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Farmer v. Alaska USA Title Agency, Inc.

Supreme Court of Alaska

October 24, 2014

ROBERT J. FARMER, Appellant,
v.
ALASKA USA TITLE AGENCY, INC. and PEGGY JO WATSON, Appellees

Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Erin B. Marston, Judge. Superior Court No. 3AN-13-04416 CI.

Kenneth P. Ja cobus, P.C., Anchorage, for Appellant.

David D. Clark, Law Office of David Clark, Anchorage, for Appellee Peggy Jo Watson. No appearance for Appellee Alaska USA Title Agency, Inc.

Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices.

OPINION

Page 161

STOWERS, Justice.

I. INTRODUCTION

A debtor was given proper initial notice of a pending nonjudicial foreclosure sale but was not given additional notice when the sale was postponed. The debtor argued that equity required re-notice after each postponement and that the lack of re-notice violated his due process rights. The superior court granted summary judgment to the creditor. We affirm because equity does not require re-notice after postponement of a nonjudicial foreclosure sale and notice of a postponement by public announcement satisfies due process.

II. FACTS AND PROCEEDINGS

In 1992 Robert J. Farmer and his wife, Kathy J. Farmer, bought Wolverine Lodge in Glennallen from Peggy Jo Watson.[1] The purchase price of $365,000 was secured by a deed of trust on the property. Farmer defaulted on the mortgage for the first time in 1996, but he cured before the foreclosure sale occurred.

In 2012 Farmer defaulted again. Farmer was almost five months late on the payments, had not paid the real estate taxes or room taxes, and had no insurance on the property. Watson paid all of these expenses herself in order to keep the property up-to-date and insured. She testified that " Farmer promised many times that he would bring the loan current and obtain insurance," but " [h]e never did."

In March 2012 Watson commenced nonjudicial foreclosure proceedings. Watson's attorney recorded a notice of default and a notice of sale, and distributed them to Farmer by mail and personal service. Notice of the nonjudicial foreclosure sale was published in the Alaska Journal of Commerce and posted at various locations in Anchorage.

The nonjudicial foreclosure sale was postponed six times. It was initially set for July 25, but Watson postponed it until August 29. On August 28 Farmer filed for Chapter 13 bankruptcy, and Watson again postponed the sale, this time at Farmer's request, until September 26. Because of the ensuing automatic bankruptcy stay,[2] the salewas postponed until October 31, then until November 28, then again until December 19, and finally until December 27, when the sale actually took place.[3] Watson's attorney was the only attendee at each of the scheduled sales. Each of these postponements was announced publicly on the sale date, and the trustee signed the notice of postponement every time. Farmer was not otherwise notified of any of the postponements, and, at the time of the actual sale, he alleges that neither " [he], [his] wife, nor [his] bankruptcy attorney knew . . . that a deed of trust foreclosure sale was scheduled for December 27, 2012."

Over the course of the postponements, Farmer asked for the cure amount three separate times, the last time being on December 11, 2012. Watson's attorney provided the cure amount after each request. Farmer testified that he " was in the process of obtaining funds in order to bring the deed of trust current, and would have been able to do so." But the record contains no documentation of any attempt to cure, and Farmer presented no evidence of his attempts to " obtain[] funds." At the time of the bankruptcy proceedings, Farmer ...


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