Alaska Trustee, LLC v. Bachmeier
Alaska Trustee, LLC v. Bachmeier
Opinion of the Court
OPINION
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.
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."
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)
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 "[it 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 "nonjudicial 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."
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.
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
In Hagberg v. Alaska National Bank, a bank challenged the constitutionality of the foreclosure statute's redemption provision on the grounds that, as applied, it violated the United States Constitution's Contract Clause, which forbids any state from passing a law that alters existing contracts in ways that "unreasonably affect the value" of the contractual rights.
Though Hagberg does not explicitly state which costs must be paid to reinstate a loan, logically, in order for the uncompleted foreclosure not to financially harm the beneficiary, all of the reasonable costs the beneficiary incurred in pursuing the foreclosure must be repaid. Otherwise, each time the borrower redeems a defaulted loan, which the statute allows twice before the borrower loses the right of redemption,
Kuretich and Albrecht involved situations very similar to Bachmeier's. In both cases a borrower whose mortgage had entered default challenged the inclusion in the reinstatement amounts of foreclosure costs that were neither attorney's fees nor court costs.
Bachmeier's argument misconstrues our holdings in Kuretich and Albrecht. Assuming without deciding that Bachmeier's deed of trust does not expressly allow all nonjudicial foreclosure costs to be included in the reinstatement amount, Alaska Trustee may still include all reasonable foreclosure costs because the beneficiary has a right to be returned to its "status quo ante" each time a borrower's loan is reinstated.
Bachmeier further argues that even if she is liable for all foreclosure costs in the case of default, because her deed of trust does not state that these costs can be included in her reinstatement amount, Alaska Trustee must allow her to reinstate her loan without paying the foreclosure costs,, and then it can initiate a lawsuit in court to collect them. But this arrangement would defeat the purpose of the nonjudicial foreclosure statute-avoiding expensive legal costs and alleviating congestion in the courts. We reiterate that AS 34.20.070(b) and our decisions in Hagberg, Kuretich, and Albrecht allow for the inclusion of all reasonable foreclosure costs in a reinstatement amount. It was error for the superior court to grant partial summary judgment on this issue to Bachmeier, and we reverse that decision.
B. The UTPA Does Not Apply To Alaska Trustee's Nonjudicial Foreclosure Of Bachmeier's Deed Of Trust.
Bachmeier argues that Alaska Trustee violated the UTPA by "deceptively padding her reinstatement amount." Alaska Trustee counters that the UTPA does not apply to nonjudicial foreclosures. The superior court agreed with Bachmeier and granted partial summary judgment on the issue.
For the past thirty years we have consistently held that "the sale of real property is not within the regulatory scope of the [UTPA]."
In Barber v. National Bank of Alaska, we held that a home loan is not a good or a service. In that case, the borrower stopped making payments on his loan and the servi-cer eventually foreclosed on the property.
We reiterated our holding that the Act covers only "goods or services," not real property, in Aloha Lumber Corporation v. University of Alaska.
In 2011 we held, onee again, that the UTPA does not cover real estate transactions.
Despite this abundance of precedent, Ba-chmeier contends that two recent amendments to the UTPA, one in 2004
"When interpreting a statute, [we] look[ ] to three factors: the language of the statute, the legislative history, and the legislative purpose behind the statute."
Notably, the 2004 amendment includes only "goods or services provided in connection with ... a transaction involving an indebtedness secured by the borrower's residence."
The legislative history does not lead us to conclude otherwise. The 2004 amendment originated in House Bill 15, which was intended to establish a "no-call" list for Alaska.
An Act relating to establishing the Alaska No-Call list, a database of residential telephone eustomers who do not wish to receive telephone solicitations; requiring telephonic sellers and paid solicitors to purchase the database; requiring telephonic sellers to identify themselves; requiring telephonic solicitors who are otherwise exempt from registration as telephonic solicitors to file with the Department of Law and pay the database access fee; and providing for an effective date."[51]
This draft did not contain the definition of goods and services now at issue. The only mention of home loans was in a sentence in the last paragraph of the sponsor statement: "House Bill 15 will begin the process of eliminating those unsolicited phone calls asking you about your mortgage rate or if you want aluminum siding."
The Bill was put on hold after Congress passed its national "do-not call" legislation.
On March 1, 2004, the House Finance Committee changed the name of the Bill from the unwieldy designation quoted above to, "AN ACT relating to fair trade practices and consumer protection; relating to telephonic solicitations; relating to charitable solicitations; and providing for an effective date."
The Bill was passed by the House and was transmitted to the Senate, where it was considered by the Labor & Commerce Committee.
It is clear that the Alaska Legislature did not anticipate the argument that Bachmeier makes. Nowhere in the committee minutes, committee files, or bill drafts is there any discussion of goods and services or any discussion of the UTPA. Critically, there was no discussion, or even the hint of a suggestion, that the amendments were intended to include nonjudicial deed of trust foreclosures in the UTPA. In this situation the court must "guess what [the legislature] would have intended on a point not presented to its mind, if the point had been presented."
Amending the UTPA to include nonjudicial foreclosures would have been a significant and controversial change to existing law. There would have been extensive debate reflected in the committee minutes;
The purpose, sponsor statement, and see-tional analysis of House Bill 15 do not sup
v. CONCLUSION
We REVERSE the superior court's rulings that AS 34.20.070(b) does not permit the beneficiary to include all foreclosure costs in the reinstatement amount and that the UTPA applies to nonjudicial deed of trust foreclosures. We REMAND to the superior court for further proceedings consistent with this opinion.
. AS 34.20.070(b).
. These parties will be collectively referred to as Alaska Trustee.
. AS 45.50.471-.561.
. Former AS 34.20.070(b) (2003).
. 15 U.S.C. §§ 1692-1692p (2012).
. Alaska Trustee, LLC v. Bachmeier, 3AN-09-08695 CI (Alaska Supreme Court, Nov. 4, 2010). We are not called upon in this appeal to decide whether the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692-1962p, applies to nonjudicial foreclosures.
. Witt v. State, Dep't of Corr., 75 P.3d 1030, 1033 (Alaska 2003) (citing Spindle v. Sisters of Providence in Wash., 61 P.3d 431, 436 (Alaska 2002)).
. Parson v. State, Dep't of Revenue, Alaska Hous. Fin. Corp., 189 P.3d 1032, 1036 (Alaska 2008) (citing Parker v. Tomera, 89 P.3d 761, 765 (Alaska 2004)).
. Alderman v. Iditarod Props., Inc., 32 P.3d 373, 380 (Alaska 2001).
. Young v. Embley, 143 P.3d 936, 939 (Alaska 2006) (quoting Native Vill. of Elim v. State, 990 P.2d 1, 5 (Alaska 1999)).
. Former AS 34.20.070(b) (2003).
. 585 P.2d 559, 561 (Alaska 1978). The Contract Clause provides that "[nlo State shall ... pass any ... Law impairing the Obligation of Contracts." U.S. Const. art. I, § 10, cl. 1.
. Hagberg, 585 P.2d at 561.
. AS 34.20.070(b).
. See Kuretich v. Alaska Tr., LLC, 287 P.3d 87, 93-94 (Alaska 2012) (noting that "a borrower's default is not a cost-free occurrence to the lender").
. Id. at 94.
. 286 P.3d 1059, 1063 (Alaska 2012) (quoting Kuretich, 287 P.3d at 89) (internal alteration omitted).
. Id. at 1061-62; Kuretich, 287 P.3d at 90.
. Kuretich, 287 P.3d at 89; Albrecht, 286 P.3d at 1063-64.
. Kuretich, 287 P.3d at 87-88, 94.
. AS 34.20.070(b).
. Hagberg v. Alaska Nat'l Bank, 585 P.2d 559, 562 (Alaska 1978).
. Id. at 560.
. State v. First Nat'l Bank of Anchorage, 660 P.2d 406, 414 (Alaska 1982); see also Roberson v. Southwood Manor Assocs., LLC, 249 P.3d 1059, 1063 (Alaska 2011).
. 660 P.2d at 413 (internal quotation marks and citations omitted).
. 815 P.2d 857, 859-60 (Alaska 1991).
. Id. at 860.
. Id. at 861.
. Id.
. Id.
. Id.
. 994 P.2d 991, 1002 (Alaska 1999) (holding that the UTPA does not cover a timber sale).
. 101 P.3d 1047, 1048 (Alaska 2004).
. Roberson v. Southwood Manor Assocs., 249 P.3d 1059, 1063 (Alaska 2011).
. Id. at 1062-63.
. Id. at 1062.
. Id.
. Ch. 55, § 9, SLA 2004 (codified at AS 45.50.561(a)(9)).
. Ch. 50, § 8, SLA 2007 (codified at AS 45.50.471(b)(52)).
. Id.
. The Mortgage Lending Regulation Act regulates the activities of "[a) person who is required to be licensed under this chapter and a person who is licensed under AS 06.20." AS 06.60.340. The Act requires mortgage lenders, mortgage brokers, mortgage loan originators, loan processors, and certain loan underwriters to be licensed. AS 06.60.010(a); AS 06.60.012(a); AS 06.60.013(a). Alaska Statute 06.20, the Alaska Small Loans Act, requires those issuing loans valued at $25,000 or less, and with an interest rate over the normal statutory limit, to apply for a special license. AS 06.20.010(a). Alaska Trustee does not fall into either category, and the Act itself has no implication for non-judicial deed of trust foreclosures.
. AS 45.50.561(a)(9); see also Ch. 55, § 9, SLA 2004.
. W. Star Trucks, Inc. v. Big Iron Equip. Serv., Inc., 101 P.3d 1047, 1050 (Alaska 2004).
. Id.
. AS 45.50.561(a)(9) (emphasis added); see also Ch. 55, § 9, SLA 2004.
. The 2004 amendment only expanded the UTPA to cover certain transactions involving "goods or services" that might otherwise be thought of as outside the scope of the UTPA because they include the use of residential property as security. The amendment makes clear that a "goods or services" transaction that involves an associated debt secured by a deed of trust covering the debtor's residence, ie., using a deed of trust as security for a "goods or services" transaction, does not turn the transaction into a real estate transaction outside the coverage of the UTPA.
. Roberson v. Southwood Manor Assocs., 249 P.3d 1059, 1063 (Alaska 2011); W. Star Trucks, Inc., 101 P.3d at 1048; Aloha Lumber Corp. v. Univ. of Alaska, 994 P.2d 991, 1002 (Alaska 1999); Barber v. Nat'l Bank of Alaska, 815 P.2d 857, 861 (Alaska 1991); State v. First Nat'l Bank of Anchorage, 660 P.2d 406, 414 (Alaska 1982).
. Ch. 55, §§ 10-24, 28-33, SLA 2004.
51. Rep. Hugh Fate, Sponsor Statement for H.B. 15, 23d Leg., Ist Sess., available at Alaska Leg. Microfiche Collection No. 2484-86.
. Id.
. Do-Not-Call Implementation Act, Pub.L. No. 108-10, 117 Stat. 557 (2003); Minutes, H. Finance Comm. Hearing on H.B. 15, 23d Leg., 2d Sess. (Feb. 19, 2004) (opening remarks of Rep. Hugh Fate).
. Rep. Hugh Fate, Sponsor Statement for CS for H.B. 15, 23d Leg., 2d Sess., available at Alaska Leg. Microfiche Collection No. 11178-79.
. Id.
. Id.
. 2004 House Journal 2791-92.
. Id.
. 2004 House Journal 2824-26, 2834; 2004 Senate Journal 2403.
. Minutes, Sen. Labor & Commerce Comm. Hearing on H.B. 15, 23d Leg., 2d Sess. (Mar. 25, 2004).
. Id. (testimony of Mr. Robert Flint, Direct Marketing Association and Magazine Publishers of America).
. 2004 Senate Journal 3632; 2004 House Journal 4249-50.
. Beck v. State, Dept. of Transp. & Pub. Facilities, 837 P.2d 105, 117 (Alaska 1992) (quoting Jorn CHirman Gray, Tae Naturz Anp Sources Or THz Law, 173 (2d ed. 1972)).
. Gillis v. Aleutians East Bor., 258 P.3d 118, 123 (Alaska 2011) (noting that if a statutory provision were intended to be a significant change in legislative land disposal policy "we would expect a more thorough legislative debate ... and a much richer legislative history supporting [that] position").
. Minutes, Sen. Labor & Commerce Comm. Hearing on H.B. 15, 23d Leg., 2d Sess. (Mar. 25, 2004).
. Id. (testimony of Mr. Robert Flint, Direct Marketing Association and Magazine Publishers of America); Minutes H. Labor & Commerce Comm. Hearing on H.B. 15, 23d Leg., 1st Sess. (Feb. 7, 2003) (statements of Rep. Hugh Fate and testimony of Marie Darlin, Coordinator, Capital City Task Force, AARP; Rosalee Walker, Older Persons Action Group; James Carroll, Juneau Retired Teachers Association, AARP; John Furuness, Juneau Chapter Number 2088, National Association of Retired Federal Employees, AARP).
. Ch. 55, § 9, SLA 2004 (emphasis added).
. Shea v. State, Dep't of Admin., Div. of Ret. & Benefits, 267 P.3d 624, 636 n. 33 (Alaska 2011) (citing Young v. Embley, 143 P.3d 936, 945 (Alaska 2006)) ("We assume the legislature is aware of the common law when it passes legislation."); see also Joseph v. State, 293 P.3d 488, 492 (Alaska App. 2012) ("[The legislature is presumed to be aware of pertinent court decisions when it amends a statute.") reh'g denied (Dec. 31, 2012). We said specifically in Barber v. Nat'l Bank of Alaska that "as a matter of law ... the [UTPA] does not apply to ... mortgage([s]," 815 P.2d 857, 861 (Alaska 1991), and the legislature gave no indication in the 2004 amendment that it was intending to overrule Barber.
Dissenting Opinion
with whom FABE, Chief Justice, joins, dissenting in part.
I agree with the portion of the court's opinion that explains the foreclosure fees and costs that may be demanded by a beneficiary as a condition of reinstatement under AS 34.20.070(b). But I respectfully disagree with the court's holding that the Unfair Trade Practices and Consumer Protection Act (UTPA) does not apply to nonjudicial foreclosures. In my opinion, the plain language of the Act covers transactions related to a debt secured by residential real estate.
This dispute is focused on the definition of "goods or services" covered by the UTPA, which was added to the statute in 2004.
"goods or services" includes goods or services provided in connection with a consumer credit transaction or with a transaction involving an indebtedness secured by the borrower's residence. ...[2]
When we interpret a statute, we begin with the plain meaning of its languages.
It seems clear that a nonjudicial foreclosure is a "transaction involving an indebtedness secured by the borrower's residence."
In reaching this conclusion, the court's opinion asserts that "we have consistently defined 'goods and services as excluding transactions involving real property." And, because the amendment defines "goods or services" as " 'goods or services provided in connection with ... a transaction involving an indebtedness secured by the borrower's residence," " the court assumes that the legislature's new definition incorporates the definition of "goods or services" established in our earlier UTPA decisions. The court therefore concludes that, although "[tlhe 2004 amendment elaborated what types of goods or services are covered by the act, [it] did not change the longstanding definition of goods or services itself-a definition that has never encompassed real property transactions."
But that conclusion misconstrues our prece-edents. We have never held that, as a matter of English usage, "goods or services" cannot include services provided in connection with real estate transactions. Rather, in First National Bank of Anchorage, the case in which this question was first presented, we concluded that the UTPA did not cover real estate transactions because its list of "unfair methods of competition" and "deceptive acts or practices" did not mention real property, "[nlor [did] any other provisions of the Act suggest that the legislature intended the sale of real property to come within the Act's purview."
But when the legislature amended the definition of "goods or services" in 2004, it included within the seope of the UTPA one type of real property transaction not previously covered: "a transaction involving an indebtedness secured by the borrower's residence." Therefore, the reasoning behind First National Bank-that "goods or services" do not include real property transactions because the Act does not mention real property
amended. Similarly, in Roberson v. Southwood Mamor Associates, LLC, we recognized that, through a 2007 revision to the Act, "the legislature responded to our holding in Barber and chose to include certain mortgage practices within the UTPA."
The court's opinion also argues that Roberson, which was published seven years after the 2004 amendment, confirms that "the legislature has not amended [the UTPA] to include real estate transactions." But because the transaction at issue in Roberson-a lease-is clearly not "a transaction involving an indebtedness secured by the borrower's residence," the parties did not raise, and we had no occasion to consider, the effect of the 2004 amendment.
Although the bill that added this definition of "goods or services" did, in part, target telephone solicitation,
The court also notes that the sectional analysis for the 2004 bill states that the new definition of "goods or services" "includes solicitations by credit organizations offering financing arra[ngelments."
The draft opinion also relies on the fact that the bill's sponsor statements focused on the need to limit telephone solicitations.
It is also worth noting that, when the new definition of "goods or services" was added to the bill, its title was amended to include "fair trade practices and consumer protection."
Finally, my construction of this definition is consistent with other authorities suggesting that the UTPA covers the debt collection practices at issue in this case. When we interpret the UTPA, we are required to give great weight to the cases interpreting the Federal Trade Commission Act,
In summary, there is nothing in the legislative history that discusses the meaning of "goods or services" in a manner inconsistent with the language of AS 45.50.561(a2)(9). Therefore, there is no evidence of a contrary legislative intent that should override the plain meaning of this statutory definition. I would hold that nonjudicial foreclosures are covered by the plain language of the UTPA.
BOLGER, Justice, with whom FABE, Chief Justice, joins, dissenting in part.
. Ch. 55, § 9, SLA 2004.
2. AS 45.50.561(a)(9).
. Ward v. State, Dep't of Pub. Safety, 288 P.3d 94, 98 (Alaska 2012).
. Id. (citation omitted).
. Estate of Kim ex rel. Alexander v. Coxe, 295 P.3d 380, 387 (Alaska 2013) (citation omitted).
. See State, Dep't of Commerce, Cmty. & Econ. Dev. v. Alyeska Pipeline Serv. Co., 262 P.3d 593, 598 (Alaska 2011); Alaskans for a Common Language, Inc. v. Kritz, 170 P.3d 183, 192 (Alaska 2007) ("[The extent to which the express language of the provision can be altered and departed from and the extent to which the infirmities
. State v. First Nat'l Bank of Anchorage, 660 P.2d 406, 412 (Alaska 1982).
. AS 45.50.561(a)(9).
. See Roberson v. Southwood Manor Assocs., LLC, 249 P.3d 1059, 1061 (Alaska 2011) (citing First Nat'l Bank of Anchorage, 660 P.2d at 412-13); W. Star Trucks, Inc. v. Big Iron Equip. Serv., Inc., 101 P.3d 1047, 1051 (Alaska 2004) (citing First Nat'l Bank of Anchorage, 660 P.2d at 412); Aloha Lumber Corp. v. Univ. of Alaska, 994 P.2d 991, 1002 (Alaska 1999) (citing First Nat'l Bank of Anchorage, 660 P.2d at 412); Barber v. Nat'l Bank of Alaska, 815 P.2d 857, 861 (Alaska 1991) (citing First Nat'l Bank of Anchorage, 660 P.2d at 413);
. First Nat'l Bank of Anchorage, 660 P.2d at 412-13.
. 249 P.3d at 1062-63.
. See id. at 1060-63.
. See Ch. 55, §§ 10-24, 28-33, SLA 2004.
. Rep. Hugh Fate, Sectional Analysis of Proposed H.B. 15, 23rd Leg., 2d Sess., at 2 (Feb. 24, 2004).
. See AS 01.10.040(b) ("When the words 'includes' or 'including' are used in a law, they shall be construed as though followed by the phrase 'but not limited to." ").
. See AS 45.50.561(a)(9) (" 'goods or services' includes goods or services provided in connection with a consumer credit transaction or with a transaction involving an indebtedness secured by the borrower's residence." (emphasis added)).
. See Rep. Hugh Fate, Sponsor Statement, H.B. 15, 23rd Leg., ist Sess. (Jan. 21, 2003); Rep. Hugh Fate, Sponsor Statement, H.B. 15, 23rd Leg., 2d Sess. (Feb. 24, 2004).
. Alaskans for a Common Language, Inc. v. Kritz, 170 P.3d 183, 193 (Alaska 2007) (citations and alterations omitted).
. Chrysler Corp. v. Brown, 441 U.S. 281, 311, 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979).
. HB. 15, 23rd Leg., 2d Sess. (Feb. 24, 2004).
. AS 45.50.545; ASRC Energy Servs. Power and Commc'ns, LLC v. Golden Valley Electric Ass'n, Inc., 267 P.3d 1151, 1158-59 (Alaska 2011).
. State v. O'Neill Investigations, Inc., 609 P.2d 520, 529-30 (Alaska 1980).
. Glazer v. Chase Home Fin. LLC, 704 F.3d 453, 461-63 (6th Cir. 2013); Wilson v. Draper & Goldberg, PLLC, 443 F.3d 373, 376-77 (4th Cir. 2006); Shapiro & Meinhold v. Zartman, 823 P.2d 120, 124 (Colo. 1992).
Reference
- Full Case Name
- ALASKA TRUSTEE, LLC, Routh Crabtree Olsen, PS, and Richard N. Ullstrom, Petitioners, v. Elisabeth B. BACHMEIER, Respondent
- Cited By
- 20 cases
- Status
- Published