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Alaska Tr., LLC v. Bachmeier

Supreme Court of Alaska

August 8, 2014

ALASKA TRUSTEE, LLC, ROUTH CRABTREE OLSEN, PS, and RICHARD N. ULLSTROM, Petitioners,
v.
ELISABETH B. BACHMEIER, Respondent

Petition for Review from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Sharon Gleason, Judge. Superior Court No. 3AN-09-08695 CI.

Richard Ullstrom, Routh Crabtree Olsen, PS, Anchorage, for Petitioners.

Debra J. Fitzgerald and Jonathon A. Katcher, Pope & Katcher, Anchorage, for Respondent.

Joe Solseng, Robinson Tait, PS, Seattle, Washington, for Amicus Curiae United Trustee's Association.

Todd J. Timmermans, Hartig, Rhodes, Hoge & Lekisch, P.C., Anchorage, for Amicus Curiae Alaska Land Title Association.

Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices. BOLGER, Justice, with whom FABE, Chief Justice, joins, dissenting in part.

OPINION

Page 2

STOWERS, Justice.

I. INTRODUCTION

In 2009 Elisabeth B. Bachmeier defaulted on a loan secured by a deed of trust against her home, and a nonjudicial foreclosure was initiated. Bachmeier requested a reinstatement quote in order to halt the foreclosure, as is permitted by the foreclosure statute.[1] Alaska Trustee, the trustee under the deed of trust, replied with a quote which included foreclosure costs that were not attorney's fees or court costs, the only items the foreclosure statute expressly mentions as recoverable in a reinstatement amount. Bachmeier brought suit against Alaska Trustee, Routh Crabtree Olsen (the law firm aiding in the foreclosure), and Richard Ullstrom (an attorney employed by Routh Crabtree Olsen),[2] alleging that the inclusion of the disputed foreclosure costs violated the foreclosure statute and was a deceptive practice in violation of the Unfair Trade Practices and Consumer Protection Act (UTPA).[3] Bachmeier also argued that her deed of trust did not provide that all foreclosure costs could be recovered in the reinstatement amount. Both sides moved for summary judgment. The superior court ruled that the inclusion of the foreclosure costs violated the foreclosure statute and that the UTPA applied to nonjudicial foreclosures. Alaska Trustee petitioned for review. We granted review on two questions: (1) the scope of permissible charges to be included in the reinstatement amount given to homeowners facing nonjudicial foreclosure under AS 34.20.070(b); and (2) whether the UTPA applies to nonjudicial deed of trust foreclosures.

We hold that because the beneficiary of a deed of trust has a right to be returned to its status quo ante when the borrower reinstates after a default, Alaska Trustee can include in Bachmeier's reinstatement amount all reasonable costs it incurred pursuing the foreclosure under the foreclosure statute, regardless of whether Bachmeier's deed of trust specifically provided for the inclusion of such costs. We further hold that the UTPA does not apply to nonjudicial deed of trust foreclosures.

II. FACTS AND PROCEEDINGS

In 2007 Elisabeth B. Bachmeier executed a note and deed of trust in favor of Richard Waner to secure the $80,000 balance due on her purchase of a residential condominium from Waner. In March 2009 Bachmeier defaulted on her payment obligations under the note and deed of trust. At Waner's request, Alaska Trustee began a nonjudicial deed of trust foreclosure. Bachmeier contacted Alaska Trustee and requested a quote for the amount she needed to pay to stop the foreclosure and reinstate her loan under the foreclosure statute. This statute gives a defaulting borrower the right to cure the default anytime before the sale " by payment of the sum in default other than the principal that would not then be due if no default had occurred, plus attorney fees or court costs actually incurred by the trustee due to the default." [4]

Page 3

Alaska Trustee responded with a quote that included all the costs it had incurred pursuing the nonjudicial foreclosure. The reinstatement quote itemized the costs and showed that most of them were not attorney's fees or court costs. The total reinstatement amount was $6,720.40, $2,315.40 of which was for foreclosure expenses. Of these expenses, $1,500 was labeled as attorney's fees, but these fees were for work done by Alaska Trustee, not by an attorney.

Bachmeier paid the sum under protest and then sued Alaska Trustee. Bachmeier requested declaratory relief, injunctive relief, and damages. She argued that Alaska Trustee had violated the UTPA and the Federal Fair Debt Collection Practices Act (FDCPA)[5] by: (1) including fees that were not attorney's fees or court costs as permitted by the foreclosure statute; (2) failing to provide Bachmeier with the correct amount needed for reinstatement; (3) not adequately describing Bachmeier's breach when informing her it was foreclosing on her home; and (4) not informing Bachmeier that she had a right to stop the foreclosure by paying the reinstatement amount. Bachmeier moved for partial summary judgment. Alaska Trustee filed a cross-motion for complete summary judgment, arguing that its actions were " governed by neither the [UTPA] [n]or [the] FDCPA," and that both the deed of trust and the foreclosure statute permitted the inclusion in the reinstatement amount of all foreclosure costs.

Superior Court Judge Sharon Gleason heard oral arguments and issued both oral and written decisions granting partial summary judgment in favor of Bachmeier. The court ruled that the inclusion of foreclosure costs was impermissible because " [i]t is a violation of AS 34.20.070(b) for [Alaska Trustee] to add on to a homeowner's 'reinstatement' amount fees that are not due and payable to a lawyer or law firm." The court further held that the UTPA applies to " non-judicial foreclosures of a borrower's residence." The court ultimately denied summary judgment on the other issues because it believed genuine issues of material fact existed.

Alaska Trustee petitioned this court for review, and we granted review on two issues: " the scope of permissible charges to be included in the 'cure' (reinstatement amount) given to homeowners facing non-judicial foreclosures under AS 34.20.070(b)" and " whether Alaska's Unfair Trade Practices and Consumer Protection Act ([UTPA]) applies to non-judicial foreclosures." [6]

III. STANDARD OF REVIEW

A grant of summary judgment is reviewed de novo, viewing the evidence in the light most favorable to the non-moving party and making all reasonable inferences in its favor.[7] Summary judgment will be upheld if there is no genuine issue of material fact.[8] Issues of statutory interpretation are questions of law to which we apply our independent judgment.[9] " We interpret Alaska law 'according to reason, practicality, and common sense, taking into account the plain meaning and purpose of the law as well as the intent of the drafters.' " [10]

IV. DISCUSSION

A. Alaska Statute 34.20.070(b) Allows For The Inclusion Of All Reasonable Foreclosure Costs In The Reinstatement Amount.

A borrower who defaults has a right to cure the default anytime before the sale

Page 4

" by payment of the sum in default other than the principal that would not then be due if no default had occurred, plus attorney fees or court costs actually incurred by the trustee due to the default." [11] Bachmeier argues that this statute does not allow for the inclusion in the reinstatement amount of any costs besides attorney's fees or court costs and that Alaska Trustee violated the statute by including costs that were neither attorney's fees nor court costs. Alaska Trustee contends that the phrase " sum in default other than the principal that would not then be ...


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