Pomaikai, Llc, Res. v. Boris Povzner, Emilia Lyubimova, Apps. ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
POMAIKAI, LLC, a Washington State
Limited Liability Company, No. 79 180-0-I
Respondent, DIVISION ONE
V.
UNPUBLISHED OPINION
BORIS POVZNER, EMILIA
LYUBIMOVA, and EUGENE POVZNER,
Appellants,
All Other Occupants,
Defendants. FILED: November 18, 2019
CHUN, J. — The trial court concluded that Boris Povzner, Eugene Povzner,
and Emilia Lyubimova (collectively, Appellants) were guilty of unlawful detainer,
thus entitling Pomaikai, LLC, to possession. We affirm.
I. BACKGROUND1
Appellants previously owned the Bellevue property at issue. A Notice of
Trustee’s Sale dated July 20, 2018, terminated Appellants’ rights to occupy the
property. On or about September 14, 2018, Pomaikai purchased the property.
Appellants failed to vacate the property, so Pomaikai commenced an unlawful
detainer action.
1 Clerk’s papers were not filed with this court. We have little of the trial court record
before us.
No. 79180-0-112
Appellants represented themselves before the trial court. The trial court
concluded the appellants were guilty of forcible and unlawful detainer under
RCW 59.12.020 and RCW 59.12.030(1) and directed the Clerk of Court to issue
a writ of restitution to restore possession of the property to Pomaikai. This
appeal ensued.
II. ANALYSIS
Appellants represent themselves before us. We hold self-represented
litigants to the same standards as attorneys: they must comply with all procedural
rules on appeal. In re Marriac~e of Olson, 69 Wn. App. 621, 626, 850 P.2d 527(1993). Appellants must provide “argument in support of the issues presented for
review, together with citations to legal authority and references to relevant parts
of the record.” RAP I 0.3(a)(6). Further, we need not search through the record
for evidence relevant to a litigant’s arguments or for applicable legal authorities.
Saunders v. Lloyd’s of London, 113 Wn.2d 330, 345, 779 P.2d 249 (1989).
Failure to identify specific legal issues or cite applicable authority may preclude
appellate review. State v. Marintorres, 93 Wn. App. 442, 452, 969 P.2d 501(1999).
Appellants also bear the burden to provide a record sufficient to review the
issues raised on appeal. Story v. Shelter Bay Co., 52 Wn. App. 334, 345, 760
P.2d 368 (1988). We may decline to consider issues unsupported by references
to the record. State v. Camarillo, 54 Wn. App. 821, 829, 776 P.2d 176 (1989).
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No. 79180-0-1/3
Portions of appellants’ briefing are incomprehensible. Their briefing does
not cite to the record or to applicable legal authority. Appellants additionally
make no specific assignments of error, and all findings of fact to which no error is
assigned stand as verities on appeal. In re Marriage of Glass, 67 Wn. App. 378,
381 n.l, 835 P.2d 1054 (1992). We may nonetheless elect to address
inadequately briefed issues. State Farm Mut. Auto. Ins. Co. v. Avery, 114 Wn.
App. 299, 310, 57 P.3d 300 (2002).
Appellants have failed to file any clerk’s papers with the court. The sole
record before us is a ten-page transcript of a trial court hearing and the Findings
of Fact, Conclusions of Law, and Judgment and Order Issuing Writ of Restitution.
We address appellants’ claims to the extent possible, given the limits of
the legal analysis and record provided.
A. Due Process
Appellants claim the trial court denied them due process by failing to
assist them in their defense of the unlawful detainer action. Appellants cite two
federal cases in support of their claim: Haines v. Kerner, 404 U.S. 519, 92 S. Ct.
564,30 L. Ed. 2d 652 (1972) and Platskyv. Cent. Intelligence Agency, 953 F.2d
26 (2d Cir. 1991). But these cases hold pro se litigants to a lower standard in
federal court than attorneys; in Washington courts, self-represented litigants are
bound by the same rules of procedure and substantive law as attorneys. Olson,
69 Wn. App. at 626. Appellants fail to cite any applicable legal authority to
support their due process claim. We conclude it fails.
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B. Material Evidence
Appellants claim no material evidence supports the trial court’s order, and
that the relevant promissory note and deed should have been entered into the
trial court record. We cannot evaluate this claim in light of the limited record
provided to us. Because Appellants provide no legal argument or citation to the
record, they abandon this claim.
C. Unlawful Detainer
Appellants claim the trial court failed to require Pomaikai to show it had
standing to foreclose on their home.2 But courts limit unlawful detainer actions
“to the question of possession and related issues such as restitution of the
premises and rent.” Fed. Nat’l Mortq. Ass’n v. Ndiaye, 188 Wn. App. 376, 382,
353 P.3d 644 (2015). An unlawful detainer action does “not provide a forum for
litigating claims to title.” Selene RMOF II REO Acquisitions II, LLC v. Ward, 189
Wn.2d 72, 81, 399 P.3d 1118 (2017) (quoting Ndiaye, 188Wn. App. at 382). An
unlawful detainer action is not an appropriate proceeding to challenge the
underlying foreclosure. Ndiave, 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 deed of trust act, which aims to provide an
efficient and inexpensive foreclosure process. Ndiaye, 188 Wn. App. at 382.
Thus, Appellants’ arguments collaterally attacking the foreclosure bear no
2 Based on trial court order and the parties’ briefing, it does not appear that Pomaikai
foreclosed on the property, but merely that they were the purchaser of the property at the
subsequent trustee’s sale.
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No. 791 80-0-1/5
pertinence to this case, given the limited issues that may be raised in an unlawful
detainer action.
“Where the trial court has weighed the evidence, our review is limited to
ascertaining whether the findings of fact are supported by substantial evidence
and, if so, whether the findings support the conclusions of law and the judgment.”
Tacoma v. State, 117 Wn.2d 348, 361, 816 P.2d 7(1991). We reviewde novo
questions and conclusions of law. Sunnyside Valley Irriciation Dist. v. Dickie, 149
Wn.2d 873, 880, 73 P.3d 369 (2003).
Appellants do not challenge any of the trial court’s findings of fact. ~ Thus,
we need only consider whether those findings support the trial court’s conclusion
that the defendants are guilty of unlawful detainer under RCW 59.12.030. “[T]he
purchaser at a deed of trust foreclosure sale [may] bring an unlawful detainer
action to evict the previous owner of the home, provided the sale complied with
the statutory foreclosure rules.” Ndiaye, 188 Wn. App. at 381 (citing
RCW 59.12.032). A defendant is guilty of unlawful detainer under
RCW 59.12.030(1) when:
[they] hold[] over or continue[] in possession, in person or by
subtenant, of the property or any part thereof after the expiration of
the term for which it is let to [them]. When real property is leased for
a specified term or period by express or implied contract, whether
written or oral, the tenancy shall be terminated without notice at the
expiration of the specified term or period.
~ We consider unchallenged findings of fact as verities on appeal. State v. O’Neill, 148
Wn.2d 564, 571, 62 P.3d 489 (2003).
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No. 791 80-0-1/6
Here, Appellants do not cite to the record or applicable legal authority
indicating the sale did not comply with statutory foreclosure rules. Additionally,
the unchallenged findings of fact show the elements of unlawful detainer were
met under RCW 59.12.030(1): Appellants remained in possession of the
premises after the Notice of Trustee’s Sale terminated their right to occupy it, and
Pomaikai is the proper owner, entitled to possession. In light of Appellants’
failure to identify any defect pertinent to the validity of the unlawful detainer
proceeding, the trial court did not err in issuing the writ of restitution. Because
we conclude the elements of unlawful detainer are met, we need not reach the
issue of forcible detainer.
D. Attorney Fees
Pomaikai requests attorney fees under RAP 18.9, arguing the appeal is
frivolous. We may grant an award of attorney fees to a prevailing respondent in
a frivolous appeal. Mahoney v. Shinpoch, 107 Wn.2d 679, 691, 732 P.2d 510(1987); RAP 18.9(a). When an appeal presents no debatable issues upon which
reasonable minds could differ, and lacks merit such that no reasonable possibility
of reversal exists, it is frivolous. Mahoney, 107 Wn.2d at 691. “The record
should be examined as a whole, and doubts should be resolved in favor of the
appellant.” Mahoney, 107 Wn.2d at 691-692. “An appeal that is affirmed simply
because the arguments are rejected is not frivolous.” In re Marriage of
Schnurman, 178 Wn. App. 634, 644, 316 P.3d 514 (2013).
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No. 791 80-0-1/7
While we reject all of the Appellants’ arguments, we cannot say their
appeal was so totally devoid of merit as to be frivolous. We deny attorney fees.
Affirmed.
e~9.
WE CONCUR:
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