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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Young v. Embley (09/08/2006) sp-6042

Young v. Embley (09/08/2006) sp-6042, 143 P3d 936

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,


) Supreme Court No. S- 11584
Appellant, )
) Superior Court No.
v. ) 3AN-03-7095 CI
Appellee. ) No. 6042 - September 8, 2006
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Peter Michalski, Judge.

          Appearances: Kneeland Taylor, Anchorage,  for
          Appellant.  James T. Stanley, Amodio, Stanley
          & Reeves, Anchorage, for Appellee.

          Before:   Bryner,  Chief  Justice,  Eastaugh,
          Fabe,  and  Carpeneti, Justices.   [Matthews,
          Justice, not participating.]

          CARPENETI, Justice.

          I.   Cynthia Young cohabited with David Dang for several
years  and  ran  a  bed  and  breakfast establishment  with  him.
Unbeknownst  to  Young, Dang executed a  deed  of  trust  on  the
property granting a security interest to Donald Joyner, from whom
he  had  borrowed  money.  Kenneth Embley later acquired  Joyners
interest.   Dang then purportedly granted Young  a  lien  on  the
property, securing an obligation to her.  Dang defaulted on  both
obligations.   Embley foreclosed on the deed of trust,  acquiring
the  property at a nonjudicial foreclosure sale.  Young attempted
to  halt  the  sale by asserting that she had the right  to  cure
Dangs  default,  but  the sale went ahead.   The  superior  court
declined  to set aside the sale.  Young appeals.  Because  junior
lienholders  have  the  right to cure a senior  interest  holders
default  on  a  deed  of trust, we reverse the  judgment  of  the
superior  court and remand for a determination of the  nature  of
Youngs interest in the property.
     A.   Facts
          This  case concerns the disposition of property located
at  2910  West  31st  Avenue in the Spenard  area  of  Anchorage.
Cynthia  Young and David Dang lived on and operated the  property
as  a bed and breakfast called The Alaska Wilderness Plantation.1
Dang  held  sole  title to the property.   Even  so,  Young  held
herself out as an owner of the property.  She also used the  name
Cynthia  Dang though she and Dang never married.  Young and  Dang
have a daughter who was five years old in 2004.
          On August 30, 2002 Dang executed a deed of trust on the
property,  using the property to secure a $40,000  loan  made  by
Donald Joyner.  Young was apparently unaware of the execution  of
this  deed of trust.  Dang subsequently defaulted on the deed  of
trust  and Joyner had a notice of default recorded by Land  Title
Company  of  Alaska  on  November 21,  2002  and  posted  shortly
thereafter.   A foreclosure sale was scheduled for  February  25,
2003.   Joyner  then sold the note and assigned his  interest  to
appellee  Kenneth Embley.  The foreclosure sale  was  delayed  to
allow Embley to complete his purchase of the note.
          On  March 3, 2003, Dang executed an agreement in  favor
of  Young  that promised to pay Young $158,000 as a  sep[a]ration
settlement.  The agreement also provided that Young would have  a
lien  on  the property at issue if Dang failed to pay her $50,000
on  March 4, 2003.  Dang failed to make the payment, as a  result
of  which Young filed suit against him and recorded a lis pendens
on the property.2
          On March 12 and April 1, 2003 Young asked Embley not to
hold  the foreclosure sale, asserting that she had not been given
the  statutorily  required notice.  Young also asserted  at  that
time  that  she  had  the  right to cure  Dangs  default  on  the
Embley/Joyner deed of trust.  The sale was postponed until  April
25,  2003.  On that date Embley provided Young with a Cure Figure
Worksheet  and  an  Offset Bid Figure Worksheet  enumerating  the
amounts  for which Dang was in default.  Young did not  tender  a
cure at the time but objected to the foreclosure sale, though she
did  not seek to enjoin it.  Embley purchased the property at the
foreclosure  sale for $165,201.04.  Embley also paid the  accrued
arrearages on the most senior loan on the property, held by First
     B.   Proceedings
          Young  filed suit against Embley and Land Title in  May
2003,  seeking  damages,  a declaration voiding  the  foreclosure
sale,  and  seeking a declaration that she was entitled  to  cure
Dangs  default.  Young amended her complaint to add a demand  for
punitive damages.  Land Title moved to strike Youngs request  for
jury trial, arguing that [a] suit to set aside a foreclosure sale
under  a  deed of trust is an equitable one.  The superior  court
granted the motion to strike the jury demand.
          Youngs  second  amended complaint,  filed  in  November
2003,  stated similar claims, including wrongful foreclosure  and
abuse  of  process, and again asked for compensatory and punitive
damages  and equitable relief.  The complaint did not  include  a
demand  for jury trial.  Young moved for reconsideration  of  the
courts  order  striking her jury demand, which the court  denied.
Both  Embley  and Land Title filed motions for summary  judgment,
which  the  superior court granted.  Young appealed both  summary
judgments,  but  later settled with Land Title and  withdrew  her
appeal against it.
          We  apply our independent judgment to questions of law,
adopting  the  rule of law that is most persuasive  in  light  of
precedent,  reason,  and policy.3  When a question  of  statutory
interpretation  is involved, we will independently  evaluate  the
trial courts interpretation.4  If a statute is ambiguous we apply
a   sliding  scale  of  interpretation,  where  the  plainer  the
language,  the more convincing contrary legislative history  must
be. 5  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.6   We
have  stated: In assessing statutory language, unless words  have
acquired a peculiar meaning, by virtue of statutory definition or
judicial  construction,  they are to be construed  in  accordance
with their common usage.7
          We use our independent judgment in reviewing a grant of
summary judgment, drawing all factual inferences in favor of, and
viewing  the  facts  in  the light most  favorable  to  the  non-
prevailing party (generally the non-movant).8  We will  affirm  a
grant  of  summary  judgment if there are no  genuine  issues  of
material  fact and the prevailing party was entitled to  judgment
as  a matter of law.9  Where, as here, the superior court granted
summary  judgment without articulating its reasoning, we  examine
all  grounds on which the movant (Embley) relied to determine  if
any were sufficient.10
     A.   Junior Lienholders Are Entitled to Equitable Redemption on a
          Deed of Trust.
          1.   The history of equitable redemption
          1.   While this appeal concerns the extent of a statutory right,
we  must begin with a brief detour into the history of mortgages.
The mortgage was created by the early English court as a transfer
of  title  from  the  mortgagor to the  mortgagee,  generally  as
security for a loan by the mortgagee to the mortgagor.  Once  the
mortgagor  repaid the loan proceeds, title to the property  would
return  to him.11  If, however, the mortgagor failed to  pay  the
mortgage  by  the due date, called the law day, he would  forfeit
all  interest  in  the property.  This deadline  applied  without
exception, even if the mortgagor could not find the mortgagee  to
pay him,12 or if the borrower was robbed on his way to Law Day,13
and thus often resulted in injustice.
          In  response to these injustices, the Court of Chancery
          created the remedy of equitable redemption.  Equitable redemption
allowed the borrower to come into court after default, and if  he
told  a  convincing story, he was allowed to force a reconveyance
of  the land.14  When mortgagors began to take advantage of  this
remedy, sometimes redeeming the property years after law day, the
Court  created  the remedy of foreclosure to end  the  period  of
equitable redemption so that the new owner could be sure that his
title  was  secure and the previous owner could  not  redeem  the
land.15   Thus, a mortgage is said to carry with it an equity  of
redemption,  the right, until the foreclosure sale, to  reimburse
the  mortgagee  and  cure the default.16  But  this  (mortgagors)
remedy  of  equitable redemption is limited by  the  (mortgagees)
remedy of foreclosure.
          While  at  common  law  the  execution  of  a  mortgage
required  transfer of title, most American jurisdictions,  Alaska
included,  now  recognize mortgages under the lien theory,  which
treats the mortgage as merely a security interest in the property
and  confers  no right to possession of that real estate  on  the
mortgagee.17  Accordingly, the
mortgagor has the right to possession until there has been a  val
id foreclosure.18  We stated, in Brand v. First Federal Savings &
Loan Assn of Fairbanks:19 In light of our territorial precedents,
likely  reliance thereon, and the provisions of AS 09.45.680,  we
believe that the territorial view that mortgages in Alaska convey
to  the  mortgagee only a lien, not any sort of title, should  be
retained.20  The lien theory, we noted, is said to mark a distinct
advance  in  legal ideas over the crude conception of  the  title
          Mortgages  under the lien theory continue to carry  the
equity  of redemption.  Alaska has partly codified the mortgagors
right of redemption.  Under AS 09.35.250, The judgment debtor  or
a   successor   in  interest  may  redeem  the  property   before
confirmation of sale on paying the amount of the purchase  money,
with  interest  and  any taxes due.  Alaska has  also  enacted  a
procedure  for  redemption  by the debtor  within  a  year  after
confirmation of the foreclosure sale.22  This statutory enactment
does  not  occupy the field, however, as we continue to recognize
judicially the right of equitable redemption.23   This view is in
line with the Restatement, which declares that
          a  performance  in  full  of  the  obligation
          secured by a mortgage . . . , by one  who  is
          primarily responsible for performance of  the
          obligation, redeems the real estate from  the
          mortgage  .  . . . Performance  may  be  made
          prior to the time the obligation is due . . .
          or  may  be  made at or after  the  time  the
          obligation    is    due    but    prior    to
          2.   Redemption of deeds of trust
          We  treat  deeds of trust as identical to mortgages  in
almost all respects.25  In Brand, we stated: A deed of trust is a
mortgage  in effect, being only a somewhat different  device  for
accomplishing the same purpose, creating a security  interest  in
land.  .  .  . [A] deed of trust does not move title out  of  the
          trustor, but only creates a lien.26  Because mortgages and deeds
of trust are virtually identical, and because mortgages carry the
equity of redemption, we conclude that deeds of trust also  carry
the equity of redemption.
          In   contrast  to  mortgages,  however,  there  is   no
statutory  post-sale redemption available under a deed  of  trust
unless  the  deed of trust so provides.27  Instead  of  post-sale
redemption,  AS 34.20.070(b) provides a statutory right  of  cure
under  a deed of trust.  The statute states that foreclosure  may
be  forestalled  by  payment of arrearages, costs  and  attorneys
fees.28   Equitable redemption traditionally requires the payment
of the full amount of debt owed in order to clear the property of
the  previous encumbrance.  If only a portion of the debt  is  in
default,  however,  then that portion can be redeemed  separately
with  the  consent of the obligee.29  Alaska Statute 34.20.070(b)
forces the lender to accept partial payments when a deed of trust
is  in default.  The crux of this case is to determine from  whom
the lender must accept those payments.
          3.   The   equity  of  redemption  extends  to   junior
               lienholders on the property secured by the deed of
          The traditional right of equitable redemption generally
extends  in  some manner to holders of interests  junior  to  the
obligors interests.  Under the Restatement approach,
          A  performance  in  full  of  the  obligation
          secured by a mortgage, or a performance  that
          is  accepted  by  the mortgagee  in  lieu  of
          payment in full, by one who holds an interest
          in   the  real  estate  subordinate  to   the
          mortgage but is not primarily responsible for
          performance,   does   not   extinguish    the
          mortgage,  but  redeems the interest  of  the
          person  performing  from  the  mortgage   and
          entitles the person performing to subrogation
          to  the mortgage. . . . Such performance  may
          not  be made until the obligation secured  by
          the  mortgage is due, but may be made  at  or
          after  the  time the obligation  is  due  but
          prior to foreclosure.[30]
This  right of redemption for junior interest holders  exists  to
protect  their  interests  since  a  foreclosure  cuts  off   all
interests  junior to the one foreclosed.  Junior  interests  that
are  protected include junior mortgagees, the holders  of  junior
mechanics  liens  and other liens, junior lessees,  and  easement
holders.31  As the Washington Court of Appeals has held, in order
to  posses  equitable redemption rights, a person  must  have  an
interest in land and it must be derived in some way . . . from or
through  or  in the right of the mortgagor so as to constitute  a
part of the mortgagors original equity of redemption.32  More than
a  century  ago  the Oregon Supreme Court stated the  proposition
even  more  broadly, holding that the right of redemption  exists
not  only in the mortgagor himself, but in every other person who
has  an  interest  in,  or  legal or  equitable  lien  upon,  the
mortgaged premises, and includes judgment creditors, all of  whom
may insist upon a redemption of the mortgage.33
          Thus,  we  conclude  that a junior lienholder  holds  a
right  of  redemption  under a deed  of  trust.   The  equity  of
redemption, as we have stated, would normally require payment  of
the  full  amount  mortgaged.  We now consider whether  a  junior
lienholder is entitled to invoke AS 34.20.070(b) and require  the
obligee to accept payment of arrearages to cure a senior interest
holders default.
     B.   A Junior Lienholder is Protected by the Cure Provision of AS
          1.   The plain meaning of the statute supports an expansive
          The  parties  vigorously  dispute  the  meaning  of  AS
34.20.070(b),  which  provides for cure of a  defaulted  deed  of
trust  before foreclosure by the obligee.34  That statute states,
in relevant part:
          At  any  time before the sale, if the default
          has   arisen  by  failure  to  make  payments
          required  by the trust deed, the default  may
          be  cured  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.
          If,  under  the  same trust deed,  notice  of
          default   under  this  subsection  has   been
          recorded two or more times previously and the
          default has been cured under this subsection,
          the  trustee may elect to refuse payment  and
          continue the sale.
Embley  argues that the statute must be read as granting a  right
of  cure only to obligors because the statute makes no mention of
other persons.  Young argues that the statute should be read more
broadly because it uses the passive voice rather than designating
the  beneficiary of the right of de-acceleration.  Young proposes
that we interpret AS 34.20.070(b) to protect the same classes  of
persons  who  are  entitled to notice  of  foreclosure  under  AS
34.20.070(c).  That subsection requires the trustee to notify:
          (1)  the  grantor in the trust deed; (2)  the
          successor  in  interest to the grantor  whose
          interest  appears  of  record  or  of   whose
          interest  the trustee or the beneficiary  has
          actual notice, or who is in possession of the
          property;  (3) any other person in possession
          of  or occupying the property; (4) any person
          having  a lien or interest subsequent to  the
          interest  of  the trustee in the trust  deed,
          where  the lien or interest appears of record
          or  where the trustee or the beneficiary  has
          actual notice of the lien or interest.
Young  thus  claims  a right to cure Dangs default  either  as  a
possessor  or  occupant of the property  or  as  a  holder  of  a
subsequent interest in the property.
          In  matters of statutory interpretation, we  must  give
effect  to the intent of the legislature, with due regard to  the
meaning  that the statutory language conveys to others.35   If  a
statute is unambiguous and expresses the legislatures intent,  we
will not modify or extend it by judicial construction.36  However,
in  cases  where the plain language of the statute  permits  more
than  one  plausible interpretation, we apply  a  sliding  scale:
[T]he   plainer  the  language,  the  more  convincing   contrary
legislative history must be.37  Thus, the inquiry begins with the
text  of  the  statute,  buttressing the  text  with  legislative
history if necessary.
          The  language at issue here was adopted in 1976.38   As
the  parties  have argued, the language admits  of  two  possible
interpretations.   The  legislature  may  have  omitted   express
mention  of obligors because it assumed that the reference  would
apply  only  to  obligors; alternatively,  it  may  have  omitted
express  mention  because it wished to include  other  interested
persons such as those listed in AS 34.20.070(c).  From the  plain
text either interpretation is plausible.39
          Because the statute is written in the passive voice  it
states  that the default may be cured  its meaning is  ambiguous.
In  Exxon Corp. v. State,40 we considered the terms of a contract
which  stated  that  the Prudhoe Bay oil  and  gas  unit  may  be
enlarged from time to time.41  In determining whether Exxon or the
state was entitled to enlarge the unit, we held that the language
is  ambiguous.   The  passive voice can be  ambiguous.42   Since,
however,  subsequent sections of the contract in that  case  laid
out procedures by which the state could decide on unit expansion,
we  held  that only the state was entitled to expand the  unit.43
Likewise,  AS  34.20.070(b)  is ambiguous  because  it  uses  the
passive voice.  And, as was the case with the contract in  Exxon,
the statutory context provides some guidance: AS 34.20.070(c), in
establishing  a  broad  group of persons entitled  to  notice  of
foreclosure, suggests that the right of cure extends  beyond  the
          2.   Legislative  history does not rebut  an  expansive
               interpretation of the statute.
          At  the  first  hearing on the bill, its  sponsor  Rep.
Sullivan noted that the then-current law permitted foreclosure if
a  mortgagor was only one day late in payment.44  At a subsequent
hearing Rep. Sullivan stated that the legislation gives the buyer
a  chance  to  get  caught  up to date.45   A  further  committee
statement  indicated that the bill  would prevent an unscrupulous
seller from vulturing in wait of a missed payment.46
          These   statements  certainly  indicate  a  legislative
assumption that the right of de-acceleration would extend to  the
obligor.  While the legislature concerned itself chiefly with the
substance of the right rather than the persons to whom  it  would
extend,  there  is  no hint in the statements that  an  expansive
interpretation  of  the statute would conflict  with  legislative
          3.   The common law supports an expansive reading of the statute.
          1.   Especially when statutory language and legislative history
are  ambiguous, we look to the common law48 as a useful  tool  to
discern legislative intent and to interpret statutes.  The common
law  .  .  . furnishes one of the most reliable backgrounds  upon
which  analysis of the objects and purposes of a statute  can  be
determined.49  By statute dating back to territorial days, Alaska
has  adopted the common law (where not inconsistent with  federal
or  state  constitutions or with state statutes) as the  rule  of
decision  in  this state.50  We  presume that the legislature  is
aware of the common law when enacting statutes.51  Moreover,  the
common  law  is  an  especially important  tool  when  a  statute
attempts  to  restate  the common law.52   We  have  stated  that
[s]tatutes  which  establish rights that  are  in  derogation  of
common law are to be construed in a manner that effects the least
change possible in common law.53
          The  equity  of  redemption, as we have  discussed,  is
analogous to the right of cure granted by AS 34.20.070(b).  If  a
lienholder  is  able  to redeem the property,  then  that  person
should  also be able to cure a default.  As Young argues  in  her
brief, cure is a more liberal right than the right of redemption,
indicating  that anyone entitled to redeem should also  have  the
right  to  cure.   We  have  characterized  cure  as  a  type  of
redemption: If the party who executes the deed of trust  defaults
the  obligation, the party nonetheless has a right of redemption.
In other words, the party has the opportunity to cure the default
at  any time before a nonjudicial sale.54  Therefore, just as the
junior  lienholder  has  the  right  to  redeem  a  mortgage,  we
determine that the junior lienholder also possesses the right  to
cure default on a deed of trust before the foreclosure sale.  Our
conclusion  is  further buttressed by the  twin  principles  that
redemption  statutes  should be construed  liberally55  and  that
equity abhors a forfeiture.56
          As  noted above,57 we share the view expressed  by  the
Oregon Supreme Court that the right of equitable redemption on  a
deed  of  trust extends beyond the obligor to every other  person
who  has  an  interest in, or legal or equitable lien  upon,  the
mortgaged  premises.58   Thus the right of  cure  granted  by  AS
34.20.070(b)  should  extend  to those  persons.   However,  this
equitable  right would not extend to mere occupants or possessors
lacking  any claim to the property.59  Thus, if Young  wishes  to
invoke AS 34.20.070(b) she must do so on her claim of interest in
the property rather than her occupancy of it.
     C.   Young Introduced Enough Evidence of an Equitable Lien To
          Survive Summary Judgment.
          In  order  to  survive Embleys summary judgment  motion
Young  must  present more than a scintilla of evidence  that  she
possesses  some  form of protected interest  in  the  property.60
Young  argues  that  she  either  had  an  unwritten,  unrecorded
ownership  interest in the subject property  or  that  the  facts
establish  an  equitable  lien in her  favor.   We  address  each
claimed interest separately.
          Youngs  evidence of an ownership interest includes  her
own testimony on several points.  First, she averred that she and
Dang  purchased the Alaska Wilderness Plantation in January  2002
with  intent  to own it as 50/50 partners.  According  to  Young,
This  was  our intention although the title was placed solely  in
Davids  name.  Young stated that David and I were living together
at  that  point with our child . . . and with two other children,
one  mine  from  a previous relationship, and one Davids  from  a
previous  relationship.   She further stated  that  David  and  I
purchased  the property by assuming a large loan, and by  pouring
into  the  property everything we earned.61  Young  asserts  that
these  facts  establish her ownership interest  in  the  property
under Bishop v. Clark.62  Bishop is not on point.  In that case we
upheld  the  superior  courts finding that  a  cohabiting  couple
impliedly  agreed  to  the distribution of  property  accumulated
during  cohabitation  and upheld the courts  award  of  half  the
couples assets to Clark.63  In the present case the superior court
made   no  such  findings.   Furthermore,  even  assuming  Youngs
evidence  is  sufficient to support a division of property,  such
division  would occur only between Young and Dang;  Young  cannot
assert  the  interest against Embley without  first  obtaining  a
judgment  specifically granting her an interest in the  property.
Such an assertion against Embley would otherwise be precluded  by
the statute of frauds.64            We turn to Youngs claim to an
equitable  interest.   Youngs  evidence  of  an  equitable   lien
consists   of  the  note  signed  by  Dang,  which  purports   to
memorialize  her interest in the property, and her own  testimony
about  Dangs intent to grant her an interest.65  In Queen of  the
North, Inc. v. LeGrue,66 we adopted the definition of an equitable
lien  used by the Michigan Court of Appeals: [A]n equitable  lien
arises  from  an  agreement  that both  identifies  property  and
evidences  an intention that such property serve as security  for
an obligation.67  The note executed on March 3, 2003, coupled with
Youngs testimony, provides more than a scintilla of evidence that
Young  possessed  an  equitable lien on the  property.   We  must
remand this case to the superior court to determine whether Young
did  in  fact  possess  such a lien; if she  did,  then  she  was
entitled  to  cure  Dangs default of the  Joyner/Embley  deed  of
          Embley  argues that Young failed to preserve her  right
to  cure the default because she failed to tender the cure amount
or  to seek a stay of the foreclosure sale.  The record indicates
that  Young  repeatedly  requested a  cure  amount  from  Embley,
obtaining it only on the morning of the foreclosure sale.  Timely
provision  of  the cure amount, Young argues, would have  allowed
her to tender a cure.  As we stated in Hagberg v. Alaska National
Bank,68 AS 34.20.070(b) imposes on the lender a duty to seasonably
advise the obligor on request of the amount in default.69  In that
case  we  held that three days notice was insufficient.70   Here,
Youngs counsel, according to his affidavit, was provided with the
figure only as the foreclosure sale was about to begin.  Although
Embley  had  a colorable argument that Young was not entitled  to
the cure figure  and so his failure to provide it was in apparent
good  faith  our holding today establishes that he had a duty  to
          provide the figure to Young at a reasonable time before
foreclosing.71  Accordingly, Youngs failure to seek a stay of the
sale is not a basis for ruling that she waived her rights.
          Embley  also  implies that the provision  of  statutory
remedies excludes the availability to Young of an equitable lien.
But  the  provision  of statutory remedies does  not  necessarily
preclude  traditional  remedies.  In addition  to  presuming  the
legislatures awareness of the common law, we assume that whenever
the  legislature  enacts a provision, it  has  in  mind  previous
statutes  relating to the same subject matter, and all should  be
construed together.72   In Donnybrook Building Supply Co., Inc. v.
Alaska National Bank of the North,73 we held that Donnybrook could
not  seek  an equitable lien because the mechanics lien  statutes
establish  a  complex and detailed scheme for the  protection  of
suppliers on construction projects.74  Under these circumstances,
we  concluded,  The  legislature clearly sought  to  balance  the
conflicting interests of developers, lenders and suppliers  under
this  statutory  umbrella.75  We declined  to  impose  additional
remedies in Donnybrook because doing so would have disturbed  the
balance  embodied  in  a  complete  and  prioritized  system   of
remedies.76   In  contrast, although Alaskas deed  of  trust  and
nonjudicial  foreclosure statutes are complex and detailed,  they
lack  the  completeness  or exclusivity  of  the  mechanics  lien
statutes.  For example, AS 34.35.060 provides a detailed priority
scheme  among competing liens that has no analog in the  deed  of
trust  statutes, and a holder of a junior interest to a  deed  of
trust is not confined to statutory remedies.  We cannot say as  a
matter of law that the equitable lien is unavailable to Young.
          Although  a  lis pendens which relates to  an  interest
arising after the execution of the deed of trust will not  affect
the  title obtained by a purchaser at a valid foreclosure sale,77
the remedy provided by AS 34.20.070(b) forestalls the ability  of
the  mortgagor  to conduct a foreclosure sale.  If  Young  had  a
valid interest in the property, then she was denied her right  to
cure  the default and thus the foreclosure sale was invalid.   We
have  stated our reluctance to set aside foreclosure sales except
in  the most unusual circumstances.  Even when the sale fails  to
comply  with the statutory provisions, we will set it aside  only
in cases that reach unjust extremes. 78  The right of cure carries
with  it  a  right  to  prevent the foreclosure  sale  from  ever
happening.  Thus, Embley lacked the authority to hold  the  sale,
so it was invalid when it was held.79  We need not inquire, then,
whether the result of the sale reaches an unjust extreme.
     D.   The  Superior Court Did Not Err in Striking Youngs Jury
          Demand and in Dismissing Her Claims at Law.
          Young  asked  for  a  jury trial of  her  claims.   The
superior  court  granted Land Titles motion to  strike  the  jury
demand.   Youngs basis for the demand appears to be that  because
so  much  time has passed since the foreclosure sale,  a  damages
remedy  is  preferable to an equitable remedy; since damages  are
the  province of law rather than equity, then Young should get  a
jury trial.  This argument lacks merit.
          Youngs argument reverses the order of the inquiry;  the
          need for a jury trial is determined by the nature of the claims,
not  by  the  ease  of remedying the situation.   Young  has  not
properly alleged any claims for compensatory or punitive  damages
and thus is not entitled to a jury trial under article I, section
16 of the Alaska Constitution.80  As we have stated, [t]he Alaska
Constitution  preserves a jury trial only  for  those  causes  of
action which are legal, and not equitable in nature.81  In McGill
v.  Wahl,  we  found that an action alleging that a  prescriptive
easement had been established was equitable whether it was styled
as  quiet  title or ejectment.82  Similarly, a foreclosure  suit,
whether  it is styled as an action to recover property or  as  an
action  for abuse of process, seeks a relief that sounds properly
only  in  equity; the entitlement to jury trial extends  only  to
legal issues independent of the foreclosure suit.83  However Young
frames  her  claims, she has not alleged any claims at  law  such
that she is entitled to a jury.
          Young  also alleges that Embley committed the  tort  of
abuse  of process but does not make out a prima facie case.   She
alleges  that  Embleys  purpose at the foreclosure  sale  was  to
purchase  the  subject property and not to  collect  the  secured
debt.  Accordingly, Embley was prepared to outbid other potential
purchasers of the property.  Furthermore, Embley refused to  give
Young  a  cure figure on the note.  It is hard to see  how  these
allegations  could meet the requirements of the tort:  first,  an
ulterior  purpose, and second, a willful act in the  use  of  the
process  not  proper in the regular conduct of the  proceeding.84
Embley purchased the property at a public auction at which  Young
was  free to bid.  Since the purpose of a foreclosure sale is  to
allow the deed holder to recover as much money as possible, it is
hard  to assign an ulterior motive to Embley for bidding  at  the
sale.   Because Youngs tort claim fails as a matter of  law,  the
superior court properly dismissed it.
          I.   The right of cure enumerated in AS 34.20.070(b) extends not
only  to  the obligor on a deed of trust but also to  holders  of
junior  interests.   Young  presented  enough  evidence   of   an
equitable  lien  on  the property to withstand summary  judgment.
Accordingly,  we  REVERSE the judgment of the superior  court  on
these  matters.  Youngs demand for jury trial and  her  abuse  of
process claim are deficient as a matter of law.  Accordingly,  we
AFFIRM  the superior courts dismissal of her tort claim  and  its
rejection  of her jury demand.  We REMAND for further proceedings
consistent with this opinion.
     1     The property is of some renown as the former residence
of Anchorage businessman Peter Zamarello.

     2    Young v. Dang, No. 3AN-03-5442 CI (complaint filed Mar.
11,  2003).   Embleys counsel wrote Youngs counsel declaring  the
lis  pendens  to  be  a slander of title and asking  that  it  be

     3    Lawson v. Lawson, 108 P.3d 883, 885 (Alaska 2005).

     4     Nystrom  v. Buckhorn Homes, Inc., 778 P.2d 1115,  1118
(Alaska 1989).

     5     Tesoro  Petroleum Corp. v. State,  42  P.3d  531,  537
(Alaska 2002) (citations omitted).

     6     Native Village of Elim v. State, 990 P.2d 1, 5 (Alaska

     7     Govt  Employees Ins. Co. v. Graham-Gonzalez, 107  P.3d
279, 284 (Alaska 2005) (quoting Muller v. BP Exploration (Alaska)
Inc., 923 P.2d 783, 787-88 (Alaska 1996)).

     8     Rockstad  v.  Erickson, 113 P.3d  1215,  1219  (Alaska

     9    Id.

     10    Yates v. Halford, 73 P.3d 1236, 1240 (Alaska 2003).

     11     See  1 Grant S. Nelson & Dale A. Whitman, Real Estate
Finance Law  1.2, at 6-7 (4th ed. 2002).

     12    Id. at 7.

     13     Land Assocs., Inc. v. Becker, 656 P.2d 927, 930  (Or.

     14    Id.

     15    Id. at 931.

     16    Blacks Law Dictionary 561 (7th ed. 1999).

     17    Restatement (Third) of Prop.: Mortgages  4.1(a) (1997).
See  AS 09.45.680; Ariz. Rev. Stat. Ann.  33-703(A) (2005);  Cal.
Civ.  Proc. Code  744 (West 2006); Colo. Rev. Stat. Ann.   38-35-
117  (West 2000); Matter of Spencer, 115 B.R. 471, 477  (D.  Del.
1990); Fla. Stat. Ann.  697.02 (West 1994); Ga. Code Ann.  44-14-
30  (West  2006); Haw. Rev. Stat. Ann.  506-1 (LexisNexis  2005);
Idaho Code Ann.  6-104 (2005); Egbert v. Egbert, 132 N.E.2d  910,
918  (Ind.  1956); Iowa Code Ann.  557.14 (West  1992);  Hoelting
Enters.  v. Trailridge Investors, L.P., 844 P.2d 745,  749  (Kan.
App.  1993); Watts Admr v. Smith, 63 S.W.2d 796, 800 (Ky.  1933);
Midwest Bank v. OConnell, 405 N.W.2d 201, 203 (Mich. App.  1987);
Minn.  Stat. Ann.  559.17(1) (West 2000); Mont. Code Ann.   71-1-
105  (2005); Neb. Rev. Stat.  76-276 (2005); Nev. Rev. Stat. Ann.
40.050  (West  2006); N.M. Stat. Ann.  48-7-1 (West  2006);  N.Y.
Real  Prop. Law  611(3) (McKinney 1979); N.D. Cent. Code   35-03-
01.1(1)  (2005); Okla. Stat. Ann. tit. 42,  10 (2001);  Or.  Rev.
Stat.  Ann.  86.010 (West 2003); S.C. Code Ann.  29-3-10  (2005);
State of Wis. Inv. Bd. v. Hurst, 410 N.W.2d 560, 564 (S.D. 1987);
Taylor  v.  Brennan, 621 S.W.2d 592, 593 (Tex. 1981);  Utah  Code
Ann.   78-40-8  (West  2006); Wash. Rev. Code  Ann.   7.28.230(1)
(West 2006); Glover v. Marine Bank of Beaver Dam, 345 N.W.2d 449,
453  (Wis. 1984); L Slash X Cattle Co. v. Texaco, Inc., 623  P.2d
764, 768-69 (Wyo. 1981).

     18    1 Nelson & Whitman  1.5, at 10.  Some states still use
the  common-law  title  theory  while  others  use  a  hybrid  or
intermediate theory, which gives the right of possession  to  the
mortgagor at least until default, and, generally, gives it to the
mortgagee after default.  See id.

     19    478 P.2d 829 (Alaska 1970).

     20     Id.  at 831.  AS 09.45.680 provides: Mortgage  not  a
conveyance.  A mortgage of real property is not a conveyance that
will  enable  the owner of the mortgage to recover possession  of
the property without a foreclosure and sale.  See Lewis v. Wells,
85  F.  896,  902 (D. Alaska 1898) ([U]nder the laws  of  Oregon,
which, by the act of congress of May 17, 1884, became the laws of
this district, a mortgage does not convey title, but only creates
a lien upon real property.).

     21    Brand, 478 P.2d at 831.

     22     AS 09.35.250.  Alaskas redemption statutes also allow
either  the  debtor or a creditor having a lien on  the  property
subsequent  in  time to that on which the property  was  sold  to
redeem the property within sixty days of the order confirming the
foreclosure  sale.  AS 09.35.220, AS 09.35.230  &  AS  09.45.190.
This   right  does  not  extend  to  deeds  of  trust.   See   AS

          The  sale and conveyance transfers all  title
          and  interest  that the party  executing  the
          deed of trust had in the property sold at the
          time  of  its  execution, together  with  all
          title  and  interest  that  party  may   have
          acquired  before  the  sale,  and  the  party
          executing the deed of trust or the  heirs  or
          assigns  of  that  party  have  no  right  or
          privilege to redeem the property, unless  the
          deed of trust so declares.
     23     See, e.g., Harris v. Alaska Title Guar. Co., 510 P.2d
501,  503  &  n.3 (Alaska 1973).  See also 2b Norman  A.  Singer,
Sutherland  Statutory Construction  50:02, at 146 (6th  ed.  2000
rev.)  (The  provision  of statutory remedies  does  not  per  se
preclude  resort to appropriate common-law remedies.).   Although
the  legislature has the ability to abolish common-law rules  and
remedies, such an intent is not to be presumed in the absence  of
clear and explicit language.  2B Singer,  70:4, at 499.

     24    Restatement (Third) of Prop.: Mortgages  6.4(a) (1997).

     25     Our  statutes  explicitly treat  deeds  of  trust  as
mortgages in form; AS 34.20.110 states that [f]or the purposes of
record,  a deed of trust, given to secure an indebtedness,  shall
be  treated as a mortgage of real estate, and recorded in full in
the   book   provided  for  mortgages  of  real  property.    The
Restatement  refers  to a deed of trust as a  type  of  mortgage.
Restatement  (Third) Prop.: Mortgages, Introduction,  at  3.   In
some  states different theories apply to mortgages and  deeds  of
trust.  For example, contrast Ga. Code Ann.  44-14-30 (A mortgage
in  this  state is only security on a debt and passes no  title.)
with  Ga.  Code  Ann.  44-14-60 (A deed of trust is  an  absolute
conveyance,  with the right reserved by the grantor to  have  the
property  reconveyed to him upon payment of the debt .  .  .  and
shall not be held to be a mortgage.).

     26     Brand, 478 P.2d at 831-32 (quoting R. Powell, The Law
of Real Property 553 (1970) (other citations omitted)).

     27     See  AS 34.20.090(a), supra n.22, providing  that  no
right of redemption exists unless the deed of trust so declares.

     28    AS 34.20.070(b).

     29     The  Restatement notes that, with some exceptions,  a
performance in full of the obligation secured by a mortgage, or a
performance  that  is  accepted  by  the  mortgagee  in  lieu  of
performance  in  full  . . . redeems the  real  estate  from  the
mortgage.  Restatement (Third) of Prop.: Mortgages  6.4(a) (1997)
(emphasis  added).  The common law rule is that a  mortgagee  may
insist on a partial redemption.  See 1 Nelson & Whitman  7.3,  at
609.   Under  AS  34.20.070(b) the ability to insist  on  partial
redemption  is mutual.  In the present case Embley exercised  his
equity of redemption by paying the accrued arrearages on the most
senior  lien  on  the property, held by First Interbay.   Embleys
payments  were not a full payment of the First Interbay loan  but
were  only  the  amount  of  debt  in  default.   First  Interbay
consented, however, to this partial redemption.

     30    Restatement (Third) of Prop.: Mortgages  6.4(e).

     31    Id. at  6.4 cmt. g.

     32     Brost v. L.A.N.D., Inc., 680 P.2d 453, 455 n.3 (Wash.
App. 1984).

     33     Sellwood v. Gray, 5 P. 196, 198 (Or. 1884)  (emphasis
added).  Accord John Stepp, Inc. v. First Fed. Savs. & Loan  Assn
of  Miami, 379 So. 2d 384, 386 (Fla. Dist. App. 1980) ([T]he  law
favors  redemption by anyone who has an interest in the mortgaged
premises  who would be a loser by foreclosure.); Am. Button-Hole,
Overseaming & Sewing Mach. Co. v. Burlington Mut. Loan  Assn,  16
N.W.  527, 528 (Iowa 1883) (The general doctrine undoubtedly  has
been  that  a junior lienholder has an equitable right to  redeem
from  a  mortgage debt.); First Fed. Savs. & Loan  Assn  of  Port
Washington  v.  Smith,  441 N.Y.S.2d 309, 310  (App.  Div.  1981)
(Clearly,  the  owner of the equity of redemption or  any  person
with  an interest in the mortgaged premises has a right to redeem
the  property  at  any  time prior to the  actual  sale  under  a
judgment of foreclosure.).

     34     We  have not previously considered the meaning of  AS
34.20.070(b)   to   any  great  extent.   Our  only   substantive
discussion of the statute is found in Hagberg v. Alaska  National
Bank,  585  P.2d  559 (Alaska 1978), where we  assumed  a  narrow
meaning  of  the  language,  describing  the  1976  amendment  as
designed to permit the obligor under a note secured by a deed  of
trust  to  terminate a non-judicial deed of trust sale by  paying
all arrearages.  Id. at 560.  We went on to state, in dicta, that
under  the  amendment [a]n obligor on a note must still  pay  the
principal  and interest . . . .  However, the defaulting  obligor
may   bring  his  payments  current  and  stop  the  non-judicial
foreclosure  as  a matter of right only twice.   Id.  at  561-62.
Finally,  we referred to the right of cure as [t]he right  of  an
obligor to call a halt to a nonjudicial foreclosure which imposes
on  the lender a duty to seasonably advise the obligor on request
of the amount in default.  Id. at 562.

     35     Tesoro  Petroleum Corp. v. State, 42  P.3d  531,  537
(Alaska 2002) (citation omitted).

     36    Id.

     37    Id.

     38    Ch. 176,  1, SLA 1976.

     39     For  an  example of a statutory scheme  that  clearly
specifies  to whom the right of cure extends, see Cal. Civ.  Code
2924c(a)(1) (cure may be exercised by the trustor or mortgagor or
his  or  her  successor  in interest in the  mortgaged  or  trust
property  or  any  part  thereof,  or  any  beneficiary  under  a
subordinate  deed  of  trust  or  any  other  person   having   a
subordinate lien or encumbrance of record thereon.).

     40    40 P.3d 786 (Alaska 2001).

     41    Id. at 794.

     42    Id. (citing Plate v. State, 925 P.2d 1057, 1065 (Alaska
App.  1996)  (ambiguity  due to passive voice  in  evidence  rule
resolved  by  resort to commentary to rules);  E.I.  du  Pont  de
Nemours  & Co. v. Train, 430 U.S. 112, 128 (1977) (other portions
of  federal  statute relevant to resolution of ambiguous  passive

     43    Id. at 794-95.

     44     1975-76 Minutes of the House Judiciary Committee, May
19, 1975, at 141.

     45    1975-76 Minutes of the House Judiciary Committee, Mar.
24, 1976, at 229.

     46    1975-76 Minutes of the House Judiciary Committee, Apr.
3, 1976, at 242.

     47     We may presume that the legislature was aware of  the
effect  of  drafting in the passive voice.  See  Employment  Sec.
Commn v. Wilson, 461 P.2d 425, 428 (Alaska 1969) ([W]e may assume
that the legislature knew and understood the rules of grammar.).

     48     Here  we use the term common law in the very  general
sense of the decisions and principles that form the basis of  our
legal system, encompassing both the traditional realms of law and

     49    2B Singer, supra n.23,  50:01, at 139.

     50    AS 01.10.010.

     51     See  2B  Singer, supra n.23,  50:01, at  139-140,  3A
Singer,   70:4, at 499-500.  See Sears v. State, 713  P.2d  1218,
1219  (Alaska  App. 1986) (legislature presumed to  be  aware  of
common-law  terms of art).  Accord Ultrawall, Inc. v. Wash.  Mut.
Bank,  FSB,  25 P.3d 855, 859 (Idaho 2001) (legislature  presumed
aware   of  judicial  decisions  when  amending  mechanics   lien
statute);  In  re Proceedings of King County for  Foreclosure  of
Liens  for Delinquent Real Prop. Taxes for the Years 1985 Through
1988,  811  P.2d 945, 950 (Wash. 1991) (legislature enacting  tax
foreclosure statute presumed aware of case law on sufficiency  of
description  of property); Mack Motor Truck Corp. v.  Wolfe,  303
S.W.2d 697, 700-01 (Mo. App. 1957) (legislature presumed aware of
common  law of lien priority); State ex rel. Gladden v. Lonergan,
269 P.2d 491, 496 (Or. 1954) (legislature presumed to be aware of
common-law right preserved by Sixth Amendment).

     52    2B Singer, supra,  50:02, at 146.

     53     Univ.  of Alaska v. Shanti, 835 P.2d 1225,  1228  n.5
(Alaska  1992).  See also Roeckl v. Fed. Deposit Ins. Corp.,  885
P.2d 1067, 1074 (Alaska 1994).

     54     Bauman  v.  Day, 892 P.2d 817, 823 n.5 (Alaska  1995)
(emphasis  in  original).  See also Burnett,  Waldock  &  Padgett
Invs.   v.  C.B.S.  Realty,  668  P.2d  819,  824  (Alaska  1983)
(Rabinowitz,  J., concurring) (referring to right to  redeem  the
property under AS 34.20.070(b)).

     55     Land Assocs., Inc. v. Becker, 656 P.2d 927, 932  (Or.
1982); State ex rel. LeFevre v. Stubbs, 642 S.W.2d 103, 106  (Mo.
1982)  (All  doubt  will be resolved in favor  of  the  right  to
redeem.);  Ulrich v. Lincoln Realty Co., 153 P.2d 255,  259  (Or.
1944).  See 3A Singer,  70:4, at 481-82:

          Statutes allowing foreclosure under  a  power
          of  sale  contained within the trust deed  or
          mortgage  are strictly construed against  the
          exercise of such power.
          Legislative  provisions giving the  mortgagee
          and   junior   lienholders   the   right   of
          redemption  after  judicial  sale  have  been
          given  a very liberal interpretation so  that
          the  property of the debtor will  satisfy  as
          many of the debtors liabilities as possible.
     56    See, e.g., Yates v. Halford, 73 P.3d 1236, 1241 & n.15
(Alaska 2003).

     57    See supra n.33 and accompanying text.

     58    Sellwood v. Gray, 5 P. 196, 198 (Or. 1884).

     59     Cf. Restatement (Third) Prop.: Mortgages  6.4 cmt.  g
(right  of redemption protects junior mortgagees, the holders  of
junior  mechanics  liens  and other liens,  junior  lessees,  and
easement holders).

     60    See Meyer v. State, 994 P.2d 365, 368 (Alaska 1999).

     61     Presumably this is a reference to the First  Interbay
loan in the amount of approximately $500,000.

     62    54 P.3d 804 (Alaska 2002).

     63    Id. at 810-11.

     64    Alaska Statute 09.25.010(a) provides:

          In   the   following  cases  and  under   the
          following  conditions an agreement,  promise,
          or  undertaking is unenforceable unless it or
          some  note or memorandum of it is in  writing
          and subscribed by the party charged or by  an
          agent of that party:
          . . . .
          .  . . (6) an agreement . . . for the sale of
          real  property,  or of any interest  in  real
          property,  or  to  charge  or  encumber  real
          property . . . .
     65     The  handwritten agreement, dated March 3,  2003  and
signed by Young and Dang, reads:

          Prommisory Note
          I  Cynthia  Young AKA Cynthia Dang  agree  to
          accept $200,000.00 as a payment of seperation
          settlement: Of this I have recd $42,000.00 in
          increments through Feb. of 2003.
          I expect $50,000.00 of this remaining balance
          to be paid by March 4, 2003 or I will place a
          lien on existing property known as
               Alaska Wilderness
               2910 West 31st
               Anchorage, Alaska
          Let  this  be the final notification  of  the
          purpose of lien & separation.
               (Signed)  Cynthia Young
               (Signed)  David Dang

     66    582 P.2d 144 (Alaska 1978).

     67     Id. at 149-50 (quoting Warren Tool Co. v. Stephenson,
161 N.W. 2d 133, 139 (Mich. App. 1968)).

     68    585 P.2d 559 (Alaska 1978).

     69    Id. at 562.

     70    Id. at 561-62.

     71     Young  also argues that Embleys notice to her  as  an
occupant was deficient under AS 34.20.070(c).  Even assuming that
Young   did   not  obtain  notice  until  March  12,  2003,   she
acknowledges that this was forty-five days before the foreclosure
sale.  Moreover, it appears that Embley postponed the foreclosure
sale for some period at Youngs request.

     72     Hafling v. Inlandboatmens Union of the Pac., 585 P.2d
870,  877  (Alaska 1978), disavowed on other grounds by State  v.
Alex, 646 P.2d 203 (Alaska 1982).

     73    736 P.2d 1147 (Alaska 1987).

     74    Id. at 1153.

     75    Id.

     76    Id. at 1154.

     77     Alaska Laborers Training Fund v. P & R Enters., Inc.,
583 P.2d 825, 827 (Alaska 1978).

     78     Cook  Schuhmann & Groseclose, Inc. v. Brown  &  Root,
Inc.,  116  P.3d 592, 595-96 (Alaska 2005) (quoting Rosenberg  v.
Smidt, 727 P.2d 778, 783 (Alaska 1986)).

     79     See, e.g., Burnett, Waldock & Padgett Invs. v. C.B.S.
Realty, 668 P.2d 819,  823 (Alaska 1983) (prior valid foreclosure
sale deprived second deed of trust holder of power to hold second
foreclosure sale, rendering second sale invalid).

     80    See also Winegardner v. Greater Anchorage Area Borough,
534 P.2d 541, 544 (Alaska 1975) (no entitlement to jury trial  if
actions not suits at common law).

     81    McGill v. Wahl, 839 P.2d 393, 396 (Alaska 1992).

     82    Id.

     83    Sunwest Bank of Clovis, N.A. v. Garrett, 823 P.2d 912,
915-16 (N.M. 1992).

     84     Jenkins  v.  Daniels, 751 P.2d 19, 22  (Alaska  1988)
(quoting W. Page Keeton, et al., Prosser and Keeton on the Law of
Torts  121, at 898 (5th ed. 1984)).

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