          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



THE BANK OF NEW YORK MELLON                    NOS. 70111-8-1
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fka THE BANK OF NEW YORK as                         70292-1-1                 r-o        W* O
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successor in interest to JP MORGAN             (Consolidated Cases)
CHASE BANK NA, as Trustee for
Structured Asset MORTGAGE                      DIVISION ONE
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INVESTMENTS II INC., BEAR                                                                 ^...... f

STEARNS ATL-A TRUST 2005-5,                                                       53>

MORTGAGE PASS-THROUGH
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CERTIFICATES, SERIES 2005-5,                                                        XT



                    Respondents,

             v.



DAVID MURESAN, MARIA MURESAN,                  UNPUBLISHED OPINION
AND ALL OCCUPANTS OF THE
PREMISES LOCATED AT 1496 South                 FILED: April 28, 2014
Crestview Drive, Camano Island, WA
98282,
                    Appellants.


      Lau, J. —This pro se appeal arises from a postforeclosure unlawful detainer

action brought by the trustee's sale purchaser, Bank of New York Mellon (BNY Mellon)

against former homeowners David and Maria Muresan (Muresan).1 Muresan assigns



       1 Pro se litigants are "bound by the same rules of procedure and substantive law
as attorneys." Westberq v. All-Purpose Structures Inc., 86 Wn. App. 405, 411, 936 P.2d
1175 (1997). We have "no obligation to grant special favors to ... a pro se litigant."
In re Marriage of Olson, 69 Wn. App. 621, 626, 850 P.2d 527 (1993).
70111-8-1,70292-1-1/2


no error to the trial court's order granting BNY Mellon's motion for a writ of restitution.

He also assigns no error to the court's subsequent order denying his motion for a stay

pending appeal. He instead challenges the merits of the underlying foreclosure and

trustee's sale. Because chapter 59.12 RCW unlawful detainer proceedings do not

provide a forum for litigating issues not directly related to the right of possession

between the parties, we affirm the trial court's issuance of the writ of restitution.

                                           FACTS

       Muresan obtained a loan for approximately $369,000, secured by a deed of trust

encumbering his Camano Island property. After defaulting on the loan in 2010, he

submitted applications for loan modification under the federal Home Affordable

Modification Program (HAMP). The loan servicer denied the applications. In November

2011, the lender conveyed the note and deed of trust to BNY Mellon. BNY Mellon

appointed Wells Fargo Bank, N.A. (Wells Fargo), as its attorney-in-fact.

       In December 2011, BNY Mellon issued a notice of trustee's sale. Seeking to

postpone the sale, Muresan sued America's Servicing Company (ASC), a division of
Wells Fargo, alleging ASC improperly denied his HAMP applications. ASC removed the

suit to federal court and moved to dismiss for failure to state a claim.

       The trustee's sale occurred on April 6, 2012. BNY Mellon purchased the

property at the trustee's sale. On April 25, 2012, the federal court dismissed Muresan's
HAMP-related suit with prejudice. On June 28, 2012, BNY Mellon filed an unlawful
detainer complaint and a motion for a writ of restitution. The trial court authorized the
writ on March 25, 2013. Muresan appealed the order authorizing the writ and moved to
70111-8-1,70292-1-1/3


stay the unlawful detainer proceeding. After the trial court denied the motion, Muresan

filed a second notice of appeal. We consolidated the appeals.

                                        ANALYSIS


      The issue is whether the trial court properly authorized the writ of restitution.

Rather than explain why the court erroneously awarded BNY Mellon possession of the

property, Muresan challenges the trustee's sale and the presale foreclosure process.

Because these challenges fall outside the scope of the proceeding, which focused

narrowly on the right of possession, we hold the court properly authorized the writ.

      An unlawful detainer action is a narrow proceeding, "limited to the question of

possession and related issues such as restitution of the premises and rent." Munden v.

Hazelriqg, 105 Wn.2d 39, 45, 711 P.2d 295 (1985). Its purpose is "to preserve the

peace by providing an expedited method for resolving the right to possession of

property." Heaverlo v. Keico Indus.. Inc., 80 Wn. App. 724, 728, 911 P.2d 406 (1996).

To protect the proceeding's summary nature, "otherclaims, including counterclaims, are

generally not allowed." Heaverlo, 80 Wn. App. at 728; see also Anqelo Prop. Co. v.
Hafiz, 167 Wn. App. 789, 809, 274 P.3d 1075 (2012) (unlawful detainer court "sits in a

statutorily limited capacity and lacks authority to resolve issues outside the scope ofthe
unlawful detainer statute"). Unlawful detainer proceedings thus "do not provide a forum

for litigating claims to title." Puqet Sound Inv. Grp., Inc. v. Bridges, 92 Wn. App. 523,
526, 963 P.2d 944 (1998).

       Here, Muresan tried to use the unlawful detainer action as a forum to challenge

the trustee's sale. He acknowledges, "The relief I sought is to vacate the sale of my

house at 1496 S. Crestview Dr. Camano Island WA 98282 to allow the first bank to do a

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70111-8-1,70292-1-1/4


loan modification as provided by federal program HAMP." Br. of Appellant at 3

(boldface and emphasis omitted). Given the summary nature of the proceeding, such

relief was not available. The trial court thus committed no error in declining to set aside

the sale.


       Muresan's arguments related to the presale foreclosure process are likewise

unavailing. He contends (1) the loan servicer improperly refused his applications for

HAMP loan modification, (2) the loan servicer improperly removed his HAMP-related

suit to federal court, and (3) the federal court improperly allowed the trustee's sale to

proceed during the pendency of the HAMP-related suit. Without citing the record, he

also notes that he "could pay the mortgage at the present market interest rate," that he

"paid 10 years mortgage and the last 5 years interest only," that he is "68 years of age

and . . . cannot buy another house," that "to keep this house is possible if a modification

will be made," and that he uses the house for the "David Muresan Scientific Research

Foundation." Br. of Appellant at 3. These arguments and unsupported factual

assertions "do not directly relate to the 'question of possession'" and thus are not

properly before us. Sav. Bank of Puget Sound v. Mink, 49 Wn. App. 204, 209, 741 P.2d

1043 (1987) (unlawful detainer defendant was not permitted to raise defenses or

counterclaims alleging breach of the Truth in Lending Act, intentional infliction of

emotional distress, defamation, slander of title, breach of contract, abuse of process,

outrage, fraud, malicious prosecution, usury, or unjust enrichment).

       Nothing in the record suggests the trial court improperly resolved the question of

possession. "The burden is upon the plaintiff in an unlawful detainer action to prove, by

a preponderance of the evidence, the right to possession." Hous. Auth. v. Pleasant,

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70111-8-1,70292-1-1/5


126 Wn. App. 382, 392, 109 P.3d 422 (2005). The right of possession revolves around

statutory requirements. "By the terms of the [deed of trust] act it is clear the legislature

did not contemplate that after the trustee's sale further lengthy proceedings would be

required to obtain possession." Peoples Nat'l Bank of WA v. Ostrander. 6 Wn. App. 28,

31, 491 P.2d 1058 (1971). Accordingly, the act allows the trustee's deed purchaser to

bring a chapter 59.12 RCW unlawful detainer suit on the "twentieth day following the

sale." RCW 61.24.060(1 ).2 The suit provides the purchaser "a means to gain

possession" of the purchased property. Puget Sound Inv. Grp.. 92 Wn. App. at 526;

see 27 Marjorie Dick Rombauer, Washington Practice: Creditors' Remedies-

Debtors' Relief § 3.70, at 213 (2d ed. 1998) (purchaser initiates suit "to gain

possession of the property").

       Here, it is undisputed that BNY Mellon purchased the property at the

April 6, 2012 sale. The trustee's deed, recorded in Island County on April 16,

2012, conveyed title in the property to BNY Mellon. RCW 61.24.050(1); Udall v.

T.D. Escrow Servs., Inc., 159 Wn.2d 903, 910, 154 P.3d 882 (2007) (trustee's deed

purchaser acquires "the rights, title, and interests possessed by the grantor (hereinafter

borrower) when the borrower originally executed the deed of trust to the grantee . .. , as

well as all rights, title, and interests acquired by the borrower subsequently (e.g.,

accrued rents)."). It is likewise undisputed that well over 20 days passed before BNY

       2 The deed of trust act provides, "The 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 purchaser shall also have a
right to the summary proceedings to obtain possession of real property provided in
chapter 59.12 RCW." RCW 61.24.060(1).
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70111-8-1,70292-1-1/6


Mellon initiated the present action. Muresan does not challenge BNY Mellon's

compliance with any of chapter 59.12 RCW's procedures. On this record, the trial court

did not err in resolving the question of possession in BNY Mellon's favor.

      We affirm the issuance of the writ of restitution.




WE CONCUR:




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