Bankruptcy Estate of Burnett, Waldock & Padgett Investments v. C.B.S. Realty

668 P.2d 819, 1983 Alas. LEXIS 467
CourtAlaska Supreme Court
DecidedAugust 26, 1983
Docket6739
StatusPublished
Cited by12 cases

This text of 668 P.2d 819 (Bankruptcy Estate of Burnett, Waldock & Padgett Investments v. C.B.S. Realty) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bankruptcy Estate of Burnett, Waldock & Padgett Investments v. C.B.S. Realty, 668 P.2d 819, 1983 Alas. LEXIS 467 (Ala. 1983).

Opinions

OPINION

COMPTON, Justice.

This dispute involves two rival claimants to a plot of land in Anchorage commonly known as the Goose Lake property.1 The appellant, who is the trustee in bankruptcy for the partnership of Burnett, Waldock & Padgett Investments, claims title to the Goose Lake property by virtue of a quitclaim deed from the previous owner. The appellee, CBS Realty, purchased the Goose Lake property at a foreclosure sale under a second Deed of Trust. (CBS Realty subsequently quitclaimed to Olympic, Inc., but they are related corporations, and both will be referred to here as “CBS”.) The superi- or court declared that CBS, as purchaser at the trust deed sale, holds valid title to the property. For the reasons set forth below, we find the CBS foreclosure sale invalid, and reverse the superior court’s decision.

I. FACTUAL AND PROCEDURAL BACKGROUND

The Goose Lake property was owned at one time by William Wester, who weighed down the property with a variety of encumbrances, of which only two are relevant to this appeal. In January of 1975, Wester executed a promissory note in favor of the Alaska National Bank (“ANB”) secured by a first Deed of Trust on the Goose Lake property.2 A year later Wester executed a promissory note for $18,000 in favor of John Anderson, which was secured by a second Deed of Trust on the same property. Anderson assigned his interest in this note to CBS early in 1977 and recorded the assignment in Anchorage.

Wester defaulted on both of these notes. After several notices of default under the [821]*821first Deed of Trust, and the postponement of a number of foreclosure sales, ANB gave the last notice of default on April 7, 1977, and ultimately scheduled a non-judicial foreclosure sale for August 22,1977. Sometime in late February or early March of 1977, Pete Zamarello, the general manager of CBS, went with Anderson to Anchorage attorney Denis Lazarus to discuss foreclosure on the note secured by the second Deed of Trust. Lazarus instituted foreclosure proceedings in May of 1977, after receiving a litigation report from the Security Title & Trust Co., the trustee for the second Deed of Trust. The litigation report listed the various liens and encumbrances on the Goose Lake property, among which was the first Deed of Trust in favor of ANB. The litigation report noted that a Notice of Default on the first Deed of Trust had been recorded and that a sale to satisfy the debt had been scheduled.

The sale described in the report was one originally scheduled for April 2,1977, which was later cancelled and re-noticed for July 8, 1977, and then postponed to August 22. ANB mailed notice of the default and an announcement of the August 22 sale to Anderson, but not to CBS, despite the recorded assignment of Anderson’s interest to CBS. Both Lazarus and Zamarello testified that they did not know about the ANB sale until after it had taken place.

About a month before the ANB sale, Wester sold the Goose Lake property, conveying it by quitclaim deed to A.E. Hag-berg and Richard C. Burnett. Hagberg and Burnett tried to obtain a preliminary injunction to halt the ANB sale, but the injunction was denied. On August 22, 1977, ANB purchased the Goose Lake property and the other property secured by the first Deed of Trust with an offset bid of $281,-000. Hagberg and Burnett appealed the denial of the injunction, and this court instructed the superior court to set aside the ANB sale. Hagberg v. Alaska National Bank, 585 P.2d 559, 562 (Alaska 1978).

Meanwhile, foreclosure on the note secured by the second Deed of Trust had already taken place. A Notice of Default filed on May 12, 1977, set the sale for August 31, and CBS purchased the property on that date with an offset bid of $18,000. The Notice of Default, a Declaration of Default, an affidavit by Lazarus and the published notice of sale all named Anderson as the beneficiary of the second Deed of Trust, even though his interest had been assigned to CBS in January 1977. Lazarus discovered this error after the notice of sale had been published, and he asked Zamarello to appear at the sale to bid on the property on behalf of CBS. Zamarello did so, and Lazarus believed that any defect caused by an erroneous designation of the beneficiary in the documents was cured by having a CBS representative actually present to bid on the sale.

The outcome' of Hagberg led Burnett to believe that he had acquired good title to the Goose Lake property. (Hagberg died during the appeal, and Burnett acquired Hagberg’s share of the property.) Early in 1979, after both foreclosure sales and after our decision in Hagberg invalidating the ANB sale, Burnett sold a half interest in the Goose Lake property and the Terrace Manor property to Vern L. Padgett for $80,000. Padgett sold half of his interest in both properties to Dennis L. Waldock.

The investment partnership of Burnett, Waldock & Padgett brought an action to quiet title to the Goose Lake property and were rebuffed by the superior court, which declared that the CBS foreclosure sale was valid and that CBS was the lawful owner of the property. Following the superior court decision, the partnership went into bankruptcy, and the trustee in bankruptcy (hereinafter referred to as “Burnett”) appealed.

II. NOTICE

We first address the issue of notice. The superior court concluded that the ANB sale had no effect on the subsequent CBS sale because CBS did not receive the statutorily required notice of the earlier sale. Foreclosure sales under trust deeds must be conducted in strict conformity with statutory requirements and with the provisions of the deed of trust itself. AS 34.20.-[822]*822070(a). Notice of the foreclosure sale must be given to, among others, “any person having a lien or interest subsequent to the interest of the trustee in the trust deed .... ” AS 34.20.070(c). There is no dispute that notice of the ANB sale was mistakenly given to Anderson and not to CBS. Despite this error, we find that CBS had inquiry notice of the ANB sale.

Before initiating foreclosure proceedings, Lazarus requested a litigation report on the Goose Lake property. The report noted that foreclosure proceedings under the first Deed of Trust had already begun, that a Notice of Default had been filed, and that a foreclosure sale was scheduled for April 2, 1977. Lazarus, when questioned at trial as to whether this information would not serve to alert him to the existence of a foreclosure sale under a more senior encumbrance, replied that the notice was merely a preliminary step, and that although he knew ANB had noticed a default, he “did not know the status of what they had done, or whether it had been remedied.”

Because Lazarus had this litigation report, with its description of the Notice of Default and the scheduled sale, he had inquiry notice of the ANB sale. An early definition of inquiry notice appears in McClure v. Township of Oxford, 94 U.S. 429, 24 L.Ed.

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668 P.2d 819, 1983 Alas. LEXIS 467, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bankruptcy-estate-of-burnett-waldock-padgett-investments-v-cbs-alaska-1983.