Opinion
No. 53313-4-I
Filed: January 3, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-2-02477-7. Judgment or order under review. Date filed: 10/10/2003. Judge signing: Hon. Gain Brian D.
Counsel for Appellant(s), Michael Paul Harris, Attorney at Law, 1218 3rd Ave Ste 1809, Seattle, WA 98101-3060.
Counsel for Plaintiff(s), Kris J. Sundberg, Law Office of Kris J Sundberg, PO Box 1577, Mercer Island, WA 98040-6014.
Counsel for Defendant(s), Mark Gibson Stockdale, Attorney at Law, E550 King County Courthouse, 516 Third Avenue, Seattle, WA 98104-2316.
Counsel for Respondent(s), Clark R. Weldon (Appearing Pro Se).
Joel Feldman, a judgment creditor, appeals the trial court's order under the redemption statute, RCW 6.23, directing the King County Sheriff to issue a certificate of redemption and sheriff's deed for a condominium sold through public auction after judicial foreclosure to Clark Weldon, the judgment debtor. Both Weldon and Feldman complied with the statutory requirements to redeem. Feldman argues that because he paid the redemption amount first, he, rather than Weldon, was entitled to the certificate of redemption and sheriff's deed under RCW 6.23. We conclude that when both a judgment debtor and a judgment creditor comply with the requirements of RCW 6.23, a judgment debtor has a superior interest over a judgment creditor and is entitled to the certificate of redemption and sheriff's deed. We affirm.
FACTS
The facts are uncontroverted. Clark Weldon owned a condominium unit in the On the Green at Fairwood Condominium. As a member of the On the Green at Fairwood Condominium Association (Association), Weldon was required to pay a proportionate share of the Association's common expenses through monthly assessment fees. Under the terms of Weldon's agreement with the Association, the Association was entitled to a lien for unpaid assessments on Weldon's condominium subject to foreclosure.
Brief of Appellant at 7. Weldon did not file a brief on appeal.
The condominium was owned by both Clark and Jane Weldon. Because Jane Weldon is not a party to this appeal, this opinion refers to Clark Weldon only and not to Jane Weldon.
Section 12 of the Condominium Declaration provides:
Assessments
(a) Assessments for Common Expenses. The Board of Directors shall from time to time, and at least annually, prepare a budget for the Association, determine the amounts necessary to meet the common expenses of the Association, and allocate and assess such common expenses among apartment owners according to their respective percentages of undivided interest in the Common Areas. . . .
. . . .
(d) Payment of Assessments — Personal Obligation. Assessments are payable monthly in advance or at such other time or times as the Board of Directors shall determine. Each assessment, in addition to constituting a lien as provided for in the Act and this Declaration, shall also be, together with interest, costs and reasonable attorneys' fees as hereinafter provided, the personal obligation of the person who was the owner of the apartment against which the assessment is made at the time the assessment fell due.
(e) Collection of Assessments. Any assessment not paid within 30 days after the due date shall bear interest from the due date at the rate of 12% per annum. The Board of Directors may initiate an action to enforce payment of any delinquent assessment and in such event the owner liable therefor shall pay all of the costs and expenses incurred incident thereto, including a reasonable sum as attorneys' fees, all of which shall be secured by the lien provided for in the Act and herein. In addition thereto, the Board of Directors may enforce collection of delinquent assessments in any one or more of the following methods:
. . . .
(iii) An action may be commenced to foreclose the lien for assessments.
(f) Liens and Foreclosures. All sums assessed by the Association of apartment owners, but unpaid, for the share of the common expenses chargeable to any apartment, together with interest, costs and reasonable attorneys' fees, shall constitute a lien on such apartment. . . . Such lien may be foreclosed by suit by the Board of Directors, acting on behalf of the apartment owners, in like manner as a mortgage of real property. . . .
CP 11-12.
In April 2002, a default order was entered against Weldon for failure to pay the Association $3,283.97 in past due assessment fees. The Association then filed a motion for a default judgment and a decree of foreclosure on its lien against Weldon's condominium.
On April 25, 2002, the court entered an order of default judgment and foreclosure decree against Weldon for $3,283.97. The order provided that in the event of nonpayment by Weldon, the Association's lien on the condominium would be foreclosed and sold by public sale. The order also provided that if the condominium was sold by public sale, Weldon was entitled to the statutory right of redemption under RCW 6.23 and `that the period of redemption shall be one year from the date of the Sheriff's sale after which time the Sheriff shall issue the Sheriff's deed to the purchaser.' Weldon failed to pay the default judgment, and the Association obtained an order of sale and writ of execution. The King County Sheriff held a public sale on July 12, 2002. At the sale, the Association purchased Weldon's condominium with a bid of $500.
The judgment also included $310.35 in interest and $1,684.70 in attorneys' fees and costs.
CP 4.
After the sale, the Sheriff sent a notice to Weldon as the judgment debtor. The notice stated the property was subject to a one year redemption period that would expire at 4:30 p.m. on July 12, 2003. The notice also stated that:
`The judgment debtors(s) [sic] or any of them may redeem the above described property at any time up to the end of the redemption period by paying off the amount bid at the Sheriff's sale, plus additional costs, taxes, assessments, certain other amounts, fees and interest. If you are interested in redeeming the property, contact the undersigned sheriff at the address stated below to determine the exact amount necessary to redeem.'
CP 73 (emphasis omitted).
On November 7, 2002, Weldon paid the Association $500 in partial satisfaction of the April 25, 2002 default judgment. On June 23, 2003, Weldon notified the Sheriff's Office that he intended to redeem his condominium and requested the exact amount necessary to redeem. On June 25, 2003, the Sheriff notified the Association that Weldon intended to redeem the condominium sold at the Sheriff's sale and the redemption would take place at the Sheriff's Office on or before July 11, 2003, `after receipt of a written and verified statement of rents and profits received for which demand was made.' The Association immediately responded by fax and verified that the redemption amount was $3,473.56 through July 11, 2003. The Sheriff forwarded the Association's response and told Weldon that the sum required to redeem through July 11, 2003, was $3,473.56. On June 30, 2003, the P. Nelson Family LLC assigned Joel Feldman an August 13, 2002, judgment against Clark Weldon for $1,738.76. By letter to the Sheriff's Office dated June 30, 2003, and received on July 2, 2003, Feldman' stated he wanted to redeem the condominium and enclosed a cashier's check for the amount required to redeem, $3,475. Feldman also said that if Weldon wanted to subsequently redeem the condominium from him, in addition to the redemption amount of $3475, Weldon had to pay his judgment for $1738.76 plus $373 in interest.
Weldon's letter of intent to redeem is incorrectly dated April 4, 2003. See CP 45, 73.
CP 50.
The record does not indicate the nature of this debt.
After receiving Feldman's letter, the Sheriff's Office notified Weldon that Feldman had submitted a request to redeem and asked Weldon whether he intended to follow through with the redemption. In response, Weldon telephoned the Sheriff's Office and said he would submit the redemption amount by the due date, July 11, 2003. On July 11, 2003, Weldon paid the Sheriff the amount required to redeem the condominium.
On July 15, 2003, the Sheriff's Office notified the Association, Weldon, and Feldman that a certificate of redemption would not be issued and the amounts tendered by Weldon and Feldman to redeem the condominium would be held in trust until the parties reached an agreement or the court directed the Sheriff to issue a certificate of redemption and a deed.
On August 29, 2003, Feldman filed a motion for an order directing the Sheriff to issue a certificate of redemption to him. Feldman claimed that by tendering the redemption amount first, he was entitled to redeem the condominium and Weldon could not redeem the property because he did not pay Feldman's judgment lien. In opposition, Weldon argued that he complied with the statutory requirements to redeem the condominium and, as the judgment debtor, he had a superior interest.
The trial court ordered the Sheriff to issue the certificate of redemption to Clark Weldon and a deed naming Weldon as the grantee of the condominium. Feldman appeals.
ANALYSIS
Feldman contends the trial court erred in ordering the Sheriff to issue the certificate of redemption and deed to Weldon. Feldman argues that he, rather than Weldon, was entitled to redeem because he tendered the redemption amount before Weldon and Weldon did not also pay Feldman's lien.
Statutory redemption is governed by the provisions in chapter 6.23 RCW. Statutory interpretation is a question of law, requiring de novo review. See Millay v. Cam, 135 Wn.2d 193, 198, 955 P.2d 791 (1998). The redemption statute requires strict compliance. See id. at 204.
RCW 6.23.010 identifies two classes of persons entitled to redeem property under RCW 6.23: the judgment debtor and a judgment creditor. RCW 6.23.010 provides in part,
(1) Real property sold subject to redemption, as provided in RCW 6.21.080, or any part thereof separately sold, may be redeemed by the following persons, or their successors in interest:
(a) The judgment debtor, in the whole or any part of the property separately sold.
(b) A creditor having a lien by judgment, decree, deed of trust, or mortgage, on any portion of the property, or any portion of any part thereof, separately sold, subsequent in time to that on which the property was sold. The persons mentioned in this subsection are termed redemptioners.
The procedure for redemption is set forth in RCW 6.23.080(1): The person seeking to redeem shall give the sheriff at least five days' written notice of intention to apply to the sheriff for that purpose. It shall be the duty of the sheriff to notify the purchaser or redemptioner, as the case may be, or the purchaser's or redemptioner's attorney, of the receipt of such notice, if such person is within such county. At the time specified in such notice, the person seeking to redeem may do so by paying to the sheriff the sum required. The sheriff shall give the person redeeming a certificate stating the sum paid on redemption, from whom redeemed, the date thereof and a description of the property redeemed. A certificate of redemption must be filed and recorded in the office of the recording officer of the county in which the property is situated, and the recording officer must note the record thereof in the margin of the record of the certificate of sale.
Here, the Sheriff held a public sale on July 12, 2002, and Weldon, as the judgment debtor, was notified that he had the statutory right to redeem the condominium one year from the date of the Sheriff's sale. RCW 6.23.020(1)(b) provides, `Unless redemption rights have been precluded pursuant to RCW 61.12.093 et seq., the judgment debtor or any redemptioner may redeem the property from the purchaser at any time . . . within one year after the date of the sale.' On June 23, 2003, Weldon sent a notice of his intent to redeem to the Sheriff and requested the exact amount necessary to redeem. The Sheriff notified the Association of Weldon's intent and provided the exact amount to redeem. Thereafter, on July 2, 2003, Feldman notified the Sheriff of his intent to redeem on and tendered the redemption amount that day with a cashier's check. Weldon paid the redemption amount on July 11, 2002, the date established by the Sheriff in the notice for redemption.
There is no dispute that Weldon, as the judgment debtor, and Feldman, as a judgment creditor, each complied with the statutory requirements to redeem. The question is who is entitled to priority under the redemption statute. We conclude that the intent of the legislature and the statutory scheme gives a judgment debtor priority over a judgment creditor. The primary objective in construing a statute is to give effect to legislative intent. City of Bellevue v. East Bellevue Cmty. Council, 138 Wn.2d 937, 944, 983 P.2d 602 (1999). Legislative intent is determined primarily from the statutory language viewed `in the context of the overall legislative scheme.' Subcontractors Suppliers Collection Servs. v. McConnachie, 106 Wn. App. 738, 741, 24 P.3d 1112 (2001). Statutory provisions should be read together with others "to achieve a harmonious and unified statutory scheme." Id. (quoting State v. Chapman, 140 Wn.2d 436, 448, 998 P.2d 282 (2000)).
Chapter 6.23 does not expressly address the priority as between a judgment debtor and a judgment creditor. But, by analogy, RCW 6.23.070 addresses the priority between two or more judgment creditors when they seek to redeem at the same time. According to RCW 6.23.070, the creditor with the superior lien is allowed to redeem first.
A creditor is referred to as a `redemptioner' under RCW 6.23.070. A `redemptioner' is a creditor who has a judgment lien. See RCW 6.23.010(1)(b).
RCW 6.23.070 provides in part, `When two or more persons apply to the sheriff to redeem at the same time, the sheriff shall allow the person having the prior lien to redeem first, and so on.'
In addition, until the redemption period expires, the judgment debtor's interest, (ownership of the property), is superior to a lien of creditor. RCW 6.23.060 and 6.21.120. RCW 6.23.040(2) provides that when a judgment debtor redeems, the effect of the execution of sale is terminated and the estate of the judgment debtor is restored. By effectively extinguishing subsequent redemption rights of judgment creditors, RCW 6.23.040(2) also suggests the legislature considers a judgment debtor's ownership interest superior to a judgment creditor's interest.
RCW 6.23.040(2) provides in part, `If the judgment debtor redeems, the effect of the sale is terminated and the estate of the debtor is restored.'
We conclude that when, as here, a judgment debtor and a creditor each comply with the requirements of chapter 6.23 RCW, the statutory scheme contemplates that a judgment debtor has a superior interest over a creditor.
We affirm the trial court's order directing the King County Sheriff to issue a certificate of redemption and Sheriff's deed to Weldon.
SCHINDLER, J., APPELWICK, J. and COX, J., Concur.