Guy Way And Zenaida Way v. John Choquer ( 2016 )

Filed
Washington State
Court of Appeals
Division Two
December 28, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
GUY WAY and ZENAIDA WAY, husband and No. 48191-0-II
wife,
Respondents, UNPUBLISHED OPINION
v.
JOHN CHOQUER, and all other persons
occupying 9213 NE Mason Creek Road, Battle
Ground, WA 98604,
Appellant.
BJORGEN, C.J. — John Choquer appeals the trial court’s grant of a writ of restitution
against him in an unlawful detainer action brought by Guy and Zenaida Way. He argues that the
Ways provided insufficient service under RCW 59.12.040 and RCW 61.24.060 by not naming
his wife, Marian Choquer, in the notices to vacate. The Ways argue that Choquer1 does not have
standing to appeal on this basis because Marian is the only aggrieved party. Assuming without
deciding that Choquer has standing to make his argument, we hold that notice was sufficient for
the Ways to file an unlawful detainer action. Accordingly, we affirm.
1
To distinguish John Choquer from his wife, Marian Choquer, we refer to Marian by her first
name. We intend no disrespect.
No. 48191-0-II
FACTS
John and Marian Choquer owned a house located at 9213 NE Mason Creek Road in
Battle Ground. In May 2015, Marian left the house and did not return. The mortgage owners
began a nonjudicial foreclosure process and publicly auctioned the house. The Ways purchased
the house, and on July 20, recorded a trustee’s deed in their favor.
Because Choquer remained in the residence, he was served with a notice on August 4,
2015 that stated:
20 DAY NOTICE TO END TENANCY
TO: John Choquer and all other occupants at 9213 NE Mason Creek Road,
Battle Ground, WA 98604
YOU AND EACH OF YOU ARE HEREBY NOTIFIED AND INFORMED that
for those certain premises situated at 9213 NE Mason Creek Road, Battle Ground,
WA 98604, State of Washington, your tenancy of said premises is terminated on
August 31, 2015, which is the last day of the rental period. On that day you will be
required to surrender possession of the premises to the owner or the owner’s agent.
If you do not surrender the premises on or before the above date, the owner will
commence a lawsuit for your eviction and you may be liable for rent, court costs
and attorney’s fees.
CP at 6 (emphasis added). In addition, Choquer received a notice from the Ways on August 52
to surrender possession of the home. It read:
John Choquer and all other occupants
9213 NE Mason Creek Rd.
Battle Ground, WA 98604
RE: NOTICE
Sent via first class and certified mail return receipt requested
Dear John Choquer:
2
The letter itself is dated September 1, 2015, but the certified mail receipt indicates it
was received August 5, 2015. The record below does not indicate any dispute that
Choquer received this notice on August 5, 2015.
2
No. 48191-0-II
“NOTICE: The property located at 9213 NE Mason Creek Rd., Battle Ground,
WA 98604 was purchased at a trustee’s sale on June 5, 2015.
1. If you are the previous owner or an occupant who is not a tenant of the
property that was purchased, pursuant to RCW 61.24.060, the purchaser at the
trustee’s sale is entitled to possession of the property immediately, which is in
excess of the twentieth day following the sale.
2. If you are a tenant or subtenant in possession of the property that was
purchased pursuant to RCW 61.24.146, the purchaser at the trustee’s sale may
either give you a new rental agreement OR give you a written notice to vacate the
property in sixty days or more before the end of the monthly rental period.”
Please contact my office within seven days from the date of this letter to discuss
vacating the premises. My client is willing to be reasonable working with you
towards vacating. However, should I not hear from you as instructed, we will begin
unlawful detainer proceedings.
Clerk’s Papers (CP) at 9 (emphasis added). The letter’s language substantially mirrored RCW
61.24.060(2), which sets forth the required notice. On September 1, 2015, the Ways filed a
complaint for an unlawful detainer action against Choquer and “all other persons occupying” the
residence. CP at 1.
At a show cause hearing to determine whether a writ of restitution should be issued,
Choquer argued that the service was ineffective because Marian was one of the prior
homeowners and RCW 61.24.060 and RCW 59.12.040 require each person be individually
named in the notices. The Ways argued that they had provided proper service under RCW
61.24.060 through the August 5 notice and RCW 59.12.0403 through the August 4 notice. The
trial court agreed, ruling that service as to Marian was sufficient under both statutes by naming
“all other occupants” in the letters. It thus granted the Ways’ writ of restitution.
3
RCW 59.12.040(2) permits service by leaving a copy of the notice with a person of suitable age
and discretion and sending a copy through the mail addressed to the person. The record reflects
that the Ways provided service under this manner.
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No. 48191-0-II
Choquer appeals.
ANALYSIS
Choquer argues that because Marian was a previous owner of the home, but not
individually named on the notices to vacate, the Ways provided insufficient service under RCW
59.12.040 and RCW 61.24.060. The Ways contend that Choquer has no standing because his
argument is based on a lack of notice as to Marian—not Choquer. Assuming without deciding
that Choquer has standing to assert his argument, we find, for the reasons stated below, that the
August 5 notice supplied the necessary service before initiating the unlawful detainer action.
The adequacy of a notice terminating tenancy presents a mixed question of law and fact
that we review de novo. Faciszewski v. Brown, 192 Wash. App. 441, 445, 367 P.3d 1085 (2016),
review granted, 185 Wash. 2d 1040 (2016). Choquer’s sole argument on appeal is that Marian
should have been specifically named in the notices to vacate as required under RCW 59.12.040
and RCW 61.24.060 before filing an unlawful detainer action.
Here, the Ways’ August 5 notice to vacate complied with RCW 61.24.060, which was the
only notice required in these circumstances. RCW 59.12.032 requires that an unlawful detainer
action commenced as a result of a trustee’s sale under chapter 61.24 comply, as pertinent here,
with RCW 61.24.060. RCW 61.24.060(2) requires the purchaser of any occupied property from
a trustee’s sale to provide written notice to the occupants in a form that indicates, among other
considerations, the property’s location, the nature of the trustee’s sale, and the purchaser’s right
to possess the property in 20 days. The August 5 notice complied with the required provisions of
RCW 61.24.060. Notably, nothing in RCW 61.24.040(2) requires that persons who are not an
occupant or a tenant be specifically named. Thus, because Marian was not an occupant or a
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No. 48191-0-II
tenant in the home, the failure to name Marian in the notice does not transform an otherwise
sufficient notice into a defective one.
Choquer argues that the notice provisions for an unlawful detainer action generally under
RCW 59.12.040 demonstrate that the Ways’ notice had to specifically name Marian. We need
not reach whether the notice complied with RCW 59.12.040,4 however, because the notice under
RCW 61.24.040(2) was all that was required. In Savings Bank of Puget Sound v. Mink, 49 Wn.
App. 204, 205-07, 741 P.2d 1043 (1987), the bank purchased a home as a result of a nonjudicial
foreclosure sale and subsequently provided notice to the current occupant under chapter 61.24
RCW, but not chapter 59.12 RCW, to initiate an unlawful detainer action. The occupant argued
on appeal that he was entitled to separate notice under chapter 59.12 RCW. See Id. at 206-07.
The Savings Bank court disagreed, holding that
RCW 61.24 provides for detailed notices and provides opportunities to cure for the
defaulting property owner. An additional notice prior to commencement of an
unlawful detainer action would be superfluous.
Id. at 208. Thus, following Savings Bank, the Ways were not required to provide a separate
notice under RCW 59.12.040. The August 5 notice, which satisfied RCW 61.24.060, was
sufficient for the Ways to initiate the unlawful detainer action.
Accordingly, Choquer’s claim fails.
4
Even if an additional notice under chapter 59.12 RCW was required, the Ways’ August 4 notice
supplied that additional service. RCW 59.12.060 states that “[n]o person other than the tenant of
the premises . . . in the actual occupation of the premises when the complaint is filed, need be
made parties defendant.” (Emphasis added.) It is uncontested that Marian was not in “actual
occupation” as the record demonstrates that she did not live at the residence for many months
before the foreclosure. Report of Proceedings (RP) (Oct. 6, 2015) at 14. Thus, Choquer’s claim
that service to Marian was insufficient under RCW 59.12.040 fails because Marian was not a
necessary named defendant on the additionally provided August 4 notice.
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No. 48191-0-II
CONCLUSION
Assuming arguendo that Choquer has standing, we hold that the August 5 notice was
statutorily sufficient for the Ways to initiate their unlawful detainer action. We affirm the trial
court’s grant of a writ of restitution.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
BJORGEN, C.J.
We concur:
JOHANSON, J.
LEE, J.
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