First Federal Sav. & Loan Ass'n of Walla Walla v. Ekanger

• Decision Date: 26 June 1980
• Docket Number: No. 46324,46324
• Citation: 613 P.2d 129,93 Wn.2d 777
• Court: Washington Supreme Court
• Parties: FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF WALLA WALLA, a corporation, Respondent, v. Helen M. EKANGER, Petitioner. William PRITCHARD and Bonnie Pritchard, his wife, Respondents, v. Helen M. EKANGER, Petitioner.

Page 777

93 Wn.2d 777

613 P.2d 129

FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF WALLA WALLA, a corporation, Respondent, v. Helen M. EKANGER, Petitioner.

William PRITCHARD and Bonnie Pritchard, his wife, Respondents, v. Helen M. EKANGER, Petitioner.

No. 46324.

Supreme Court of Washington, En Banc.

June 26, 1980.

Critchlow, Williams, Ryals & Schuster, Richard M. Knoeber, Richland, for petitioner.

Peterson, Taylor, Day & Shea, Stanley D. Taylor, Pasco, Minnick, Hayner & Zagelow, H. H . Hayner, Walla Walla, George E. Heidlebaugh, Tri-Cities, for respondents.

UTTER, Chief Justice.

Review was granted in this case to determine whether a defect in an affidavit in support of service by publication is fatal to jurisdiction or may be cured by amendment. The Court of Appeals held that the affidavit could be cured, and affirmed the trial court's decree of foreclosure against petitioner Helen Ekanger. We affirm that holding.

Petitioner Ekanger owned a home in Kennewick subject to a mortgage in favor of First Federal Savings & Loan Association of Walla Walla (First Federal). Beginning in July 1975, Ekanger failed to make her mortgage payments. During the next several months, First Federal wrote Ekanger numerous letters and repeatedly attempted to reach her by telephone concerning her defaults. Finally, she was informed by letter dated September 22 that unless she had arranged to cure her default by September 30, a foreclosure action would be instituted. Because First Federal could not reach Ekanger by telephone, it also sent five telegrams warning her that a foreclosure action would be instituted unless she contacted its office immediately. Although Ekanger did contact First Federal on several occasions to make arrangements to reinstate the account, payment was never received. Finally, on October 9, First Federal informed Ekanger by letter that her file was being referred to counsel for the necessary legal action. First Federal filed foreclosure proceedings on November 6, 1975.

On November 28, the summons and complaint for foreclosure were delivered to the Benton County Sheriff for service on Ekanger. During the period of December 1 to 5, there were 14 unsuccessful attempts to serve Ekanger at her home. Although there was a car in the garage and dogs barking in the house on two occasions, no one would answer the door. The sheriff's office returned the papers unserved and a "not found" return was filed. Employees of First Federal's branch office made further attempts to serve Ekanger, but they were also unsuccessful.

Counsel for First Federal then decided to serve the summons by publication pursuant to RCW 4.28.100. Accordingly, on January 6, 1976, copies of the summons and complaint were mailed to Ekanger at her home. In accordance with RCW 4.28.100, First Federal filed an affidavit in support of service by publication. The affidavit reported the attempts at personal service but did not state the nature of the underlying action and did not specifically state that copies of the summons and complaint had been mailed to Ekanger at her place of residence.

Ekanger did not appear in the foreclosure action and the home was sold to Mr. and Mrs. Pritchard at a sheriff's sale on May 21, 1976. The court confirmed the sale and directed disbursement of the proceeds. Pursuant to RCW 6.24.140, the court specified that at anytime within the following 8 months, Ekanger could redeem her property by paying the amount of the bid plus interest, taxes, and liens. Ekanger did not attempt to redeem the property during this period.

On February 24, 1977, Ekanger moved to set aside the decree of foreclosure, alleging the court lacked jurisdiction to enter the decree because the affidavit of service by publication did not comply with the requirements of RCW 4.28.100. The statute provides that:

When the defendant cannot be found within the state (of which the return of the sheriff of the county in which the action is brought, that the defendant cannot be found in the county, is prima facie evidence), and upon the filing of an affidavit of the plaintiff, his agent, or attorney, with the clerk of the court, stating that he believes that the defendant is not a resident of the state, or cannot be found therein, and that he has deposited a copy of the summons . . . and complaint in the post office, directed to the defendant at his place of residence, unless it is stated in the affidavit that such residence is not known to the affiant, and stating the existence of one of the cases hereinafter specified, the service may be made by publication of the summons, by the plaintiff or his attorney in any of the following cases:

(6) When the action is to foreclose, satisfy, or redeem from a mortgage, or to enforce a lien of any kind on real estate in the county where the action is brought, or satisfy or redeem from the same; RCW 4.28.100. Ekanger contended that the affidavit in support of service by publication in this case did not comply with these requirements because it did not state the nature of the cause of action and did not state that copies of the summons and complaint had been mailed to her.

On May 31, 1977, First Federal moved for leave to file an affidavit amending the original affidavit to reflect that the object of the action was to foreclose a mortgage and to indicate that copies of a summons and complaint were in fact mailed to Ekanger on January 6, 1976. The trial court accepted the amended affidavit, denied Ekanger's motion to vacate, and quieted title to the property in the Pritchards. The Court of Appeals in a non-unanimous opinion affirmed the trial court action and held that the technical defect in the affidavit of service by publication could be cured nunc pro tunc by the amended affidavit.

Petitioner Ekanger relies on Lutkens v. Young, 63 Wash. 452, 115 P. 1038 (1911), as support for her contention that the affidavit underlying service by publication must be in strict compliance with the statutory requirements and that a defect in the affidavit may not be amended nunc pro tunc. In Lutkens, we held that an affidavit underlying service by publication was fatally...