Excelsior Mortg. Equity Fund II, LLC v. Schroeder

• Decision Date: 05 December 2012
• Docket Number: No. 30333–1–III.,30333–1–III.
• Citation: 171 Wash.App. 333,287 P.3d 21
• Parties: EXCELSIOR MORTGAGE EQUITY FUND II, LLC, an Oregon limited liability company, Respondent, v. Steven F. SCHROEDER, a married man, Appellant, Anthony Bell, an individual, Defendant.
• Court: Washington Court of Appeals

171 Wash.App. 333

287 P.3d 21

EXCELSIOR MORTGAGE EQUITY FUND II, LLC, an Oregon limited liability company, Respondent,

v. Steven F. SCHROEDER, a married man, Appellant,Anthony Bell, an individual, Defendant.

No. 30333–1–III.

Court of Appeals of Washington, Division 3.

Oct. 18, 2012.

Reconsideration Denied Dec. 5, 2012.

Matthew Franklin Pfefer, Attorney at Law, Spokane Valley, WA, for Appellant.

Phillip Justin Haberthur, Schwabe Williamson & Wyatt, Vancouver, WA, for Respondent.

SIDDOWAY, J.

¶ 1 When a landowner fails to remove personal property following foreclosure of his real property and a determination that he is in unlawful detainer, does a trial court act within its jurisdiction in authorizing the purchaser of the land to sell or dispose of the personal property for the former landowner's benefit? We hold that it does, affirm the reasonable postjudgment order entered by the court in this case, and award Excelsior Mortgage Equity Fund II LLC its attorney fees.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 This is the fourth time these parties and this dispute have reached this court. We recount only the limited background relevant to this appeal. ¹

¶ 3 Steven Schroeder formerly owned a 200–acre ranch in Stevens County. He obtained a loan from Excelsior Mortgage that was secured by a deed of trust against the real property. When he defaulted in payment of the loan, Excelsior filed an action to judicially foreclose its deed of trust. It later negotiated to foreclose nonjudicially. The nonjudicial foreclosure process culminated in a trustee's sale on February 19, 2010, at which Excelsior purchased the property. Excelsior was entitled to possession 20 days later, on March 11. RCW 61.24.060(1).

¶ 4 Before borrowing from Excelsior, Mr. Schroeder had owned the ranch for decades. Over the years, he accumulated and stored an enormous amount of personal property on it, including hundreds of old vehicles, bicycles, vehicle and bicycle parts, tires, and household appliances. He also kept animals on the property, including two dozen cows, several horses, and a large bull.

¶ 5 Excelsior agreed following its purchase at the trustee's sale to extend the time for Mr. Schroeder to remove his personal property and animals and for Mr. Schroeder's tenant, Anthony Bell, to vacate a mobile home that he rented on the property. It granted them an additional three weeks' occupancy, to April 1. On March 10, Mr. Schroeder obtained an estimate from a moving company of the cost of removing his personal property. The company estimated that to remove what it was capable of moving would require “approximately 4 people[,] 2 straight trucks per day ... for a minimum of 90 days,” explaining that its estimate did not include “the cars and many items that we are just prohibited to move.” Clerk's Papers (CP) at 22. It estimated the cost of its partial removal of the property at $15,750 plus $3,000 in packing material.

¶ 6 April 1 arrived, and Mr. Schroeder and Mr. Bell had not enlisted the moving company's services or otherwise vacated the property. On April 30, Excelsior filed a complaint for unlawful detainer. The trial court eventually entered summary judgment in Excelsior's favor and entered a final order and judgment on December 7. Its order adjudged Mr. Schroeder to be in unlawful detainer and stated that Excelsior “is granted immediate possession of the Premises.” CP at 319. It also provided that a writ of restitution “should be issued to the county sheriff directing him to deliver possession of the Premises to the Plaintiff.” Id.

¶ 7 An inspection by Excelsior in the spring revealed that Mr. Schroeder had made few, if any, attempts to remove his property and animals. Its manager's chance encounter with Mr. Schroeder during the inspection confirmed that Mr. Schroeder continued to claim ownership to the personal property; according to the manager, Mr. Schroeder “even went so far as to question whether we had entered any of the buildings and stolen anything.” CP at 14.

¶ 8 The unlawful detainer act, chapter 59.12 RCW, does not spell out a procedure by which Excelsior could sell or dispose of Mr. Schroeder's property. Excelsior explains on appeal that it did not pursue the writ of restitution ordered by the court because Mr. Schroeder and Mr. Bell were no longer living at the property, implying that removal of the two individuals would have been the only reason for pursuing execution of the writ. Seeking to avoid any further litigation with Mr. Schroeder, Excelsior identified provisions of the Residential Landlord–Tenant Act of 1973, chapter 59.18 RCW, which—while not applicable by its terms—nonetheless address how a landlord may dispose of personal property left behind by an evicted tenant. It decided to ask that the court adapt that procedure for its disposal of Mr. Schroeder's property, later explaining:

The Residential Landlord–Tenant Act of 1973 was enacted in order to provide residential tenants greater protection from landlords. Because these statutes provide the highest level of protection for tenants, it is more than reasonable for Excelsior to follow the procedures under the residential act for sale/disposal of Schroeder's personal property. By doing so, Excelsior gives this former owner the highest level of protection available, despite the fact that he is not entitled to that protection by statu[t]e.

CP at 6.

¶ 9 On March 25, 2011, Excelsior sent Mr. Schroeder what it entitled a “Notice of Sale or Disposal of Abandoned Property,” providing Mr. Schroeder 45 days, or until May 12, to remove anything of value he had stored on the property. Mr. Schroeder took no action to comply.

¶ 10 On May 24, Excelsior moved the trial court for an order allowing it to dispose of the personal property remaining on the property. Mr. Schroeder opposed the motion, contending that “this Court has no authority to grant the Plaintiff's Motion to dispose of Mr. Schroeder's personal belongings.” CP at 30. The trial court granted Excelsior's motion. Its order, entered on September 26, authorized Mr. Schroeder to enter the property until October 15 “only for purposes of removing his personal property and animals.” CP at 141. Its order excluded him from the property thereafter, and, with respect to any property remaining on the property that was thereafter sold, ordered:

Any proceeds obtained from the sale of personal property or animals belonging to Steven F. Schroeder shall be applied first toward Plaintiff's costs associated with storing, removing, and/or selling the property,and second toward off-setting the outstanding judgment in this case.

CP at 142.

¶ 11 After Mr. Schroeder's motion for partial reconsideration was denied, he timely appealed.²

ANALYSIS

I

¶ 12 The deed of trust act, chapter 61.24 RCW, provides that the purchaser at a trustee's sale is entitled to possession on the twentieth day following the sale and “shall also have a right to the summary proceedings to obtain possession of real property provided in chapter 59.12 RCW,” the unlawful detainer act. RCW 61.24.060(1), RCW 59.12.170 provides that if the trial court in a commercial unlawful detainer action finds in favor of the plaintiff, “judgment shall be entered for the restitution of the premises.” In those cases where a defendant found in unlawful detainer does not voluntarily vacate, the usual remedy for restoring the plaintiff's possession is to enforce the judgment “for the possession of the premises,” RCW 59.12.170, by causing the county sheriff to execute a writ of restitution.

¶ 13 The sheriff's authority under a writ of restitution extends to removing a defendant's personal property from the premises. See Christensen v. Hoover, 643 P.2d 525, 528 (Colo.1982) (finding it to be the officer's duty under a writ of restitution “not only to remove the tenant, but also to remove the tenant's personal property and effects” where unlawful detainer statute provided that landlord was entitled to restitution, or full possession, of the premises); cf. Chung v. Louie Fong Co., 130 Wash. 154, 156, 226 P. 726 (1924) (“[the plaintiff] remaining in possession, the sheriff dispossessed him, putting his personal property in the road adjacent to the premises”); Johnson v. Nelson, 146 Wash. 500, 501, 263 P. 949 (1928) (following service of the writ of restitution and the occupant's failure to vacate, the sheriff “secured the services of some men and removed the belongings of respondents from the premises into the highway near by”); RCW 36.28.010(3) (sheriff is the “conservator of the peace of the county” and shall execute “the process and orders of the courts of justice or judicial officers ... according to law”), .050 (“Any sheriff ... may require an indemnifying bond of the plaintiff in all cases where he or she has to take possession of personal property.”). In this connection, Excelsior's implicit position that a writ of restitution authorizes a sheriff to assist in removing only people, not property, is mistaken.³

¶ 14 But while the sheriff can remove or oversee the landowner's removal of a dispossessed defendant's personal property pursuant to a writ of restitution, it is understandable that Excelsior would not regard a customary writ of restitution as a practical or adequate means of enforcing Excelsior's right of possession. The 90–day, 4–man, $15,000 estimate for partial removal that Mr. Schroeder received from the moving company is compelling evidence that the writ procedure was inadequate. And, as described by Excelsior's manager:

The 200 acre property remained littered with old vehicles (approximately 200 to 300 of them), most of which were rusted shells that showed obvious signs of having been there for decades. In fact, many had sunk deeply into the soil. All appearances suggested that the vehicles were little more than rusted scrap with little to no value, especially given the amount of work and associated cost that would be required to remove them from the Premises. In addition,...