176 A.3d 1277 (D.C. 2017), 15-CV-0074, Thomas v. Buckley
|Citation:||176 A.3d 1277|
|Opinion Judge:||Blackburne-Rigsby, Chief Judge:|
|Party Name:||Hazel B. THOMAS, Appellant, v. James BUCKLEY, et al., Appellees.|
|Attorney:||Stephanie K. Rones argued on behalf of appellant, who filed her brief pro se. John C. Lynch, with whom M. Richard Coel was on brief, for appellees James Buckley, University Hall Condominium Association, and Tilton Bernstein Management, Inc. Laura M.K. Hassler, with whom Aaron L. Handleman was on ...|
|Judge Panel:||Before Blackburne-Rigsby, Chief Judge, McLeese, Associate Judge, and Farrell, Senior Judge.|
|Case Date:||December 12, 2017|
Argued October 13, 2016
Published February 15, 2018
Appeal from the Superior Court of the District of Columbia, (CAR-6746-13) (Hon. Stuart G. Nash, Trial Judge)
Stephanie K. Rones argued on behalf of appellant, who filed her brief pro se.
John C. Lynch, with whom M. Richard Coel was on brief, for appellees James Buckley, University Hall Condominium Association, and Tilton Bernstein Management, Inc.
Laura M.K. Hassler, with whom Aaron L. Handleman was on brief, for appellee Linowes and Blocher LLP.
Brian W. Thompson, with whom Arthur F. Konopka was on brief, for appellee 3000 7th Street 222 SB, LLC.
Before Blackburne-Rigsby, Chief Judge, McLeese, Associate Judge, and Farrell, Senior Judge.
Blackburne-Rigsby, Chief Judge:
Appellant Hazel B. Thomas owned a condominium unit located at 3000 7th Street, Northeast, Washington, D.C., from 1981 until the foreclosure sale in 2012. From around 2002 to 2012, Ms. Thomas did not live in the unit but instead resided at 4317 20th Street, Northeast, Washington, D.C. For a significant period of time from at least 2004 to 2012, Ms. Thomas did not pay or make late condominium association dues. Therefore, the condominium association, appellee University Hall Condominium Association ("UHC")1 sought to foreclose on Ms. Thomass unit for her failure to pay dues. UHC mailed Ms. Thomas notice of the foreclosure sale to the condominium unit, but not to her actual residence. Ms. Thomas claims that she never received notice of the foreclosure sale, which allowed the unit to be sold at auction without her knowledge, or her ability to take action. UHC concedes that Ms. Thomas may not have received "actual notice" of the foreclosure sale, but contends it fulfilled its statutory duty by sending notice to Ms. Thomass unit only. The critical issue in this case is whether UHC should have also sent notice to Ms. Thomass actual residence, pursuant to D.C. Code § 42-1903.13 (c)(4) (2001), which states that a condominium association shall send notice of a foreclosure sale "to the unit owner at the mailing address of the unit and at any other address designated by the unit owner to the executive board for purpose of notice."
The trial court granted summary judgment in favor of UHC and the other named defendants on the LLCs claim to quiet title and Ms. Thomass counter-suit for wrongful foreclosure. The trial court concluded as a matter of law that because "Ms. Thomas [n]ever formally designated a different address to the [UHC Executive] [B]oard, it was legally sufficient for UHC to provide notice by certified mail to the unit only."
We conclude that UHCs notice of the foreclosure sale of Ms. Thomass condominium did not comply with the notice provision under D.C. Code § 42-1903.13 (c)(4).2 The record evidence in this case reveals that UHC was aware of Ms. Thomass actual address. In Ms. Thomass deposition, she stated that she filled out a form giving TBM notice of the change in her
address. Further, there is documentation stating that UHC has sent Ms. Thomas important notices warning Ms. Thomas of her nonpayment of assessments at her actual address. Consequently, other than UHCs assertion that Ms. Thomas never gave them notice of her actual address, there is no evidence in the record to support this claim. We therefore hold, due to the uncontroverted facts in evidence, that Ms. Thomas "designated" her actual address to UHC, which required UHC to send notice of the impending foreclosure sale to her at that address. Therefore, we must reverse the trial courts grant of summary judgment and remand for proceedings not inconsistent with our decision. See Logan v. LaSalle Bank Natl Assn, 80 A.3d 1014, 1024 (D.C. 2013) (stating that a foreclosure sale is void if a condominium association fails to provide notice of a foreclosure sale to a unit owner because this lack of notice impairs the owners ability to contest or prevent the foreclosure).
I. Factual and Procedural History
Since 1981, Ms. Thomas has owned Unit 222 in the UHC building located at 3000 7th Street, Northeast, Washington, D.C.3 The last time she actually lived in the unit was in 2002, after which she began living at her 4317 20th Street, Northeast, Washington, D.C. residence.
Ms. Thomas has leased her condominium unit to a tenant since approximately 2002. Ms. Thomas testified at her deposition that she notified appellees that she was renting her condominium unit, and "filled out a [TBM] form" that stated her current (actual) residence, 4317 20th Street Northeast. Although the record does not contain a copy of the form that Ms. Thomas filled out, UHC does not contest that Ms. Thomas filled out a form when she notified UHC and TBM that she was leasing her unit. After Ms. Thomas filled out the form, the record evinces UHC and TBM sent her notices and letters to her 20th Street residence.4
Pursuant to the condominium bylaws, Ms. Thomas was obligated to pay monthly UHC building assessment fees for the maintenance of the condominiums common areas and amenities. Ms. Thomas consistently made late payments or made no payments at all. On two prior occasions, Ms. Thomas defaulted on her assessments and UHC threatened foreclosure. On at least one of these occasions, Ms. Thomas was notified of the potential foreclosure and avoided foreclosure by agreeing to pay off her debt with a lump sum payment.
When Ms. Thomas defaulted for the third time on her condominium assessments in December 2011, UHC filed a
Notice of Condominium Lien for the unpaid assessment fees from February 1 to December 1, 2011, but did not send notice to Ms. Thomas at her actual residence. UHC does not contest that Ms. Thomas did not receive the notice, but argues that the notice it mailed to her condominium unit was legally sufficient to satisfy the notice provision of § 42-1903.13 (c)(4) because Ms. Thomas never formally designated that she wanted to receive notice at an address other than her condominium unit. On or around April 10, 2012, UHCs counsel filed a Notice of Foreclosure Sale of Condominium Unit for Assessments Due with the District of Columbia Office of Tax and Revenue Recorder of Deeds, and mailed notice of the upcoming foreclosure sale of the unit to Ms. Thomass condominium unit. On April 29, 2012, the notice of foreclosure was returned to UHC and marked "Return to Sender, Unclaimed, Unable to Forward." The foreclosure sale notice stated the unit would be up for sale at public auction on May 15, 2012, and the amount Ms. Thomas owed, $16,040.95.5
Notice of the foreclosure sale was published in The Washington Post as required by statute. At the public auction, Ms. Thomass unit was sold to the LLC6 as the "best and highest bidder for the bid price of $21,835.00." Subsequently, the LLC filed a suit to quiet title to the unit. In response, Ms. Thomas filed a complaint for wrongful foreclosure of her condominium.7 In the quiet title case, Ms. Thomas then moved for summary judgment or, in the alternative, to consolidate the quiet title case with her suit to rescind the foreclosure sale of her condominium unit.
The trial court consolidated the two suits, and denied Ms. Thomass motion for summary judgment, without prejudice. Appellees UHC, TBM, and Mr. Buckley moved for summary judgment in Ms. Thomass wrongful foreclosure sale case, and appellee LLC moved for summary judgment in the quiet title case. The trial court granted summary judgment to the appellees and ordered that the unit be conveyed "free and clear of any right, title and interest... of [Ms. Thomas] ...." The trial court concluded that "[a]bsent evidence that Ms. Thomas ever formally designated a different address to the board, [for the purpose of notice,] it was legally sufficient for UHC to provide notice by certified mail to the unit only." The trial court further concluded that Ms. Thomas failed to demonstrate that she gave a "formal" designation to the UHC Board that she wanted to receive mail or notice at her 20th Street residence "exclusively." This appeal followed.
Ms. Thomas raises numerous claims as to why summary judgment was inappropriate in this case.8 We conclude that her claim that she lacked adequate notice pursuant to D.C. Code § 42-1903.13, controls the outcome of this case because without adequate notice, the foreclosure sale is void and must be set aside. Johnson v. Fairfax Vill. Condo. IV Unit Owners Assn, 641 A.2d 495, 508 (D.C. 1994).
Our review is de novo. Eaglin v. District of Columbia, 123 A.3d 953, 955 (D.C. 2015) (we review questions of statutory...
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