Addai Investment Group, Llc v. Ditech Financial, Llc

FILED
COURT OF APPEALS DIV I -
STATE OF WASHINGTON -
2018NOV 19 AM 9:58
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ADDAI INVESTMENT GROUP, LLC, )
) No. 77240-6-1
Appellant, )
) DIVISION ONE
v. )
)
DITECH FINANCIAL, LLC,fka )
GREEN TREE SERVICING, LLC, ) UNPUBLISHED OPINION
)
Respondent, ) FILED: November 19, 2018
)
DOES 1 to 20, )
)
Defendants. )
)
SMITH, J. —ADDAI Investment Group LLC (AIG) appeals the summary
dismissal of its claims against Ditech Financial LLC (Ditech). It argues that
Ditech's deed of trust on a condominium was extinguished when the condo was
sold at a sheriff's sale and Ditech failed to redeem the property within the
statutory period. But because Ditech was not a party to the underlying
foreclosure action, its deed of trust was unaffected by the foreclosure and Ditech
was entitled to proceeds from AIG's later sale of the property. We affirm.
FACTS
In October 2007, Jeanette Zimmerman purchased a condo and borrowed
$88,000 from Catlin Capital Inc. Zimmerman's loan repayment obligation was
secured by a deed of trust that was recorded on October 7, 2007. Catlin later
No. 77240-6-1/2
-fransfdr-i•ed its interest in the deed of trust to Green Tree Servicing LLC, Ditech's
predecessor by merger.
Sixty-01 Association of Apartment Owners recorded a Notice of Claim of
Lien against the condo on June 23, 2014,for unpaid assessments. In
September 2014, the association sued Zimmerman to foreclose the lien. The
association did not name Ditech as a party to the foreclosure action or give
Ditech any notice of the action. The association obtained a judgment against
Zimmerman on December 31, 2014.
At a sheriffs sale on April 3, 2015, AIG bought the condo for $17,755.73.
The redemption period expired on April 3, 2016. On August 24, 2016, AIG sold
the condo to a third party for $189,000. The escrow company withheld
$101,235.95 of the proceeds to pay off Ditech's deed of trust.
AIG believed that Ditech's deed of trust was extinguished after the
redemption period and that Ditech was not entitled to any funds from the sale.
As a result, AIG sued Ditech, alleging that it was guilty of conversion, negligence,
and violating the Condominium Act at RCW 64.34.364, the redemption process
at chapter 6.23 RCW,and the Washington State Consumer Protection Act,
chapter 19.86 RCW. Both parties moved for summary judgment. The trial court
granted Ditech's motion and denied AIG's motion, dismissing all of AIG's claims.
AIG appeals.
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ANALYSIS
AIG argues that the trial court improperly dismissed its claims because the
association's foreclosure action extinguished Ditech's deed of trust. We
disagree.
"[S]ummary judgment is appropriate where there is 'no genuine issue as to
any material fact and ... the moving party is entitled to a judgment as a matter of
law." Elcon Const., Inc. v. E. Wash. Univ., 174 Wn.2d 157, 164, 273 P.3d 965(2012)(alteration in original)(quoting CR 56(c)). Although the evidence is
viewed in the light most favorable to the nonmoving party, if that party is the
plaintiff and it fails to make a factual showing sufficient to establish an element
essential to its case, summary judgment is warranted. Young v. Key Pharm.,
Inc., 112 Wn.2d 216, 225, 770 P.2d 182(1989). Once the moving party shows
there are no genuine issues of material fact, the nonmoving party must bring
forth specific facts to rebut the moving party's contentions. Elcon Const., 174
Wn.2d at 169.
"It is a fundamental principle of mortgage law that a valid judicial
foreclosure of a senior mortgage extinguishes all junior interests whose holders
were named as defendants." Worden v. Smith, 178 Wn. App. 309, 319-20, 314
P.3d 1125(2013)(emphasis omitted)(citing U.S. Bank of Wash. v. Hursev, 116
Wn.2d 522, 526, 806 P.2d 245(1991); RESTATEMENT(THIRD)OF PROPERTY:
MORTGAGES § 7.1 cmt. a (1997)). But a "mortgagee's interest cannot be affected
by a lien foreclosure unless the foreclosing party joins the mortgagee as a party
to the foreclosure action." MB Const. Co. v. O'Brien Commerce Ctr. Assocs., 63
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No. 77240-6-1/4
Wn. App. 151, 158, 816 P.2d 1274 (1991); see also Valentine v. Portland Timber
& Land Holding Co., 15 Wn. App. 124, 128, 547 P.2d 912(1976)("joinder of any
person having an interest in the property is essential in that, if not joined, his
interest will not be affected by the foreclosure"). "[A] decree of foreclosure does
not affect the interest of a junior who was not joined in the foreclosure action."
Hursey, 116 Wn.2d at 526 (citing Spokane Say. & Loan Soc. v. Liliopoulos, 160
Wash. 71, 73-74, 294 P. 561 (1930)).
Here, Ditech was not a party to the association's foreclosure action.
Therefore, its deed of trust on the condo was not extinguished during the
foreclosure action and it was entitled to proceeds from AIG's sale of the condo.
Because AIG cannot show any genuine issue of material fact that Ditech
wrongfully retained those sale proceeds, the trial court properly dismissed AIG's
claims on summary judgment.
AIG argues that Ditech's deed of trust was rendered junior to the
association's lien by the Condominium Act, and therefore, notice of the
foreclosure was not required. RCW 64.34.364(2)(b) and (3)states that a
homeowner association's lien has priority over a mortgage recorded before the
date the assessment is enforced if the lien is for assessments for common
expenses. Even assuming that the association's lien did have priority over
Ditech's deed of trust, that priority does not work to extinguish Ditech's interest
on foreclosure. As explained above,"a decree of foreclosure does not affect the
interest of a junior who was not joined in the foreclosure action." Hursey, 116
Wn.2d at 526 (citing Spokane Say. & Loan, 160 Wash. at 73-74). Because
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Ditech was not a party to the foreclosure action, its deed of trust was not
extinguished. AIG's unsupported argument that it was extinguished is contrary to
well settled law.
AIG also argues that Ditech was not entitled to notice of the sheriffs sale
or its redemption rights because only the judgment debtor is entitled to notice of
those actions. AIG is correct that the statutes regulating sheriff sales and
redemption rights only require a judgment creditor to give notice to the judgment
debtor. See RCW 6.21.030 (governing notice required for sheriff's sale);
RCW 6.23.030 (governing notice required during redemption period). But the
sheriffs sale and redemption period both occur after the foreclosure action is
reduced to judgment and the statutes governing these later processes do not
address the notice required for the original foreclosure action. As such, they are
not relevant to the issue of whether Ditech's deed of trust was extinguished by
the foreclosure action.
Finally, AIG argues that Ditech's deed of trust was extinguished because
Ditech failed to redeem its interest in the property within the one year redemption
period. It relies on Summerhill Village Homeowners Ass'n v. Roughlev, 166 Wn.
App. 625, 289 P.3d 645(2012). In that case, a condominium association filed a
foreclosure action against the property owner for unpaid assessments and
named the mortgagor, who held a prior recorded deed of trust, in the action. Id.
at 627. Despite being served, the mortgagor did not appear in the foreclosure
action and its deed of trust was extinguished as a result. Id. at 629. The
mortgagor later sought to redeem the property during the redemption period. Id.
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at 627-28. This court held that the redemption statute clearly states that only a
creditor whose lien is subsequent in time to the lien foreclosed upon can be a
qualified redemptioner. Id. at 630 (citing RCW 6.23.010). We concluded that the
mortgagor's deed of trust was filed before, not after, the condominium
association's assessment lien, and therefore, the mortgagor was not a qualified
redemptioner. Id. at 631. Furthermore, we noted that the mortgagor "had both
notice and opportunity to protect its interests and failed to do so." Id. at 632.
Summerhill does not require reversal here. First, to the extent that
Summerhill holds that a mortgagor is not a valid redemptioner if it holds a prior
recorded deed that is junior to a condominium association's lien, the case
suggests that Ditech would not have been entitled to redeem the property. But
more importantly, the mortgagor in Summerhill was properly named as a party to
the foreclosure action and failed to participate. We plainly concluded that had
the mortgagor participated, it could have protected its interest in the property.
Here, Ditech was given no such opportunity because it was not named in the
foreclosure action. Therefore, the foreclosure action had no effect upon Ditech's
interest in the condo and Ditech was not required to redeem the property during
the one year redemption period.
For the reasons above, we affirm.
WE CONCUR:
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