Hazel Thomas v. James Buckley

Notice: T his opinion is subject to formal revision before publication in the
Atlantic and Matj)land Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
No. IS-CV-0074
HAZEL B. THOMAS, APPELLANT,
V.
JAMF.s BUCKLEY, ET AL., APPELLEES.
Appeal from the Superior Court
of the District of Columbia
(CAR-6746»I 3)
(Hon. Stuart G. Nash, Trial Judge)
(Argued October 13, 2016 Decided December 12, 2017*)
(Published February 15, 2018)
Steplzam'e K. Rones argued on behalf of appellant, who filed her brief pro se.
Jobn C. Lynch, with whom M. Riclzard 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. Handleznan was on briei`, for
appellee Linowes and Blocher LLP.
*
The decision in this ease was originally issued as an unpublished
Memorandurn Opinion and Judgment on December 12, 2017. lt is now being
published upon the court’s grant of the Legal Aid Society of the District of
Columbia’s motion to publish
2
Brian W. Th.ompson, with whom Arthur F. Konopka was on brief, for
appellee 3000 7th Street 222 SB, LLC.
Before BLACKBURNE-RJGSBY, ChfefJudge,i MCLEESE, Associare Jadge, and
FARRELL, Senior Juclge.l
BLACKBURNE-RIGSBY, Chief.ladge: Appellant Hazel B. Thornas owned a
condominium unit located at 3000 7th Street, Northeast, Washington, D.C., from
1981 until the foreclosure sale in 2012. Frorn 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.
Thornas did not pay or make late condominium association dues. 'l`herefore, the
condominium association, appellee University Hall Condominium Association
(“UHC”)‘ sought to foreclose on Ms. Thomas’s unit for her failure to ay due_s.
13 l
l Chief Judge Blackburne-Rigsby was an Associate Judge at the time of oral
argument Her status changed to Chief Judge on March 18, 2017.
l Senior lodge Reid was originally assigned to this case. She retired after
the Mernorandum Opinion and Judgrnent was issued. Following her retirement on
December 12, 2017, Senior Judge Farrell was assigned to take her place in the
decision
‘ This decision applies primarily to UHC, the condominium association
where Ms. Thomas’s unit is located, because UHC owed Ms. Thornas the statutory
duty to provide her notice of the foreclosure sale under D.C. Code § 42~1903.13
(2001). The remaining appellees include: Tilton Bernstein Management, lnc.
(“TBM”), the property manager of UHC; lames Bucl80 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 owner’s ability to contest or prevent the foreclosure).
I. Factual and Procedural History
Since l981, 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.
3 Ms. 'fhomas and her then-husband owned and lived in the unit,
periodically, until 2002 when they moved overseas When Mr. and Ms Thomas
returned to the United States, l\/ls. Thomas did not live in the unit. lt is unclear
from the record when Ms. Thomas acquired sole ownership to the condominium
unit. Appellee LLC contends that it was on November 20, 2006. On one occasion
Ms. Thomas stated that it was “on or around [December l8, 2006] by divorce
settlement,” and in her deposition she stated that it was on May 16, 2009 as “part
of the divorce settlement.”
6
l\/ls. Thornas 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 [TBl\/l]
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 l\/Is. Thomas filled out a form when she notified
UHC and TBM that she was leasing her unit. Af`ter Ms. Thomas filled out the
form, the record evinces UHC and TBl\/l sent her notices and letters to her 20th
Street residence4
Pursuant to the condominium bylaws, l\/ls. Thomas was obligated to pay
monthly UHC building assessment fees for the maintenance of the condominium’s
common areas and amenities M_s. 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
4 'l`he record contains at least four notices and letters from UHC or TBM
sent to Ms. Thomas at her 20th Street address dated August 24, 2009, March 2l,
2011, April 2l, 2011 and August 8, 2011. The language in the April 21, 2011
letter addressed to l\/ls. Thomas’s 20th Street residence states in part: “[t]he
Community hereby notifies you that it intends to pursue all legal actions allowed
by law . . . .” (emphasis added). Further, the trial court stated that “[t]he record
demonstrates that written notices of unpaid assessments were sent by UHC to Ms.
Thomas on March 2l, 2011; April 21, 2011; and August 8, 201l, at the following
address: 4317 20th Street NE, Washington, D.C. 20018.” (emphasis added).
Ms. Thomas was notified of the potential foreclosure and avoided foreclosure by
agreeing to pay off her debt with a lump sum payment
When l\/ls. 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 l to December l, 2011, but did not send
notice to Ms. Thomas at her actual residence UHC does not contest that l\/ls.
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»
l903.l3 (c)(4) because l\/ls. Thomas never formally designated that she wanted to
receive notice at an address other than her condominium unit. On or around April
10, 2012, UHC’s 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. Thomas’s condominium unit. On April 29, 2012, the notice of foreclosure
was returned to UHC and marked “Return to Sender, Unclaimed, Unable to
8
Forward.” The foreclosure sale notice stated the unit would be up for sale at public
auction on May 15, 2012, and the amount l\/Is. Thomas owed, 1316,040.95.5
Notice of the foreclosure sale was published in The Waslzington Post as
required by statute At the public auction, Ms. Thomas’s 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. ln response Ms. Thomas filed a
complaint for wrongful foreclosure of her condominium7 ln the quiet title case,
Ms. Thomas then moved for summary judgment or, in the alternative to
5 More specifically, Ms. Thomas owed $1l,983.50 in unpaid assessments
31,361.20 in interest, $190.00 in assessment late charges, and $2,546.25 in
attorney’s fees
6 James Buckley, the President of the UHC Board of Directors, which
initiated foreclosure proceedings on Ms. Thomas’s unit, was also a member of the
LLC at the time of the foreclosure sale
7 Ms. Thomas sought relief for the following claims: (l) breach of contract
by the UHC Association; (2) slander of title; (3) breach of fiduciary duty; (4)
unjust enrichment; (5) abuse of process; (6) “cloud on the title” of the
condominium unit; and (7) invalidity of the foreclosure sale because all conditions
precedent were not satisfied and the “default was fabricated by the Defendants.”
The individual and corporate defendants included: (1) James Bucl641 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 analysis de novo); Woodland v. Dist.
Council 20, 777 A.2d 795, 798 (D.C. 2001) (we review a grant of summary
judgment de novo). Our determination of whether the notice was adequate is
3 On appeal, Ms. Thomas argues that the trial court abused its discretion by
granting the appellees’ motion for summary judgment (l) in the wrongful
foreclosure case without first adjudicating the quiet title case or adjudicating both
cases simultaneously; (2) in the wrongful foreclosure case because the LLC was an
indispensable party to the case and was not, at that time a party to the case; (3) in
the wrongful foreclosure case because the deed transferring title was invalid on its
face; (4) in the consolidated case because the LLC was not a bona fide purchaser;
(5) in the quiet title case because the deed transferring title was invalid and
therefore the LLC was not a bona fide purchaser; and (6) in the wrongful
foreclosure case for a second time when the motion was no longer pending
ll
dependent on the correct interpretation of the notice provision of D.C. Code § 42~
l903.l3 (c)(/-l), which states that:
A foreclosure sale shall not be held until 30 days after
notice is sent by certified mail to a 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
(emphases added). The trial court’s ruling and UHC, in its deposition of Ms.
Thomas, suggested that Ms. Thomas was required to “formally” designate her
actual address, and that the designated address had to be “exclusive.”
In general, “the intent of the lawmaker is to be found in the language that he
or she has used.” Eaglt'n, sapra, 123 A.3d at 955 (internal brackets and citations
omitted). The statutory language at issue here is “and at any other address
designated by the unit owner to the executive board for purpose of notice.” § 42~
1903.13 (c)(¢l) (emphasis added). We begin by looking at the plain language of the
statute and, if the plain meaning is clear, we will look no further. However, we
may also look to the “legislative history to ensure that our interpretation is
consistent with legislative intent.” Aboye v. United States, 121 A.3d 1245, l249
(D.C. 2015) (internal citations omitted).
12
UHC first asserts that the statute requires a designation for the purpose of
notice The literal definition of the term “designate” is “[t]o choose (someone or
something) for a particular job or purpose[.]”9 The phrase “to choose” is therefore
synonymous with “to designate.” Neither the statute nor our case law define the
term, “designated,” to denote a formal designation ln fact, it is not exactly clear
what UHC deems to be a “formal” designation or how the form Ms. Thomas filled
out is insufficient.m UHC does not cite to any statutory language or case law in
support of its contention that the form Ms. Thomas claims she filled out and which
they do not contest, is insufficient to constitute a desire to “designate” her actual
address For example in the context of an unemployment compensation review,
the term, to designate is used synonymously with the term, to choose wherein
“[t]he company retained the right to designate the employee’s particular work
schedule” Green v. District of Columbia Unemployment Comp. Bd., 273 A.2d
479, 480 (D.C. 1971) (emphasis added). ln the real estate context, in interpreting
the term, successor, the court analogized the term, to designate with the term, to
assign and defines a successor as: “to designate one to whom property descends . .
9 Designate, Black’s Law Dictionary (lOth ed. 2014).
m Appellees do not adequately raise the issue of whether Ms. Thomas
properly notified “the executive board” as stated in the statute D.C. Code § 42-
1903.13 (c)(4). Therefore, any claim with regard to the portion of the statute
requiring a unit owner to provide notice “to the executive board” is thus forfeited
on appeal. Cf Oparaugo v. Watts, 884 A.2d 63, 74 (D.C. 2005).
13
. in connection with the broader term, ‘assigns . . . .”’ Edwards v. West Woodridge
Theater Co., 55 F.Zd 524, 526 (D.C. Cir. 1931) (ernphasis added). ln the context
of historic landmark preservation, the Historic Preservation Review Board “is
empowered to ‘designate and maintain a current inventory of historic iandmarks
. . . .”’ Embassy Real Estare Holdings, LLC v. District ofColm-nbia Mayor’s' Agent
fc)rHistoric Pres., 944 A.2d 1036, 1044 (D.C. 2008) (internal brackets and citation
omitted) (emphasis added). Finally, in the context of a retired federal judge sitting
by designation, the statute analogizes the term “desz‘gnated” with the term
“assigned.” Boomhower, Inc. v. American Auto. lzrs. Co., 220 F.2d 488, 490 & n.2
(D.C. Cir. 1955) (emphasis added). Accordingly, there is no ambiguity or reason
why the word “designated” in § 42-1903.13 (c)(4) should take on a meaning
different from its ordinary meaning of to choose or to assignll
Further, the notice did not need to be “formal,” just because the Statute states
the notice has to be ‘fol'pi¢lpose ofnotice.” According to the plain meaning, there
is no requirement that the notice be formal Neither the Act nor the UHC bylaws
define the phrase, “for purpose of notice,” however, simiiar legislation does give
ll Cm-'ter v. State Farm Mut. Auto. fns. Co., 808 A.Zd 466, 472 (D.C. 2002)
(“This court will not read into an unambiguous statute language that is clearly not
there.”).
14
an indication that the notice does not need to be formal. For example, in the
context of judicial proceedings, “[n]otice may . . . be given in any . . . manner
calculated to give notice and not prohibited by statute or court ruie.” D.C. Code §
16-4808 (d) (20l2 Repl.). Further, in the same context, a similar statute provides
in part:
(a) . . . a person gives notice to another person by taking
action that is reasonably necessary to inform the other
person . . . (b) [a] person has notice if the person has
knowledge of the notice or has received notice (c) [a]
person receives notice when it comes to the person’s
attention or the notice is delivered at the person’s piace
of residence or place of business . . . .
D.C. Code §§ 16~4402 (a)-(c) (2012 Repi.). In the context of business
organizations, not uniike a condominium association, the relevant statute states in
pertinent part:
[a] person has notice of a fact if the person: (l) [k]nows
of it . . . [or] [h]as received a notification of it . . . [or]
[h]as reason to know it exists from all of the facts known
to the person at the time in question . . . (e) [a] person
notifies or gives a notification to another person by
taking steps reasonably required to inform the other
person in ordinary course, whether or not the other
person learns of it . . . (f) [a] person receives a
notification when the notification: (l) [c]omes to the
person’s attention; or (2) [i]s deiivered at the person’s
place ofbusiness . . . .
15
D.C. Code §§ 29-701.03 (b), (e)-(f`) (2012 Repl.). Further, in the context of
nonprofit corporations, “[u]nless the . . . bylaws provide otherwise, notice . . . shall
be in the form of a record[ing] . . . [and] [n]otice may be communicated in person
or by delivery. . . D.C. Code §§ 29-401.03 (a)-(b) (2012 Repl.).
Therefore, the plain language of “for purpose of noriee” does not entail a
formal method, but rather, just that the person who is notifying another person
must communicate the information in such a way that would he “reasonabiy
required to inform the other person.” D.C. Code § 29-701.03 (e). Further, there is
no formal procedure necessary to notify another of a fact, just to take reasonable
steps sufficient to bring the information “to the [other] person’s attention . . .
D.C. Code § 16-4402 (c). Therefore, under the statute, so long as a unit owner
takes measures reasonabie to apprise the executive board of another address, the
board has a duty to send notice.
Ms. Thomas complied with the plain meaning of the tenn “for purpose of
notice” by giving actual notice to TBM of her 20th Street address UHC and TBM
then complied with the notice that Ms. Thomas provided, and began sending Ms.
Thomas notice to the address she designated By filling out TBM’s form, Ms.
Thomas acted “reasonably necessary to inform” TBM of her 20th Street address
16
D.C. Code § 16-4402 (a). UHC and TBM had “reason to know [l\/ls. Thomas’s
20th Street address] exist[ed] from all of the facts known” to both entities, because
she notified them of the address D.C. Code § 29-701.03 (b). Therefore, the
manner through which Ms. Thomas notified appellees of her 20th Street address
satisfied the “for purpose of notice” provision and therefore, UHC should have sent
the foreclosure sale notice to her 20th Street address
in addition, we disagree with UHC’s argument that Ms. Thomas was obliged
to designate or choose her 20th Street address to receive notice exclusiveiy. in
fact, this argument is in direct contradiction with the term “and” in the notice
provision, which states that a condominium association must send notice to the unit
address “and ar any other address designated by the unit owner to the executive
hoardfor purpose of norfce.” The term “and” is an indication that the legislators
intended for a condominium association to send notice to more than one place if
there is evidence that the unit owner has designated another place.EZ
12 We must also note that publishing the notice of foreclosure sale in T he
Wash.ingroa Post, alone, was not enough to satisfy the notice requirements of D.C.
Code § 42-i903.13 (2001). Section (c) of § 42-1903.13 details the requirements
that a condominium association must follow before initiating a foreclosure sale (to
enforce a lien of past due assessments). Subsection (5) states in part: “[t]he
executive board shall give public notice of the foreclosure sale by advertisement in
at least l newspaper of general circulation . . . . [t]he newspaper advertisement
shall appear on at least 3 separate days during a lS~day period to the date of the
(continued . . ._)
17
UHC was therefore required to send notice to Ms. Thomas’s condominium
unit and to her 20th Street address because Ms. Thomas had previously
“designated” that address “for purpose of notice” by filling out a form that stated
she was leasing her unit and that her current mailing address was at her 20th Street
address ‘ 3
(. . . continued)
sale.” § 42»1903.13 (c)(5) (emphases added). ln compliance with this
requirement, UHC published notice of the foreclosure sale in T he Washingron Posr
on May 7, 9, and ll, 2012 and the unit was sold on l\/lay l5, 2012. However, the
statute is written so that both subsections (4) and (5) must be complied with. For
notice to be proper, the condominium association must first send notice to the unit
owner as required by subsection (4) and then must publish notice of the public
auction as required by subsection (5). Although appellees do not specifically raise
the claim that only adhering to the requirements of subsection (5) is enough to
satisfy the notice requirements of § 42-1903.13, we still find it important to clarify.
'3 The “formal” and “exclusive” language, which is not included in the Act,
is also not included in the UHC bylaws. Article IX Section 9.1 of the bylaws,
“Manner of Notice,” states in pertinent part:
whenever any notice is required . . . such notice may be
given in writing, [or] by mail . . . to such . . . Unit Owner
at such address as appears on the books of the
Condominium. . . .”
Appellees’ argument is inconsistent with the language of the bylaws, which
required the UHC to send notice to “such address as appears on the books of the
Condominium . . . .” According to D.C. Code § 42-l903.l4 (b) (2001), the books
of the condominium include “books and records kept by cr on behalf of the unit
owners’ association, including the unit owners’ association membership list, [and]
mailing addresses of the unit owners[.]” We discern no error in the trial court’s
reasonable inference, that Ms. Thomas’s address appeared on the books of the
condominium because the address was known to appellees since at least 2003 and
(continued . . .)
18
Even though the plain meaning of our statute is clear and unambiguous, we
may also turn to the legislative history of the notice provision for additional
guidance Aboye, supra, 121 A.3d at l249 (internal citations omitted). The Act
was enacted in 1976 and it creates a framework for the enforcement of issues
between condominium associations and owners lt was updated in l977, 199l,
1992, 2014 and 2017. The notice provision has become increasingly more specific
with regard to the method condominium associations must employ to ensure unit
owners are notified of an impending foreclosure.’4 The Council of the District of
Columbia stated that, among many new unit owner protections, one purpose of the
2017 amended Act is “to improve notice requirements before foreclosure
sales[.]”'5 The Condominium Owner Bill of Rights and Responsibilities
(. . . continued)
the condominium association previously used the 20th Street address to send her
correspondence Thus, even by their own bylaws, appellees should have sent
notice to the 20th Street address
34 The version of the Act applicable in this case is the 1992 version, which
was recodified in 2001. It states that notice shall be sent to the unit owner at the
unit address and to any other address designated The 2017 version incorporates
the 1992 requirements and adds an additional requirement that notice shall be sent
to the unit owner at any last known mailing address
15 This is clear by the Council’s addition to the notice provision in the 2017
version that condominium associations must send notice to the unit to “any last
known mailing address[,]” D.C. Code § 42-1903.13 (c)(4)(A) (2017), which is a
clearer way of saying “any other address designated.” The D.C. Council added the
notice provision of “any last known address” in other foreclosure sale provisions in
(continued . . .)
19
Amendment Act of 20l6, 2016 D.C. Sess. L. Serv. 2l-24l (Act 21-657). The
notice provision was meant to create a method through which notice is likely to
reach a unit owner and notify her of the impending loss of her property.
The Act’s legislative history lends support to our reading of the plain
language of the statutory notice provisions.‘é This court has interpreted the 1992
version of the Act to require that a condominium association take “reasonable”
measures to ensure that a unit owner is notified See Harris v. Norrhbrook
Condominium II, 44 A.3d 293, 299 (D.C. 2012).'7 'l`herefore, UHC violated the
(. . . continued)
other previously-enacted statutes, indicating an early intent to clarify this provision
in foreclosure sales for past due assessments cases See, e.g., Abdel-Kafi v.
Ciricorp Mo)-tg., luc., 772 A.2d 802, 803-04 (D.C. 2001) (mortgage and trust deed
case).
16 See, e.g., Sieward v. Moskowiiz, 5 A.3d 638, 649 (D.C. 2010); cf. Bank-
Fund Srajj“Fed. Credii Union v. Cuellar, 639 A.2d 561, 572 (D.C. 1994) (“The
legislature clearly sought to provide a right of reinstatement that would avoid the
loss to the homeowner of his or her horne simply upon default in making a[n]
[assessment] payment.”).
17 ln Harris, a unit owner, Harris, moved from his condominium unit in
Washington, D.C. to Laurel, l\/laryland. 44 A.3d at 295, 299. Harris orally notified
the property manager of his new address but never submitted written notice. Id.
At some point, the property management changed and it attempted to contact
Harris to verify that the Laurel address was still up-to-date but Harris never
responded Id. at 296. When it foreclosed on Harris’s unit, the property manager
sent notice of foreclosure to Harris’s unit address and the Laurel address ]d. at
294-95. Unbeknownst to the property manager, Harris had moved from the laurel
(continued . . .)
20
statute by failing to send Ms. Thomas notice to her 20th Street address which she
had previously informed UHC of, and to which UHC and TBM had mailed
correspondence on prior occasions for at least three years previously13
(. . . continued)
address and did not provide a forwarding address to the postal service or to the
property manager and was essentially “evading” notice Id. at 296, 299. The
property manager “made numerous efforts to notify appellant about the
delinquency” including not only sending notice via certified mail to both addresses
but also via first-class mail to both addresses Id. at 295, 299 (intemal alterations
quotation marks, and citations omitted). We ultimately held that the property
manager “not only satisfied the [Condominium Act’s notice] requirement, but also
made efforts, reasonable under the circumstances to provide [I-larris] with actual
notice” Id.
Harris only verbally informed the association of his address and attempted to
evade the notice by moving multiple times and not providing a forwarding address
We found that the association’s efforts to find a forwarding address for Harris
satisfied the statutory notice requirements ln Ms. Thomas’s case, not only did she
notify UHC via a form, but UHC and TBM knew of her address and sent her mail
previously, and she never moved or attempted to evade notice of the foreclosure
Therefore, UHC’s efforts to notify Ms. Thomas were inadequate to satisfy the
notice requirements because sending notice to a unit they knew she did not live in
could not “reasonably” notify her of the impending sale of her unit.
'8 Finally, in the trial court, UHC argued that mailing the foreclosure sale
notice to the condominium unit, under the assumption that Ms. Thomas’s tenant
would deliver it to her, constituted a reasonable and valid notice We will not
address the merits of this claim, however, because the notice was not actually
delivered to Ms. Thomas’s tenant, but was returned to UHC and marked “Return to
Sender, Unclaimed, Unable to Forward.”
21
III. Conclusion
The statutory notice provisions of § 42-1903.13 (c)(4) required UHC to send
notice of the foreclosure sale to both Ms. Thomas’s condominium unit “and [to]
any other address [that she] designated[.]” UHC failed to comply with those notice
provisions when it sent notice only to Ms. Thomas’s condominium unit.
Therefore, we must reverse the trial court’s grant of summary judgment to
appellees See Logan v. LaSa/le, supra, 80 A.3d at 1024; see also ladep. Fed. Sav.
Bank v. Huntley, 573 A.2d 787, 787-788 (D.C. 1990).E9
Since we hold in favor of l\/ls Thomas on the notice issue, we do not address
the remaining issues she raises, which all stem from the wrongful foreclosure of
her unit. Cf ii‘ansport. Leasing Co. v. Dep ’t ofEmp ’t Services, 690 A.2d 487, 490
(D.C. 1997). We remand to the trial court to vacate the order granting summary
19 Ms. Thomas also argues that appellees violated her due process rights
when they did not afford her proper notice However, “foreclosure procedures
implicate the [due process clause of the] Fourteenth Amendment only where there
is at least some direct state involvement in the execution of the foreclosure.”
Harris v. Northl)rook Condo. ll, supra, 44 A.3d at 298 (internal altemations
omitted) (citing Apao v. Bank ofNew York, 324 F.3d 1091, 1093 (9th Cir. 2003)).
Here, UHC initiated non-judicial foreclosure proceedings with no state
involvement Therefore, we need not consider Ms. Thomas’s challenge on due
process grounds
22
judgment in favor of the appellees and for proceedings not inconsistent with our
decision20 On the issue of remedy, the trial court may be required to set aside the
foreclosure sale or, if unfeasible grant “an award of any damages of the type
recoverable incident to a set-aside action.” Jolmson, supra, 641 A.2d at 508.
Finally, our decision is predicated on UHC’s failure to adhere to the notice
requirement, and therefore in light of our decision, the trial court may assess
whether it should dismiss any or all of the remaining parties for this suit.
So ordered
20 We cannot sua sponte grant summary judgment in Ms. Thomas’s favor
because she did not move the trial court to do so in the consolidated case nor did
she ask this court to do so on appeal.