Chase Plaza Condominium Association, Inc. and Darcy, LLC v. JPMorgan Chase Bank, N.A. ( 2014 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 13-CV-623 & 13-CV-674
CHASE PLAZA CONDOMINIUM ASSOCIATION, INC.
and DARCY, LLC, APPELLANTS,
v.
JPMORGAN CHASE BANK, N.A., APPELLEE.
Appeals from the Superior Court
of the District of Columbia
(CA-5826-10)
(Hon. Craig Iscoe, Trial Judge)
(Argued April 17, 2014 Decided August 28, 2014)
Robert C. Gill, with whom Carolyn Due was on the brief, for appellant
Chase Plaza Condominium Association, Inc.
Rachel Abramson for appellant Darcy, LLC.
Thomas J. McKee, Jr., with whom Michael R. Sklaire was on the brief, for
appellee JPMorgan Chase Bank, N.A.
Thomas Moriarty, Jason E. Fisher, Laura M. Gagliuso, Henry Goodman,
and Loura Sanchez filed a brief on behalf of the Community Associations Institute
as amicus curiae in support of appellant Chase Plaza Condominium Association,
Inc.
Before THOMPSON and MCLEESE, Associate Judges, and KING, Senior
Judge.
2
MCLEESE, Associate Judge: Brian York purchased a condominium unit,
financing the purchase through a mortgage loan that was secured by a deed of trust
on the unit. After Mr. York defaulted on his monthly condominium assessments,
appellant Chase Plaza Condominium Association, Inc. foreclosed on the unit.
Appellant Darcy, LLC purchased the property at a foreclosure sale. Several
months later, appellee JPMorgan Chase Bank, N.A. filed a complaint alleging that
the foreclosure sale was void, because the price at the sale was unconscionably low
and because the sale impermissibly purported to extinguish the lien created by the
deed of trust. The trial court agreed on the latter point and granted summary
judgment to JPMorgan. We reverse and remand.
I.
Except as noted, the following facts are undisputed. In July 2005, Mr. York
purchased a condominium unit in Washington, D.C. Mr. York financed the
purchase by executing a promissory note for $280,000 that was secured by a deed
of trust on the unit. The deed of trust named Mr. York as “Borrower,” First
Financial Services, Inc. as “Lender,” Federal Title & Escrow Co. as “Trustee,” and
Mortgage Electronic Registration Systems, Inc. (“MERS”) as beneficiary and as a
3
nominee for First Financial Services, Inc. The deed of trust was recorded in
August 2005.
By late 2008, Mr. York was delinquent both on his mortgage payments and
on the monthly condominium-association payments he was required to make to
Chase Plaza. In April 2009, Chase Plaza recorded a condominium-assessment lien
on the unit. Chase Plaza also conducted a title search on the unit, which revealed
three outstanding liens: (1) the first deed of trust; (2) a second mortgage for
$60,000; and (3) the condominium-assessment lien for $9,415.
Chase Plaza subsequently initiated foreclosure proceedings against Mr.
York, seeking to recover six months’ worth of unpaid assessments. In January
2010, Chase Plaza filed a notice of foreclosure sale, published the notice, and
mailed the notice to the parties named in the deed of trust. The notice specified
that the foreclosure sale would not be subject to the first deed of trust. In other
words, the notice reflected the position that Chase Plaza’s lien had a higher priority
than the lien created by the first deed of trust and that if the foreclosure sale
generated insufficient proceeds to satisfy Chase Plaza’s lien, the foreclosure sale
would extinguish the lien created by the first deed of trust. See generally, e.g.,
Pappas v. Eastern Sav. Bank, FSB, 911 A.2d 1230, 1234 (D.C. 2006) (general rule
4
is that valid foreclosure sale extinguishes subordinate liens that cannot be satisfied
from proceeds of sale).
In February 2010, Darcy purchased the unit for $10,000 at a foreclosure
sale.1 Darcy was the only bidder at the sale. A deed of trust reflecting Darcy’s
purchase was executed in March 2010.
In April 2010, JPMorgan commenced foreclosure proceedings against Mr.
York for failure to make mortgage payments. After discovering that Chase Plaza
had already foreclosed on the unit, JPMorgan filed a complaint against Chase Plaza
and Darcy requesting that the trial court set aside the foreclosure sale and declare
that JPMorgan held title to the unit. In explaining its interest in the unit, JPMorgan
stated that in March 2009 MERS, which was designated as the beneficiary and
nominee in the first deed of trust, had assigned its interest in the deed of trust to an
entity JPMorgan referred to as Washington Mutual. JPMorgan further stated that it
had acquired Washington Mutual in 2008, and that it also was the current holder of
the original promissory note.
1
After Chase Plaza deducted the six months of unpaid condominium
assessments, the interest on the unpaid assessments, and various expenses
associated with the foreclosure sale, the remaining balance from the foreclosure-
sale proceeds was $478. Chase Plaza forwarded the $478 to MERS as the nominee
of record under the first deed of trust, but that money was returned to Chase Plaza.
5
The trial court granted partial summary judgment to JPMorgan.
Specifically, the trial court (1) determined that JPMorgan had standing to bring the
action; (2) determined that Chase Plaza could not lawfully extinguish the first deed
of trust; (3) voided the foreclosure sale because the unit had not been sold subject
to the first deed of trust; and (4) declared that JPMorgan held title to the unit.
Pursuant to the stipulation of the parties, the trial court subsequently dismissed
JPMorgan’s remaining claims.
II.
We begin by addressing three threshold issues: whether JPMorgan has
standing to raise its claims; whether the trial court’s order granting summary
judgment is void because it violated the automatic stay under federal bankruptcy
law; and whether Mr. York and Washington Mutual are indispensable parties to
this case under Rule 19 of the Superior Court Rules of Civil Procedure.
A.
Chase Plaza and Darcy argue that JPMorgan lacks an interest in the unit
sufficient to confer standing on JPMorgan. We disagree. JPMorgan alleges, and
6
Chase Plaza and Darcy do not dispute, that JPMorgan has physical possession of
the original promissory note, which is a negotiable instrument indorsed in blank.
“An indorsement in blank is essentially a stamp that indorses an instrument
without specially indorsing it to a specific party. Usually it makes that instrument
payable to the bearer and transfers with it legal title to security attached to the
instrument.” Leake v. Prensky, 798 F. Supp. 2d 254, 256 n.3 (D.D.C. 2011).
Under District of Columbia law, the holder of a negotiable instrument indorsed in
blank is normally entitled to enforce the instrument, including through foreclosure
proceedings. See D.C. Code § 28:3-301 (2012 Repl.) (holder of negotiable
instrument may enforce instrument), -205 (b) (2012 Repl.) (instrument indorsed in
blank is payable to bearer and may be negotiated by transfer of possession); Leake,
789 F. Supp. 2d at 256-57 (bank in possession of note indorsed in blank was
entitled to commence non-judicial foreclosure proceedings); Grant II v. BAC Home
Loans Servicing, No. 10-cv-01543, 2011 WL 4566135, at *4 (D.D.C. Sept. 30,
2011) (“[A]s the Note is indorsed in blank, [the loan-servicing company’s]
possession of the Note establishes its status as holder of the Note . . . . As holder
of the note, [the loan-servicing company] could properly enforce its provisions”
through foreclosure proceedings.). We therefore conclude that JPMorgan has
standing to seek to set aside the foreclosure sale.2
2
JPMorgan also claims to be a successor in interest under the deed of trust,
(continued . . .)
7
B.
During the course of the events at issue in this case, two of the dramatis
personae declared bankruptcy: Mr. York, who had purchased the unit in 2005 but
whose default in 2008 led to the 2010 foreclosure, declared personal bankruptcy in
June 2011; and Washington Mutual, Inc., which arguably was assigned an interest
in the promissory note in 2009, declared bankruptcy under Chapter 11 of the
(. . . continued)
because MERS, a beneficiary and nominee under the deed of trust, transferred its
interest to Washington Mutual, which had been purchased by JPMorgan. Chase
Plaza and Darcy argue, however, that it is unclear whether JPMorgan obtained an
interest in the deed of trust, because (1) it is unclear to which of several
Washington Mutual entities MERS transferred its interest, (2) JPMorgan only
purchased some, not all, of the assets of Washington Mutual Bank, and (3)
JPMorgan’s purchase occurred before the date of MERS’s transfer of its interest in
the deed of trust to Washington Mutual. JPMorgan, however, can seek to protect
its interests under the promissory note even if it is not a successor in interest under
the deed of trust, because “the rights under the Deed of Trust follow the Note.”
Grant II, 2011 WL 4566135, at *4; see also Smith v. Wells Fargo Bank, 991 A.2d
20, 29-30 n.19 (D.C. 2010) (“The transfer of the note carries with it the security,
without any formal assignment or delivery, or even mention of the latter.”)
(internal quotation marks omitted). Because JPMorgan’s interest under the
promissory note is sufficient to confer standing on JPMorgan, we need not address
whether JPMorgan obtained an interest in the deed of trust through Washington
Mutual. Chase Plaza and Darcy also raise other challenges to the validity of
JPMorgan’s alleged interest in the unit, including that JPMorgan cannot assert any
interest in the unit against Chase Plaza and Darcy because JPMorgan failed to
properly record documents relating to the transactions giving rise to JPMorgan’s
alleged interest. We do not view those contentions as going to JPMorgan’s
standing, and in light of our disposition of the case on the merits, we see no need at
this juncture to address the additional arguments raised by Chase Plaza and Darcy.
8
federal bankruptcy laws in 2008. Under federal bankruptcy law, the filing of
certain kinds of bankruptcy petitions triggers an automatic stay. 11 U.S.C.
§ 362 (a) (2012) (filing petition for bankruptcy relief “operates as a stay”). That
stay extends, among other things, to certain lawsuits “against the debtor . . . or to
recover a claim against the debtor”; “to obtain possession of property of the
[bankruptcy] estate or of property from the estate or to exercise control over
property of the estate”; to enforce a lien against property of the estate; or to enforce
against property of the debtor a lien securing a claim that arose before
commencement of the bankruptcy proceeding. Id. at § 362 (a)(1), (3)-(5).
Judgments rendered in violation of the automatic stay are void. Jones v. Cain, 804
A.2d 322, 329 (D.C. 2002). This court has the authority to decide in the first
instance whether a trial-court ruling violated the bankruptcy stay. See id. at 325-29
(deciding in first instance that judgment against defendant violated automatic stay
and was therefore void, because judgment was rendered after defendant filed
petition for bankruptcy).
We perceive no violation of the automatic stay. With respect to Mr. York’s
bankruptcy proceedings, which began in 2011, JPMorgan obtained an order lifting
the stay to permit JPMorgan to foreclose against the unit “free and clear of any
interest” of Mr. York or the bankruptcy estate. Moreover, Mr. York’s interest in
9
the unit had been foreclosed upon in 2010, without any objection from Mr. York;
Mr. York did not list the unit on his schedule of assets in the bankruptcy
proceedings; and Mr. York denied owning the unit as of the time he filed for
bankruptcy. Under the circumstances, we agree with the parties that the unit was
not property of Mr. York’s bankruptcy estate and that the present lawsuit did not
otherwise run afoul of the automatic stay. Cf., e.g., Foskey v. Plus Props., LLC,
437 B.R. 1, 11-12 (D.D.C. 2010) (property in which debtor has no legal or
equitable interest “is deemed to be outside the property of the estate” and not
subject to automatic stay; automatic stay did not bar post-petition acts concerning
property previously owned by debtor but sold in pre-petition tax sale).
With respect to Washington Mutual, any interest it might have in the first
deed of trust did not arise until 2009, after Washington Mutual, Inc. filed for
bankruptcy. Where the bankruptcy debtor is a corporation that continues to
operate during the pendency of the bankruptcy proceeding, as apparently was the
case with Washington Mutual, Inc., property obtained by the debtor corporation
after the filing of the bankruptcy petition may well be property of the bankruptcy
estate. See 3 Alan N. Resnick & Henry J. Sommer, Collier Bankruptcy
Manual § 541.02, at 541-6 to -7 (4th ed. 2014) (citing 11 U.S.C. § 541 (a)(6)-(7)
(2012)). But it is not at all clear on the record before us whether the interest in the
10
deed of trust should properly be viewed as part of the Washington Mutual, Inc.
bankruptcy estate. There are a number of different but apparently related entities
with some variant of the name Washington Mutual. The document assigning
MERS’s interest in the deed of trust refers to Washington Mutual without clearly
indicating the precise entity to which the interest was being assigned. Moreover,
JPMorgan purchased some of the assets of Washington Mutual Bank on September
25, 2008, the day before Washington Mutual, Inc. filed its bankruptcy petition.
JPMorgan appears to claim that the interest subsequently transferred to
Washington Mutual by MERS fell within the scope of that transaction, and thus
that JPMorgan rather than the bankruptcy estate is the owner of the interest in the
deed of trust. It appears that there has been significant litigation in the bankruptcy
case with respect to the question of which Washington Mutual assets were
acquired by JPMorgan in the September 2008 transaction. We cannot tell from the
record in this case whether this case involved property of Washington Mutual,
Inc.’s bankruptcy estate or otherwise violated the automatic stay. Under the
circumstances, we have no basis upon which to conclude that the trial court’s
judgment in this case is void as a violation of the automatic stay. Cf. In re Angelo,
480 B.R. 70, 83 (Bankr. D. Mass. 2012) (“A party seeking to establish that a
11
judgment was entered in violation of the automatic stay bears the burden of
proof.”) (citation omitted).3
C.
Finally, we conclude that Mr. York and Washington Mutual are not
indispensable parties to this case. Under Rule 19 (b) of the Superior Court Rules
of Civil Procedure, a court may not grant relief in the absence of an indispensable
party. To qualify as an indispensable party, a person must either be necessary to
grant complete relief to the parties or “claim[] an interest relating to the subject of
the action.” Super. Ct. Civ. R. 19 (a). Because there is insufficient evidence in
this record that either Mr. York or Washington Mutual has a present interest in the
unit or is otherwise essential to grant complete relief to the parties, we have no
basis to find that they are indispensable parties. Cf., e.g., Habib v. Miller, 284
A.2d 56, 56-58 (D.C. 1971) (company that claimed “no interest” in deposit was not
indispensable in action to recover deposit).
3
As a precaution, we are sending a copy of this opinion to the bankruptcy
judge and the bankruptcy trustee in the Washington Mutual, Inc. bankruptcy
proceeding.
12
III.
Turning to the merits, we review de novo orders granting summary
judgment. District of Columbia v. Place, 892 A.2d 1108, 1110-11 (D.C. 2006).
“Summary judgment is only appropriate where there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law.”
Ward v. Wells Fargo Bank, N.A., 89 A.3d 115, 126 (D.C. 2014) (internal quotation
marks omitted). “In considering summary judgment, we view the facts in the light
most favorable to the non-moving [parties].” Id. (internal quotation marks
omitted).
This case turns on the proper understanding of D.C. Code § 42-1903.13
(2012 Repl.), which addresses condominium foreclosures. Chase Plaza and Darcy
argue that a condominium association is permitted to foreclose on a six-month
condominium-assessment lien and distribute the proceeds from the foreclosure sale
first to satisfy the condominium-assessment lien and then to satisfy any remaining
liens in order of lien priority. Any liens that are unsatisfied by the foreclosure-sale
proceeds are extinguished, and the foreclosure-sale purchaser acquires free and
clear title. JPMorgan argues, to the contrary, that although a condominium
association is permitted to foreclose on a six-month condominium-assessment lien,
13
the foreclosure is subject to any previously recorded first mortgage lien. We agree
with Chase Plaza and Darcy.
A.
Whether the foreclosure sale extinguished the first deed of trust under D.C.
Code § 42-1903.13 is a question of statutory interpretation that we determine de
novo. Hernandez v. Banks, 84 A.3d 543, 552 (D.C. 2014). “The first step in
construing a statute is to read the language of the statute and construe its words
according to their ordinary sense and plain meaning.” O’Rourke v. District of
Columbia Police & Firefighters’ Ret. & Relief Bd., 46 A.3d 378, 383 (D.C. 2012)
(internal quotation marks omitted). “The literal words of a statute, however, are
not the sole index to legislative intent, but rather, are to be read in the light of the
statute taken as a whole, and are to be given a sensible construction and one that
would not work an obvious injustice.” Columbia Plaza Tenants’ Ass’n v.
Columbia Plaza Ltd. P’ship, 869 A.2d 329, 332 (D.C. 2005) (internal quotation
marks and brackets omitted). We “consult the legislative history of a statute for
guidance as necessary.” Robert Siegel, Inc. v. District of Columbia, 892 A.2d 387,
393 (D.C. 2006). “[A]s a general rule, we presume that where a legislature adopts
a term of art, it knows and adopts the cluster of ideas that were attached to each
14
borrowed word.” Doe No. 1 v. Burke, 91 A.3d 1031, 1041 (D.C. 2014) (internal
quotation marks omitted). Moreover, “[n]o statute should be construed as altering
the common law, farther than its words import. It is not to be construed as making
any innovation upon the common law which it does not fairly express.” Estate of
Gulledge, 673 A.2d 1278, 1281 (D.C. 1996) (internal quotation marks omitted);
see also United States v. Texas, 507 U.S. 529, 534 (1993) (“[S]tatutes which
invade the common law . . . are to be read with a presumption favoring the
retention of long-established and familiar principles, except when a statutory
purpose to the contrary is evident.”) (internal quotation marks omitted).
The District of Columbia Condominium Act governs the creation and
operation of condominiums. D.C. Code § 42-1901.01 et seq. (2012 Repl.). Under
the Act, a condominium association may impose a lien against a unit for non-
payment of condominium-association assessments. Id. at § 42-1903.13 (a). The
lien is “prior to any other lien or encumbrance except [among other things,] . . . [a]
first mortgage . . . or [first] deed of trust . . . recorded before the date on which the
assessment sought to be enforced became delinquent[.]” Id. at § 42-
1903.13 (a)(1)(B). The Act, however, provides the highest priority to liens relating
to the most recent six months of condominium assessments:
15
The lien shall also be prior to a [first] mortgage or [first]
deed of trust . . . to the extent of the common expense
assessments . . . which would have become due in the
absence of acceleration during the [six] months
immediately preceding institution of an action to enforce
the lien.
Id. at § 42-1903.13 (a)(2). Thus, the Act effectively splits condominium-
assessment liens into two liens of differing priority: (1) a lien for six months of
assessments that is higher in priority than the first mortgage or first deed of trust --
sometimes called a “super-priority lien” -- and (2) a lien for any additional unpaid
assessments that is lower in priority than the first mortgage or first deed of trust.
The Act does not expressly address what happens when, as in this case, a
condominium association forecloses solely on its super-priority lien and the
proceeds of the sale are not sufficient to pay off a first deed of trust. A general
principle of foreclosure law, however, potentially provides an answer: liens with
lower priority are extinguished if a valid foreclosure sale yields proceeds
insufficient to satisfy a higher-priority lien. Pappas, 911 A.2d at 1234. That
general principle is derived from the common law and is well settled in this and
other jurisdictions. See, e.g., Waco Scaffold & Shoring Co. v. 425 Eye St. Assocs.,
355 A.2d 780, 783 (D.C. 1976) (foreclosure sale based on lien with “superior”
priority extinguished liens with lower priority); In re Cypresswood Land Partners,
16
I, 409 B.R. 396, 437 (Bankr. S.D. Tex. 2009) (noting “common-law rule that
foreclosure of a senior lien extinguishes all junior liens”) (internal quotation marks
omitted); Conseco Fin. Servicing Corp. v. J & J Mobile Homes, Inc., 120 S.W.3d
878, 885 (Tex. App. 2003) (relying on “common-law rule that foreclosure of a
senior lien extinguishes all junior liens”); cf. Abdoney v. York, 903 So. 2d 981, 983
(Fla. Dist. Ct. App. 2005) (“Under the common law, the foreclosure of a senior
mortgage extinguishes the liens of any junior mortgagees . . . .”); Restatement
(Third) of Property (Mortgages) § 7.1 (2014) (“A valid foreclosure of a mortgage
terminates all interests in the foreclosed real estate that are junior to the mortgage
being foreclosed . . . .”).4
The parties in this case do not dispute that, under D.C. Code § 42-
1903.13 (a)(2), Chase Plaza’s super-priority lien had a higher priority than
JPMorgan’s first deed of trust. The parties also do not dispute that the proceeds
from the foreclosure sale were insufficient to satisfy the first deed of trust. Taking
the language of the statute together with basic principles of foreclosure law, it
4
A “junior lien” is a lien that “is subordinate to one or more other liens on
the same property[,]” and a “senior lien” is a lien that “has priority over liens on
the same property.” Black’s Law Dictionary 1063, 1064 (10th ed. 2014); see also,
e.g., Indiana Lawrence Bank v. PSB Credit Servs., Inc., 706 N.E.2d 570, 574 n.6
(Ind. Ct. App. 1999); City of Chanute v. Polson, 836 P.2d 6, 10 (Kan. Ct. App.
1992).
17
would seem to follow that Chase Plaza’s foreclosure sale extinguished JPMorgan’s
first deed of trust. The concept of a split-priority lien does not appear to have been
part of the common law, however, and we therefore confront the question whether
the general principles of foreclosure law apply in this novel context. For the
reasons that follow, we conclude that they do.
First, JPMorgan’s interpretation of D.C. Code § 42-1903.13 (a)(2) would
create a six-month condominium-assessment lien that had priority over the first
deed of trust but could not extinguish the first deed of trust. Such an interpretation
would be a significant departure from the basic principle that foreclosure on a
higher priority lien extinguishes lower-priority liens. The language of § 42-
1903.13 (a)(2) does not suggest that the District of Columbia Council intended
such a departure. Cf. Conseco Fin. Servicing Corp., 120 S.W.3d at 885 (“Nothing
in the legislative history or in the language of the statute itself indicates legislative
intent to super[s]ede the common-law rule that foreclosure of a senior lien
extinguishes all junior liens. Indeed, if junior liens were to survive a foreclosure
sale, buyers would have no incentive to bid on the property.”). We are inclined to
think that if the Council had intended to depart from well-settled principles of
foreclosure law, it would have done so explicitly. See, e.g., Newell-Brinkley v.
Walton, 84 A.3d 53, 58 (D.C. 2014) (“[I]t is highly unlikely that the Council would
18
have altered preexisting law in so fundamental a way implicitly rather than
explicitly.”) (citing Whitman v. American Trucking Ass’ns, 531 U.S. 457, 468
(2001) (“Congress . . . does not alter the fundamental details of a regulatory
scheme in vague terms or ancillary provisions—it does not, one might say, hide
elephants in mouseholes.”)); cf., e.g., Samantar v. Yousuf, 560 U.S. 305, 320 n.13
(2010) (“Congress is understood to legislate against a background of common-law
. . . principles”) (internal quotation marks omitted; ellipses in Samantar).
The legislative history of D.C. Code § 42-1903.13 (a)(2) supports the same
conclusion. The provision creating the six-month super-priority lien for
condominium assessments was enacted in 1991. Condominium Act of 1976
Reform Amendment Act of 1990, D.C. Law 8-233, § 2 (gg)(1), 38 D.C. Reg. 283-
84 (1991). The Committee Report on the Act describes that provision as giving
condominium “associations the maximum flexibility in collecting unpaid
condominium assessments.” D.C. Council, Report on Bill 8-65, at 3 (Nov. 13,
1990). The provision was modeled on the Uniform Common Ownership Interest
Act (“UCOIA”) and the Uniform Condominium Act (“UCA”), each of which
includes a quite similar provision creating a six-month super-priority lien. UCOIA
§ 3-116 (b), 7 U.L.A. 122 (1982); UCA § 3-116 (b), 7 U.L.A. 626 (amended
1980). The official comments to the UCOIA and UCA indicate that the drafters of
19
those uniform laws understood that foreclosure on the super-priority lien could
extinguish a first mortgage or first deed of trust, but expected that mortgage
lenders would take the necessary steps to prevent that result, either by requiring
payment of assessments into an escrow account or by paying assessments
themselves to prevent foreclosure. UCOIA § 3-116, cmt. 1, 7 U.L.A. 124; UCA
§ 3-116, cmt. 2, 7 U.L.A. 627. An example provided by the drafters of the uniform
laws further illustrates the point, describing the first mortgage lien as “junior” to
the six-month super-priority lien, and noting that lenders could protect themselves
by requiring escrow of six months of assessments, as lenders do with property
taxes. UCA § 2-118, ex. 1B, 7 U.L.A. 571, 572.5
Because the pertinent provision of the District’s Condominium Act is based
on the UCA and UCOIA, the official comments by the drafters of those uniform
acts provide important guidance in construing our provision. See generally, e.g.,
5
We also note a recent report of the Joint Editorial Board for Uniform
Property Acts, which includes representatives of the Uniform Law Commission,
the American Bar Association Real Property, Trust and Estate Law Section, and
the American College of Real Estate Lawyers. That report concludes that
foreclosure pursuant to the six-month super-priority lien under the UCOIA is
properly understood to extinguish a first mortgage lien, leaving the buyer at the
foreclosure sale with clear title to the property. Report of the Joint Editorial Bd.
for Unif. Real Prop. Acts, The Six-Month “Limited Priority Lien” for Association
Fees Under the Uniform Common Interest Ownership Act, at 8-10 (June 1, 2013).
20
Platt v. Aspenwood Condo. Ass’n, Inc., 214 P.3d 1060, 1063-64 (Colo. App. 2009)
(relying on drafters’ comments to UCOIA for guidance in interpreting state statute
based on UCOIA; “We accept the intent of the drafters of a uniform act as the
General Assembly’s intent when it adopts that uniform act.”) (internal quotation
marks omitted); Hunt Club Condos., Inc. v. Mac-Gray Servs., Inc., 721 N.W.2d
117, 123-25 (Wis. Ct. App. 2006) (official and published comments accompanying
provision of UCA are “valid indicator” of state legislature’s intent in enacting
corresponding state statute).6
Taken together, the language of D.C. Code § 42-1903.13 (a)(2), general
principles of foreclosure law, and the legislative history of the provision support a
conclusion that Chase Plaza’s foreclosure pursuant to the super-priority lien
6
“[O]rdinarily, the views of a subsequent legislature form a hazardous basis
for inferring the intent of an earlier one.” Hargrove v. District of Columbia, 5 A.3d
632, 637 (D.C. 2010) (brackets and internal quotation marks omitted). We do
note, however, that within a year of the enactment of the provision creating the
super-priority lien, the Council considered a proposal to repeal the provision. D.C.
Council, Report on Bill 9-240, at 4 (Dec. 12, 1991). In support of the proposal, the
Department of Consumer and Regulatory Affairs (“DCRA”) submitted a report
contending that the super-priority lien provision created an “obvious threat [to
lending institutions] of the use of foreclosure proceedings to collect unpaid
assessments.” Statement of Aubrey H. Edwards on Bill 9-240, Dir., DCRA, at 9
(Oct. 30, 1991). The DCRA report further noted that the provision could have “a
chilling effect on the availability of condominium mortgage loans.” Id. After
considering the DCRA report, the Council declined to repeal the provision creating
the super-priority lien, because “[n]o adverse effect on lending” had occurred in
states that had enacted such a provision. D.C. Council, Report on Bill 9-240, at 4.
21
extinguished JPMorgan’s first deed of trust. See, e.g., 7912 Limbwood Ct. Trust v.
Wells Fargo Bank, N.A., 979 F. Supp. 2d 1142, 1146-53 (D. Nev. 2013) (under
Nevada law, foreclosure sale on super-priority lien extinguished all junior interests,
including first deed of trust); Summerhill Vill. Homeowners Ass’n v. Roughley, 289
P.3d 645, 647-48 (Wash. Ct. App. 2012) (same under Washington law). But see,
e.g., Premier One Holdings, Inc. v. BAC Home Loans Servicing LP, No. 2:13-CV-
895, 2013 WL 4048573, at *3-6 (D. Nev. Aug. 9, 2013) (under Nevada law,
homeowner association’s foreclosure on super-priority lien did not extinguish first
deed of trust, and foreclosure-sale purchaser took property subject to first deed of
trust) (citing cases); Bayview Loan Servicing, LLC v. Alessi & Koenig, LLC, 962 F.
Supp. 2d 1222, 1226-30 (D. Nev. 2013) (same).
B.
We are not persuaded by JPMorgan’s arguments to the contrary. First,
JPMorgan contends that D.C. Code § 42-1903.13 (a)(2) does not allow foreclosure
on a super-priority lien to extinguish a first deed of trust, because the provision
does not explicitly state that the super-priority lien is a “senior lien” and that the
first deed of trust is a “junior lien.” JPMorgan does not cite authority for its
contention that the use of the terms “senior lien” and “junior lien” is essential to
22
the application of the general principle that foreclosure on a lien with higher
priority extinguishes a lien with lower priority. To the contrary, our cases
discussing that principle of foreclosure law do not invariably use the terms “senior
lien” and “junior lien.” See, e.g., Pappas, 911 A.2d at 1234 (“[W]here a valid
foreclosure sale yields proceeds insufficient to satisfy a priority lien, the result is
extinguishment of subordinate liens.”) (citing cases). Moreover, there is no
mention of the terms “senior lien” or “junior lien” in Title 42, Chapter 8 of the
D.C. Code, which governs mortgages and deeds of trust, D.C. Code § 42-801 et
seq. (2012 Repl.), or in Title 40 of the D.C. Code, which governs liens. D.C. Code
§ 40-101 et seq. (2012 Repl.). Under the logic of JPMorgan’s theory, the absence
of such terminology would mean that foreclosure on the liens governed by these
provisions could not operate to extinguish liens with lower priority, which would
turn the general rule of foreclosure law on its head. Focusing more specifically on
the Condominium Act, § 42-1903.13 (a)(1)(B) does not use the term “senior lien”
when referring to the priority of the first deed of trust, but JPMorgan concedes that
foreclosure on the first deed of trust extinguishes liens with lower priority. In sum,
the terms “senior lien” and “junior lien” are simply one way of referring to liens
with higher and lower priority, see supra page 16 n.4, and the absence of those
terms from § 42-1903.13 (a)(2) does not affect the applicability of the general rule
23
that foreclosure on a lien with greater priority extinguishes liens with lower
priority.
Second, JPMorgan points out that condominium-assessment liens are given
priority only “to the extent” of six months’ worth of assessments. D.C. Code § 42-
1903.13 (a)(2). According to JPMorgan, the words “to the extent” mean that
foreclosure on the super-priority lien cannot extinguish a first deed of trust. We
disagree. The words “to the extent” limit the amount and size of the
condominium-assessment lien that is given super-priority status. Id. at § 42-
1903.13 (a)(2) (condominium-assessment lien is “prior to a [first] mortgage or
[first] deed of trust . . . to the extent of the common expense assessments . . . which
would have become due . . . [six] months immediately preceding” foreclosure
action) (emphasis added). There is no indication that the words were intended to
impose any other limit, much less to create a novel lien with higher priority and the
right to foreclose, but without the ability extinguish a lower-priority lien.
Third, JPMorgan argues it would be unreasonable as a matter of policy to
interpret D.C. Code § 42-1903.13 (a)(2) to permit six-month condominium-
assessment liens to extinguish first mortgages or first deeds of trust. JPMorgan
points out that the Condominium Act does not require that the condominium
24
association give notice to mortgage lenders or other lienholders before foreclosure
and does not permit either the property owner or the mortgage lender to redeem
foreclosed property by paying the delinquent amounts.7 According to JPMorgan,
permitting condominium-assessment foreclosures to extinguish mortgage liens
under such circumstances will leave mortgage lenders unable to protect their
interests, which in turn will cripple mortgage lending in the District of Columbia.
These are legitimate policy concerns, but Chase Plaza and Darcy point to
corresponding policy arguments that support interpreting § 42-1903.13 (a)(2) to
permit foreclosure on the six-month super-priority lien to extinguish a first
mortgage or first deed of trust. Specifically, Chase Plaza and Darcy contend that if
foreclosure on super-priority condominium-association liens did not extinguish
mortgage liens, then condominium associations often might be unable to find
buyers at foreclosure sales, and thus condominium associations would be unable to
take prompt steps to obtain timely payment of assessments. See Report of the Joint
Editorial Bd. for Unif. Real Prop. Acts, The Six-Month “Limited Priority Lien” for
Association Fees Under the Uniform Common-Interest Ownership Act, at 2-6
7
With respect to the issue of notice, it appears that Chase Plaza did give
notice of foreclosure to all parties listed on the first deed of trust, but JPMorgan did
not receive notice because it had failed to record its subsequently obtained interest
in the unit. We also note that JPMorgan has not argued that the lack of a notice
requirement renders D.C. Code § 42-1903.13 (a)(2) unconstitutional either facially
or as applied to JPMorgan in this case. We therefore have no occasion to address
those issues.
25
(“Joint Editorial Bd. Report”); UCOIA § 3-116, cmt. 1, 7 U.L.A. 124 (purpose of
super-priority lien is “[t]o ensure prompt and efficient enforcement of the
association’s lien for unpaid assessments”); cf. Park Place E. Condo. Ass’n v.
Hovbilt, Inc., 652 A.2d 781, 783 (N.J. Super. Ct. Ch. Div. 1994) (“The legislative
scheme for collection of assessments . . . against individual unit owners is a
recognition that such [assessments] are the financial life-blood of the
Association.”). Moreover, there is support for the idea that lenders can decrease
the risk that their mortgage liens will be extinguished, by among other things
creating an escrow requirement. Joint Editorial Bd. Report, at 4; UCOIA § 3-116,
cmt. 1, 7 U.L.A. 124; UCA § 3-116, cmt. 2, 7 U.L.A. 627.
Our role is not to resolve this policy dispute between the parties or to
second-guess the policy determinations of the Council. See, e.g., Allman v. Snyder,
888 A.2d 1161, 1169 (D.C. 2005) (“we have no license to substitute our views of
public policy for those of the legislature”). Rather, we simply conclude that
JPMorgan has failed to establish that it would be absurd or clearly unreasonable to
interpret D.C. Code § 42-1903.13 (a)(2) as permitting a condominium association’s
six-month super-priority lien to extinguish a first mortgage or first deed of trust.
26
Finally, relying on Malakoff v. Washington, 434 A.2d 432, 435 (D.C. 1981),
JPMorgan argues that the six-month condominium-assessment lien could be given
super-priority status only if the legislature made it clear that it intended that result.
The Council did make explicit, however, that a condominium association’s six-
month lien was to be given priority over a first mortgage or first deed of trust. The
issue in this case is whether that super-priority extends to extinguishing a first
mortgage or first deed of trust, and Malakoff does not suggest that a clear statement
is required on that topic.
IV.
Finally, JPMorgan argues that Chase Plaza’s by-laws do not permit Chase
Plaza to extinguish JPMorgan’s first deed of trust. We conclude otherwise.
Under the Condominium Act, a condominium association can choose to
forego its power to foreclose on property based on the owner’s failure to pay
assessments. D.C. Code § 42-1903.13 (c)(1) (condominium instruments may
prohibit association from non-judicial foreclosure if such foreclosure is
“specifically and expressly prohibited by the condominium instruments”). This
provision, however, does not seem to be relevant, because JPMorgan does not
27
contend that Chase Plaza’s by-laws waived Chase Plaza’s right of non-judicial
foreclosure. Rather, JPMorgan argues that Article XI, § (2)(D) of Chase Plaza’s
by-laws provides that a first mortgage or first deed of trust is “prior to” the
condominium-assessment lien. It is unclear whether such a provision in a
condominium association’s by-laws could constitute an effective waiver of the
association’s statutory right of priority. See D.C. Code § 42-1901.07 (“Except as
expressly provided by this chapter, a provision of this chapter may not be varied by
agreement and any right conferred by this chapter may not be waived.”). In any
event, the Fourth Amendment to Chase Plaza’s by-laws provides that Chase Plaza
may foreclose on an assessment lien “pursuant to D.C. Code Section 45-1853 [now
codified at D.C. Code § 42-1903.13].” The latter provision appears to authorize
Chase Plaza to rely on the rights conferred upon it under § 42-1903.13 (a)(2). To
the extent that the Fourth Amendment and Article XI, § (2)(D) of the by-laws
appear to contradict each other, the D.C. Code provides a rule to resolve any
conflict. In the event of a conflict among condominium instruments, “a
construction consistent with [Chapter Nineteen of Title 42] controls in all cases
over any inconsistent construction.” D.C. Code § 42-1902.07. We therefore must
construe the by-laws as a whole as permitting Chase Plaza to exercise its rights
under the Condominium Act to foreclose on its six-month super-priority lien and to
thereby extinguish the first deed of trust.
28
In sum, we hold that a condominium association can extinguish a first deed
of trust by foreclosing on its six-month super-priority lien under D.C. Code § 42-
1903.13 (a)(2). We therefore reverse the trial court’s grant of summary judgment
to JPMorgan and remand for further proceedings.8
So ordered.
8
Among the issues that remain to be resolved on remand is JPMorgan’s
claim that the foreclosure sale should be invalidated because the purchase price
was unconscionably low.