Opinion
No. 58303-4-I.
February 4, 2008.
Appeal from a judgment of the Superior Court for Whatcom County, No. 05-2-02923-1, Steven J. Mura, J., entered May 26, 2006.
Affirmed by unpublished opinion per Agid, J., concurred in by Appelwick, C.J., and Schindler, J.
In this case the tenants challenge a successful unlawful detainer action by their landlord. The trial court granted a default judgment and a writ of restitution in favor of the landlord. The court ruled that the tenants had failed to timely answer the statutory summons and the lease had expired, entitling the landlord to possession of the property. The tenants contend that the trial court erred by issuing the writ and refusing to set the case for trial. In their response to the landlord's motion to show cause, they filed a copy of their complaint from a separate case against the landlord and her husband, in which they alleged that they were the victims of a foreclosure rescue scam. But that does not excuse their failure to timely answer the summons, and they have presented no cognizable defense to the unlawful detainer action. We therefore must affirm.
FACTS
On April 6, 2004, John and Darcee Johnston (the Johnstons) signed a lease for property on Lummi Island. Julia Torkild (Torkild) signed the lease on behalf of the lessor, First Capital, Inc., as its president. The lease was for a period of 25 months, beginning on April 6, 2004, and ending on April 31, 2006. The Johnstons had trouble paying the rent on time and in full. On December 6, 2005, Torkild provided the Johnstons with a three day notice to pay rent or vacate the property that included a list of all the times the Johnstons had failed to pay and stated that the total amount due was $5,223.40. On December 18, 2005, Torkild had the Johnstons served with an unlawful detainer summons, which explained that the Johnstons had 12 days to answer the summons or risk a default judgment. The Johnstons did not answer the summons or pay the rent owed, but they did continue to pay the monthly rent on the property.
This notice and all later legal documents show Torkild as the plaintiff in her individual capacity. Nothing in the record explains how or when Torkild assumed First Capital's ownership interest in the property. But the Johnstons do not contest this fact.
On May 9, 2006, after the lease had expired, Torkild filed a motion for an order of default and obtained an order to show cause why a writ of restitution should not issue. The Johnstons filed a response to the order to show cause in which they claimed that Torkild was involved in a "fraudulent scheme to deprive them of their home." They also filed a copy of their complaint in a separate action against Torkild and her husband. There they raised a number of claims related to the allegedly fraudulent manner in which Torkild's husband convinced them to sell their home to his wife at a foreclosure sale and induced them to lease it back with an oral promise that at the end of the two year lease they would be able to buy it back. Through this separate action, the Johnstons sought to regain title to the property.
On May 26, 2006, after a show cause hearing, the court entered an order of default and granted a writ of restitution. At the hearing, the court explained that the Johnstons could not successfully contest the unlawful detainer action because (1) they failed to answer the summons, entitling Torkild to a default judgment and (2) the lease had expired, leaving them without any legal claim to possession of the property. On June 23, 2006, the court entered final judgment for the same reasons. The Johnstons appeal.
DISCUSSION
I. Unlawful Detainer Action
A landlord commences an unlawful detainer action by serving his tenant with the statutory summons. Failure to timely answer the summons will result in a default judgment in favor of the landlord. The landlord may also request a separate show cause hearing to regain possession of the property. At the show cause hearing, the landlord has the burden of proving his or her right to possession by a preponderance of the evidence. And the tenant may "assert any legal or equitable defense or set-off arising out of the tenancy." An unlawful detainer show cause hearing is a summary proceeding. The court's jurisdiction in an unlawful detainer action is limited to determining the right to possession of the property. A landlord proves his right to possession by showing that the tenant held over or failed to pay rent. If it appears that the landlord has the right to be restored to immediate possession of the property, the court must issue a writ of restitution. But, if the tenant's answer raises a material issue of fact, the court must set the case for trial.
RCW 59.12.070; RCW 59.18.365; Big Bend Land Co. v. Huston, 98 Wash. 640, 645, 168 P. 470(1917).
Hous. Auth. of City of Pasco Franklin County v. Pleasant, 126 Wn. App. 382, 392, 109 P.3d 422 (2005) (citing Duprey v. Donahoe, 52 Wn.2d 129, 135, 323 P.2d 903 (1958)).
Pleasant, 126 Wn. App. at 392 (citing Carlstrom v. Hanline, 98 Wn. App. 780, 788, 990 P.2d 986 (2000)).
Heaverlov. Keico Indus., Inc., 80 Wn. App. 724, 728, 911 P.2d 406 (1996).
RCW 59.12.130; RCW 59.18.380; Pleasant, 126 Wn. App. at 392-93 (citing Meadow Park Garden Assocs. v. Canley, 54 Wn. App. 371, 372, 773 P.2d 875 (1989)).
Here, the trial court found that Torkild was entitled to a writ of restitution and a default judgment because the lease had expired and the Johnstons failed to answer the summons. Although not specified in their assignments of error, the Johnstons appear to contest not only the issuance of the writ of restitution but also the court's failure to set the case for trial, its decision that Torkild was entitled to a default judgment, and its later entry of final judgment in Torkild's favor.
Torkild argues that this case is moot because, in a separate action, another court apparently dismissed some of the Johnstons' title claims. Although this court ordinarily considers mootness as a threshold issue, here, because the mootness claim relies on evidence from a collateral proceeding that is not properly part of this record, we decline to address it.
II. Default
The Johnstons argue that the trial court erred by entering the default order. They contend it was improper because the trial court should have treated their written submissions filed in response to the order to show cause as an answer to the unlawful detainer summons. But the obligation to answer the unlawful detainer complaint within the time period specified by the statutory summons is unrelated to the date of the show cause hearing. And the unlawful detainer statutory summons, which Torkild properly served on the Johnstons, is specifically designed to inform the tenant that, in order to avoid a default judgment, an answer to the summons is required in addition to any response to an order to show cause:
RCW 59.18.365; RCW 59.18.370. In fact, there may not be a show cause hearing unless the landlord indicates one.
You may also be instructed in a separate order to appear for a court hearing on your eviction. If you receive an order to show cause you must personally appear at the hearing on the date indicated in the order to show cause IN ADDITION to delivering and filing your notice of appearance or answer by the deadline stated above.
IF YOU DO NOT RESPOND TO THE COMPLAINT IN WRITING BY THE DEADLINE STATED ABOVE YOU WILL LOSE BY DEFAULT.[]
Thus, even if we considered the Johnson's submissions in response to the show cause order to be an answer, it was still untimely. We hold that the trial court did not err by finding that Torkild was entitled to a default order and issuing the writ of restitution after the show cause hearing without setting the case for trial.
III. Absence of Defense to Unlawful Detainer Action
Even if the Johnstons had timely answered the unlawful detainer summons, they would not be entitled to a full trial because, as the trial court properly explained, they failed to present a cognizable defense to an unlawful detainer action. In an unlawful detainer proceeding, the court lacks jurisdiction to resolve competing claims to title. The Johnstons' only defense was that they might have a potential claim to possession of the property if another court finds in their favor and restores their title to the property. Unfortunately for the Johnstons, an assertion of contested title is neither a recognized defense to nor an issue that can be resolved by an unlawful detainer proceeding.
Puget Sound Inv. Group, Inc. v. Bridges, 92 Wn. App. 523, 526, 963 P.2d 944 (1998).
We note that, while these claims are not appropriately considered in an unlawful detainer proceeding, if the Johnstons succeed in their separate lawsuit, they may be entitled to damages resulting from the unlawful detainer proceeding.
The Johnstons contend that by filing a copy of the complaint from a separate lawsuit contesting title to the property, they presented sufficient evidence of a potential claim to possession to survive the show cause hearing and have the matter set for trial. To support this contention, they rely on language from our decision in Savings Bank of Puget Sound v. Mink to suggest that evidence of an actual conflict of interest on the part of the trustee in a foreclosure sale, under chapter 61.24 RCW, could be used to contest an unlawful detainer action brought by the purchaser. But this is not the holding in Mink. In fact, we held there that Mink's allegations of breach of regulation Z and the truth in lending act, slander of title, breach of contract, and fraud, among other things, were not cognizable defenses to an unlawful detainer action. While appellant in Mink raised the possibility of a defense based on a conflict of interest that would void the foreclosure sale, we held that Mink presented insufficient evidence of the alleged conflict to survive summary judgment.
49 Wn. App. 204, 741 P.2d 1043 (1987).
Id. at 209.
Id. at 209-10.
And this case is factually distinguishable from Mink. There the bank brought an unlawful detainer action against the former owners of property the bank had recently purchased at a foreclosure sale. Here, the relationship between the foreclosure process and the unlawful detainer proceeding is far more attenuated. Torkild's claim to possession was not based solely on acquiring the property at a foreclosure sale. Rather, she brought the unlawful detainer action based on a lease signed by the Johnstons which independently proved her right to possession. In addition, the Johnstons raised no objections to the foreclosure sale until after they had already leased the property from Torkild for 25 months. Given these facts, we hold the trial court properly ruled that the Johnstons' assertion of irregularities in inducing them to sell the property at the foreclosure sale was not a cognizable defense to the unlawful detainer action. Consequently, even if Torkild were not entitled to a default judgment based on the Johnstons' failure to answer, the Johnstons would not be entitled to a full trial on the merits because they failed to present a cognizable defense to the unlawful detainer action.
Id. at 206.
The Johnstons also argue that default judgment was improper because Torkild waived her right to pursue the December 2005 unlawful detainer action for non-payment of rent by accepting later rent payments. But, because they have presented no cognizable defense to the unlawful detainer action, we need not reach this argument.
IV. Attorney Fees
Torkild requests attorney fees on appeal under RAP 18.1. RCW 59.18.290(2) allows an award of attorney fees to a landlord who prevails in an unlawful detainer action. Because Torkild is the prevailing party, we grant her request for attorney fees, subject to compliance with RAP 18.1(d).
We affirm.