        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SERIES 2006-QO9,                    )       UNPUBLISHED OPINION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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 No. 78845-1-113

            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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No. 78845-1-1/5

       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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