### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE MAHARUKH GHADIALI, Respondent,

v. CATHERINE CINA, Appellant. No. 72315-4-1

UNPUBLISHED OPINION FILED: September 28, 2015 CO ;-.'f

co

Verellen, J. — After purchasing property at a nonjudicial deed oftrust foreclosure sale, Maharukh Ghadiali began an unlawful detainer action seeking to
remove Catherine Cina from possession. Cina sought a stay pending the outcome of herfederal lawsuit challenging the validity ofthe sale. But the federal court had already refused to restrain the sale because Cina did not demonstrate any likelihood of success. Cina does not establish that the trial court abused its discretion in refusing to stay the unlawful detainer proceeding pending the outcome ofthe federal lawsuit. Additionally, Cina filed a motion to stay the writ ofrestitution pending her appeal ofthe writ, but she struck her motion. Cina does not establish any error as to the motion to stay the writbecause the trial court had no obligation to rule upon the motion stricken by Cina. FACTS InMay 2011, Cina defaulted on the deed oftrust securing her loan from Wells 

### Fargo Bank, N.A. Quality Loan Service Corporation, as successortrustee undertheNo. 72315-4-1/2 

### deed oftrust, sent Cina a notice ofdefault and a notice oftrustee's sale advising her that her property was scheduled to be sold on March 28, 2014. The trustee's sale was postponed to May 30, 2014. 

### OnApril 17, 2014, Cinafiled a complaintin the King County Superior Court against Quality Loan, Wells Fargo, Wells Fargo Home Mortgage, Federal Home Loan 

### Mortgage Corporation (FreddieMac), and NorthwestTrustee Services, Inc. forwrongful foreclosure, violations of the deeds of trust act, chapter 61.24 RCW, and the Consumer 

### Protection Act, chapter 19.86 RCW, common law fraud and misrepresentation, and breach ofcontractto quiettitle on her property.1 

### Cina also filed a motion for a temporary restraining order enjoining the defendants fromproceeding with the sale of her property. On May 27, 2014, Freddie Mac removed the case to federal district court. In denying Cina's motion for a temporary restraining order, the federal district court ruled that 

### there is no likelihood ofsuccess on the merits as required to support a temporary restraining order. [Cina] has not filed any proofthat she 

### complied withthe [deeds oftrusts act] by giving five days' notice of this motion to the trustee as required by RCW 61.24.130(2) Nor has [Cina] offered to pay the clerk ofcourtthe periodic amount of principal, interest and reserves due on the loan. She has not demonstrated an ability to make those payments and as a result, the [c]ourt cannot provide the relief she seeks. Furthermore,. . . [Cina] has not established the likelihood ofsuccess on 

### her claims that would supportthe issuance of an injunction.121 Cina appealed to the Ninth Circuit Court ofAppeals.



### 1Cina filed an amended complaint on April 30, 2014. 

### 2Clerk's Papers (CP) at 15-16.No. 72315-4-1/3 

### On June 6, 2014, Ghadiali purchased Cina's property at the trustee's sale. On June 18, 2014, Quality Loan recorded the trustee's deed conveying the property to Ghadiali. On July 7, 2014, Ghadiali filed this unlawful detainer action, seeking possession ofthe foreclosed property. On July 29, 2014, Cina filed a motion to stay the unlawful detainer proceedings pending resolution ofher appeal ofthe federal district

court order. Atthe show cause hearing on July 31, 2014, a superior court commissioner declined to stay the unlawful detainer proceedings, noting that there is "an actual order 

### from another court" that "denie[d] the requestto restrain the sale."3 The commissioner found that Cina had not vacated the premises within 20 days ofthe trustee's sale and continued to be in possession ofthe premises. He concluded that Ghadiali was entitled to possession ofthe property and issued a writ ofrestitution. On August 4, 2014, Cina filed a notice ofappeal ofthe writ ofrestitution. Aday later, she filed an expedited motion for stay of writ ofrestitution. On August 7, 2014, the King County sheriffevicted Cina from the property. Cina voluntarily struck her motion to stay the writ ofrestitution the same morning that her motion was scheduled for hearing

on August 11, 2014. On December 3, 2014, the Ninth Circuit Court ofAppeals dismissed Cina's 

### appeal of the federal district court's order as moot. The federal district court dismissed Cina's remaining claims on summaryjudgment on December 22, 2014. Cina appeals the writ of restitution and also contends that she was entitled to a stay ofthe writ of restitution pending appeal.

3Report of Proceedings (RP) (July 31, 2014) at 20.No. 72315-4-1/4

ANALYSIS 

### Cina contends that the superiorcourt erred when itrefused to staythe unlawful detainer action and granted Ghadiali a writ of restitution. She argues that "because the trustee's sale was unlawful and did not proceed according to the requirements ofthe Deed ofTrustAct, [Ghadiali] is not the rightfulowner ofthe property and does not 

### maintain the right to possession."4 We disagree. Unlawful detainer is a special statutory proceeding. RCW 61.24.060(1) expressly provides that the purchaser at a trustee's deed oftrust foreclosure sale shall be entitled to possession ofthe property on the twentieth day following the sale and "shall have a right to the summary proceedings to obtain possession of real property provided in chapter 59.12 RCW." The scope of an unlawful detainer action is narrow, "limited to the 

### question ofpossession and related issues such as restitution of the premises and rent."5 "Inorderto protect the summary nature ofthe unlawful detainer proceedings, other 

### claims, includingcounterclaims, are generally not allowed."6 Cina provides no authority that her challenges to the validity ofthe deed oftrust foreclosure sale are the type that may be raised in a resulting unlawful detainer action brought by the purchaser ofthe property. The deeds oftrust act includes a "specific procedure for stopping a trustee's sale so that an action contesting default can take 

### place."7 RCW61.24.130(1) provides that the borrower may move "to restrain" a trustee's sale "on any proper ground." "However, a court cannot grant a 'restraining

4Appellant's Br. at 8. 5Munden v. Hazelriqg, 105 Wn.2d 39, 45, 711 P.2d 295 (1985). 6]dL 7 Plein v. Lackey, 149 Wn.2d 214, 225, 67 P.3d 1061 (2003).No. 72315-4-1/5 

### order or injunction to restrain a trustee's sale' unless the person seeking the order has provided five days' notice to the trustee ofthe attemptto seekthe order and has paid 

### amounts due on the obligation secured by the deed oftrust.'"8 This statutory procedure is "the only means by which a grantor may preclude a sale once foreclosure has begun withreceipt ofthe notice ofsale and foreclosure."9 "The granting or withholding ofan injunction is addressed to the sound discretion 

### ofthe trial courtto be exercised according to the circumstances ofeach case."10 "The trial court's decision exercising that discretion will be upheld unless it is based upon 

### untenable grounds, or is manifestly unreasonable, or is arbitrary."11 Here, the superior court declined to stay the unlawful detainer proceedings pending the appeal ofthe federal district court order, noting that there is "an actual order 

### fromanother court" that denied the requestto restrain the sale ofCina's property.12 The federal district court considered Cina's allegations concerning the trustee's violations of the deeds oftrust act and concluded that she failed to demonstrate any likelihood of

success on the merits of her claims. It also determined that she did not demonstrate any ability to make the payment or offer to pay the amount due on the loan and that she did not file any proofthat she complied with the deeds oftrust act by giving five days' notice ofher motion to the trustee. The sale was therefore allowed to proceed. The

8Plein. 149 Wn.2d at 225-26 (quoting RCW 61.24.130(1), (2)). 9Coxv. Helenius. 103 Wn.2d 383, 388, 693 P.2d 683 (1985). 10Washington Fed'n of State Employees. Council 28. AFL-CIO v. State, 99 Wn.2d 878, 887, 665 P.2d 1337 (1983). 11 King v. Riveland, 125 Wn.2d 500, 515, 886 P.2d 160 (1994). 

### 12 RP (July 31, 2014) at 20.No. 72315-4-1/6 

### merits of the case were subsequently ruled on when the federal court dismissed Cina's claims on summaryjudgment. 

### Ghadiali purchased Cina's property on June 6, 2014. The trustee's deed 

### expressly granted Ghadiali ownership of the property as the highest bidder at the public auction. Andpursuantto RCW61.24.060, Ghadiali was entitled to possession on June 26, 2014, as well as the right to obtain possession through an unlawfuldetainer action. Cina was still inpossession ofthe property on July 31, 2014, more than 20 

### days after the trustee's sale. Because an unlawful detainer action focuses on the right 

### ofpossession,13 the superiorcourtdid not abuse its discretion whenitrefused to stay the unlawful detainer action and granted Ghadiali a writ of restitution. 

### Cina also assigns errorto the trialcourt's "denial" of her motion to stay the writ of 

### restitution pending appeal. She argues that "[t]he court denied the stay pending appeal because [Cina] could not pay the [homeowner association] dues and the back rent in


### one lump sum at the day of the hearing."14 Butthe record expressly establishes that Cina voluntarily struck her motion to stay the writ of restitution.15


### 13 See Phillips v. Hardwick. 29 Wn. App. 382, 386, 628 P.2d 506 (1981) (an unlawful detainer action is limited to the right ofpossession, plus incidental issues such as restitution, rent, or damages). 

### 14Appellant's Br. at 10. 

### 15 The order on civil motionstates, "The above-entitled Court, having heard a motion to stay the writ ofrestitution pending appeal, and the defendanthaving stricken the motion at 8:30 a.m. for a 9:00 a.m. hearing, and the court and plaintiff's counsel having learned ofthe strike at 9:00 a.m. when the hearing was called. The courtfinds that defense counsel, Ms. Smith should pay terms to plaintiff. Plaintiffmay note a motion for presentation forjudgment on the underlying case at which time the court will considerthe amount ofterms-ifany-Ms. Smith shall pay." CP at 186 (emphasis added). Other documents confirm Cina's counsel struck the motion. CP at 215 ("Attached as Exhibit C is a copy ofthe August 11, 2014 e-mails from me to [opposing counsel] notifying him and confirming thatthe hearing at 9:00 that morning was stricken."); CP at 219 ("Counsel-I will be striking the hearing scheduled for this morningNo. 72315-4-1/7 

### Nevertheless, Cina contends that "RAP 8.1 grants a party as a matter of right a stay against enforcement of any decision affecting its right to possession of property by the filing of a bond, cash, or alternate security."16 Butthe unlawfuldetainer statutes govern any stay of a writ of restitution pending an appeal.17 RCW 59.12.200 controls 

### and is notsuperseded by RAP 8.1 or RAP8.3.18 In any event, because there is no decision for this court to review, Cina's arguments fail. Ghadiali argues that she should be awarded attorney fees under RAP 18.9 for a 

### frivolous appeal.19 We disagree.

in Ex Parte in Kent, and Iwill be notifying the court this morning."); CP at 220 ("Counsel-Ijust confirmed with Ex Parte in Kent that the hearing scheduled for this morning is stricken."). 

### 16Appellant's Br. at 8. 17 RCW59.12.200 provides: "A party aggrieved bythejudgmentmay seek appellate review ofthejudgment as inother civil actions: PROVIDED, That ifthe defendant appealing desires a stay ofproceedings pending review, the defendant shall execute and file a bond, with two or more sufficient sureties to be approved by the 

### judge, conditioned to abide the order ofthe court, and to pay all rents and other damagesjustly accruing to the plaintiffduring the pendency ofthe proceeding." RCW 59.12.220 provides: "Ifa writ ofrestitution has been issued previous to the 

### taking of an appeal by the defendant, and said defendant shall execute and file a bond as provided in this chapter, the clerk of the court, underthe direction of the judge, shall forthwith give the appellant a certificate ofthe allowance ofsuch appeal; and upon the service ofsuch certificate upon the officer having such writ of restitution the said officer 

### shall forthwith cease allfurther proceedings by virtue ofsuch writ; and ifsuch writhas 

### been completely executed the defendant shall be restored to the possession of the 

### premises, and shall remain inpossession thereofuntil the appeal isdetermined." 18 Comment to RAP 18.22 ("RCW 59.12.200 affects relief available under Rules 8.1 and 8.3, and is retained."). 

### 19 Resp't's Br. at 11.No. 72315-4-1/8 

### "The rules of appellate procedurepermitan award of attorneyfees to a prevailing respondent in a frivolous appeal."20 "An appeal is frivolous when there are no debatable 

### issues uponwhich reasonable minds coulddifferand when the appeal is so totally devoid of meritthatthere was no reasonable possibility ofreversal."21 Although the trial court clearly did not abuse its discretion, the question whether 

### the trial court should have stayed the unlawful detainer action pending the outcome of the federal lawsuitwas not frivolous. We deny attorney fees.
Affirmed.

WE CONCUR: 

# CatA K^/IW-j

# £31

20 Mahonev v. Shinpoch, 107 Wn.2d 679, 691, 732 P.2d 510 (1987). 21 Id.