holding that preclusion of claim first raised in pretrial statement and not by amended complaint still “would require the court to find that the defendants were not on notice of the claim against them, that permitting the claim would cause undue delay, or that some other consideration justified forbidding the plaintiff to amend the complaint at trial”
How later courts described this case
- holding that preclusion of claim first raised in pretrial statement and not by amended complaint still “would require the court to find that the defendants were not on notice of the claim against them, that permitting the claim would cause undue delay, or that some other consideration justified forbidding the plaintiff to amend the complaint at trial”
- "The decision to exclude a claim because it was not specifically pleaded in the original complaint, however, would require the court to find that the defendants were not on notice of the claim against them, that permitting the claim would cause undue delay, or that some other consideration justified forbidding the plaintiff to amend the complaint at trial.”
- genuine issue of material fact existed as to whether the Association’s bylaws required court action before foreclosure sale
Written by the judges who cited it.
The opinion
REILLY, Senior Judge,
dissenting:
While I grant that the wording of the condominium instrument does raise some doubt as to the authority of the association to enforce its claim for unpaid assessments by foreclosing under a “power of sale,” I am not convinced that we are warranted in reversing the order granting summary judgment against appellant. His counsel makes the belated argument that even though the condominium association had a statutory right to exercise a power of sale, D.C. Code § 14-1853 (c) (1981), it had excluded itself from utilizing such procedure when it adopted a by-law providing that a lien for unpaid assessments “may be foreclosed in the manner provided by the laws of the District of Columbia by suit brought in the name of the Board of Directors.” (Emphasis added.)
I question whether the word “suit” is such a word of art that we are compelled to conclude that the association intended to relinquish resort to Section 1853(c), supra, as this is the customary method of foreclosure “provided by the laws of the District of Columbia.” While this is not a judicial method of foreclosure, it certainly could be characterized as a legal proceeding, for it is recognized by statute 1 providing such safeguards as adequate notice, 30 days notice to the Mayor, a public sale, and compliance with regulations of the City Council intended to convey good title to a bona fide purchaser.
The majority opinion, however, suggests that by the inclusion of this term, the condominium association may have limited itself to actions to recover the amounts due from delinquent members, and to enforce judgments thus obtained to writs of execution against their real property.
But this is not what appellant contends was meant by the condominium by-laws. As his counsel stated in his brief:
In the first, and most important place, D.C.Code § 45-1853 permits enforcement by “power of sale” of the lien created by assessments “unless” the condominium instruments provide otherwise. Here, the condominium’s by-laws presented to the trial court, and recited in the adverse parties’ motions clearly state that the lien would be enforced by a “suit for foreclosure.” Of course, there is a distinction between a “power of sale” and a “suit for foreclosure.” A power of sale permits a trustee to sell property. Here, there is no trustee. The suit for foreclosure is defined by D.C.Code § 45-705 (1981). Basically, it is an appeal to the court’s equity powers to set the terms of the foreclosure sale. In such a suit, it would seem, all of the normal defenses and judicial procedures would apply. It is also clear on this record, that no such suit ever took place. Accordingly, summary judgment was inappropriate.
Those provisions of the Code, were adopted from acts of Parliament going back to the reign of George II. They prevent a court of equity from proceeding with a suit for the recovery of mortgaged lands, if the defendant pays into court the “principal monies and interest due” and also costs of the litigation. It is scarcely conceivable that the draftsmen of the challenged by-laws had these archaic provisions in mind.
In any event, the record here shows that appellant is estopped at this late date for claiming such relief for the power of sale which was exercised afforded him the same *1390 remedy. Under § 45-715.1(b)(c), supra note 1, he could have prevented the sale, of which he had notice, from going ahead by tendering the overdue assessment, together with interest and costs to the foreclosing party. See Cassidy v. Owen, 533 A.2d 253 (D.C.1987). Instead of exercising his right of redemption at that time, however, he stood aside. He now urges us to hold that the sale was void. Such holding would result in depriving the intervenor — a bona fide purchaser of clear title. On this record, I would affirm the judgment.
. D.C.Code §§ 45-715, -715.1 (1981).