompson following a nonjudicial foreclosure sale.
The trustee failed to provide a notice of foreclosure and Cook lacked standing to
pursue the eviction. We thus affirm.
I. BACKGROUND
Thompson owned residential property in Everett, Washington. He
borrowed money from Cook to satisfy a delinquent mortgage and secured the
loan by executing a deed of trust naming Quantum Equities, LLC (Quantum) as
beneficiary.1
1
Cook, Quantum’s managing director, was not identified as a beneficiary.
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 82152-1-I/2
Thompson defaulted on the loan. Anthony Mensik then recorded a notice
of trustee’s sale in December 2019. Thompson did not seek to restrain the sale.
Quantum bought the property at the foreclosure sale in April 2020. Thompson
did not vacate the property, so Cook initiated an unlawful detainer action against
Thompson and all other occupants of the property.
Only Cook and Thompson testified at trial.2 Representing himself, Cook
asserted that (1) Mensik was an authorized trustee, (2) Thompson waived any
defenses to the foreclosure sale, (3) he took ownership of the property, and (4)
he gave Thompson notice to vacate. Thompson responded that (1) Mensik was
not a valid trustee, (2) Mensik failed to issue a notice of foreclosure, and (3) Cook
did not own the property. The trial court dismissed the unlawful detainer action,
concluding that the trustee’s sale was invalid and Cook lacked standing. Cook
appeals.
II. ANALYSIS
Preliminarily, we note that Cook represents himself on appeal. We hold
self-represented litigants to the same standards as attorneys and expect them to
follow the rules of appellate procedure. In re Marriage of Olson, 69 Wn. App.
621, 626, 850 P.2d 527 (1993).
An appellant must provide “argument in support of the issues presented
for review, together with citations to legal authority and references to relevant
2
None of the other defendants appeared at trial, and they are not parties to this
appeal.
2
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parts of the record.” RAP 10.3(a)(6). We will not search through the record for
evidence relevant to a party’s arguments or for applicable legal authorities.
Saunders v. Lloyd’s of London, 113 Wn.2d 330, 345, 779 P.2d 249 (1989). The
appellant also bears the burden of providing a sufficient record to review the
issues raised on appeal. RAP 9.6; Story v. Shelter Bay Co., 52 Wn. App. 334,
345, 760 P.2d 368 (1988).
With few exceptions, Cook violates these rules. First, he provides only a
few citations to the record to support multiple pages of factual assertions.
RAP 10.3(a)(5) requires that “[r]eference to the record must be included for each
factual statement.” We may decline to consider issues unsupported by
references to the record. State v. Camarillo, 54 Wn. App. 821, 829, 776 P.2d
176 (1989). Second, his 31 pages of argument fail to present meaningful legal
analysis for most of the issues raised. Failure to identify specific legal issues or
cite applicable authority may preclude appellate review. State v. Marintorres, 93
Wn. App. 442, 452, 969 P.2d 501 (1999). Finally, Cook’s failure to designate the
14 trial exhibits leaves us with an inadequate record, so our review is limited to
the designated clerk’s papers and the verbatim report of trial court proceedings.
See Happy Bunch, LLC v. Grandview N., LLC, 142 Wn. App. 81, 90, 173 P.3d
959 (2007).
3
No. 82152-1-I/4
Despite these deficiencies and inadequate record, to the extent possible,
we address the issues Cook raises.3
A. Legal Principles and Standard of Review
The “Deeds of Trust Act” (DTA), chapter 61.24 RCW, “creates a three-
party mortgage system allowing lenders, when payment default occurs, to
nonjudicially foreclose by trustee’s sale.” Albice v. Premier Mortg. Servs. of
Wash., Inc., 174 Wn.2d 560, 568, 276 P.3d 1277 (2012). To begin foreclosure
proceedings, the trustee must serve and record (1) a notice of trustee’s sale and
(2) a notice of foreclosure at least 120 days before the sale. RCW
61.24.040(1)(a) and .040(4).4 “A trustee’s failure to strictly comply with the DTA
divests the trustee of statutory authority to conduct a trustee’s sale and renders
any such sale invalid.” River Stone Holdings NW, LLC v. Lopez, 199 Wn. App.
87, 93, 395 P.3d 1071 (2017) (citing Albice, 174 Wn.2d at 568).
The DTA provides a procedure for restraining a trustee’s sale under
RCW 61.24.130. Failure to sue as outlined under this procedure “may result in a
3
Cook lists 18 overlapping assignments error but not all of them warrant review.
He says the trial court erred by believing Thompson’s testimony, but we do not review
credibility determinations. State v. Davis, 182 Wn.2d 222, 227, 340 P.3d 820 (2014).
He makes several claims of error about a “pending Motion for Accounting before the trial
court.” None of that material is in the record, so we will not consider it. He assigns error
to an evidentiary ruling yet fails to support the issue with legal argument and record
citations. We consider this claim abandoned.
4
The notice in RCW 61.24.040(4) requires, among other things,
(1) a “description of the action necessary to cure the default and a description of the
documentation necessary to show that the default has been cured,” (2) an explanation of
how to “reinstate” the deed of trust and legal avenues the borrower may pursue, and (3)
a warning that “if you do not succeed in restraining the sale by court action, your
property will be sold.”
4
No. 82152-1-I/5
waiver of any proper grounds for invalidating the Trustee’s sale.” RCW
61.24.040(2)(d)(IX). Waiver occurs if the party “(1) received notice of the right to
enjoin the sale, (2) had actual or constructive knowledge of a defense to
foreclosure prior to the sale, and (3) failed to bring an action to obtain a court
order enjoining the sale.” Albice, 174 Wn.2d at 569.
“[A]fter the trustee’s sale takes place, the purchaser is entitled to
possession of the property after 20 days as against the borrower if the purchaser
provided proper notices under the DTA.” River Stone, 199 Wn. App. at 93 (citing
RCW 61.24.060(1)). “The purchaser shall also have a right to the summary
proceedings to obtain possession of real property provided in chapter 59.12
RCW.” RCW 61.24.060(1). In turn, RCW 59.12.032 requires an “unlawful
detainer action, commenced as a result of a trustee’s sale under chapter 61.24
RCW, [to] comply with the requirements of RCW 61.24.040 and 61.24.060.”
Only limited issues may be raised in the unlawful detainer action because
the purpose is to provide a speedy resolution of the right to possession of real
property. Fed. Nat. Mortg. Ass’n v. Ndiaye, 188 Wn. App. 376, 382-83, 353 P.3d
644 (2015). Thus, such actions are “limited to the question of possession and
related issues” and do not provide a forum for litigating claims to title or
challenges to the foreclosure action. Id. at 382.
We review a trial court’s findings of fact in an unlawful detainer action for
substantial evidence, and we review its conclusions of law de novo. Tedford v.
Guy, 13 Wn. App. 2d 1, 12, 462 P.3d 869 (2020). Substantial evidence is
5
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“evidence sufficient in quantum to persuade a fair-minded person that a given
premise is the truth.” Phillips v. Hardwick, 29 Wn. App. 382, 387, 629 P.2d 506(1981). Unchallenged findings of fact are verities on appeal.5 Pham v. Corbett,
187 Wn. App. 816, 825, 351 P.3d 214 (2015).
B. Nonjudicial Foreclosure Sale
Cook contends the trial court erred by invalidating the trustee’s sale
because Mensik complied with all statutory notice provisions. While it is
undisputed Thompson received a notice of trustee’s sale, Cook cites no evidence
in the record showing Mensik gave Thompson a notice of foreclosure.
Thompson also argued this point at trial. Thus, the trial court concluded the
trustee’s sale was not valid because Mensik neither provided proper notice of the
foreclosure sale to Thompson nor gave Thompson notice of his rights and
remedies in RCW 61.24.040(4). We see no error.6
C. Unlawful Detainer Action
Next, Cook says he owned the property when he sued so the trial court
erred in ruling he lacked standing to sue for eviction on the property. The record
5 Cook assails many of the trial court’s factual findings. But he fails to show “why
specific findings of the trial court are not supported by the evidence [or] cite to the record
to support that argument.” In re Estate of Lint, 135 Wn.2d 518, 532, 957 P.2d 755(1998). Thus, we conclude the findings are verities on appeal. See Starczewski v.
Unigard Ins. Grp., 61 Wn. App. 267, 276, 810 P.2d 58 (1991) (“The trial court’s findings
will be taken as verities if the party challenging them does not supply citations to the
record in support of the challenges.”).
6
Cook also contends Thompson’s failure to restrain the foreclosure sale waived
his rights to later challenge the sale for defects. We disagree because Thompson never
received the required notice of foreclosure, which informs borrowers how to enjoin a
trustee’s sale. RCW 61.24.040(4). Thus, Thompson did not waive his defenses under
the DTA. See Albice, 174 Wn.2d at 569.
6
No. 82152-1-I/7
establishes that Quantum was the beneficiary on the deed of trust and Cook
acknowledges Quantum bought the property at issue. Cook did not give the trial
court any proof that Quantum assigned its interest in the property to him. He
now states he “never had reason to anticipate that [such proof] would be raised
as an issue” at trial. Without proof of ownership, the trial court properly
dismissed Cook’s unlawful detainer action for lack of standing.7
D. Attorney Fees
Thompson requests attorney fees under RAP 18.1, claiming
RCW 59.18.290 entitles him to fees as the prevailing party in the unlawful
detainer action. RCW 59.18.290 is a fee provision under the Residential
Landlord-Tenant Act of 1973 (RLTA), chapter 59.18 RCW, not the DTA. Thus,
where a person does not occupy his or her residence “pursuant to a rental
agreement establishing a landlord-tenant relationship,” the RLTA is inapplicable
and no attorney fees are available to the prevailing party. Fannie Mae v.
Steinmann, 181 Wn.2d 753, 755-56, 336 P.3d 614 (2014) (no attorney fees
awarded in an unlawful detainer action following a trustee’s sale, noting that
“[t]he unlawful detainer statute contains no provision for the award of attorney
fees”). Thompson was not occupying the property as a tenant subject to a rental
agreement. We deny the request.
7
Cf. Selene RMOF II REO Acquisitions II, LLC v. Ward, 189 Wn.2d 72, 80-81,
399 P.3d 1118 (2017) (holding because the original purchaser at a trustee’s sale
“conveyed its entire interest to Selene, Selene may pursue the unlawful detainer action
under RCW 61.24.060(1) to obtain possession of the conveyed property”).
7
No. 82152-1-I/8
We affirm.8
WE CONCUR:
8
Since we affirm the trustee’s sale was invalid and Cook lacked standing to evict
Thompson, we need not reach Cook’s remaining claims about Mensik’s qualifications
and exceptions to the Washington Governor’s eviction moratorium. But even if we did,
his claims do not appear meritorious. The trustee’s sale was invalid despite Mensik’s
qualifications and Cook lacked standing to maintain an unlawful detainer action even if
he had identified an exception to the Governor’s eviction moratorium.
Also, we deny Cook’s “Motion to Rescind Appellant’s Trustees Deed and to
Reinstate Appellant’s Deed of trust in the Chain of Title.”
8