Hazel v. Van Beek, J-LEN

• Decision Date: 23 April 1998
• Docket Number: J-LEN,No. 65472-7,65472-7
• Citation: 954 P.2d 1301,135 Wn.2d 45
• Parties: Lois HAZEL, Petitioner, v. Leonard VAN BEEK and Marjorie Van Beek, husband and wife, d/b/aCONSTRUCTION, Respondents.
• Court: Washington Supreme Court

Page 45

135 Wn.2d 45

954 P.2d 1301

Lois HAZEL, Petitioner, v. Leonard VAN BEEK and Marjorie Van Beek, husband and wife d/b/a J-LEN CONSTRUCTION, Respondents.

No. 65472-7.

Supreme Court of Washington En Banc.

Argued March 10, 1998.

Decided April 23, 1998.

Ludwigson, Thompson, Hayes & Bell, John S. Ludwigson, Bellingham, for Petitioner.

David Vis, Patrick Gallery, Brett & Daugert, Philip J. Buri, Bellingham, for Respondents.

DOLLIVER, Justice.

Lois Hazel foreclosed on real property of Leonard Van Beek to satisfy a judgment Hazel had won against Van Beek. Because Hazel failed to complete all steps of execution prior to the expiration of the statutory life of the judgment, we hold Hazel's judgment expired and is unenforceable.

Lois Hazel hired Leonard Van Beek to remodel her home. Following a dispute over Van Beek's work and purported overcharges, Hazel obtained a judgment for $59,081 against Van Beek in the United States Bankruptcy Court for the Western District of Washington, at Seattle, No. 82-03969. The judgment was entered on November 2, 1983. Hazel filed a copy of the judgment in Whatcom County on November 30, 1983.

On January 31, 1984, Van Beek filed a new petition for chapter 13 bankruptcy. This bankruptcy was dismissed just over six months later, on August 7, 1984. Bankruptcy filings stay enforcement of judgment liens during the pendency of the bankruptcy proceeding, 11 U.S.C. § 362(a)(2), (4), (5), so Hazel was precluded from enforcing her judgment during those six months in 1984. No legal barrier prevented Hazel from enforcing her judgment after August 7, 1984.

Not until August 1993 did Hazel obtain an amended writ of execution against real estate owned by Van Beek. The judgment amount, including interest, and offset by payments made by Van Beek, totaled $102,917.72. On October 15, 1993, the sheriff sold the real estate to Hazel, the highest bidder, for $109,447.66. The sheriff filed the return of the sale with the Superior Court, and notice of the return was mailed on October 25, 1993.

On November 17, 1993, 23 days after notice was mailed, Van Beek filed objections to the sale. He claimed the judgment and judgment lien expired on November 2, 1993, 10 years from the date of entry of the judgment. Because the judgment and lien expired, Van Beek claimed the court could not confirm the sale, and the property should be returned free and clear to Van Beek. Hazel first argued Van Beek's objections were filed past the 20-day deadline for objecting and could not be considered by the court. Hazel then argued she was not required to have the sale confirmed within the 10-year life of the judgment, and she argued in the alternative that the 10-year period was tolled for six months in 1984 when she was precluded from enforcing the judgment because of Van Beek's bankruptcy proceedings.

The confirmation motion was heard by a superior court judge on November 19, 1993. The trial court did not enter its written order confirming the sale until October 28, 1994. The reason for this long delay between the hearing and entry of the order, according to Hazel, is that Van Beek filed another bankruptcy petition soon after the November 19, 1993, hearing.

Van Beek appealed the trial court's confirmation of the sale, and the Court of Appeals reversed. Hazel v. Van Beek, 85 Wash.App. 129, 931 P.2d 189 (1997). The Court of Appeals held Van Beek's objections to the sale, though filed more than 20 days after notice of the sale was sent, could still be considered by the trial court. The Court of Appeals held confirmation was an essential step of enforcing a judgment and confirmation must occur within the life-span of the judgment. The court denied Hazel's claim that the 1984 bankruptcy tolled the 10-year life-span of the judgment. Hazel petitioned this court for review. Hazel v. Van Beek, 133 Wash.2d 1009, 946 P.2d 402 (1997).

First Issue: Can Van Beek's objections to the confirmation of the sale be considered, or are they time barred?

After a judgment creditor has obtained a writ of execution and the sheriff has sold the debtor's real property to satisfy the judgment debt, the court must confirm the sale upon motion of the purchaser. RCW 6.21.110(2), the applicable statute, states in part:

The judgment creditor or successful purchaser at the sheriff's sale is entitled to an order confirming the sale at any time after twenty days have elapsed from the mailing of the notice of the filing of the sheriff's return, on motion with notice given to all parties ..., unless the judgment debtor ... shall file objections to confirmation with the clerk within twenty days after the mailing of the notice of the filing of such return.

Van Beek's objections to the sale were filed 23 days after notice of the sale was mailed. Our first issue is whether Van Beek waived his right to object by filing his objections in an untimely fashion. The Court of Appeals analyzed the use of the word "shall" in subsection two, and decided the word was not used in a mandatory sense. The court held the 20-day deadline for filing objections in RCW 6.21.110(2) was discretionary, Hazel, 85 Wash.App. at 134-36, 931 P.2d 189, thereby allowing the court to consider Van Beek's objections.

We cannot sustain the Court of Appeals' analysis of RCW 6.21.110(2). Shall has more than one definition. Most cases discussing the use of shall within a statute focus on whether the word conveys a mandatory duty or a permissive requirement. See, e.g., Erection Co. v. Department of Labor & Indus., 121 Wash.2d 513, 518-19, 852 P.2d 288 (1993). However, an entirely different use of the word exists. Shall can be used to express simple futurity. See Webster's Third New International Dictionary 2085-86 (1986) ("when [shall] we three meet again" ... "I [shall] just put these papers together ... and send them off by the morning mail"). RCW 6.21.110(2) uses shall in the futuristic sense, not in the mandatory or discretionary sense. Unless the debtor shall object within 20 days of mailing of notice, the creditor is entitled to confirmation. Since "shall" merely expresses a simple futurity, the rest of the language within the statute must be analyzed to determine whether the 20-day deadline for filing objections is mandatory.

Other language within RCW 6.21.110(2) establishes the 20-day time period is mandatory. A purchaser of property at an execution sale "is entitled to an order confirming the sale at any time after twenty days have elapsed from the mailing ... unless the judgment debtor ... shall file objections to confirmation with the clerk within twenty days after the mailing...." RCW 6.21.110(2) (emphasis added). The operative word is "entitled." The purchaser is entitled to the order of confirmation at any time after 20 days have passed, unless the debtor files an objection within the time limit. When paraphrased in this way, the statute demonstrates the mandatory aspect of the deadline without even using the word "shall."

Our construing RCW 6.21.110(2) as mandatory is consistent with Krutz v. Batts, 18 Wash. 460, 51 P. 1054 (1898). Krutz analyzed a precursor of RCW 6.21.110, and the substantive portions of the former law are comparable to the current statute:

"1. The plaintiff shall be entitled, on motion therefor, to have an order confirming the sale at the term next following the return of the execution, or if it be returned in term time, then at such term, unless the judgment debtor ... shall file with the clerk ten days before such term, or if the writ be returned in term time, then five days after the return thereof, his objections thereto."

Krutz, 18 Wash. at 463, 51 P. 1054 (quoting section 508 of the Code of Procedure). The facts in Krutz are as follows. A judgment creditor obtained a writ of execution on the debtor's property, and the creditor purchased the property at the sheriff's sale on April 18, 1896. On April 20, 1896, the return of the sale was placed on the court docket, and the debtor did not file objections in a timely fashion. Not until May 15, 1897, did the debtor file objections to the sale. On May 17, 1897, the creditor motioned for confirmation of the sale, but the trial court considered the objections and ruled the sale and underlying judgment null and void.

The Supreme Court reversed the trial court and held the sale should have been confirmed. Because the objections were filed late, the trial court could not consider the objections. The Supreme Court reasoned "it is evidently not the intention of the law to allow an indefinite time to elapse before an objection to a confirmation is made." Krutz, 18 Wash. at 463, 51 P. 1054. Krutz is still good law, and its reading of the old law is equally informative of RCW 6.21.110(2). The current version of the statute, similar to its 100-year-old precursor, imposes a time limit for objecting to procedures of the sale. No language appears in the current statute rendering the deadline any less mandatory than it was in the statute construed in Krutz. We reverse the Court of Appeals' reading of RCW 6.21.110(2), and we hold the deadline for procedural objections is mandatory.

Our inquiry does not stop here, however, because it has long been recognized that a confirmation sale can be attacked when jurisdictional, as opposed to procedural, objections are raised. See Betz v. Tower Sav. Bank, 185 Wash. 314, 324, 55 P.2d 338 (1936) ("[A]n order confirming a sale concludes inquiry into any irregularity attending it, save as to jurisdictional matters.") (emphasis added) (citations omitted); McLiesh v. Ball, 58 Wash. 690, 109 P. 209 (1910). Cf. Miebach v. Colasurdo, 102 Wash.2d 170, 685 P.2d 1074 (1984) (allowing judgment debtor to attack collaterally a confirmed sale on equitable grounds, long after the sale had been confirmed).

In McLiesh, the court allowed debtors to attack a sale after it had been confirmed. The debtors had satisfied the judgment by paying the judgment creditor's agent before the...