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Ronald Harris, Appellant v. Northbrook Condominium Ii

May 24, 2012


Appeal from the Superior Court of the District of Columbia (CAB-6262-09) (Hon. Robert I. Richter, Trial Judge)

The opinion of the court was delivered by: Ruiz, Associate Judge, Retired:

Argued April 26, 2011

Before THOMPSON, Associate Judge, RUIZ, Associate Judge, Retired,*fn1 and NEBEKER, Senior Judge.

Ronald Harris appeals from the judgment of the Superior Court in favor of appellees, Northbrook Condominium II, Northbrook Condominium II Unit Owners Association, EJF Real Estate Services, Inc., and Mark Cunniff. Appellant contends that the notice of foreclosure on his condominium unit violated the District of Columbia Condominium Act and his due process rights because appellees knew he never received actual notice of the foreclosure. As there was no violation of the statute and no due process deprivation, we affirm.

I. Factual and Procedural History

In 1999, appellant purchased condominium unit T-6, located at 3426 16th Street N.W. in the District of Columbia. The unit, part of Northbrook Condominium II ("Northbrook"), is governed by the Northbrook Condominium II Unit Owners Association ("Association") and managed by EJF Real Estate Services ("EJF"). Appellant lived in the unit with his wife and daughter until the spring or summer of 2005, when he moved to a residence on Downdale Drive in Laurel, Maryland. In December 2007, appellant leased the Northbrook unit to Jason Stonewall and his sister, Jocelyn Stonewall.

In February 2008, appellant became delinquent on his condominium payments, and EJF began mailing monthly late notices to appellant at his Laurel address. The delinquent account was forwarded to Northbrook's counsel, Scheuermann & Menist, for collection. On June 30, 2008, Scheuermann & Menist sent an initial demand letter to appellant at both his Laurel address and at the Northbrook condominium address; the total amount due was $2,127.40. Appellant tendered a check from his wife's bank account totaling $1,904.58, which represented the overdue amount of condominium payments, but without interest, fees, and costs. Scheuermann & Menist, acting on instructions from Northbrook, returned the check as a non-conforming tender and partial payment. Appellant subsequently re-tendered the $1,904.58 check along with a check for the remaining balance of $222.82; however, when Northbrook presented the $1,904.58 check, the bank indicated that the account on which the check was drawn had been closed. Those checks were also returned as a non-conforming tender. From July 2008 to January 2009, Northbrook suspended its collection efforts because it was advised that Wachovia Mortgage, the holder of the first deed of trust on the Northbrook unit, was initiating foreclosure proceedings.

After Wachovia abandoned its foreclosure proceedings in January 2009, Northbrook resumed its collection efforts against appellant. Scheuermann & Menist notified appellant, in a January 15, 2009 letter, that if he did not pay the outstanding fees, his remaining condominium payments would be accelerated. This letter was sent to both appellant's Laurel address and the Northbrook condominium address. When Northbrook received no payment, it accelerated the assessments and recorded a lien against the Northbrook unit. A March 6, 2009 letter notified appellant of the acceleration and the lien. On June 8, 2009, a Notice of Foreclosure was recorded in the Land Records of the District of Columbia, and letters were sent to appellant to his Laurel address and Northbrook condominium address on that same day by certified mail and first-class mail. By this time, the total amount outstanding was $9254.38 ($7168.91 in unpaid condominium assessments, $411.67 in interest, and $1673.80 in attorney's fees). The June 8th notification letters were returned as undelivered ("unclaimed," "unable to forward," "moved left no address"). On July 6, 10, and 13, 2009, notice of the foreclosure sale was published in the Washington Times. The unit was sold at the foreclosure sale to the Association, the sole bidder at the sale, for $11,219.33, subject to Wachovia's first deed of trust in the amount of "approximately $287,000."

Appellant's amended complaint alleged wrongful foreclosure, conversion, trespass to land and to chattels, and violations of the District of Columbia Consumer Protection Procedures Act and the District of Columbia Condominium Act. Appellant requested compensatory damages and equitable relief for the improperly executed and recorded deed, and for the impeded access to his property.*fn2

At trial, appellant stated that he did not receive notice of the foreclosure on his condominium unit even though he had provided his contact information to EJF. He testified that when he moved from the Northbrook unit to Laurel, he orally notified the previous property manager at Northbrook of his new address; he acknowledged, however, that he never submitted written notification of the Laurel address and that he never notified Northbrook directly. Appellant further testified that, in a March 2009 phone conversation about a water leak in his Northbrook unit, he also provided his new contact information to Jennifer Oberg, an EJF representative.*fn3 Asked why he had not received the June 8, 2009 notice of foreclosure that had been sent to the Laurel address, appellant explained that he had asked the Laurel Post Office to hold his mail in April 2009 because he knew that he would be moving from Laurel but was not certain where he wanted the mail forwarded. The Postal Service held his mail until June 6, 2009, and notified him that after that date his mail would be returned to the sender unless he submitted an address change. Appellant never filed a forwarding address or an address change with the Postal Service. As a result, he stated, he learned of the foreclosure sale after the fact, when his tenant Stonewall brought it to his attention on July 25, 2009. On cross-examination, appellant acknowledged that his Northbrook unit had previously been in foreclosure proceedings, and he conceded that he "may" have received the March 6, 2009 letter informing him of the acceleration of payments and lien because he "received mail up until that date" at the Laurel address. He also acknowledged that his Laurel home had been subject to foreclosure in 2008.

Appellees presented testimony primarily from Oberg (the EJF representative) and Stonewall.*fn4 Oberg testified that in January 2008, when EJF became the Northbrook property manager, appellant's address on file was the Laurel address. She explained that EJF sought to confirm appellant's contact information, but appellant never responded to EJF's request.*fn5 Oberg testified that her March 2009 call log indicated that Stonewall - not appellant - had called regarding the leak in the unit. She stated that appellant never contacted her.*fn6

Stonewall testified that until June 2009, he regularly sent rental payments to appellant's Laurel address, which were never returned as undelivered,*fn7 and that mail addressed to appellant often came to the condominium unit. Stonewall typically notified appellant of the mail, and appellant picked it up. Stonewall recounted an incident around June 2009 when he inadvertently opened mail addressed to "occupant" that indicated the condominium unit was under threat of foreclosure. When Stonewall asked appellant about the letter, appellant told him that "everything was fine."

In rendering its verdict, the court noted that it "will never know for sure" whether appellant telephoned Oberg with his new address. The court found Oberg to be a "perfectly credible witness" and that appellant "ha[d] every incentive to come in and try to upset the foreclosure at this point." The court found by a preponderance of the evidence that the phone call appellant claimed he made to Oberg with his new address and contact information never occurred. After asking the parties to brief whether Northbrook's notice procedures were deficient under the condominium bylaws, the relevant statutes, or the Constitution, the court subsequently found that appellant's due process rights were not violated by the foreclosure sale. The court found that "[appellees] did make ...

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