Andrea Liu v. US Bank National Association

Notice: This opinion is subject to formal revision before publication in the

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 16-CV-262 03/01/2018

ANDREA LIU, APPELLANT,

v.

U.S. BANK NATIONAL ASSOCIATION, APPELLEE.

Appeal from the Superior Court of the

District of Columbia

(CAR-6539-14)

(Hon. Ronna L. Beck, Motions Judge)

(Argued January 31, 2017 Decided March 1, 2018)

Robert C. Gill for appellant.

S. Mohsin Reza for appellee.

Before BLACKBURNE-RIGSBY, Chief Judge,* and GLICKMAN and THOMPSON,

Associate Judges.

BLACKBURNE-RIGSBY, Chief Judge: In the District of Columbia,

condominium associations are granted a “super-priority lien” over first mortgage

lienholders, which permits an association to collect up to six months of unpaid

*

Chief Judge Blackburne-Rigsby was an Associate Judge at the time this

case was argued. Her status changed to Chief Judge on March 18, 2017.

2

assessments upon foreclosure on a condominium unit. 1 In Chase Plaza

Condominium Ass’n v. JPMorgan Chase Bank, N.A., 98 A.3d 166, 172 (D.C.

2014), this court was asked to determine whether a condominium association’s

foreclosure on its super-priority lien could extinguish an otherwise first-priority

deed of trust or mortgage when the proceeds of the foreclosure sale were

insufficient to satisfy the deed of trust or mortgage. We held in the affirmative—

that “a condominium association is permitted to foreclose on [its] six-month

[super-priority] lien and [to] distribute the proceeds from the foreclosure sale first

to satisfy [its super-priority] lien and then to satisfy any remaining liens in order of

lien priority.” Id. We clarified that in such circumstances “[a]ny liens [including a

first mortgage or first deed of trust] that are unsatisfied by the foreclosure-sale

proceeds are extinguished, and the foreclosure-sale purchaser acquires free and

clear title.” Id.

The present case requires this court to determine a similar issue. We must

decide whether, prior to the 2017 amendment to D.C. Code § 42-1903.13,2 a

1

D.C. Code § 42-1903.13 (a)(2) (2012 Repl.).

2

Effective April 7, 2017, D.C. Code § 42-1903.13 was amended to add a

provision requiring that the foreclosure sale notice expressly state whether the

foreclosure sale is for the six-month priority lien and not subject to the first deed of

(continued…)

3

condominium association could choose to sell the condominium unit “subject to

the first mortgage or first deed of trust” on the property, while at the same time

enforcing its super-priority lien. We conclude that a condominium association

could not foreclose on its super-priority lien while leaving the property subject to

the unsatisfied balance of the first mortgage or first deed of trust—to find

otherwise would contravene our holding in Chase Plaza. Accordingly, we reverse

the trial court’s order granting summary judgment to U.S. Bank, which concluded

that a condominium could foreclose on its super-priority lien while leaving the

underlying mortgage lien intact, and remand for further proceedings consistent

with this opinion.

I. Factual Background

On March 9, 2007, Jon Michael Lucas obtained a mortgage loan in the

amount of $589,750 to finance his purchase of condominium unit 1003, located at

301 Massachusetts Avenue, N.W., in the Sonata Condominium complex. Mr.

Lucas also executed a deed of trust and promissory note, which secured the loan on

(. . . continued)

trust, or for more than the six-month priority lien and subject to the first deed of

trust. D.C. Code § 42-1903.13 (c)(4)(B)(ii).

4

the condominium. Mr. Lucas’s mortgage loan was originally from Vanguard

Mortgage and Title, Inc. (“VMT”) and the deed of trust and note were executed in

VMT’s favor. The deed of trust was recorded in the land records of the District of

Columbia. Mr. Lucas’s mortgage loan was later assigned to U.S. Bank (“Bank”),

which also took possession of the note.

In 2009, Mr. Lucas stopped paying both his monthly mortgage payments and

his condominium assessments, the latter of which prompted the Sonata

Condominium Unit Owners Association (“Sonata”) to seek foreclosure on the

condominium, pursuant to D.C. Code § 42-1903.13 (a)(2), which entitles

condominium associations to a super-priority lien for the most recent six months of

unpaid condominium assessments. Between 2011 and 2014, Sonata scheduled

several foreclosure sales for the condominium, but the sales were all cancelled

after the Bank paid Mr. Lucas’s unpaid assessments. The Bank paid the

assessments on Mr. Lucas’s behalf in order to preserve its lien on the

condominium. These payments were secured under Mr. Lucas’s loan by the deed

of trust.3

3

The “Condominium Rider,” which was signed by Mr. Lucas on March 9,

2007, and which supplemented the deed of trust, states that Mr. Lucas and his

Lender agreed that “[i]f [Mr. Lucas] does not pay condominium dues and

(continued…)

5

On May 1, 2014, Mr. Lucas was in default for unpaid condominium

assessments, prompting Sonata to file a “Notice of Foreclosure Sale of the

Condominium Unit for Assessments Due” with the District’s Recorder of Deeds.

The notice stated that Mr. Lucas was in arrears to Sonata for $11,503.67.4 Sonata

sent the notice of the foreclosure sale to Mr. Lucas and all other interested parties,

including the Bank; the notice stated that the foreclosure sale would not be held

until thirty-one days past the date on which the notice was mailed, and that if the

past due amounts were not paid in full by that time, the condominium would be

sold at a public auction on June 4, 2014. On May 23, Sonata also sent the Bank a

letter stating the amount that needed to be paid in order to stop the scheduled

foreclosure sale.

(. . . continued)

assessments when due, then [the] Lender may pay them. Any amounts disbursed

by [the] Lender . . . shall become additional debt of [Mr. Lucas] secured by the

[deed of trust].”

4

The amount Mr. Lucas owed was accelerated through 2014. According to

the attorney conducting the foreclosure sale, Elizabeth Menist, if a unit is sold to a

third-party, an adjustment is made so that the foreclosed unit owner is not charged

for future assessments given that he or she no longer owns the unit. The third-

party purchaser is then responsible for the monthly assessments as they become

due.

6

Sonata publicly advertised the sale of the condominium in the Washington

Post on May 23, May 28, and June 3, 2014. The advertisement stated that the

condominium would be sold pursuant to D.C. Code § 42-1903.13, and that it

would be “[s]old subject to a deed of trust for approximately $589,750.00 (as of

03/09/2007)[,]” referencing the Bank’s deed of trust for Mr. Lucas’s mortgage

loan.

On June 4, Sonata held a public auction for the foreclosure sale and the

condominium was sold to appellant Liu, the highest bidder at the auction, for

$17,000. An accounting of the foreclosure sale, included in the record,

demonstrates that, of the $17,000 purchase price for the condominium, Sonata

deducted almost six months of unpaid condominium assessments, totaling

$5,195.28, as well as interest on the assessments, attorney’s fees, and other

expenses from the foreclosure sale. 5

The Bank attempted to pay the assessments owed to Sonata in order to stop

the foreclosure sale. Sonata, however, did not receive the check from the Bank

5

Ultimately, there was a surplus of $7,512.92 after Sonata collected the

assessments ($5,192.28), interest ($216.45), attorney’s fees and reimbursable costs

($2,788.93), advertising costs ($885.08), the auctioneer’s commission ($425), and

the lienholder’s portion of interest on unpaid balance from buyer ($30.04).

7

until June 5, 2014, the day after the foreclosure sale. Accordingly, the Bank’s

check was returned with a letter indicating that the condominium had already been

sold to a third-party purchaser. Ms. Liu recorded the deed of trust, dated July 1,

2014, which included a provision inserted by Sonata, stating: “The hereinafter

described property is sold subject to a deed of trust recorded in the Office of the

Recorder of Deeds at Instrument Number 2007035647.”

On October 16, 2014, the Bank filed a claim for judicial foreclosure against

Mr. Lucas, as the mortgagor in default under the note, and later joined Ms. Liu, the

new record owner of the condominium, as a defendant in the action. In its claim,

the Bank asserted its rights as the beneficiary of the deed of trust, and also notified

the court that Mr. Lucas’s loan had been accelerated, and that he owed

$799,034.23 under the note.6 In her defense, Ms. Liu maintained that she

purchased the condominium at the foreclosure sale, free and clear of the Bank’s

mortgage lien, pursuant to both D.C. Code § 42-1903.13 (a)(2) and this court’s

6

In May 2014, the Bank sent Mr. Lucas a demand letter, and attached a

“Payoff Quote” at the back of the letter. According to the Bank’s quote, Mr. Lucas

owes $589,749.85 for the principal balance on the note, $10,487.96 for an escrow

advance, $62,873.59 for a corporate advance, $135,855.25 in interest, and $67.58

in late charges. These charges equate to $799,034.23, the total amount the Bank is

currently seeking under the note.

8

decision in Chase Plaza.7 Both Ms. Liu and the Bank moved for summary

judgment before the trial court.

On February 3, 2016, the trial court granted the Bank’s motion for summary

judgment and denied Ms. Liu’s motion for summary judgment. The trial court

acknowledged that, at the time of Sonata’s foreclosure sale, the law was unclear

regarding the effect of a condominium association’s foreclosure sale, pursuant to

its super-priority lien, on a bank’s first-priority mortgage lien.

Despite this lack of clarity in the law at the time of Ms. Liu’s purchase, the

trial court emphasized that the advertisements, the memorandum of sale to Ms.

Liu, and the deed of trust all specified that the property was sold to Ms. Liu subject

to the Bank’s mortgage lien. Thus, it was “abundantly clear” that Ms. Liu was

purchasing the property subject to the Bank’s lien. Furthermore, the court noted

that Ms. Liu had testified at a deposition that the property was worth between

7

On August 28, 2014, a few months after Ms. Liu’s purchase of the

condominium at the foreclosure sale, we issued our decision in Chase Plaza.

Relying on the plain language and legislative history of the super-priority lien

provision, as well as general principles of foreclosure law, we held that “a

condominium association can extinguish a first deed of trust by foreclosing on its

six-month super-priority lien under D.C. Code § 42-1903.13 (a)(2).” Chase Plaza,

supra, 98 A.3d at 178.

9

$700,000 and $750,000, and that the District of Columbia Office of Tax and

Revenue assessed the condominium at a value of $719,930. The court stated that

the $17,000 purchase price “obviously reflected the understanding that the

Property was subject to [the Bank’s] lien.” Accordingly, the trial court concluded

that “[i]t would be an inequitable windfall and contrary to the parties’ expectations

to permit Ms. Liu to disavow [the Bank’s] mortgage . . . and would impose an

enormous foreclosure deficiency on [] [Mr.] Lucas if Ms. Liu’s purchase is not

subject to [the Bank’s] lien, as was contemplated at the foreclosure sale.” This

appeal followed.

II. Discussion

We review a trial court’s order granting summary judgment de novo. Chase

Plaza, supra, 98 A.3d at 172. In determining whether summary judgment was

appropriate, we view the evidence in the light most favorable to the non-prevailing

party and we draw all reasonable inferences in that party’s favor. See Woodland v.

Dist. Council 20, 777 A.2d 795, 798 (D.C. 2001). “Summary judgment is only

appropriate where there is no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law.” Chase Plaza, supra, 98 A.3d at 172

(citation and internal quotation marks omitted).

10

A. Chase Plaza

In Chase Plaza, this court was asked to, for the first time, address the proper

interpretation of a condominium association’s super-priority lien for unpaid

assessments under D.C. Code § 42-1903.13 (a)(2), and the impact of an

association’s foreclosure, pursuant to a super-priority lien, on a bank’s first deed of

trust or first mortgage. We explained that, under the District of Columbia

Condominium Act, condominium association liens for unpaid assessments are

“split[] . . . into two liens of differing priority[.]” Chase Plaza, supra, 98 A.3d at

173. First, the condominium association is granted a lien for the most recent six

months of unpaid condominium assessments, which is “higher in priority than the

first mortgage or first deed of trust[,]” and commonly referred to as a “super-

priority lien.” Id.; see also D.C. Code § 42-1903.13 (a)(2) (stating that a

condominium association’s lien “shall [] be prior to a mortgage or deed of trust . . .

to the extent of the common expense assessments . . . which would have become

due in the absence of acceleration during the [six] months immediately preceding

institution of an action to enforce the lien . . .”). Second, the Act grants the

condominium association a lien for any remaining unpaid assessments beyond the

most recent six-month period. See D.C. Code § 42-1903.13 (a). However, this

11

second lien is “lower in priority than the first mortgage or first deed of trust.”

Chase Plaza, supra, 98 A.3d at 173.

Thus, under the circumstances presented here, where a condominium unit

owner defaults on both his mortgage payments and his condominium assessments,

the condominium association’s super-priority lien for the most recent six months of

assessments, is higher in priority than the first mortgage or first deed of trust on the

condominium unit. See D.C. Code § 42-1903.13 (a)(2); Chase Plaza, supra, 98

A.3d at 173. Importantly, the Act also expressly prohibits “variation by

agreement,” which prevents parties from contracting around the statute: “Except as

expressly provided by this chapter, a provision of this chapter may not be varied by

agreement and any right conferred by this chapter may not be waived.” D.C. Code

§ 42-1901.07.

Chase Plaza involved facts similar to those presented in this case and

therefore, is central to our consideration. In Chase Plaza, Chase Plaza

Condominium Association, Inc. instituted foreclosure proceedings against a

condominium unit owner to collect six months of unpaid assessments, pursuant to

its super-priority lien under D.C. Code § 42-1903.13 (a)(2). Chase Plaza, supra,

98 A.3d at 168. Chase Plaza’s notice of the foreclosure sale “specified that the

12

foreclosure sale would not be subject to the first deed of trust” and thus, the bank’s

first deed of trust, as a lien lower in priority than the condominium association’s

super-priority lien, would not be protected by the foreclosure sale. Id. After the

condominium was sold to the highest bidder at the sale, JPMorgan Bank, as holder

of the note for the first deed of trust, filed a complaint against Chase Plaza and the

new record owner, requesting that the trial court set aside the foreclosure sale and

declare that JPMorgan Bank held title to the unit. Id. at 169. The trial court

granted summary judgment to JPMorgan Bank on the basis that “Chase Plaza

could not lawfully extinguish [JPMorgan Bank’s] first deed of trust[.]” Id.

Accordingly, the trial court voided Chase Plaza’s foreclosure sale “because the unit

had not been sold subject to the first deed of trust.” Id.

We reversed the trial court’s decision, recognizing the general and well

settled principle of foreclosure law that “liens with lower priority are extinguished

if a valid foreclosure sale yields proceeds insufficient to satisfy a higher-priority

lien[.]” Id. at 173. We observed further that the plain language of the super-

priority lien provision, under D.C. Code § 42-1903.13 (a)(2), did not suggest that

the Council of the District of Columbia intended to deviate from this general

principle. Id. at 174. Upon a review of the legislative history of the super-priority

lien provision, we noted that the Council intended for the super-priority lien to give

13

condominium associations “maximum flexibility in collecting unpaid

condominium assessments.” Id. (citing D.C. Council, Report on Bill 8-65, at 3

(Nov. 13, 1990)). We also noted that our super-priority lien provision had been

modeled after similar provisions from the Uniform Common Interest Ownership

Act (“UCIOA”) and the Uniform Condominium Act (“UCA”), and that the

drafters’ official comments under those Acts indicated that they understood that a

condominium association’s foreclosure on its super-priority lien would extinguish

a first mortgage or first deed of trust. Id. However, the drafters “expected that

mortgage lenders would take the necessary steps to prevent that result, either by

requiring payment of assessments into an escrow account or by paying assessments

themselves to prevent foreclosure.” Chase Plaza, supra, 98 A.3d at 174-75; see

also UCIOA § 3-116, cmt. 2; UCA § 3-116, cmt. 2. For these reasons, we

concluded that the condominium association’s foreclosure pursuant to its super-

priority lien effectively extinguished JPMorgan Bank’s first deed of trust. Chase

Plaza, supra, 98 A.3d at 175, 178.

B. Analysis of Super-Priority Lien Provision

On appeal, neither party disputes this court’s holding in Chase Plaza. Ms.

Liu argues that the decision supports a conclusion that she purchased the

14

condominium at Sonata’s foreclosure sale, free and clear of the Bank’s mortgage

lien. She contends that the anti-waiver provision of the Condominium Act

precludes a condominium association from enforcing its super-priority lien at a

foreclosure sale, subject to a first mortgage or deed of trust. 8

Conversely, the Bank argues that the trial court properly granted its motion

for summary judgment on equitable grounds because “the sale’s advertisement, the

auctioneer’s statements [] at the sale, the Memorandum of Purchase signed by Ms.

Liu, and the Trustee’s Deed [] recorded by Ms. Liu” all demonstrate that the

condominium was sold to Ms. Liu, subject to the deed of trust. The Bank argues

that Chase Plaza is not applicable to this case because Sonata did not enforce its

super-priority lien at its foreclosure sale, but instead elected to sell the

condominium subject to its deed of trust. The Bank also challenges Ms. Liu’s

purchase at Sonata’s foreclosure sale on other grounds, which we address later in

this opinion.

8

Ms. Liu further asserts that the provisions in the advertisement, on her

memorandum of sale, and in the deed of trust, which indicated that the property

was sold subject to the deed of trust, were only included because of the trial court’s

erroneous ruling in Chase Plaza, which was later reversed by this court. Notably,

Ms. Liu mentions the attorney who conducted the foreclosure sale of the property

at issue in this case was the same attorney who conducted the foreclosure sale in

Chase Plaza.

15

To begin, we agree with Ms. Liu that the anti-waiver provision of the

Condominium Act, D.C. Code § 42-1901.07, precludes a condominium association

from exercising its super-priority lien while also preserving the full amount of the

Bank’s unpaid lien. D.C. Code § 42-1901.07 states “[e]xcept as expressly

provided by this chapter, a provision of this chapter may not be varied by

agreement and any right conferred by this chapter may not be waived.” (emphasis

added). As we stated in Chase Plaza, none of the provisions of the chapter

expressly indicate that a super-priority lien may be contracted away by the parties

or waived by the condominium association.

Furthermore, permitting a condominium association to exercise its super-

priority lien while also preserving the full amount of the Bank’s unpaid lien,

defeats the Council’s purpose in enacting the super-priority lien. The super-

priority lien provision effectively shields condominium associations from pressure

by lenders to require foreclosure-sale purchasers to agree that the property is

subject to the first mortgage, a term that could reduce the number of interested

bidders and impair the condominium association’s ability to recover unpaid

assessments.

16

Here, the record demonstrates that Sonata enforced its lien for Mr. Lucas’s

most recent six months of unpaid assessments, when it sold the condominium to

Ms. Liu at the foreclosure sale. The foreclosure notice to Mr. Lucas and Sonata’s

letter to the Bank indicated that Sonata was seeking to collect $11,503.67 in unpaid

assessments and related costs, and that if the amount was not paid, Sonata would

institute foreclosure proceedings on the unit.

The Bank argues, however, that because the terms of the sale indicated that

the unit would be sold subject to its first deed of trust, Sonata did not actually

enforce its super-priority lien. The Bank also maintains that a condominium

association may agree to subordinate its super-priority lien to a first deed of trust

during a foreclosure sale. We disagree. Such a reordering of lien priorities would

effectively constitute a waiver by the condominium association of its super-priority

lien, which is not permitted under D.C. Code § 42-1901.07. That section expressly

states that any right conferred under the Condominium Act may not be waived.

“[W]hen the language of a statute is plain and unambiguous, we are bound by the

plain meaning of that language.” See Hudson Trail Outfitters v. District of

Columbia Dep’t of Emp’t Servs., 801 A.2d 987, 990 (D.C. 2002) (citation and

internal quotation marks omitted). Thus, any attempt by a condominium

association or a holder of a first mortgage or deed of trust to have a condominium

17

association’s super-priority lien waived or varied by contract is invalid, as a matter

of law.

To be clear, we are not stating that a foreclosing condominium association is

required to foreclose pursuant to its super-priority lien. 9 However, here, where

Sonata collected on only the most recent six months of unpaid assessments, we are

satisfied that Sonata enforced its super-priority lien at the sale. 10 Under these

circumstances, if the proceeds of the sale are insufficient to cover the first deed of

trust, then the first deed of trust must be considered effectively extinguished. See

9

We do not address the question of whether a lien covering a period in

excess of six months prior to the 2017 amendment to D.C. Code § 42-1903.13 is

properly conceptualized as a split-lien, which includes a six-month portion entitled

to super-priority status, or as one lien, all of which is considered to be lower in

priority to the first mortgage or deed of trust.

We also refrain from addressing the issue of whether the foreclosure sale

should be set aside, given that the sole count in the complaint was one for judicial

foreclosure, and in light of the Bank’s statement that it “does not seek to set aside

the June 4, 2014 sale in this action.”

10

The attorney conducting the foreclosure sale, Elizabeth Menist, also

conducted the foreclosure sale in Chase Plaza. In this case, Ms. Menist testified

that her intention was for Sonata to foreclose on a lien for January through

December, 2014. However, given that the sale occurred on June 4, 2014, Sonata

foreclosed on a lien covering slightly less than the six months entitled to super-

priority status. As discussed in note 4, supra, an adjustment is made so that the

foreclosed unit owner is not charged for future assessments.

18

Chase Plaza, supra, 98 A.3d at 176 (stating “the general rule that foreclosure on a

lien with greater priority extinguishes liens with lower priority”). The plain

language of D.C. Code § 42-1903.13 (a)(2), the super-priority lien provision, does

not indicate an intent to deviate from this general principle. Id. at 175.

C. Equitable Estoppel

The Bank contends that the trial court properly concluded that Ms. Liu was

equitably estopped from claiming that its mortgage interest was extinguished at the

sale. We have recognized that “[a] party raising equitable estoppel must show that

he changed his position prejudicially in reasonable reliance on a false

representation or concealment of material fact which the party to be estopped made

with knowledge of the true facts and intent to induce the other to act.” Nolan v.

Nolan, 568 A.2d 479, 484 (D.C. 1990) (citation and internal quotation marks

omitted). In response, Ms. Liu asserts that the provisions in the advertisement, on

her memorandum of sale, and in the deed of trust, which indicated that the property

was sold subject to the deed of trust, were only included because of the trial court’s

erroneous ruling in Chase Plaza, which was later reversed by this court.

19

Here, the record does not support the trial court’s application of the equitable

estoppel doctrine to preclude Ms. Liu from maintaining that her purchase of the

condominium was not subject to the Bank’s deed of trust. To begin, the Bank has

not demonstrated that it reasonably relied on the advertised terms of sale to protect

its mortgage interest. To the contrary, the Bank attempted to pay the six months of

condominium assessments in order to stop the foreclosure sale, but failed to make

the payment on time. Moreover, although the Bank contends that it “reasonably

relied upon Ms. Liu’s actions in accepting the terms of the sale by not moving to

vacate the sale after it occurred[,]” this argument lacks merit—the Bank was aware

through its loan servicer that the state of the law on super-priority liens was in flux

at the time, and that the Bank’s interest could be subordinate to Sonata’s interest in

the event of a foreclosure sale.

Furthermore, the legislative history of the super-priority lien provisions and

public policy concerns related to ensuring a condominium association’s collection

of unpaid assessments, also support a conclusion that equitable estoppel is not

appropriate in this case. See Sears v. Sears, 293 F.2d 884, 887 (D.C. Cir. 1961)

(“[A] court of equity, in determining whether to interpose the bar of equitable

estoppel, must consider all the factors of the particular case at bar, the parties

involved, the effect of the ultimate decision on third parties who are not before the

20

court, the nature of the rights sought to be vindicated and, as well, public policy as

expressed by pertinent statutes and prior judicial declarations.”). For example, in

2013, the Joint Editorial Board for Uniform Real Property Acts (“JEB”)—a board

established by the Uniform Law Commission (“ULC”)—created a report, to in

part, address the appropriate interpretation of the six-month limited priority lien

provision.11 See JEB Report, supra note 11, at 6. In its report, the JEB discussed

how the depressed real estate market has led to incentives for banks to intentionally

delay foreclosure proceedings, at the expense of condominium associations, which

are forced to forgo timely payments of assessments, and at the expense of

condominium association residents who “bear the consequences of default by a

[condominium unit owner] [on] assessment obligations.” Id. at 4. In this case, Mr.

Lucas was in default on both his mortgage payments and his condominium

assessments for a lengthy period, from 2009 to 2014, yet the Bank waited five

years to institute foreclosure proceedings on the unit. In addition, the

11

The JEB monitors all uniform real property acts and “provides guidance

to the [ULC] and others regarding potential subjects for uniform laws relating to

real estate[.]” Report of the Joint Editorial Bd. for Unif. Real Prop. Acts, The Six-

Month “Limited Priority Lien” for Association Fees Under the Uniform Common

Interest Ownership Act (June 1, 2013) (“JEB Report”). The Board is made up of

representatives from the ULC, the American Bar Association’s Real Property,

Trust and Law Section, and the American College of Real Estate Lawyers, and

liaisons from the American College of Mortgage Attorneys, the American Land

Title Association, and the Community Associations Institute.

21

condominium association had to file several notices of foreclosure in an effort to

obtain payments to cover Mr. Lucas’s defaults on the assessments. It is this

prejudice to condominium associations from extended delays by a bank to institute

foreclosure on a condominium unit, which the super-priority lien was intended to

prevent.

Finally, and most importantly, we note that equitable relief is not available

when granting such relief would contravene the express provision of a statute. The

judicial system is charged with enforcing public policy as embodied by legislative

statute. “It is a basic maxim that equity is ancillary, not antagonistic, to the law.

Equitable relief is not available when the grant thereof would violate the express

provision of a statute.” Dep’t of Transp. v. Am. Ins. Co., 491 S.E.2d 328, 331 (Ga.

1997) (citation and internal quotation marks omitted); see also T.F. v. B.L., 813

N.E.2d 1244, 1253-54 (Mass. 2004) (citation and internal quotation marks omitted)

(stating that “[e]quity is not an all-purpose judicial tool by which the right thing to

do can be fashioned into a legal obligation possessing the legitimacy of legislative

enactment”). Although it may seem like Ms. Liu was able to procure the property

for a relatively low amount of money through the foreclosure process, any

concerns about this process are properly addressed through the legislative process.

Moreover, the Bank still retains a claim against Mr. Lucas, the borrower under the

22

Bank’s mortgage loan, from whom the Bank can seek to recover the remaining

balance owed on Mr. Lucas’s mortgage.

D. The Bank’s Additional Claims

The Bank makes a few additional challenges to Sonata’s foreclosure sale,

which warrant brief discussion. First, the Bank argues that Sonata was permitted

to conduct the foreclosure sale subject to the Bank’s first deed of trust, because a

secured party bank and a condominium association may agree to subordinate a

condominium association’s super-priority lien to a bank’s mortgage lien under the

JEB Report. However, this is a mischaracterization of the JEB Report. Example

One of the JEB Report addresses an instance in which a unit owner is in default on

both its mortgage with the bank and its common expense assessments, and the

bank institutes foreclosure proceedings on the unit. JEB Report, supra note 11, at

7-8. Example One clarifies that a bank’s foreclosure on the unit will not extinguish

the association’s super-priority lien because that lien is senior to the bank’s lien.

Id. at 7. Instead, the association’s super-priority lien will transfer to the proceeds

of the sale, and the buyer at the foreclosure sale will take title to the unit, subject to

the association’s six-month super-priority lien. Id. at 7-8. In this example, the JEB

Report mentions that as an alternative, the bank and the association may agree that

23

the foreclosure sale will deliver clear title to the buyer, with the proceeds of the

sale being distributed first to the association to cover its six months’ worth of

unpaid assessments prior to being applied to the bank’s unpaid mortgage balance.

Id. at 8. This alternative, however, does not suggest that the association may

subordinate its senior lien status; to the contrary, it reinforces the principle that an

association’s six-month priority lien has “true priority” over the bank’s subordinate

lien. See id.

Next, the Bank argues that Sonata could only impose its six-month super-

priority lien through a judicial foreclosure, and maintains that because the

association conducted a non-judicial foreclosure in this case, the sale could not

operate to extinguish the Bank’s mortgage lien. We disagree. The Bank cites to

the version of D.C. Code § 42-1903.13 (a)(2) in effect on the date of the

foreclosure sale, which states that:

[t]he lien shall also be prior to a mortgage or deed of trust . . . to the

extent of the common expense assessments based on the periodic

budget adopted by the unit owners’ association which would have

become due in the absence of acceleration during the 6 months

immediately preceding institution of an action to enforce the lien.

However, the statute also contemplates non-judicial enforcement of liens, as

occurred in Chase Plaza—D.C. Code § 42-1903.13 (c)(1) expressly states that

“[t]he unit owners’ association shall have the power of sale to enforce a lien for

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assessments against a condominium unit . . . unless the power of sale procedures

are specifically and expressly prohibited by the condominium instruments.”

(emphasis added). Here, the condominium by-laws explicitly authorize a non-

judicial foreclosure, stating that “[t]he lien for assessments may be foreclosed in

the manner provided by the laws of the District of Columbia either, at the option of

the Board of Directors, by a sale in a non-judicial proceeding or by suit brought in

the name of the Board of Directors, acting on behalf of the Association.”

Moreover, effective June 21, 2014, D.C. Code § 42-1903.13 (a)(2) was amended to

include language referring to “institution of an action to enforce the lien or

recordation of a memorandum of lien against the title to the unit by the unit

owners’ association.” “While the action of a later Council usually does not

provide definitive evidence of the intent underlying the action of a former

Council,” see Coleman v. Cumis Ins. Soc’y, 558 A.2d 1169, 1172-1173 (D.C.

1989), the fact that the 2014 “clarif[ication]” is consistent with the official

comments of the UCIOA and the UCA, discussed below, “lends some support for

our view that . . . the [earlier] Council intended to” provide for foreclosure of a

super-priority lien through a condominium association’s power of sale. Id.

The official comments of the UCIOA and the UCA for the super-priority

lien provisions state that an association’s super-priority lien may be foreclosed in

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the same manner in which a mortgage on real estate is foreclosed. See UCIOA

§ 3-116 (k)(1); UCA § 3-116 (a); see also JEB Report, supra note 11, at 9 n.8

(“[A]n association may foreclose its lien by non-judicial proceedings if the state

permits non-judicial foreclosure.”). In this jurisdiction, a mortgage lender may

foreclose on a unit through judicial foreclosure or non-judicial foreclosure, and

accordingly, Sonata had the option of pursuing either type of foreclosure in this

case. See D.C. Code §§ 42-815, -816 (2012 Repl.). Thus, Sonata was not

precluded from pursuing non-judicial enforcement of its super-priority lien.

Lastly, the Bank argues that Sonata’s foreclosure sale could not have been

conducted pursuant to its super-priority lien because Sonata had already previously

attempted to foreclose on the unit. The Bank, relying on Example Three in the

JEB Report, is correct that the super-priority lien provision “does not . . . authorize

an association to file successive lien enforcement actions every six months as a

means to extend the association’s limited lien priority.” JEB Report, supra note

11, at 12. Example Three in the JEB Report, however, is based on a case in which

a foreclosure action is already pending at the time the association attempts to file

an additional foreclosure action; as a foreclosure action had already been initiated,

the additional action was not necessary to enforce the association’s lien and

represented an attempt to extend the association’s lien priority beyond the six

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months entitled to super-priority status. Although this precludes an association

from obtaining super-priority status on an amount in excess of six months while a

foreclosure action is pending, it does not preclude an association from enforcing

another super-priority lien if there is no action pending.

In JPMorgan Chase Bank, N.A. v. SFR Investments Pool 1, LLC, the United

States District Court for the District of Nevada stated that it could not find “any

authority stating that an [association] is precluded from bringing multiple

enforcement actions to enforce entirely separate liens (with super[-]priority

portions) for unpaid assessments against the same parcel of property.” 200 F.

Supp. 3d 1141, 1167 (D. Nev. 2016). The court recognized that the JEB Report

barred multiple attempts to “enforce the super[-]priority portion of its lien multiple

times during the pendency of the same bank foreclosure action” but that no such

bar existed for a subsequent enforcement action to enforce a separate lien when no

other foreclosure action was pending. Id. at 1168. Similarly, in this case, although

Sonata had previously collected on a separate super-priority lien, they were not

barred from filing a successive foreclosure action when no such action was

pending.

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III. Conclusion

In sum, we conclude that a condominium association, acting on its six-

month super-priority lien for unpaid condominium assessments, pursuant to D.C.

Code § 42-1903.13 (a)(2), may not conduct its foreclosure sale subject to the first

deed of trust. Although Sonata’s foreclosure sale in this case was purportedly

subject to the Bank’s deed of trust, the anti-waiver provision of D.C. Code § 42-

1901.07, precludes a condominium association from waiving the priority of its

super-priority lien or exercising its super-priority lien while also preserving the full

amount of the Bank’s unpaid lien. Thus, when Sonata enforced its super-priority

lien to collect six months of unpaid assessments at the foreclosure sale, the Bank’s

first deed of trust for the condominium was effectively extinguished and Ms. Liu

purchased the condominium free and clear of the Bank’s deed of trust.

Accordingly, we reverse the trial court’s order granting summary judgment to the

Bank and remand for further proceedings.

So ordered.