DocketNumber： No. 92081-8
Citation Numbers： 185 Wash. 2d 876
Judges： Fairhurst, González, Johnson, Madsen, McCloud, Owens, Stephens, Wiggins
Filed Date： 7/7/2016
Status： Precedential
Modified Date： 10/18/2024
¶ 1 After defaulting on her home mortgage payment, plaintiff Laura Jordan returned home from work one evening to discover she could not enter her own house: the locks had been changed without warning. A notice informed her that in order to gain access to her home, she must call defendant Nationstar Mortgage LLC to obtain the lockbox code and retrieve the new key inside. Although she eventually reentered her home, she removed her belongings the next day and has not returned since. Jordan’s home loan was secured by a deed of trust, a commonly used security instrument that was created as an alternative to traditional mortgages to provide for a simpler method of foreclosure. The deed of trust contained provisions that allowed Na-tionstar to enter her home upon default without providing any notice to the homeowner. Today, we are asked to decide whether those provisions conflict with Washington law.
¶2 Jordan represents a class action proceeding in federal court, which has certified two questions to us. The first question asks whether the deed of trust provisions conflict with a Washington law that prohibits a lender from taking possession of property prior to foreclosure. We hold that it does because the provisions allow Nationstar to take possession of the property after default, which conflicts with the statute. The second question asks whether Washington’s statutory receivership scheme—providing for a third party to possess and manage property in lieu of either the
FACTS
¶3 In 2007, Jordan bought a home in Wenatchee, Washington, with a home loan of $172,000 from Homecomings Financial. She secured the loan by signing a deed of trust. The original lender assigned the loan to the Federal National Mortgage Association (Fannie Mae), one of the nation’s largest mortgagees that primarily participates in the secondary mortgage market, which hired Nationstar to service the loan.
¶4 Jordan went into default on her mortgage payments in January 2011. In March 2011, one of Nationstar’s vendors came to Jordan’s home and changed the locks on her front door. Jordan returned home to find a notice on the front door informing her that the property was found to be “unsecure or vacant” and that to protect her and the mortgagee’s interest in the property, it was “secured against entry by unauthorized persons to prevent possible damage.” Order Certifying Questions to Wash. Supreme Ct., Jordan v. Nationstar Mortg., LLC, No. 2:14-CV-0175-TOR at 6 (E.D. Wash. Aug. 10, 2015). While the above-noted facts are undisputed, the parties dispute whether the home was vacant. Jordan contends she was living there, left for work that morning as usual, and returned to find the lockbox and notice. On the other hand, Nationstar contends that its vendor performed an inspection of the property and determined it was vacant.
¶5 Upon finding the notice when she returned home, Jordan called the phone number provided and got the key from the lockbox to reenter her home. She took all of her belongings and vacated the house the next day. Since then, Nationstar’s vendor has maintained the property’s exterior
¶6 Jordan represents a certified class of 3,600 Washington homeowners who were locked out of their homes pursuant to similar provisions in their deeds of trust with Nationstar. This case presents an important issue for these homeowners and the thousands of others subject to similar provisions, as well as the many mortgage companies that have a concern with preserving and protecting the properties in which they have an interest. Three amicus briefs were filed in this case: Federal Home Loan Mortgage Corporation (Freddie Mac) and the city of Spokane, supporting defendant Nationstar, and the Northwest Consumer Law Center, supporting plaintiff Jordan. Freddie Mac tells us that the provisions such as the ones at issue here are important to the foreclosure process because they allow lenders to enter the property to maintain and secure it. Freddie Mac contends that such provisions help meet its requirements that it imposes on companies like Nationstar to preserve properties.
¶7 In April 2012, Jordan filed a complaint against Nationstar in Chelan County Superior Court, alleging state law claims that include trespass, breach of contract, and violations of the Washington Consumer Protection Act and the Fair Debt Collection Practices Act. Ch. 19.86 RCW; 15 U.S.C. §§ 1692-1692p. Chelan County Superior Court certified the class action, with Jordan as the representative for the 3,600 similarly situated homeowners. Nationstar removed the action to the United States District Court for the
CERTIFIED QUESTIONS
¶8 1. Under Washington’s hen theory of mortgages and RCW 7.28.230(1), can a borrower and lender enter into a contractual agreement prior to default that allows the lender to enter, maintain, and secure the encumbered property prior to foreclosure?
¶9 2. Does chapter 7.60 RCW, Washington’s statutory receivership scheme, provide the exclusive remedy, absent postdefault consent by the borrower, for a lender to gain access to an encumbered property prior to foreclosure?
ANALYSIS
¶10 Certified questions present questions of law, and we review them de novo. See, e.g., Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 149 Wn.2d 660, 670, 72 P.3d 151 (2003).
1. Washington’s Lien Theory and RCW 7.28.230(1) Prevent a Borrower and a Lender from Contracting To Allow the Lender To Take Possession Based on Borrower Default
¶11 The District Court asks us to determine whether a predefault clause in a deed of trust that allows a lender to
a. The Deed of Trust Provisions Allow a Lender To Enter the Borrower’s Property upon Default or Abandonment
¶12 “[I]t is the general rule that a contract which is contrary to the terms and policy of an express legislative enactment is illegal and unenforcible [sic].” State v. Nw. Magnesite Co., 28 Wn.2d 1, 26, 182 P.2d 643 (1947). While we recognize an overarching freedom to contract, provisions are unenforceable where they are prohibited by statute. State Farm Gen. Ins. Co. v. Emerson, 102 Wn.2d 477, 481, 687 P.2d 1139 (1984).
¶13 The provisions at issue are made up of two sections in the deed of trust. The first provision, in pertinent part, is as follows:
9. Protection of Lender’s Interest in the Property and Rights Under this Security Instrument. If (a) Borrower fails to perform the covenants and agreements contained in this Security Instrument, ... or (c) Borrower has abandoned the Property, then Lender may do and pay for whatever is reasonable or appropriate to protect Lender’s interest in the Property and rights under this Security Instrument, including protecting and/or assessing the value of the Property, and*884 securing and/or repairing the Property. . . . Securing the Property includes, but is not limited to, entering the Property to make repairs, change locks, replace or board up doors and windows, drain water from pipes, eliminate building or other code violations or dangerous conditions, and have utilities turned on or off. Although Lender may take action under this Section 9, Lender does not have to do so and is not under any duty or obligation to do so.
Ex. 19, at 8. The provisions also allows the lender to “make reasonable entries upon and inspections of the Property” where the lender has reasonable cause and gives the borrower notice. Id. at 7. It also requires the borrower to maintain and protect the property. Id.
¶14 Together, these sections are the so-called “entry provisions” that are at issue in this case, which allow the lender to enter, maintain, and secure the property after the borrower’s default or abandonment. Nationstar hinges its argument on the need to secure abandoned property, stating it does not enter occupied property. However, the provision plainly states that the lender may “secure” the property after the borrower defaults or abandons the property. The provision specifically lists changing the locks as a method of securing the property. Thus, the provisions authorize the lender to enter and rekey the property solely upon default, regardless of whether the borrower has abandoned the property.
¶15 As explained below, it is well settled that Washington law prohibits lenders from taking possession of borrowers’ property before foreclosure. This question turns on whether the above provisions authorize lenders to “take possession” and if, in fact, the lender’s actions here constituted taking possession.
b. Washington’s Lien Theory Does Not Permit a Lender To Take Possession of Property Prior to Foreclosure
¶16 Our case law is clear that Washington law prohibits a lender from taking possession of property before
¶17 RCW 7.28.230 provides that
(1)A mortgage of any interest in real property shall not be deemed a conveyance so as to enable the owner of the mortgage to recover possession of the real property, without a foreclosure and sale according to law.[1 ]
¶18 This statute essentially codified Washington’s lien theory of mortgages. The mortgage hen theory prevails in Washington, meaning that the mortgage is seen as “nothing more than a hen upon the property to secure payment of the mortgage debt, and in no sense a conveyance entitling the mortgagee to possession or enjoyment of the property as owner.” W. Loan & Bldg. Co. v. Mifflin, 162 Wash. 33, 39, 297 P. 743 (1931). We have interpreted RCW 7.28.230(1) to mean that a mortgagor’s default does not disrupt the mortgagor’s right to possession of real property, and that the mortgagor retains the right to possession until there has been foreclosure and sale of the property. Howard v. Edgren, 62 Wn.2d 884, 885, 385 P.2d 41 (1963).
¶19 The Restatement (Third) of Property takes the approach that mortgagee possession agreements conflict with lien theory statutes. See Restatement (Third) of Prop.: Mortgages § 4.1 cmt. b (Am. Law Inst. 1997). Several hen theory jurisdictions hold that provisions that allow the lender to take possession of the property contravene public policy that is inherent to the hen theory; indeed, some states have even codified statutes that specifically invalidate such agree-
¶20 Washington’s legislature, however, did not specifically invalidate such contrary agreements in its codification of lien theory prohibiting the lender from taking possession of property before foreclosure. That the legislature did not specifically invalidate such contract provisions, as did other states, does not mean the provisions do not conflict with our laws. Thus, we must determine whether the statute is in conflict with such an agreement.
¶21 Nationstar concedes that the borrower’s right to possession cannot be overcome by a contrary provision in the mortgage or deed of trust because such a provision would be unenforceable as it would contravene Washington law. Def.’s Answering Br. at 11. However, Nationstar argues that the entry provisions do not authorize the lender to take “possession” and that its specific conduct at Jordan’s residence did not constitute possession. Therefore, the determinative issue in answering this first certified question is whether the entry provisions cause the lender to gain “possession.” As explained below, the entry provisions do authorize conduct that constitutes “possession.”
c. These Entry Provisions Allow a Lender To Take Possession Prior to Foreclosure and Therefore Conflict with State Law
¶22 We must determine if the entry provisions authorize the lender to take “possession” of the property. If they do, the provisions are in conflict with Washington law. Here, we look to the actions that Nationstar took pursuant to the entry provisions to see if they constituted “possession.” Possession has slightly different meanings in different areas of the law. The parties supplied definitions from real property law, tort law, and landlord-tenant law because it is unclear which definition is applicable to RCW 7.28.230(1).
¶24 The key element to the property definition of “possession” is the “certain degree of physical control.” Tort law similarly requires control. In tort law, which is concerned primarily with liability, a “possessor of land” is defined as “a person who occupies the land and controls it.” Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 49 (Am. Law Inst. 2012).
¶25 The Court of Appeals applied the tort definition of possession when it considered the phrase “mortgagees in possession” for purposes of premises liability. Coleman v. Hoffman, 115 Wn. App. 853, 858-59, 64 P.3d 65 (2003). There, the lender used RCW 7.28.230(1) as a defense to its putative possession to avoid liability, arguing that it could not have been “in possession” because the statute forbids it. Id. at 863. The court relied on the above tort definition of “possession” and another prominent source that stated for a lender to be liable, it must “ ‘exercise dominion and control over the property.’” Id. at 859 (quoting 62 Am. Jur. 2d Premises Liability § 8, at 356 (1990)). In finding that the plaintiff showed enough facts of lender’s possession, the court pointed to the lender’s repairs and payments of utility bills. Id. at 862-63.
¶26 We also find that landlord-tenant law’s treatment of “possession” helpful—particularly its analysis of the impact of changing locks. In Aldrich v. Olson, the Court of Appeals found that when the landlord changed the locks of her tenant’s home, it was an unlawful eviction. 12 Wn. App. 665,
¶27 From any approach, we find that Nationstar’s conduct constituted possession. The foregoing possession definitions, as well as Coleman and Aldrich, are instructive. Nationstar’s vendor’s actions constituted possession because its actions are representative of control. The vendor drilled out Jordan’s existing locks and replaced the lock with its own. Nationstar stated in its brief that it rekeyed Jordan’s property to allow itself access to return to secure the property by winterizing it and to make repairs. Def.’s Answering Br. at 33-34. Perhaps that is true; however, rekeying the property also had the effect of communicating to Jordan that Nationstar now controlled the property. The action left Jordan with no method of entering her own property. Nationstar relies on the fact that it did not change the locks to exclude Jordan (because it provided her a lockbox and phone number to call) to provide proof that it did not possess the premises. However, although she was able to obtain a key by calling, the process made Nationstar the “middle man.” She could no longer access her home without going through Nationstar. This action of changing the locks and allowing her a key only after contacting Nationstar for the lockbox code is a clear expression of control. Although Nationstar did not exclude Jordan from the premises (as she was able to gain a key and enter), she left the next day and did not return. In its amicus brief, the Northwest Consumer Law Center advised us anecdotally that many similarly situated Washington homeowners felt that when the lender changed the locks to their homes, they no longer had a right to continue to possess the property. See Br. of Amicus Curiae Nw. Consumer Law Ctr. at 6.
¶28 Nationstar effectively ousted Jordan by changing her locks, exercising its control over the property. Although
2. Chapter 7.60 RCW Does Not Provide the Exclusive Remedy for a Lender To Gain Access to an Encumbered Property Prior to Foreclosure
¶29 The second certified question asks whether this state’s receivership statutes separately prohibit the entry provisions. Specifically, this second question asks whether chapter 7.60 RCW, which provides for the judicial appointment of a third party receiver to manage the property, is the exclusive method by which lenders can gain access to encumbered property prior to foreclosure.
¶30 This is an issue of first impression in this court, and no Washington appellate decision is on point. We must answer this question in the negative because nothing indicates that the statutory receivership scheme provides the exclusive remedy for lenders to access a property.
a. Background on Receivership and Rs Role in Mortgage Foreclosure
¶31 Chapter 7.60 RCW governs Washington’s receivership scheme. A “receiver” is a third party appointed by a court to take charge of property and manage it as the court
¶32 In the context of mortgaged real property, a receiver might be appointed as a “custodial receiver,” who would take possession of the property and preserve it. RCW 7.60.015, .025(l)(g). Commonly, receivers are appointed to collect rent from income-producing property. Stoebuck & Weaver, supra, at 310-11; see RCW 7.28.230(1) (providing grounds for appointing a receiver to collect rent for application to mortgage). Importantly, nothing in the text of RCW 7.28.230(1) or chapter 7.60 RCW requires the appointment of a receiver in this context.
¶33 Jordan argues that the entry provisions are Na-tionstar’s attempt to contract around chapter 7.60 RCWs requirements and that the legislature intended for the statutes to provide lenders an exclusive remedy. However, as explained below, Jordan’s arguments fail to establish that chapter 7.60 RCW does so.
b. The Contract Provisions Do Not Conflict with Chapter 7.60 RCW
¶34 We have held that the deed of trust act in chapter 61.24 RCW cannot be contracted around in two recent cases where parties attempted to modify the deed of trust act’s requirements by private contract. See Bain v. Metro. Mortg. Grp., Inc., 175 Wn.2d 83, 107, 285 P.3d 34 (2012) (holding that parties cannot contract to fit a statutory definition to fulfill the act’s requirements); Schroeder v. Excelsior Mgmt.
¶35 Jordan argues that like in Bain and Schroeder, the entry provisions attempt to “bypass” statutes that dictate a lender’s only entry method. Pl.’s Opening Br. at 25. However, Jordan misconstrues the receivership statutes as providing a “list of requisites to a lender gaining access to a borrower’s property.” Id. at 28. While the statutes enumerate receivership requirements, they are not concerned with a lender’s access to borrower’s property but rather merely set forth requirements should a receiver be necessary. Thus, the entry provisions do not attempt to circumvent the receivership statutes and thus do not conflict with chapter 7.60 RCW. Similarly, Jordan’s other arguments do not support her contention that the receivership statutes provide lenders an exclusive remedy to access property. In fact, as explained below, the text of the statute and policy considerations support a finding that chapter 7.60 RCW does not provide lenders the exclusive remedy.
c. The Statute’s Text Supports Finding That It Does Not Provide an Exclusive Remedy
¶36 The text of the statute supports a finding that it does not provide the exclusive remedy. First, the plain language of the statute must be examined to determine exclusivity. We have held that when engaging in statutory interpretation, our “fundamental objective is to ascertain and carry out the Legislature’s intent, and if the statute’s meaning is plain on its face, then the court must give effect to that plain meaning as an expression of legislative intent.” Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002).
¶37 Of course, an exclusivity clause would be the clearest indication of the legislature’s intent that the statute be exclusive, but as Jordan concedes, this statute does not have
¶38 If a court were to appoint a receiver in this context, it would likely be pursuant to RCW 7.60.025(1). Thus, we analyze the question of whether the receivership provides lenders the exclusive remedy under that portion of the provision. The statute provides, in part:
A receiver may be appointed by the superior court of this state in the following instances, but except in any case ... in which a receiver’s appointment with respect to real property is sought under (b)(ii) of this subsection, a receiver shall be appointed only if the court additionally determines that the appointment of a receiver is reasonably necessary and that other available remedies either are not available or are inadequate.
RCW 7.60.025(1) (emphasis added). Subsection (b)(ii) provides that a receiver may be appointed after the commencement of a foreclosure proceeding on a hen against real property where the appointment is provided for by agreement or is necessary to collect rent or profits from the property.
¶39 In analyzing this text, we look to its plain language. In general, the court’s discretion is illustrated by the word “may.” Under subsection (b)(ii), a receiver shall be appointed, but only if the court makes additional findings. First the court must find a receiver is “reasonably necessary.” RCW 7.60.025(l)(b)(ii). Second, and more importantly, the court determines that “other available remedies either are not available or are inadequate.” RCW 7.60-.025(1) (emphasis added).
¶41 Thus, in general, other remedies exist outside of appointing a receiver. It is not before us to determine what particular remedies are available. To answer this question, it is sufficient that the plain language of the provision does not indicate that chapter 7.60 RCW was meant to provide an exclusive remedy to lenders. Finally, public policy also supports the finding that the statute is not the exclusive remedy, which we discuss below.
d. Public Policy Supports Finding That Chapter 7.60 RCW Does Not Provide an Exclusive Remedy
¶42 To the extent that chapter 7.60 RCW’s language is not explicit, it is worth noting a relevant policy consideration. One of the advantages of a deed of trust is that it offers “ ‘efficient and inexpensive’ ” nonjudicial foreclosure. Schroeder, 177 Wn.2d at 104 (quoting Cox v. Helenius, 103 Wn.2d 383, 387, 693 P.2d 683 (1985)). Thus, requiring lenders to wade through the judicial receivership process in all cases—regardless of the facts and circumstances—is illogical. Overall, both policy and the plain text of the statute support finding that it does not provide an exclusive remedy to lenders. Thus, we must answer this question in the negative.
¶43 We answer the first certified question in the negative. Washington law prohibits lenders from taking possession of property prior to foreclosure. These entry provisions enable the lender to take possession after default, and the lender’s action here constitutes taking possession. Therefore, the entry provisions are in direct conflict with state law and are unenforceable.
¶44 As to the second question, we also answer it in the negative. The text of the receivership statutes, the legislative intent behind them, and public policy considerations compel us to find that chapter 7.60 RCW is not the exclusive remedy for lenders to gain access to a borrower’s property.
Before 1969, this section of the statute ended after “without a foreclosure and sale according to law.’’ Code of 1881, § 546. It was amended in 1969 to make clear that the statute should not be interpreted to prohibit a mortgagee from collecting rents before foreclosure. See Laws of 1969, 1st Ex. Sess., ch. 122, § 1; and see Kezner v. Landover Corp., 87 Wn. App. 458, 464, 942 P.2d 1003 (1997). However, the bedrock principle that borrowers have a right to possession prior to foreclosure was not altered by the amendment.