Owb Reo, Llc v. Leonid Kucherov, Et Ux ( 2018 )

Filed
Washington State
Court of Appeals
Division Two
May 15, 2018
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
OWB REO, LLC, No. 49821-9-II
Respondents,
v.
LEONID KUCHEROV and ANNA
TSYBULSKAYA, husband and wife, UNPUBLISHED OPINION
Appellants.
WORSWICK, J. — OWB REO, LLC purchased Leonid Kucherov and Anna Tsybulskaya’s
(the Kucherovs) property following a nonjudicial foreclosure sale. The Kucherovs failed to
vacate the property, and OWB REO filed an unlawful detainer action. The superior court
entered a judgment for unlawful detainer and entered an order directing issuance of a writ of
restitution.
The Kucherovs appeal, arguing that the superior court erred in issuing the writ of
restitution because the trustee’s sale of their property to OWB REO was invalid, the superior
court judge should have recused himself, and the superior court improperly deprived them of
discovery. We affirm the judgment for unlawful detainer and the order for a writ of restitution.
FACTS
The Kucherovs owned real property in Clark County. In 2006, the Kucherovs obtained a
construction loan from IndyMac Bank F.S.B., to finance construction of their residence on that
property. The construction loan was secured by a deed of trust. The promissory note and deed
No. 49821-9-II
of trust were later assigned to CIT Bank. MTC Financial Inc. was appointed as trustee of CIT
Bank’s deed of trust.
The Kucherovs defaulted on their loan obligation in 2011, and CIT Bank began
foreclosure proceedings in 2015. On May 20, 2016, MTC Financial held a nonjudicial
foreclosure sale, and OWB REO purchased the property. OWB REO received a trustee’s deed
following the sale.
OWB REO filed an eviction summons, complaint for unlawful detainer, and a motion for
an order to show cause in superior court. The superior court subsequently entered an order for a
show cause hearing. On June 23, before the hearing, the Kucherovs filed a notice of removal in
federal district court, seeking to remove OWB REO’s unlawful detainer action. On July 1, the
superior court entered an order directing issuance of the writ of restitution. On July 28, the
federal district court entered an order remanding the case to the superior court.
Soon after, the Kucherovs filed an emergency motion in this court to stay or cancel the
writ of restitution, arguing that the superior court lacked jurisdiction to order the writ because the
case had been removed to federal court. Ruling Vacating Order of Restitution and Remanding
for Further Proceedings, Kusherov v. OWB REO, LLC, No. 49441-8-II, at 1 (Wash. Ct. App.
Sept. 1, 2016). OWB REO joined in the motion. Kusherov, No. 49441-8-II, at 1. A
commissioner of this court vacated the order issuing a writ of restitution and remanded to
superior court. Kusherov, No. 49441-8-II, at 2.
On remand, the Kucherovs filed a motion to recuse the superior court judge. In their
motion, the Kucherovs argued that they did “not believe they [could] receive a fair hearing after
the Court of Appeals reversed” the judge’s unlawful detainer ruling. Clerk’s Papers (CP) at 270.
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The superior court judge determined: “[Y]our request to disqualify me is denied. I have no
actual bias against you and there is no reason to think that I can’t judge the case fairly . . . . So go
on out and get your hearing date [for an evidentiary hearing] and we’ll go from there.” Verbatim
Report of Proceedings (VRP) (Sept. 30, 2016) at 7.
The superior court then set an evidentiary hearing on OWB REO’s unlawful detainer
action. The Kucherovs then filed a motion to continue the evidentiary hearing and attached their
requests for discovery. The Kucherovs argued that they needed a continuance until OWB REO
complied with the discovery requests because they needed information regarding OWB REO’s
failure to pay business and occupation taxes in Washington and its failure to register. The
Kucherovs asserted that because OWB REO failed to pay taxes and failed to register, it could not
conduct business in the state and, therefore, could not purchase the property.
The superior court denied the Kucherovs’ motion for continuance, stating that “[t]his is
an unlawful detainer proceeding. . . . The discovery that was requested doesn’t seem to have
anything to do with the issues that I have to decide, so I’m going to go ahead and proceed.” VRP
(Oct. 28, 2016) at 7-8. The superior court subsequently entered an order directing the reissuance
of the writ of restitution. The Kucherovs appeal.
ANALYSIS
The Kucherovs argue that the superior court erred in issuing the writ of restitution
because the trustee’s sale of their property to OWB REO was invalid, the superior court judge
should have recused himself, and the superior court improperly deprived them of discovery. We
disagree and affirm the judgment for unlawful detainer and the order for a writ of restitution.
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I. INVALID FORECLOSURE SALE
The Kucherovs argue that the superior court erred in ordering the issuance of a writ of
restitution because the trustee’s sale of their property to OWB REO was invalid for three
reasons. Specifically, the Kucherovs contend that the nonjudicial foreclosure sale was invalid
because they satisfied their loan obligation to CIT Bank, OWB REO had not registered as a
foreign corporation with the Washington secretary of state and was barred from doing business
in the state,1 and the foreclosure sale did not “take place on the courthouse steps.” Br. of
Appellant at 38. OWB REO argues that this court should not consider the Kucherovs’ arguments
because they do not fall within the limited range of defenses available in an unlawful detainer
action. We agree with OWB REO.
An unlawful detainer action is a summary proceeding designed to resolve competing
claims to possession of real property. River Stone Holdings NW, LLC v. Lopez, 199 Wash. App.
87, 92, 395 P.3d 1071 (2017). Because of its summary nature, unlawful detainer proceedings are
narrow and are limited to resolving questions of possession and related issues like restitution of
the premises. 199 Wash. App. at 92. As a result, “[i]ssues unrelated to possession are not properly
part of an unlawful detainer action” and must be resolved in a separate action. 199 Wash. App. at
92. Unlawful detainer actions do not provide a forum for litigating claims to title. Fed. Nat’l
Mortg. Ass’n v. Ndiaye, 188 Wash. App. 376, 382, 353 P.3d 644 (2015).
1
In the introduction section of their brief, the Kucherovs argue, without authority, that OWB
REO is barred from obtaining judgment in its unlawful detainer action because OWB REO failed
to pay business and operations taxes in Washington. We do not review issues that are not
supported by argument or citations to legal authority. RAP 10.3(a)(6); City of Tacoma v. Price,
137 Wash. App. 187, 200-01, 152 P.3d 357 (2007). Accordingly, we do not consider this issue.
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We do not consider the Kucherovs’ arguments that the trustee’s nonjudicial foreclosure
sale was invalid and rendered OWB REO’s title to the property void. An unlawful detainer
defendant generally cannot raise defective title as a defense to possession. River Stone Holdings,
199 Wash. App. at 96. And unlawful detainer actions do not provide a forum for litigating claims
to title. Ndiaye, 188 Wash. App. at 382. Accordingly, the Kucherovs cannot defend against OWB
REO’s unlawful detainer action by asserting that the foreclosure sale was invalid and that OWB
REO’s title is void. Therefore, the Kucherovs cannot demonstrate that the superior court erred in
issuing its writ of restitution order on this basis.
II. RECUSAL & CONTINUANCE REQUESTS
The Kucherovs also argue that the superior court erred in ordering the issuance of a writ
of restitution because the superior court judge should have recused himself and the superior court
improperly deprived them of discovery. We disagree.
A. Recusal
First, the Kucherovs argue that the superior court judge should have recused himself
because he was biased and prejudiced against the Kucherovs and because there had been a
successful appeal of the judge’s prior ruling. We disagree.
We review a judge’s decision whether to recuse himself for an abuse of discretion. West
v. Wash. Ass’n of County Officials, 162 Wash. App. 120, 136, 252 P.3d 406 (2011). A judge
abuses his discretion when his decision is manifestly unreasonable or is based on untenable
reasons or grounds. Kok v. Tacoma Sch. Dist. No. 10, 179 Wash. App. 10, 23-24, 317 P.3d 481
(2013).
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Due process, the appearance of fairness doctrine, and the Code of Judicial Conduct
require that a judge disqualify himself from hearing a case when that judge is biased against a
party or when his impartiality may be reasonably questioned. West, 162 Wash. App. at 136-37. A
party claiming bias or prejudice must support the claim with evidence of the superior court’s
actual or potential bias. 162 Wash. App. at 137. “‘Casual and unspecific allegations of judicial
bias provide no basis for appellate review.’” State v. Hecht, 2 Wash. App. 2d 359, 369, 409 P.3d
1146 (2018) (quoting Rich v. Starczewski, 29 Wash. App. 244, 246, 628 P.2d 831 (1981)).
Following remand, the Kucherovs filed a motion to recuse the superior court judge,
arguing that the superior court judge was biased against them and that they did “not believe they
[could] receive a fair hearing after the Court of Appeals reversed” the judge’s unlawful detainer
ruling. CP at 270. The superior court judge denied the Kucherovs’ motion, stating, “I have no
actual bias against you and there is no reason to think that I can’t judge the case fairly.” VRP
(Sept. 30, 2016) at 7.
The Kucherovs appear to argue that the superior court judge demonstrated bias against
them because this court vacated the superior court’s original order for a writ of restitution and
because the superior court judge “rushed to judgment” on remand.2 Br. of Appellant at 31.
However, the Kucherovs fail to provide specific allegations of the superior court judge’s actual
or potential bias. Moreover, a superior court judge’s adverse ruling, without more, does not
2
The Kucherovs also appear to argue that the superior court judge “made unequivocal statements
showing his prejudice toward pro se parties” during the first evidentiary hearing on OWB REO’s
unlawful detainer action. Br. of Appellant at 31. The record on appeal does not contain a
transcript of the first evidentiary hearing. Accordingly, the record is insufficient to review this
issue and precludes our review. Stiles v. Kearney, 168 Wash. App. 250, 259, 277 P.3d 9 (2012).
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No. 49821-9-II
support an inference of bias. See, e.g., Rhinehart v. Seattle Times Co., 51 Wash. App. 561, 579-80,
754 P.2d 1243 (1988). Accordingly, the Kucherovs fail to show that the superior court judge
abused his discretion in denying the motion to recuse.
B. Motion for Continuance
Next, the Kucherovs argue that the superior court erred in ordering the issuance of a writ
of restitution because the court improperly deprived them of discovery.3 Stated another way, the
Kucherovs contend that the superior court erred in denying their motion for continuance because
the Kucherovs sought evidence that would entitle them to affirmative relief in OWB REO’s
unlawful detainer action. We disagree.
Whether to grant or deny a motion for continuance is within the superior court’s
discretion. Trummel v. Mitchell, 156 Wash. 2d 653, 670, 131 P.3d 305 (2006). We review a
superior court’s decision on a motion for continuance for an abuse of discretion. 156 Wash. 2d at
670. A court abuses its discretion when its decision is based on clearly untenable grounds or is
manifestly unreasonable. 156 Wash. 2d at 671.
The Kucherovs filed a motion to continue the evidentiary hearing until OWB REO
provided the requested discovery regarding its failure to pay taxes and its failure to register. The
superior court denied the Kucherovs’ motion, reasoning that the requested discovery was not
relevant to an unlawful detainer action.
3
The Kucherovs also argue that the superior court denied their right to a fair trial by denying
their motion for continuance. Because the Kucherovs do not support their constitutional claim
with sufficient argument or citation to authority, we do not review this issue. RAP 10.3(a)(6);
Price, 137 Wash. App. at 200-01.
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No. 49821-9-II
The Kucherovs argued that they needed a continuance to conduct additional discovery
regarding OWB REO’s ability to take title to the property. As discussed above, issues regarding
title are not properly part of an unlawful detainer action and do not provide a defense to
possession. River Stone Holdings, 199 Wash. App. at 92, 96. Accordingly, the trial court provided
reasonable grounds for denying the Kucherovs’ motion for continuance when it determined that
the requested discovery was irrelevant. Therefore, the superior court did not abuse its discretion
in denying the Kucherovs’ motion for continuance.
We affirm the judgment for unlawful detainer and the order for a writ of restitution.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Worswick, P.J.
We concur:
Bjorgen, J.
Sutton, J.
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