Deutsche Bank National Trust v. Wesley Schlepp ( 2016 )

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UNPUBLISHED OPINION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
Wash. 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 Wash. 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 Wash. 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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