Deutsche Bank National Trust v. Wesley Schlepp

• Court: Court of Appeals of Washington
• Decided: September 26, 2016
• Docket: 73124-6
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE, ON No. 73124-6-1 BEHALF OF THE HOLDERS OF THE WAMU MORTGAGE PASS-THROUGH DIVISION ONE CERTIFICATES, SERIES 2006-AR4, its successors and/or assigns,

Respondent,

v. UNPUBLISHED OPINION WESLEY SCHLEPP, FILED: September 26, 2016 Appellant,

and

JOHN AND JANE DOE, UNKNOWN OCCUPANTS OF THE PREMISES,

Defendants.

Becker, J. —Wesley Schlepp, appearing pro se, appeals an order

denying his motion to vacate a writ of restitution. Schlepp's primary argument is

he did not receive adequate notice before the court issued the writ. Because

Schlepp fails to support this argument with meaningful analysis or citations to

relevant authority, we affirm. No. 73124-6-1

In December 2013, respondent Deutsche Bank National Trust Company

purchased real property at a foreclosure sale. The property is located in Lake

Sammamish. The trustee's deed upon sale was recorded on January 2, 2014.

Schlepp was living on the property at the time and was the debtor whose interest

was foreclosed on.

Deutsche Bank was entitled to possession on January 2, 2014, 20 days

following the foreclosure sale. RCW 61.24.060(1). Schlepp continued residing

on the property past this date. On January 19, 2014, Deutsche Bank posted a

"Notice to Vacate" on the door and sent copies of the notice to the property by

certified and first class mail.

When Schlepp still did not vacate, Deutsche Bank initiated unlawful

detainer proceedings against him in King County Superior Court. Deutsche Bank

left a copy of the summons and complaint with an adult man present at the Lake

Sammamish property and also mailed copies to the property. Schlepp failed to

appear in the unlawful detainer action. On April 15, 2014, the court granted

Deutsche Bank's motions for a default judgment and writ of restitution. The writ

expired before it was executed. See RCW 59.12.090. The court reissued the

writ on July 22, 2014. On July 30, the sheriff posted the reissued writ on the door

of the Lake Sammamish property.

On August 4, 2014, Schlepp filed for bankruptcy and included the Lake

Sammamish property in his filings. On August 12, 2014, Schlepp filed a motion

in superior court for an order compelling Deutsche Bank to show cause why the No. 73124-6-1

writ should not be vacated. Schlepp claimed he was not served with notice of the

unlawful detainer action. The court never heard Schlepp's motion, however,

because on September 4, 2014, the unlawful detainer action was automatically

stayed pending resolution of the bankruptcy proceedings. The writ of restitution

again expired.

In January 2015, the bankruptcy court lifted the stay, and Deutsche Bank

filed a motion in superior court seeking reissuance of the writ. The court granted

this motion on January 7, 2015. The sheriff posted the new writ on the door of

the Lake Sammamish property, stating that any person remaining on the

premises beyond February 17, 2015, would be physically removed. On February

13, 2015, Schlepp filed a motion alleging Deutsche Bank violated Federal Rule of

Criminal Procedure (FRCP) 52(b) and requesting that the court vacate the writ

issued on January 7. The court denied Schlepp's motion, finding it lacked a

basis. He appeals.

Schlepp contends the writ of restitution is void because Deutsche Bank

did not properly serve him before seeking a writ in July 2014 and did not properly

serve him before seeking reissuance of the writ in January 2015. Schlepp

generally asserts that he did not have an adequate opportunity to defend against

the allegation of unlawful detainer. In addition to requesting that this court vacate

the writ, Schlepp requests that this court permit him to access the Lake

Sammamish property and live there, and require Deutsche Bank to pay him

$200,000 in damages and reimburse him for costs related to this appeal and

housing costs incurred in result of his eviction. No. 73124-6-1

Washington's deed of trust act, chapter 61.24 RCW, incorporates the

unlawful detainer act, chapter 59.12 RCW. RCW 61.24.060(1) (providing the

purchaser at a trustee's sale shall "have a right to the summary proceedings to

obtain possession of real property provided in chapter 59.12 RCW"). Thus, the

unlawful detainer act governs Schlepp's claims. That is, ifthere were any

remedy available to Schlepp, it would be found in chapter 59.12 RCW. However,

Schlepp does not cite to this statute.

Instead, Schlepp cites FRCP 52(b). FRCP 52(b) is inapplicable because it

is a federal rule that applies to criminal proceedings. Schlepp also cites

Washington's Superior Court Civil Rule 5(a), which provides rules regarding

service and filings. However, Schlepp merely quotes this rule; he fails to provide

meaningful analysis regarding its application in this case. Generally, whether

service and notice are adequate in an unlawful detainer proceeding is governed

by chapter 59.12 RCW, not by the civil rules. See Christensen v. Ellsworth, 162

Wn.2d 365, 374, 173 P.3d 228 (2007).

Schlepp further contends the trial court erred by denying Schlepp due

process of law. Schlepp fails to support this contention with authority or

analysis. As this court has stated, "'[n]aked castings into the constitutional sea'

will not sustain a constitutional assignment of error." State v. Linden, 89 Wn.

App. 184, 197, 947 P.2d 1284 (1997) (quoting In re Rosier. 105 Wn.2d 606, 617,

717P.2d 1353(1986)), review denied, 136Wn.2d 1018(1998). Schlepp's

conclusory arguments regarding due process are insufficient to warrant

review. Linden, 89 Wn. App. at 197. No. 73124-6-1

In sum, the trial court ruled correctly in vacating the writ of restitution.

Affirmed.

&ilPw, j. WE CONCUR:

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