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The decision in this ease was originally issued as an unpublished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 Bucl<ley, President of the UHC

Board of Directors; Linowes and Blocher LLP, UHC’s counsel, which assisted in

collecting Ms. Thomas’s overdue assessment fees and with the foreclosure

(continued . . .)

3

UHC mailed Ms. Thomas notice of the foreclosure sale to the condominium unit,

but not to her actual residence Ms. Thomas claims that she never received notice

of the foreclosure sale, which allowed the unit to be sold at auction without her

knowledge, or her ability to take action. UHC concedes that Ms. Thomas may not

have received “actual notice” of the foreclosure sale, but contends it fulfilled its

statutory duty by sending notice to Ms. Thomas’s unit only. The critical issue in

this case is whether UHC should have also sent notice to Ms. Thomas’s actual

residence, pursuant to D.C. Code § 42-1903.l3 (c)(4) (2001), which states that a

condominium association shall send notice of a foreclosure sale “to the 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.”

The trial court granted summary judgment in favor of UHC and the other

named defendants on the LLC’s claim to quiet title and Ms. Thomas’s counter~suit

for wrongful foreclosure The trial court concluded as a matter of law that because

“Ms. Thomas [n]ever formally designated a different address to the [UHC

Executive] [B]oard, it was legally sufficient for UHC to provide notice by certified

mail to the unit oniy.”

(. . . continued)

proceedings against her; and 3000 7th Street 222 SB, LLC (“LLC”), the entity that

purchased Ms. Thomas’s condominium unit.

4

We conclude that UHC’s notice of the foreclosure sale of l\/l_s. Thomas’s

condominium did not comply with the notice provision under D.C. Code § 42-

1903.13 (c)(4).2 The record evidence in this case reveals that UHC was aware of

Ms. Thomas’s actual address. In Ms. Thomas’s deposition, she stated that she

filled out a form giving TBM notice of the change in her address. Further, there is

documentation stating that UHC has sent l\/Is. Thomas important notices warning

Ms. Thomas of her nonpayment of assessments at her actual address

Consequently, other than UHC’s assertion that Ms. rl`homas never gave them

notice of her actual address, there is no evidence in the record to support this claim.

We therefore hold, due to the uncontroverted facts in evidence, that Ms. Thomas

2 The notice provision of the District of Columbia Condominium Act (“the

Act”), D.C. Code § 42-190l.01 et seq., has been updated twice during the

pendency of this case, in 2014 and in 2017. The notice provision was not changed

in the 2014 revision of the statute but it was revised in the 2017 version D.C.

Code § 42-1903.13 (c)(4)(A) now states:

A foreclosure sale shall not be held until at least 31 days

after a Notice of Foreclosure Sale of Condominium Unit

for Assessments Due is recorded in the land records and

sent by a delivery service providing delivery tracking

confirmation and by first-class mail to a unit owner at the

mailing address of the unit, any last known mailing

address, and at any other address designated by the unit

owner to the executive board for purposes of notice.

(20l'7) (emphasis added). The revised 2017 version of the statute, which was

enacted subsequent to l\/ls. 'l`homas’s foreclosure, now makes clear that notice must

be sent to “any last known mailing address” of the owner.

“designated” her actual address to UHC, which required UHC to send notice of the

impending foreclosure sale to her at that address Therefore, we must reverse the

trial court’s grant of summary judgment and remand for proceedings not

inconsistent with our decision See Logon v. LaSalle Bank Nat’l Ass’n, 80 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 Bucl<ley, (2)

Chengetayi Sithole, (3) Santiago Properties, (4) UHC, (5) Linowes and Blocher

LLP, (6) TBM, and (7) LLC. lames Buckley served as president of the UHC

Association Board and was a member of Santiago Properties. Santiago Properties

was a member of the LLC. Chengetayi Sithole was the managing member of the

LLC. Additionally, Ms. Thomas alleged that Linowes and Blocher LLP served as

the “substitute trustee” to the foreclosure sale of her condominium unit.

9

consolidate the quiet title case with her suit to rescind the foreclosure sale of her

condominium unit.

The trial court consolidated the two suits, and denied Ms. Thomas’s motion

for summary judgment, without prejudice Appellees UHC, TBM, and l\/lr.

Buckley moved for summary judgment in Ms. Thomas’s wrongful foreclosure sale

case, and appellee LLC moved for summary judgment in the quiet title case The

trial court granted summary judgment to the appellees and ordered that the unit be

conveyed “free and clear of any right, title and interest . . . of [Ms. Thomasj . . . .”

The trial court concluded that “[a]bsent evidence that Ms. Thomas ever formally

designated a different address to the board, [for the purpose of notice,] it was

legally sufficient for UHC to provide notice by certified mail to the unit only.”

The trial court further concluded that Ms. Thomas failed to demonstrate that she

gave a “formal” designation to the UHC Board that she wanted to receive mail or

notice at her 20th Street residence “exclusively.” This appeal followed

l0

II. Discussion

Ms. Thomas raises numerous claims as to why summary judgment was

inappropriate in this case8 We conclude that her claim that she lacked adequate

notice pursuant to D.C. Code § 42~1903.13, controls the outcome of this case

because without adequate notice the foreclosure sale is void and must be set aside

Joltnson v. Fai)-fax Vill. Condo. IV Unit Owners Ass’n, 641 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.