Szego v. Kingsley Anyanwutaku, 93-CV-138.
Decision Date | 29 December 1994 |
Docket Number | No. 93-CV-138.,93-CV-138. |
Citation | 651 A.2d 315 |
Parties | George C. SZEGO, et al., Appellants, v. KINGSLEY ANYANWUTAKU, et al., Appellees. |
Court | D.C. Court of Appeals |
John C. Decker, II, Falls Church, VA, was on the brief, for appellants.
Richard C. Deering, Washington, DC, was on the brief, for appellees.
Before STEADMAN and SCHWELB, Associate Judges, and BELSON, Senior Judge.
This appeal arises from an order permanently enjoining appellants from foreclosing on a deed of trust. It presents the issue whether a party who, pursuant to a deed of trust and deed of trust note, first obtains a money judgment against the makers of the note, rather than foreclosing on the security or seeking both money judgment and foreclosure in the initial action, thereby precludes itself from subsequently pursuing the security by way of foreclosure. We hold that where a deed of trust conveying real estate is involved, obtaining a money judgment against the makers pursuant to the deed of trust and note does not bar a subsequent foreclosure pursuant to the deed of trust.
On October 31, 1991, appellants George C. Szego, et al.,1 obtained a judgment on a promissory note against appellees.2 The promissory note is secured by a deed of trust on the properties located at 411 Florida Avenue, N.W., and 635 Columbia Road, N.W. Appellee Kingsley Anyanwutaku is the sole owner of the property at 635 Columbia Road and is a one-third owner of the corporate appellee, 411 Florida Ave., N.W., Inc., which in turn is the sole owner of the property at 411 Florida Avenue. The deed of trust states that the Florida Avenue property must be foreclosed upon prior to any foreclosure of the Columbia Road property.
Foreclosure sales for both properties were formally noticed and scheduled to occur on February 21, 1992. On that day appellees moved for a temporary restraining order to block the sale of the 635 Columbia Road property, basing their motion on the filing for bankruptcy of 411 Florida Avenue, N.W., Inc., the sole owner of the 411 Florida Avenue property. A judge of the Superior Court granted the temporary restraining order.
Shortly thereafter another judge granted a preliminary injunction barring the foreclosure of the Columbia Avenue property based on the doctrines of res judicata, collateral estoppel, and election of remedies which she found applicable due to appellants' having obtained the earlier judgment. On December 30, 1992, that judge granted appellees summary judgment and permanently prohibited the foreclosure of the Columbia Road property. Adopting the arguments of appellees, the judge concluded that a party can have only one recovery of a debt and that because the appellants, in a previous action, had sought and received a judgment for money damages, they were precluded from seeking foreclosure.
McFadden establishes that the District of Columbia follows the common law rule that a party who sues on a note is not precluded under the doctrine of election of remedies or res judicata from pursuing the security by way of foreclosure. The two remedies are independent and do not conflict with one another. Thus, bringing both of them does not trigger the application of the election of remedies doctrine.
The conclusion that a party can sue on a note and subsequently foreclose is further supported by the rationale of Hoffman v. Sheahin, 73 App.D.C. 374, 121 F.2d 861 (1941). Hoffman was a...
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