Deborah Ann Colombi v. Stewart Mccullum

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STEWART MCCULLUM, ) No. 78845-1-I
Respondent, ) DIVISION ONE
v.
DEBORAH A. COLOMBI, and ALL )
OTHER OCCUPANTS, )
Appellants.
DEUTSCHE BANK TRUST COMPANY )
AMERICAS, AS TRUSTEE FOR )
RESIDENTIAL ACCREDIT LOANS, )
INC., MORTGAGE ASSET-BACKED )
PASS-THROUGH CERTIFICATES, )
SERIES 2006-QO9, ) UNPUBLISHED OPINION
Respondents,
v.
DEBORAH A. COLOMBI and DAVID )
GREGORY WILLENBORG, )
Appellants,
KING COUNTY DEPARTMENT )
OF DEVELOPMENT AND )
ENVIRONMENTAL SERVICES; KING
COUNTY; COMMONWEALTH LAND )
TITLE INSURANCE COMPANY, AS )
SUBROGEE FOR HOMECOMINGS )
FINANCIAL, LLC; DEPARTMENT OF )
THE TREASURY INTERNAL
- ) FILED: November 18, 2019
No. 78845-1-1/2
REVENUE SERVICE; OCCUPANTS )
OF THE PROPERTY,
Defendants.
SCHINDLER, J. — On April 20, 2018, Stewart McCullum purchased property
located at 15007 133rd Avenue Southeast in Renton, Washington, at a nonjudicial
foreclosure sale. The trustee’s deed was recorded on May 3, 2018. McCullum filed an
unlawful detainer action against the previous owner Deborah A. Colombi; King County
Superior Court Cause No. 18-2-12857-9 KNT. In June 2017, Deutsche Bank Trust
Company Americas filed a judicial foreclosure action against Colombi on property she
owned located at 19251 218th Avenue Southeast in Maple Valley, Washington; King
County Superior Court Cause No. 17-2-15726-1 KNT. Colombi and David Gregory
Willenborg (collectively, Colombi) filed a pro se appeal of the judgment and order
issuing a writ of restitution in the unlawful detainer action and the judicial foreclosure
action. We affirm the order issuing a writ of restitution. We dismiss the appeal in the
judicial foreclosure action as not timely.
Writ of Restitution
On September 27, 2004, Pacific NW Title loaned Deborah Colombi $164,000 to
purchase property located at 15007 133rd Avenue Southeast, Renton, Washington,
98058. Colombi executed a promissory note for the amount of the loan secured by a
deed of trust on the property.
Colombi stopped making payments in February 2017. On December 15, 2017,
the trustee issued a “Notice of Trustee’s Sale” (Notice). The Notice was recorded on
December 18, 2017. The Notice states the principal sum owed on the loan is
$93,485.40 plus interest.
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The highest bidder at the trustee’s sale on April 20, 2018 was Stewart McCullum.
McCuIIum purchased the property for $296,000. Title was conveyed to McCullum by
trustee’s deed on April 23, 2018. The trustee’s deed was recorded on May 3, 2018.
On April 26, 2018, McCullum served Colombi with a notice of sale and a notice to
vacate. Colombi did not vacate the property. On May 18, 2018, McCuIlum filed an
unlawful detainer action against Colombi; King County Superior Court Cause No. 18-2-
12857-9 KNT.
The show cause hearing on the unlawful detainer action was held on August 17,
2018. The court issued a writ of restitution. The court entered “Findings of Fact,
Conclusions of Law, Judgment and Order Issuing Writ of Restitution.” On August 22,
2018, Colombi and David Gregory Willenborg (collectively, Colombi) filed a prose
appeal of the Order Issuing Writ of Restitution; King County Superior Court Cause No.
18-2-12857-9 KNT.1
Colombi argues the court erred in issuing the writ of restitution because the
underlying nonjudicial foreclosure sale was improper under the deeds of trust act,
chapter 61.24 RCW (DTA).
RCW 61.24.060(1) of the DTA states that
[tihe purchaser at the trustee’s sale shall be entitled to possession of the
property on the twentieth day following the sale, as against the borrower
and grantor under the deed of trust and anyone having an interest junior to
the deed of trust, including occupants who are not tenants, who were
given all of the notices to which they were entitled under this chapter. The
1 In the notice of appeal, Colombi also appeals King County Superior Court Cause No. 18-2-
18107-1 KNT. In No. 18-2-18107-1 KNT, the trustee filed a “Notice of Deposit of Surplus Funds Pursuant
to” ROW 61.24.080. Because the Notice of Deposit is not a final order or judgment under RAP 2.2(a), we
dismiss the appeal of King County Superior Court Cause No. 18-2-18107-1 KNT.
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No. 78845-1 -114
purchaser shall also have a right to the summary proceedings to obtain
possession of real property provided in chapter 59.12 RCW.[2]
An unlawful detainer action is “a summary proceeding” to obtain “possession of real
property.” Fed. Nat’l Mortg. Ass’n v. Ndiaye, 188 Wn. App. 376, 382, 353 P.3d 644(201 5).
An unlawful detainer action is a narrow action that is “limited to the question of
possession” and related only to “issues such as restitution of the premises and rent.”
Munden v. Hazelrigg, 105 Wn.2d 39, 45, 711 P.2d 295 (1985). In an unlawful detainer
action, the plaintiff bears the burden to prove by a preponderance of the evidence the
right to possession of the premises. Duprey v. Donahoe, 52 Wn.2d 129, 135, 323 P.2d
903 (1958). An unlawful detainer action does ‘not provide a forum for litigating claims
“
to title.’ “ Selene RMOF II REQ Acquisitions II, LLC v. Ward, 189 Wn.2d 72, 81, 399
P.3d 1118 (2017) (quoting Ndiaye, 188 Wn.App. at 382). An unlawful detainer action is
not an appropriate proceeding to challenge the underlying foreclosure. Ndiaye, 188
Wn. App. at 382. Allowing a borrower to delay by asserting a defense after the
foreclosure sale in an unlawful detainer action is contrary to the intent of the DTA to
provide an efficient and inexpensive foreclosure process. Ndiaye, 188 Wn. App. at 382-
83.
The unlawful detainer statute, RCW 59.12.030(6), states:
A person who, without the permission of the owner and without having
color of title thereto, enters upon land of another and who fails or refuses
to remove therefrom after three days’ notice, in writing and served upon
him or her in the manner provided in RCW 59.12.040. Such person may
also be subject to the criminal provisions of chapter 9A.52 ROW.
2 Emphasis added.
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In an unlawful detainer action filed by the purchaser of property at a nonjudicial
foreclosure trustee’s sale, the purchaser must establish that 20 days have elapsed
since the trustee’s sale and the purchaser complied with the procedural requirements
under the unlawful detainer statute. See ROW 61.24.040(11), .060(1); Laifranchi v.
Lim, 146 Wn. App. 376, 383, 190 P.3d 97 (2008), abrogated on other grounds by
MHM&F, LLC v. Pryor, 168 Wn. App. 451, 277 P.3d 62 (2012). We treat unchallenged
findings as verities on appeal. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d
801, 808, 828 P.2d 549 (1992).
The unchallenged findings of fact support the decision to issue a writ of
restitution. The findings establish that 20 days had elapsed since McCullum purchased
the property and that without color of title or permission, Colombi refused to move out of
the Renton house. The findings state, “Pursuant to Chapter 61 .24 RCW, [Colombi]’s
right to occupancy was terminated by the Notice of Trustee’s Sale, dated December 1 5,
2017.” The court found that after the sale, McCullum “provided an additional notice of
sale to [Colombi], on or about April 26, 2018.” The court found, “More than 20 days
have elapsed since the Trustee’s sale of the property” and Colombi has “failed to vacate
and surrender the Property and continue[s] to reside in the Property in violation of ROW
59.12.020 and RCW 59.12.030(1).” The findings state Colombi “provided no proof of a
valid tenancy” and is “still in possession of the premises.” The unchallenged findings
support the court’s conclusion that McCullum met the requirements under the unlawful
detainer statute, Colombi “unlawfully detained the premises,” and McCullum “is entitled
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No. 78845-1-1/6
to possession of the subject property.” The court did not err in issuing the writ of
restitution.3
Judicial Foreclosure
In October 2006, Homecomings Financial LLC loaned Deborah Colombi
$360,000.00 to purchase property located at 19251 218th Avenue Southeast, Maple
Valley, Washington, 98038. On October 31, 2006, Colombi signed a promissory note
for the loan amount. The promissory note requires Colombi to make monthly payments
of $1,090.17 until November 1, 2046. Colombi executed a deed of trust on the property
to secure the promissory note. On November 6, 2006, Colombi recorded the deed of
trust with the county auditor.
Colombi stopped making monthly payments on September 1, 2009. On June 16,
2017, Deutsche Bank Trust Company Americas as the trustee filed a judicial foreclosure
action against Colombi; King County Superior Court Cause No. 17-2-15726-1 KNT.
The complaint alleged the unpaid principal balance totaled $393,614.02.
On August 22, 2018, Colombi filed an appeal of the judicial foreclosure action.
On January 25, 2019, the court granted Deutsche Bank’s motion for summary
judgment and entered a “Judgment and Decree of Foreclosure” in favor of Deutsche
Bank on the Maple Valley property.
As a general rule, under RAP 2.2(a), a party may appeal only a final order or
judgment. Because the Judgment and Decree of Foreclosure was not entered until
after the appeal was filed, we dismiss the appeal of the judicial foreclosure action as
untimely. RAP 2.2(a).
~ We decline to award attorney fees to McCullum under RAP 18.9(a).
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No. 78845-1-1/7
We affirm the order issuing a writ of restitution in the unlawful detainer action.
We dismiss the appeal in the judicial foreclosure action as not timely.4
WE CONCUR:
~ To the extent Colombi is seeking to file suit and allege claims against Judge John McHale,
Judge Julia Garratt, Commissioner Mark Hiliman, Judge Helen Halpert (retired), and Judge Monica
Benton (retired), it is well established that judges and commissioners are absolutely immune from suit
where, as here, the judicial officers are acting in their judicial capacity. See Taggart v. State 118 Wn.2d
195, 203, 822 P.2d 243 (1992).
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