consolidate the quiet title case with her suit to rescind the foreclosure sale of her
condominium unit.
The trial court consolidated the two suits, and denied Ms. Thomas’s motion for summary judgment, without prejudice Appellees UHC, TBM, and l\/lr. Buckley moved for summary judgment in Ms. Thomas’s wrongful foreclosure sale case, and appellee LLC moved for summary judgment in the quiet title case The trial court granted summary judgment to the appellees and ordered that the unit be conveyed “free and clear of any right, title and interest . . . of [Ms. Thomasj . . . .” The trial court concluded that “[a]bsent evidence that Ms. Thomas ever formally designated a different address to the board, [for the purpose of notice,] it was legally sufficient for UHC to provide notice by certified mail to the unit only.” The trial court further concluded that Ms. Thomas failed to demonstrate that she gave a “formal” designation to the UHC Board that she wanted to receive mail or
notice at her 20th Street residence “exclusively.” This appeal followed
l0
II. Discussion
Ms. Thomas raises numerous claims as to why summary judgment was inappropriate in this case8 We conclude that her claim that she lacked adequate notice pursuant to D.C. Code § 42~1903.13, controls the outcome of this case because without adequate notice the foreclosure sale is void and must be set aside Joltnson v. Fai)-fax Vill. Condo. IV Unit Owners Ass’n, 641 A.2d 495, 508 (D.C.
1994).
Our review is de novo. Eaglin v. District of Columbia, 123 A.3d 953, 955 (D.C. 2015) (we review questions of statutory analysis de novo); Woodland v. Dist. Council 20, 777 A.2d 795, 798 (D.C. 2001) (we review a grant of summary
judgment de novo). Our determination of whether the notice was adequate is
3 On appeal, Ms. Thomas argues that the trial court abused its discretion by granting the appellees’ motion for summary judgment (l) in the wrongful foreclosure case without first adjudicating the quiet title case or adjudicating both cases simultaneously; (2) in the wrongful foreclosure case because the LLC was an indispensable party to the case and was not, at that time a party to the case; (3) in the wrongful foreclosure case because the deed transferring title was invalid on its face; (4) in the consolidated case because the LLC was not a bona fide purchaser; (5) in the quiet title case because the deed transferring title was invalid and therefore the LLC was not a bona fide purchaser; and (6) in the wrongful foreclosure case for a second time when the motion was no longer pending
ll
dependent on the correct interpretation of the notice provision of D.C. Code § 42~ l903.l3 (c)(/-l), which states that:
A foreclosure sale shall not be held until 30 days after
notice is sent by certified mail to a unit owner at the
mailing address of the unit and at any other address
designated by the unit owner to the executive board for
purpose of notice (emphases added). The trial court’s ruling and UHC, in its deposition of Ms.
Thomas, suggested that Ms. Thomas was required to “formally” designate her
actual address, and that the designated address had to be “exclusive.”
In general, “the intent of the lawmaker is to be found in the language that he or she has used.” Eaglt'n, sapra, 123 A.3d at 955 (internal brackets and citations omitted). The statutory language at issue here is “and at any other address designated by the unit owner to the executive board for purpose of notice.” § 42~ 1903.13 (c)(¢l) (emphasis added). We begin by looking at the plain language of the statute and, if the plain meaning is clear, we will look no further. However, we may also look to the “legislative history to ensure that our interpretation is consistent with legislative intent.” Aboye v. United States, 121 A.3d 1245, l249
(D.C. 2015) (internal citations omitted).
UHC first asserts that the statute requires a designation for the purpose of notice The literal definition of the term “designate” is “[t]o choose (someone or something) for a particular job or purpose[.]”9 The phrase “to choose” is therefore synonymous with “to designate.” Neither the statute nor our case law define the term, “designated,” to denote a formal designation ln fact, it is not exactly clear what UHC deems to be a “formal” designation or how the form Ms. Thomas filled out is insufficient.m UHC does not cite to any statutory language or case law in support of its contention that the form Ms. Thomas claims she filled out and which they do not contest, is insufficient to constitute a desire to “designate” her actual address For example in the context of an unemployment compensation review, the term, to designate is used synonymously with the term, to choose wherein “[t]he company retained the right to designate the employee’s particular work schedule” Green v. District of Columbia Unemployment Comp. Bd., 273 A.2d 479, 480 (D.C. 1971) (emphasis added). ln the real estate context, in interpreting the term, successor, the court analogized the term, to designate with the term, to
assign and defines a successor as: “to designate one to whom property descends . .
9 Designate, Black’s Law Dictionary (lOth ed. 2014).
m Appellees do not adequately raise the issue of whether Ms. Thomas properly notified “the executive board” as stated in the statute D.C. Code § 42- 1903.13 (c)(4). Therefore, any claim with regard to the portion of the statute requiring a unit owner to provide notice “to the executive board” is thus forfeited on appeal. Cf Oparaugo v. Watts, 884 A.2d 63, 74 (D.C. 2005).
. in connection with the broader term, ‘assigns . . . .”’ Edwards v. West Woodridge Theater Co., 55 F.Zd 524, 526 (D.C. Cir. 1931) (ernphasis added). ln the context of historic landmark preservation, the Historic Preservation Review Board “is empowered to ‘designate and maintain a current inventory of historic iandmarks . . . .”’ Embassy Real Estare Holdings, LLC v. District ofColm-nbia Mayor’s' Agent fc)rHistoric Pres., 944 A.2d 1036, 1044 (D.C. 2008) (internal brackets and citation omitted) (emphasis added). Finally, in the context of a retired federal judge sitting by designation, the statute analogizes the term “desz‘gnated” with the term “assigned.” Boomhower, Inc. v. American Auto. lzrs. Co., 220 F.2d 488, 490 & n.2 (D.C. Cir. 1955) (emphasis added). Accordingly, there is no ambiguity or reason why the word “designated” in § 42-1903.13 (c)(4) should take on a meaning
different from its ordinary meaning of to choose or to assignll
Further, the notice did not need to be “formal,” just because the Statute states the notice has to be ‘fol'pi¢lpose ofnotice.” According to the plain meaning, there is no requirement that the notice be formal Neither the Act nor the UHC bylaws
define the phrase, “for purpose of notice,” however, simiiar legislation does give
ll Cm-'ter v. State Farm Mut. Auto. fns. Co., 808 A.Zd 466, 472 (D.C. 2002) (“This court will not read into an unambiguous statute language that is clearly not
there.”).
an indication that the notice does not need to be formal. For example, in the context of judicial proceedings, “[n]otice may . . . be given in any . . . manner calculated to give notice and not prohibited by statute or court ruie.” D.C. Code § 16-4808 (d) (20l2 Repl.). Further, in the same context, a similar statute provides in part:
(a) . . . a person gives notice to another person by taking action that is reasonably necessary to inform the other person . . . (b) [a] person has notice if the person has knowledge of the notice or has received notice (c) [a] person receives notice when it comes to the person’s attention or the notice is delivered at the person’s piace of residence or place of business . . . .
D.C. Code §§ 16~4402 (a)-(c) (2012 Repi.). In the context of business
organizations, not uniike a condominium association, the relevant statute states in pertinent part:
[a] person has notice of a fact if the person: (l) [k]nows of it . . . [or] [h]as received a notification of it . . . [or] [h]as reason to know it exists from all of the facts known to the person at the time in question . . . (e) [a] person notifies or gives a notification to another person by taking steps reasonably required to inform the other person in ordinary course, whether or not the other person learns of it . . . (f) [a] person receives a notification when the notification: (l) [c]omes to the person’s attention; or (2) [i]s deiivered at the person’s place ofbusiness . . . .
D.C. Code §§ 29-701.03 (b), (e)-(f`) (2012 Repl.). Further, in the context of nonprofit corporations, “[u]nless the . . . bylaws provide otherwise, notice . . . shall be in the form of a record[ing] . . . [and] [n]otice may be communicated in person
or by delivery. . . D.C. Code §§ 29-401.03 (a)-(b) (2012 Repl.).
Therefore, the plain language of “for purpose of noriee” does not entail a formal method, but rather, just that the person who is notifying another person must communicate the information in such a way that would he “reasonabiy required to inform the other person.” D.C. Code § 29-701.03 (e). Further, there is no formal procedure necessary to notify another of a fact, just to take reasonable steps sufficient to bring the information “to the [other] person’s attention . . . D.C. Code § 16-4402 (c). Therefore, under the statute, so long as a unit owner
takes measures reasonabie to apprise the executive board of another address, the
board has a duty to send notice.
Ms. Thomas complied with the plain meaning of the tenn “for purpose of notice” by giving actual notice to TBM of her 20th Street address UHC and TBM then complied with the notice that Ms. Thomas provided, and began sending Ms. Thomas notice to the address she designated By filling out TBM’s form, Ms.
Thomas acted “reasonably necessary to inform” TBM of her 20th Street address
D.C. Code § 16-4402 (a). UHC and TBM had “reason to know [l\/ls. Thomas’s 20th Street address] exist[ed] from all of the facts known” to both entities, because she notified them of the address D.C. Code § 29-701.03 (b). Therefore, the manner through which Ms. Thomas notified appellees of her 20th Street address satisfied the “for purpose of notice” provision and therefore, UHC should have sent
the foreclosure sale notice to her 20th Street address
in addition, we disagree with UHC’s argument that Ms. Thomas was obliged to designate or choose her 20th Street address to receive notice exclusiveiy. in fact, this argument is in direct contradiction with the term “and” in the notice provision, which states that a condominium association must send notice to the unit address “and ar any other address designated by the unit owner to the executive hoardfor purpose of norfce.” The term “and” is an indication that the legislators intended for a condominium association to send notice to more than one place if
there is evidence that the unit owner has designated another place.EZ
12 We must also note that publishing the notice of foreclosure sale in T he Wash.ingroa Post, alone, was not enough to satisfy the notice requirements of D.C. Code § 42-i903.13 (2001). Section (c) of § 42-1903.13 details the requirements that a condominium association must follow before initiating a foreclosure sale (to enforce a lien of past due assessments). Subsection (5) states in part: “[t]he executive board shall give public notice of the foreclosure sale by advertisement in at least l newspaper of general circulation . . . . [t]he newspaper advertisement shall appear on at least 3 separate days during a lS~day period to the date of the
(continued . . ._)
UHC was therefore required to send notice to Ms. Thomas’s condominium unit and to her 20th Street address because Ms. Thomas had previously “designated” that address “for purpose of notice” by filling out a form that stated she was leasing her unit and that her current mailing address was at her 20th Street
address ‘ 3
(. . . continued)
sale.” § 42»1903.13 (c)(5) (emphases added). ln compliance with this requirement, UHC published notice of the foreclosure sale in T he Washingron Posr on May 7, 9, and ll, 2012 and the unit was sold on l\/lay l5, 2012. However, the statute is written so that both subsections (4) and (5) must be complied with. For notice to be proper, the condominium association must first send notice to the unit owner as required by subsection (4) and then must publish notice of the public auction as required by subsection (5). Although appellees do not specifically raise the claim that only adhering to the requirements of subsection (5) is enough to satisfy the notice requirements of § 42-1903.13, we still find it important to clarify.
'3 The “formal” and “exclusive” language, which is not included in the Act, is also not included in the UHC bylaws. Article IX Section 9.1 of the bylaws, “Manner of Notice,” states in pertinent part:
whenever any notice is required . . . such notice may be given in writing, [or] by mail . . . to such . . . Unit Owner at such address as appears on the books of the Condominium. . . .”
Appellees’ argument is inconsistent with the language of the bylaws, which required the UHC to send notice to “such address as appears on the books of the Condominium . . . .” According to D.C. Code § 42-l903.l4 (b) (2001), the books of the condominium include “books and records kept by cr on behalf of the unit owners’ association, including the unit owners’ association membership list, [and] mailing addresses of the unit owners[.]” We discern no error in the trial court’s reasonable inference, that Ms. Thomas’s address appeared on the books of the condominium because the address was known to appellees since at least 2003 and
Even though the plain meaning of our statute is clear and unambiguous, we may also turn to the legislative history of the notice provision for additional guidance Aboye, supra, 121 A.3d at l249 (internal citations omitted). The Act was enacted in 1976 and it creates a framework for the enforcement of issues between condominium associations and owners lt was updated in l977, 199l, 1992, 2014 and 2017. The notice provision has become increasingly more specific with regard to the method condominium associations must employ to ensure unit owners are notified of an impending foreclosure.’4 The Council of the District of Columbia stated that, among many new unit owner protections, one purpose of the 2017 amended Act is “to improve notice requirements before foreclosure
sales[.]”'5 The Condominium Owner Bill of Rights and Responsibilities
the condominium association previously used the 20th Street address to send her correspondence Thus, even by their own bylaws, appellees should have sent notice to the 20th Street address
34 The version of the Act applicable in this case is the 1992 version, which was recodified in 2001. It states that notice shall be sent to the unit owner at the unit address and to any other address designated The 2017 version incorporates the 1992 requirements and adds an additional requirement that notice shall be sent to the unit owner at any last known mailing address
15 This is clear by the Council’s addition to the notice provision in the 2017 version that condominium associations must send notice to the unit to “any last known mailing address[,]” D.C. Code § 42-1903.13 (c)(4)(A) (2017), which is a clearer way of saying “any other address designated.” The D.C. Council added the notice provision of “any last known address” in other foreclosure sale provisions in
Amendment Act of 20l6, 2016 D.C. Sess. L. Serv. 2l-24l (Act 21-657). The notice provision was meant to create a method through which notice is likely to
reach a unit owner and notify her of the impending loss of her property.
The Act’s legislative history lends support to our reading of the plain language of the statutory notice provisions.‘é This court has interpreted the 1992 version of the Act to require that a condominium association take “reasonable”
measures to ensure that a unit owner is notified See Harris v. Norrhbrook
Condominium II, 44 A.3d 293, 299 (D.C. 2012).'7 'l`herefore, UHC violated the
other previously-enacted statutes, indicating an early intent to clarify this provision in foreclosure sales for past due assessments cases See, e.g., Abdel-Kafi v. Ciricorp Mo)-tg., luc., 772 A.2d 802, 803-04 (D.C. 2001) (mortgage and trust deed
case).
16 See, e.g., Sieward v. Moskowiiz, 5 A.3d 638, 649 (D.C. 2010); cf. Bank- Fund Srajj“Fed. Credii Union v. Cuellar, 639 A.2d 561, 572 (D.C. 1994) (“The legislature clearly sought to provide a right of reinstatement that would avoid the loss to the homeowner of his or her horne simply upon default in making a[n] [assessment] payment.”).
17 ln Harris, a unit owner, Harris, moved from his condominium unit in Washington, D.C. to Laurel, l\/laryland. 44 A.3d at 295, 299. Harris orally notified the property manager of his new address but never submitted written notice. Id. At some point, the property management changed and it attempted to contact Harris to verify that the Laurel address was still up-to-date but Harris never responded Id. at 296. When it foreclosed on Harris’s unit, the property manager sent notice of foreclosure to Harris’s unit address and the Laurel address ]d. at 294-95. Unbeknownst to the property manager, Harris had moved from the laurel
statute by failing to send Ms. Thomas notice to her 20th Street address which she had previously informed UHC of, and to which UHC and TBM had mailed
correspondence on prior occasions for at least three years previously13
address and did not provide a forwarding address to the postal service or to the property manager and was essentially “evading” notice Id. at 296, 299. The property manager “made numerous efforts to notify appellant about the delinquency” including not only sending notice via certified mail to both addresses but also via first-class mail to both addresses Id. at 295, 299 (intemal alterations quotation marks, and citations omitted). We ultimately held that the property manager “not only satisfied the [Condominium Act’s notice] requirement, but also made efforts, reasonable under the circumstances to provide [I-larris] with actual notice” Id.
Harris only verbally informed the association of his address and attempted to evade the notice by moving multiple times and not providing a forwarding address We found that the association’s efforts to find a forwarding address for Harris satisfied the statutory notice requirements ln Ms. Thomas’s case, not only did she notify UHC via a form, but UHC and TBM knew of her address and sent her mail previously, and she never moved or attempted to evade notice of the foreclosure Therefore, UHC’s efforts to notify Ms. Thomas were inadequate to satisfy the notice requirements because sending notice to a unit they knew she did not live in could not “reasonably” notify her of the impending sale of her unit.
'8 Finally, in the trial court, UHC argued that mailing the foreclosure sale notice to the condominium unit, under the assumption that Ms. Thomas’s tenant would deliver it to her, constituted a reasonable and valid notice We will not address the merits of this claim, however, because the notice was not actually delivered to Ms. Thomas’s tenant, but was returned to UHC and marked “Return to Sender, Unclaimed, Unable to Forward.”
III. Conclusion
The statutory notice provisions of § 42-1903.13 (c)(4) required UHC to send notice of the foreclosure sale to both Ms. Thomas’s condominium unit “and [to] any other address [that she] designated[.]” UHC failed to comply with those notice provisions when it sent notice only to Ms. Thomas’s condominium unit. Therefore, we must reverse the trial court’s grant of summary judgment to appellees See Logan v. LaSa/le, supra, 80 A.3d at 1024; see also ladep. Fed. Sav.
Bank v. Huntley, 573 A.2d 787, 787-788 (D.C. 1990).E9
Since we hold in favor of l\/ls Thomas on the notice issue, we do not address the remaining issues she raises, which all stem from the wrongful foreclosure of her unit. Cf ii‘ansport. Leasing Co. v. Dep ’t ofEmp ’t Services, 690 A.2d 487, 490
(D.C. 1997). We remand to the trial court to vacate the order granting summary
19 Ms. Thomas also argues that appellees violated her due process rights when they did not afford her proper notice However, “foreclosure procedures implicate the [due process clause of the] Fourteenth Amendment only where there is at least some direct state involvement in the execution of the foreclosure.” Harris v. Northl)rook Condo. ll, supra, 44 A.3d at 298 (internal altemations omitted) (citing Apao v. Bank ofNew York, 324 F.3d 1091, 1093 (9th Cir. 2003)). Here, UHC initiated non-judicial foreclosure proceedings with no state involvement Therefore, we need not consider Ms. Thomas’s challenge on due process grounds
judgment in favor of the appellees and for proceedings not inconsistent with our decision20 On the issue of remedy, the trial court may be required to set aside the foreclosure sale or, if unfeasible grant “an award of any damages of the type recoverable incident to a set-aside action.” Jolmson, supra, 641 A.2d at 508. Finally, our decision is predicated on UHC’s failure to adhere to the notice requirement, and therefore in light of our decision, the trial court may assess
whether it should dismiss any or all of the remaining parties for this suit.
So ordered
20 We cannot sua sponte grant summary judgment in Ms. Thomas’s favor because she did not move the trial court to do so in the consolidated case nor did she ask this court to do so on appeal.