IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
) DEBRA FIFER and ) No. 76203-6-1 CLAUDIO MOSQUERA, ) ) DIVISION ONE Respondents, ) ) V. ) ) JOHN THORNTON, LAJUANA ) UNPUBLISHED LOCKLIN, and AARON JOHNSON, ) ) FILED: April 30, 2018 Appellants. ) )
Cox, J. —John Thornton, Lajuana Locklin, and Aaron Johnson appeal the
trial court's order issuing a writ of restitution, arguing that the nonjudicial
foreclosure sale of property occupied was invalid. They further argue that the
trial court abused its discretion in refusing to continue or stay the unlawful
detainer proceeding. Because this unlawful detainer action complied with the
requirements of the Deeds of Trust Act, chapter 64.12 RCW,and other
applicable law, we affirm.
The material facts are undisputed. Locklin defaulted on a promissory note
secured by a deed of trust on her property. The successor trustee under the
deed of trust instituted nonjudicial foreclosure proceedings and issued a notice of
sale on January 12, 2016. On June 24, 2016, Debra Fifer and Claudio Mosquera
(collectively "Fifer") purchased the property at the nonjudicial foreclosure sale,
and they recorded the successor trustee's deed on July 12, 2016. No. 76203-6-1/2 • • On October 21, 2016, following the sale, Locklin and her husband Aaron
Johnson (collectively "Locklin-Johnson") sued their lender, alleging wrongful
foreclosure, and other claims. On November 16, 2016, Fifer commenced this
unlawful detainer proceeding, seeking possession of the property purchased at
the sale. Fifer named Locklin-Johnson and the tenant occupying the property,
John Thornton, as defendants. Fifer attached copies of the notice of trustee's
sale, the trustee's deed upon sale, and the notice to vacate previously served to
Locklin-Johnson and Thornton. After a show cause hearing on December 1,
2016, the trial court issued a writ of restitution to Fifer.
Locklin-Johnson and Thornton appeal.
WRIT OF RESTITUTION
Locklin-Johnson argue that the trial court erred in granting the writ of
restitution because the nonjudicial foreclosure was improper and therefore the
trustee's sale was in violation of the Deeds of Trust Act. We disagree.
RCW 61.24.060 allows the purchaser at a nonjudicial foreclosure sale "to
utilize an unlawful detainer action under chapter 59.12 RCW to secure
possession of the property."1 In turn, RCW 59.12.032 requires a purchaser
utilizing the unlawful detainer action to comply with the requirements of RCW
61.24.040 and 61.24.060.
1 River Stone Holdings NW, LLC v. Lopez, 199 Wn. App. 87, 93, 395 P.3d 1071 (2017); see Fed. Nat. Mortg. Ass'n v. Ndiave, 188 Wn. App. 376, 381-82, 353 P.3d 644 (2015).
2 No. 76203-6-1/3 • The purchaser at a trustee's sale may bring the unlawful detainer action to
evict if possession is not transferred within 20 days following the sale.2 The
purchaser must provide written notice of the purchase to the previous owner, and
it must give written notice to any tenants to vacate within 60 days.3
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.4 Thus, unlawful detainer 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 underlying foreclosure action.5
This court reviews the trial court's findings of fact in an unlawful detainer
action for substantial evidence.6 Any unchallenged findings of fact are verities on
appea1.7 We review de novo interpretation of the Deeds of Trust Act.5
Locklin-Johnson argue that the Deeds of Trust Act was violated because
the trustee failed to provide the requisite notice of default and because of an
alleged bankruptcy stay. They argue that these issues have yet to be decided in
2 RCW 61.24.060(1); see Ndiaye, 188 Wn. App. at 381-82.
3 RCW 61.24.060(2).
4 Ndiaye, 188 Wn. App. at 382-83; see Christensen v. Ellsworth, 162 Wn.2d 365, 370-71, 173 P.3d 228(2007).
5 Ndiaye,188 Wn. App. at 382.
6 Lang Pham v. Corbett, 187 Wn. App. 816, 825, 351 P.3d 214 (2015).
7 Id.
8 Housing Auth. of City of Pasco & Franklin County v. Pleasant, 126 Wn. App. 382, 387, 109 P.3d 422(2005).
3 No. 76203-6-1/4 • the pending wrongful foreclosure action. But Locklin-Johnson's arguments are
not material to this case, given the limited issues that may be raised in an
unlawful detainer action.
Locklin-Johnson do not dispute that Fifer fulfilled the requirements for a
successful unlawful detainer claim under the Deeds of Trust Act.9 Specifically,
Fifer purchased the property at the foreclosure sale, the trustee's deed conveyed
title to Fifer, and it was duly recorded. On June 30, 2016, Fifer notified Locklin-
Johnson of the sale and provided Thornton with a 60-day notice to vacate.19
Thornton failed to vacate within the 60-day period. Fifer instituted the unlawful
detainer action on November 16, 2016, and served Locklin-Johnson and
Thornton with an eviction summons.
In addition, the trustee's deed recites facts showing that the trustee's sale
was conducted in compliance with all of the requirements of the Deeds of Trust
Act. That recital alone is "prima facie evidence of such compliance and
conclusive evidence thereof in favor of bona fide purchasers."11 It is undisputed
that Fifer is a bona fide purchaser at the trustee's foreclosure sale.
Even though Fifer satisfied all of the requirements for an unlawful detainer
action, Locklin-Johnson argue that, because they filed the wrongful foreclosure
action before Fifer filed the unlawful detainer action, the trial court erred in
9 Lang Pham, 187 Wn. App. at 825. 10 RCW 61.24.060(2).
11 RCW 61.24.040(7).
4 No. 76203-6-1/5 • • issuing the writ. They argue that Fifer knew or should have known that they were
not entitled to the property. We disagree because it is not relevant what Fifer
knew at the time of the unlawful detainer action, which was almost six months
after they purchased the property at the foreclosure sale.
The Deeds of Trust Act permitted Locklin-Johnson to challenge any
alleged errors before the foreclosure sale or to seek restraint of the sale before it
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
) DEBRA FIFER and ) No. 76203-6-1 CLAUDIO MOSQUERA, ) ) DIVISION ONE Respondents, ) ) V. ) ) JOHN THORNTON, LAJUANA ) UNPUBLISHED LOCKLIN, and AARON JOHNSON, ) ) FILED: April 30, 2018 Appellants. ) )
Cox, J. —John Thornton, Lajuana Locklin, and Aaron Johnson appeal the
trial court's order issuing a writ of restitution, arguing that the nonjudicial
foreclosure sale of property occupied was invalid. They further argue that the
trial court abused its discretion in refusing to continue or stay the unlawful
detainer proceeding. Because this unlawful detainer action complied with the
requirements of the Deeds of Trust Act, chapter 64.12 RCW,and other
applicable law, we affirm.
The material facts are undisputed. Locklin defaulted on a promissory note
secured by a deed of trust on her property. The successor trustee under the
deed of trust instituted nonjudicial foreclosure proceedings and issued a notice of
sale on January 12, 2016. On June 24, 2016, Debra Fifer and Claudio Mosquera
(collectively "Fifer") purchased the property at the nonjudicial foreclosure sale,
and they recorded the successor trustee's deed on July 12, 2016. No. 76203-6-1/2 • • On October 21, 2016, following the sale, Locklin and her husband Aaron
Johnson (collectively "Locklin-Johnson") sued their lender, alleging wrongful
foreclosure, and other claims. On November 16, 2016, Fifer commenced this
unlawful detainer proceeding, seeking possession of the property purchased at
the sale. Fifer named Locklin-Johnson and the tenant occupying the property,
John Thornton, as defendants. Fifer attached copies of the notice of trustee's
sale, the trustee's deed upon sale, and the notice to vacate previously served to
Locklin-Johnson and Thornton. After a show cause hearing on December 1,
2016, the trial court issued a writ of restitution to Fifer.
Locklin-Johnson and Thornton appeal.
WRIT OF RESTITUTION
Locklin-Johnson argue that the trial court erred in granting the writ of
restitution because the nonjudicial foreclosure was improper and therefore the
trustee's sale was in violation of the Deeds of Trust Act. We disagree.
RCW 61.24.060 allows the purchaser at a nonjudicial foreclosure sale "to
utilize an unlawful detainer action under chapter 59.12 RCW to secure
possession of the property."1 In turn, RCW 59.12.032 requires a purchaser
utilizing the unlawful detainer action to comply with the requirements of RCW
61.24.040 and 61.24.060.
1 River Stone Holdings NW, LLC v. Lopez, 199 Wn. App. 87, 93, 395 P.3d 1071 (2017); see Fed. Nat. Mortg. Ass'n v. Ndiave, 188 Wn. App. 376, 381-82, 353 P.3d 644 (2015).
2 No. 76203-6-1/3 • The purchaser at a trustee's sale may bring the unlawful detainer action to
evict if possession is not transferred within 20 days following the sale.2 The
purchaser must provide written notice of the purchase to the previous owner, and
it must give written notice to any tenants to vacate within 60 days.3
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.4 Thus, unlawful detainer 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 underlying foreclosure action.5
This court reviews the trial court's findings of fact in an unlawful detainer
action for substantial evidence.6 Any unchallenged findings of fact are verities on
appea1.7 We review de novo interpretation of the Deeds of Trust Act.5
Locklin-Johnson argue that the Deeds of Trust Act was violated because
the trustee failed to provide the requisite notice of default and because of an
alleged bankruptcy stay. They argue that these issues have yet to be decided in
2 RCW 61.24.060(1); see Ndiaye, 188 Wn. App. at 381-82.
3 RCW 61.24.060(2).
4 Ndiaye, 188 Wn. App. at 382-83; see Christensen v. Ellsworth, 162 Wn.2d 365, 370-71, 173 P.3d 228(2007).
5 Ndiaye,188 Wn. App. at 382.
6 Lang Pham v. Corbett, 187 Wn. App. 816, 825, 351 P.3d 214 (2015).
7 Id.
8 Housing Auth. of City of Pasco & Franklin County v. Pleasant, 126 Wn. App. 382, 387, 109 P.3d 422(2005).
3 No. 76203-6-1/4 • the pending wrongful foreclosure action. But Locklin-Johnson's arguments are
not material to this case, given the limited issues that may be raised in an
unlawful detainer action.
Locklin-Johnson do not dispute that Fifer fulfilled the requirements for a
successful unlawful detainer claim under the Deeds of Trust Act.9 Specifically,
Fifer purchased the property at the foreclosure sale, the trustee's deed conveyed
title to Fifer, and it was duly recorded. On June 30, 2016, Fifer notified Locklin-
Johnson of the sale and provided Thornton with a 60-day notice to vacate.19
Thornton failed to vacate within the 60-day period. Fifer instituted the unlawful
detainer action on November 16, 2016, and served Locklin-Johnson and
Thornton with an eviction summons.
In addition, the trustee's deed recites facts showing that the trustee's sale
was conducted in compliance with all of the requirements of the Deeds of Trust
Act. That recital alone is "prima facie evidence of such compliance and
conclusive evidence thereof in favor of bona fide purchasers."11 It is undisputed
that Fifer is a bona fide purchaser at the trustee's foreclosure sale.
Even though Fifer satisfied all of the requirements for an unlawful detainer
action, Locklin-Johnson argue that, because they filed the wrongful foreclosure
action before Fifer filed the unlawful detainer action, the trial court erred in
9 Lang Pham, 187 Wn. App. at 825. 10 RCW 61.24.060(2).
11 RCW 61.24.040(7).
4 No. 76203-6-1/5 • • issuing the writ. They argue that Fifer knew or should have known that they were
not entitled to the property. We disagree because it is not relevant what Fifer
knew at the time of the unlawful detainer action, which was almost six months
after they purchased the property at the foreclosure sale.
The Deeds of Trust Act permitted Locklin-Johnson to challenge any
alleged errors before the foreclosure sale or to seek restraint of the sale before it
occurred.12 If Locklin-Johnson believed the foreclosure was in error, they could
have moved to restrain the sale, but they failed to do so. That failure constitutes
a waiver of all but fundamental defects going to the validity of the sale itself such
as a sale beyond the statutory deadline.13
Because Locklin-Johnson commenced their wrongful foreclosure action
after the foreclosure sale, and they did not seek to restrain the sale, Fifer was
entitled to possess the property and pursue this unlawful detainer action.
Although Locklin-Johnson's claims against the lender or trustee are still
unresolved, any recovery is limited to monetary damages and may "not affect in
any way the validity or finality of the foreclosure sale or a subsequent transfer of
the property."14
12 RCW 61.24.130(1); RCW 61.24.090; see Plein v. Lackey, 149 Wn.2d 214, 225-26,67 P.3d 1061 (2003).
Plein, 149 Wn.2d at 229; Cox v. Helenius, 103 Wn.2d 383, 388,693 13 P.2d 683(1985).
14 RCW 61.24.127(2).
5 No. 76203-6-1/6 • • In light of Locklin-Johnson's failure to identify any defect relevant to the
validity of this unlawful detainer proceeding, the trial court did not err in issuing
the writ of restitution.
STAY OR CONTINUANCE
Locklin-Johnson argue that the trial court erred in refusing to grant a
continuance or a stay. We disagree.
This court reviews for abuse of discretion the trial court's denial of a
request for a continuance or a stay.15 A trial court abuses its discretion if the
decision is based on untenable grounds or for untenable reasons.16
During the show cause hearing, Locklin-Johnson requested a stay or
continuance of the proceedings. Their counsel claimed that she had not had
time to adequately prepare and that she wanted an opportunity to file a formal
motion for a stay pending the outcome of the unlawful foreclosure action. But
this motion never came. In any event, a stay or continuance would have been
futile because, even if Locklin-Johnson prevail in the unlawful foreclosure action,
they cannot set aside the foreclosure sale by the trustee that preceded this
unlawful detainer action.17
15Qwest Corp. v. City of Bellevue, 161 Wn.2d 353, 358, 166 P.3d 667 (2007); Bunch v. Nationwide Mut. Ins. Co., 180 Wn. App. 37, 41, 321 P.3d 266 (2014).
16 Shaw v. City of Des Moines, 109 Wn. App. 896, 901, 37 P.3d 1255 (2002).
17 Ndiave, 188 Wn. App. at 382; RCW 61.24.127(2).
6 No. 76203-6-1/7 • • Moreover, because an unlawful detainer proceeding is summary in nature,
granting a continuance would have defeated its purpose which is to "offer a
plaintiff the advantage of speedy relief."18 Therefore, the trial court did not abuse
its discretion in denying Locklin-Johnson's request to continue or stay the
proceedings.
Locklin-Johnson also claim that the trial court abused its discretion in
failing to grant a stay pending appeal. They are wrong.
Pursuant to RCW 59.12.200, an appealing party who desires a stay "shall
execute and file a bond, with two or more sufficient sureties to be approved by
the judge, . . . and pay all rents and other damages justly accruing to the plaintiff
during the pendency of the proceeding."19
Although Locklin-Johnson claim that the trial court refused to consider a
stay, the record shows that they never complied with the requirements of RCW
59.12.200. They never moved for a stay. And they did not offer the mandatory
bond for the trial court to either accept or reject.
In addition, there is nothing in the record supporting Locklin-Johnson's
argument that the trial court would not have allowed them to file a motion for a
stay. Even after the writ of restitution has been issued and executed, the tenant
may post a bond and be restored to possession of the premises pending
18 id.
19 RCW 59.12.200; see Pleasant, 126 Wn. App. at 390.
7 No. 76203-6-1/8 • • resolution of the appea1.2° But here, the record is devoid of any evidence of an
attempt by Locklin-Johnson or Thornton to file a bond after the trial court issued
Finally, Locklin-Johnson's reliance on RAP 8.1 is misplaced for two
reasons. First, RCW 59.12.200, not RAP 8.1, governs a stay of a writ of
restitution pending appea1.21 Second, RAP 8.1 requires a party seeking a stay to
file a bond, cash or alternate security.22 Locklin-Johnson did not do so.
Locklin-Johnson never moved for a stay pending appeal, and the trial
court did not abuse its discretion in refusing to grant one sua sponte.
ATTORNEY FEES
Fifer seeks an award of attorney fees, arguing that Locklin-Johnson filed a
frivolous appea1.23 We disagree.
RAP 18.9(a) permits an award of attorney fees to the prevailing
respondent if an appeal is frivolous.24 "An appeal is frivolous if there are no
debatable issues on which reasonable minds might differ and it is so totally
devoid of merit that there is no reasonable possibility of reversal."25 "All doubts
20 RCW 59.12.220.
21 See comment to RAP 18.22.
22 RAP 8.1(b)(2).
23 RAP 18.9(a).
24 Mahoney v. Shinpoch, 107 Wn.2d 679, 691, 732 P.2d 510 (1987).
25 In re Marriage of Schnurman, 178 Wn. App. 634, 644, 316 P.3d 514 (2013).
8 No. 76203-6-1/9 • • as to whether the appeal is frivolous should be resolved in favor of the
appellant."26 "An appeal that is affirmed simply because the arguments are
rejected is not frivolous."27
While we reject all of Locklin-Johnson's arguments, we cannot say that
their appeal was so totally devoid of merit as to be frivolous. We deny attorney
fees.
We affirm and deny the request for an award of attorney fees.
WE CONCUR:
26 Id.
27 Id.