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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Jeffery A. Wendt v. Bank of New York Mellon Trust Company, N.A. (5/21/2021) sp-7532

Jeffery A. Wendt v. Bank of New York Mellon Trust Company, N.A. (5/21/2021) sp-7532

           Notice:   This opinion is subject to correction before publication in the P                      ACIFIC  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, email  

                                                                                                                             

           corrections@akcourts.us.  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                         



JEFFERY  A.  WENDT,                                                )  

                                                                   )    Supreme  Court  No.  S-17568  

                                 Appellant,                        )  

                                                                                                                                    

                                                                   )    Superior Court No. 3AN-17-11007 CI  

           v.                                                      )  

                                                                                             

                                                                   )    O P I N I O N  

                                           

BANK OF NEW YORK MELLON                                            )  

                                                                                                           

                                      

TRUST COMPANY, N.A.,                                               )   No. 7532 - May 21, 2021  

                                                                   )  

                                 Appellee.                         )  

                                                                   )  



                                                                                                                 

                                             

                      Appeal from the Superior Court of the State of Alaska, Third  

                                                                                                    

                      Judicial District, Anchorage, Eric A. Aarseth, Judge.  



                                                                                                           

                      Appearances:   James J. Davis, Jr., Alaska Legal Services  

                                                                                                          

                      Corporation, Anchorage, for Appellant.  Richard Ullstrom,  

                                                                                

                      R. Crabtree, APC, Anchorage, for Appellee.  



                                                                                                             

                      Before:  Bolger, Chief Justice, Winfree, Maassen, Carney,
  

                                                  

                      and Borghesan, Justices.
  



                                             

                      MAASSEN, Justice.
  



I.         INTRODUCTION  



                                                                                                                                    

                      A homeowner seeks to rescind a foreclosure sale, arguing that the notices  



                                                                                                                                  

he received before the sale were deficient because they lacked information required  



                                                                                      

under state and federal law.  The notices were sent by a law firm acting on behalf of a  



                                                                                                                                       

bank, which by assignment was the beneficiary of the deed of trust.  The superior court  


----------------------- Page 2-----------------------

                                                                                                          

granted summary judgment to the bank, determining that the law firm's communications  



                                                                                                                             

on the bank's behalf did not violate the federal Fair Debt Collection Practices Act  



                                                                                                                                

(FDCPA), the Alaska Unfair Trade Practices and Consumer Protection Act (UTPA), or  



                                                                                                                               

the state nonjudicial foreclosure statute, and that the homeowner was not entitled to  



                                                   

relief.  The homeowner appeals.  



                                                                                                                      

                    We conclude that the bank was not a debt collector subject to the FDCPA,  



                                                                                                                             

that derivative debt-collector claims under the UTPA were not viable either, and that  



                                                                                                                              

there were no violations of state foreclosure law that would justify setting aside the  



                                                                                         

foreclosure sale.  We therefore affirm the superior court's judgment.  



                                                              

II.       FACTS AND PROCEEDINGS  



          A.        Facts  



                    In August 2005 Jeffery and Julie Wendt bought a home in Wasilla subject  

                                                                                                                        



to a first deed of trust from General Motors Acceptance Corporation.  In October the  

                                                                                                                              



Wendts executed a second deed of trust for $30,000; this is the deed of trust at issue in  

                                                                                                                                



this case. It identified Homecomings Financial Network, Inc. as the lender and Mortgage  

                                                                                                                     



Electronic Registration Systems, Inc. as Homecomings's nominee and the beneficiary  

                                                                                                                  



of the loan.  The Wendts signed a third deed of trust on the property in December 2006.  

                                                                                                                                    



                    Around May 2016 the Wendts fell behind in their payments on the second  

                                                                                                                        



deed of trust.   In March 2017 this debt was transferred from Homecomings to the  

                                                                                                                              



defendant in this action, the Bank of New York Mellon Trust Company (the bank).  

                                                                                                                               



                    On April 14, 2017, the law firm Robinson Tait, on behalf of the bank, sent  

                                                                                                                             



a letter to the Wendts informing them that they were in default and owed the bank  

                                                                                                                           



$29,013.03 "including interest."  The letter, titled "Notice Required by the Fair Debt  

                                                                                                                           



Collection Practice Act," stated that the Wendts had 30 days to request verification of the  

                                                                                                                              



debt and gave Robinson Tait's address and phone number. Five days later, on April 19,  

                                                                                                                              



Robinson Tait served the Wendts with a notice of default.   The notice said that the  

                                                                                                                              



                                                               -2-                                                        7532
  


----------------------- Page 3-----------------------

Wendts owed $26,512.40 "plus accrued interest at a variable rate."                                                                                                           It also stated that a                         



foreclosure sale would take place on August 3, 2017.                                                                                       



                                  On May 12 Robinson Tait sent the Wendts a second notice of default,                                                                                                     



stating its purpose as "to correct the recording district" listed in the first notice.                                                                                                                    But the   



second notice also changed the date of the foreclosure sale from August 3 to August 24                                                                                                                                  



without highlighting the change.                                                      A nonjudicial foreclosure sale was accordingly held                                                                          



on August 24, and the bank bought the Wendts' home for $33,279.31.                                                                                                                       On October 3                      



Robinson Tait, acting on behalf of the bank, filed a complaint against the Wendts seeking                                                                                                                  



their eviction.                       



                 B.               Proceedings  



                                  In December 2017, while the eviction action was pending, Jeffery Wendt  

                                                                                                                                                                                                             



filed suit against Robinson Tait and the bank.  He alleged that Robinson Tait, in the  

                                                                                                                                                                                                                      



course of the nonjudicial foreclosure, breached its fiduciary duties and engaged in unfair  

                                                                                                                                                                                                               

trade practices in violation of the UTPA.1  He brought a quiet title claimagainst the bank,  

                                                                                                                                                                                                                 



alleging that he remained in possession of the home, retained "equitable title to the  

                                                                                                                                                                                                                      



property," and was entitled to rescission of the foreclosure sale "so that Defendants can  

                                                                                                                                                                                                                     



first comply with all of the aforementioned laws before they conduct a non-judicial  

                                                                                                                                                                                              



foreclosure sale."  Wendt amended his complaint two months later, adding a claim that  

                                                                                                                                                                                                                    



the notices sent by Robinson Tait violated Alaska's foreclosure statutes by failing to  

                                                                                                                                                                                                      



inform him of the amount needed to cure or  "how he might learn or discover this  

                                                                                                                                                                                                                    



amount."  

                          



                                  In April 2018 Robinson Tait filed for bankruptcy, and all further action  

                                                                                                                                                                                                              



against it was stayed.   The bank then moved for summary judgment.   It argued that  

                                                                                                                                                                                                                    



neither it nor Robinson Tait had violated the UTPA, the state nonjudicial foreclosure  

                                                                                                                                                                                                 



                 1  

                                            

                                  AS 45.50.471.  



                                                                                                            -3-                                                                                                            7532  


----------------------- Page 4-----------------------

statute, or the FDCPA.                                         The bank also argued that it was not responsible for Robinson                                                                                  



Tait's   conduct   and   that   the   superior   court   could  not   rescind   an   already   completed  



foreclosure sale.                             Wendt opposed the motion and requested both a continuance under                                                                                                           



Alaska Civil Rule 56(f) and leave to file a second amended complaint adding claims                                                                                                                                    



against the bank for negligent hire, breach of the covenant of good faith and fair dealing,                                                                                                                       



and negligent loan servicing.                                                  



                                    The superior court granted the bank's                                                                motion for summary judgment and                                                      



dismissed all of Wendt's claims.                                                             First, the court found that Robinson Tait's initial                        



communication to the Wendts, the April 14 letter, did not violate the FDCPA because -                                                                                                                                            

                                                                                                                                            2 - the relevant portion of the Act  

as the United States Supreme Court had recently held                                                                                                                                                                          



did not apply to nonjudicial foreclosures.  The court nevertheless went on to analyze all  

                                                                                                                                                                                                                                 



of the alleged deficiencies in the letter, concluding that it satisfied the FDCPA. The court  

                                                                                                                                                                                                                          



also analyzed  the notices of default and determined that they were "not confusing,  

                                                                                                                                                                                                          



misleading, legally deficient, or inconsistent with the initial communication letter." The  

                                                                                                                                                                                                                             



court rejected Wendt's request that the foreclosure sale be declared void, concluding that  

                                                                                                                                                                                                                              



the circumstances of the case did not reach the "unjust extremes" necessary to justify that  

                                                                                                                                                                                                                              



extraordinary remedy.   Finally, the court decided that the notices of default did not  

                                                                                                                                                                                                                  



violate the Alaska nonjudicial foreclosure statute because the trustee's duty to informthe  

                                                                                                                                                                                                                                



debtor of the amount necessary to cure the default arises when a debtor requests that  

                                                                                                                                                                                                                             



information, and the Wendts never made such a request.  

                                                                                                                                                          



                                    Wendt appeals.  

                                                       



III.              STANDARD OF REVIEW  

                                                                    



                                    "We review the 'grant of a summary judgment motion de novo, affirming  

                                                                                                                                                                                                              



                  2                 See Obduskey v. McCarthy & Holthus LLP                                                                             , 139 S. Ct. 1029, 1033, 1036   



(2019) (holding that the "main coverage" of the FDCPA is inapplicable to businesses                                                                                                                        

"engaged in . . . nonjudicial foreclosure proceedings").                                                    



                                                                                                                -4-                                                                                                       7532
  


----------------------- Page 5-----------------------

if the record presents no genuine issue of material fact and if the movant is entitled to                                                              



                                                      3  

judgment as a matter of law.' "                                                                                                         

                                                         "In this examination, we draw all reasonable inferences  

                                                 4   "Statutory interpretation raises questions of law to which  

                                                                                                                                               

                           

in favor of the nonmovant." 



we  apply  our  independent  judgment.                                  We  must  adopt  the  rule  of  law that  is  most  

                                                                                                                                                 

persuasive in light of precedent, reason, and policy."5  

                                                                                                  



IV.	        DISCUSSION  



                                                                                                                                                   

            A.	         The Superior Court Correctly Concluded That The Bank Had Not  

                                                  

                        Violated The FDCPA.  



                                                                                                                                                 

                        Wendt first argues that the superior court erred in deciding that the bank  



                                                                                                                                        

was not subject to the FDCPA.  The FDCPA is a federal statute intended to "eliminate  



                                                                                                   6  

                                                                                                                                                  

 abusive  debt  collection  practices  by  debt  collectors."                                           The  Act  requires  that  debt  



                                                                                                                                                 

 collectorssend an initial communication tothedebtorcontaining basicinformation about  



                                                                                                      7  

                                                                                                    

the debt and notifying the debtor of the right to dispute it. 



                        Wendt argues that Robinson Tait was a "debt collector" as defined by the  

                                                                                                                                                     



FDCPA, that Robinson Tait's initial communication violated the FDCPA in several  

                                                                                                                                             

ways,8  and that the bank is liable for Robinson Tait's FDCPA violations. But we do not  

                                                                                                                                                     



            3           Espeland  v.   OneWest Bank,  FSB,   323  P.3d  2,   8   (Alaska  2014)   (quoting  



Erkins  v.  Alaska  Tr.,  LLC,  265  P.3d  292,  296  (Alaska  2011)).  



            4	          Id.  



            5           S.S.M.   v.   State,  Dep't   of  Health   &   Soc.   Servs.,  Div.   of  Family   &   Youth  



Servs.,  3  P.3d  342,  344  (Alaska  2000)  (internal  footnote  omitted).  



            6           15 U.S.C. § 1692(e) (2018).  

                                                              



            7           15 U.S.C. § 1692g(a) (2018).  

                                                                



            8           Wendt alleges that the notice was deficient because it (1) was not written  

                                                                                                                                              

in language easily "understood by an 'unsophisticated debtor' "; (2) did not clearly state  

                                                                                                                                                  

                                                                                                                                  (continued...)  



                                                                           -5-	                                                                  7532
  


----------------------- Page 6-----------------------

need to address the merits of the FDCPA claims. The bank cannot be held directly liable                                                                                                   



under the FDCPA for making efforts to collect its own debt, and Wendt has not briefed                                                                                                 



a viable theory under which the bank would be liable for actions taken by Robinson Tait.                                                                                                                



                               1.	            The bank is not subject to the FDCPA when making efforts to  

                                              collect its own debt.               



                               The provisions of the FDCPA that Wendt alleges were violated by the bank                                                                                    



                                                                                                       9  

govern only the conduct of "debt collectors."                                                                                                                               

                                                                                                            The FDCPA defines a debt collector as  



                                                                                                                                                                                              

"any person who uses any instrumentality of interstate commerce or the mails in any  



                                                                                                                                                                                 

business the principal purpose of which is the collection of any debts, or who regularly  



                                                                                                                                                                                                 

collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be  



                                                   10  

                                                                                                                                                                   

owed or due another."                                    This definition - covering those who collect debts "owed or  



                                                                                                                                                                                                  11  

                                                                                                                                                                                                        

due another" - categorically excludes entities collecting debts on their own account. 



                                                                                                                                         

The bank presented evidence on summary judgment that it had been assigned the debt  



                                                                                                                                                                                  

and the deed of trust by the original creditor.  It was identified as "the current creditor"  



                                                                                                                                                                                               

in Robinson Tait's April 14 communication to the Wendts, and it was named as the  



                                                                                                                                                                                 

assignee  of  the  beneficial  interest  in  both  notices  of  default.                                                                                  Although  Wendt's  



               8               (...continued)  



how  much  Wendt  owed;  (3)  did  not  explain  that  the  Wendts  could  dispute  their  debts  "in  

writing;"  (4)  was  "overshadowed"  by  the  Notices  of  Default  that  were  sent  to  the  Wendts  

immediately  thereafter;  and  (5)  did  not  identify  the  original  creditor.   



               9               15 U.S.C. § 1692g.  

                                                          



               10              15 U.S.C. § 1692a(6) (2018).  

                                                                                  



               11             Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718, 1721  (2017)  



(observing that "by its plain terms" the FDCPA "seems to focus our attention on third  

                                                                                                                                  

party  collection agents working  for a debt owner - not  on a debt owner seeking to  

                                                                                                                                                                                                 

collect debts for itself").  

                                       



                                                                                                -6-	                                                                                      7532
  


----------------------- Page 7-----------------------

 complaint appeared to question the validity of the bank's status as assignee, on appeal                                      



 he does not dispute the bank's ownership of the debt and the deed of trust.                                                                                                               



                                  Because the bank's efforts to collect its own debt were not subject to the                                                                                                   



 FDCPA, it cannot be held directly liable for any deficiencies in the notice required by  



 that federal law.                        This leaves the question of whether the bank may be liable for actions                                                                                     

 Robinson Tait took on its behalf.                                                12  



                                  2.	             Wendt makes no viable argument that the bank is liable for  

                                                                                                                                                                                                              

                                                  Robinson Tait's alleged violations of the FDCPA.  

                                                                                                                                                              



                                 Wendt made no claim against the bank in his complaint other than a quiet  

                                                                                                                                                                                                         



 title claim based on the bank's status as the buyer of his home.  The bank's summary  

                                                                                                                                                                                               



judgment  motion  addressed  that  claim  but  also  addressed  Robinson  Tait's  alleged  

                                                                                                                                                                                                    



 violations of the FDCPA and the UTPA "because they are being used to challenge or  

                                                                                                                                                                                                                 



 interfere with [the bank's] ownership of the Property." In his opposition, Wendt argued  

                                                                                                                                                                                                      



 that the bank was responsible for Robinson Tait's actions because the bank's "duty of  

                                                                            



 good  faith  and  fair  dealing  in  how  it  serviced  this  loan  .  .  .  includes  not  hiring  

                                                                                                                                                                                                       



 incompetent and corrupt servicers and trustees."  He asserted that the bank "was clearly  

                                                                                                                                                                                                      



 negligent in allowing Robinson Tait, a known corrupt and incompetent trustee, to service  

                                                                                                                                                                                                      



 this loan." Wendt also sought to amend his complaint to add claims against the bank for  

                                                                                                                                                                                                                



 negligent hire, breach of the covenant of good faith and fair dealing, and "negligence for  

                                                                                                                                                                                                                



bad servicing and improper practices."   When the superior court granted the bank's  

                                                                                                                                                                                                     



 summary judgment motion, it also denied Wendt's motion to file his proposed amended  

                                                                                                                                                                                                 



 complaint, reasoning that the various attempts to hold the bank liable for Robinson Tait's  

                                                                                                                                                                                                         



                 12              See Wadlington v. Credit Acceptance Corp                                                                      ., 76 F.3d 103, 108 (6th Cir.                                 



 1996) (holding that debt-owning bank was not debt collector and therefore not liable                                                                                                         

under FDCPA, unlike law firm it had hired to collect debt).                                                                          



                                                                                                        -7-	                                                                                              7532
  


----------------------- Page 8-----------------------

actions necessarily failed because of the court's ruling that Robinson Tait did not violate                                                                                                                                                                                                                                           



the law in the nonjudicial foreclosure process.                                                                                                                                                



                                                       Wendt's appeal does not challenge the                                                                                                                    superior court's denial of his motion                                                                                



to amend the complaint, nor does he explicitly reassert his claims for negligent hire,                                                                                                                                                                                                                                                        



breach of the covenant of good faith                                                                                                                            and   fair   dealing,   or  negligence in                                                                                                          the bank's   



handling of the foreclosure. His opening brief asserts generally that both Robinson Tait                                                                                                                                                                                                                                                         



and the bank violated the FDCPA, the UTPA, and Alaska's foreclosure statutes, but its                                                                                                                                                                                                                                                                  



more detailed description of the challenged conduct ascribes all violations to Robinson                                                                                                                                                                                                                                   



Tait.   Only in his reply brief does Wendt specifically assert that the bank is liable for                                                                                                                                                                                                                                                           



Robinson Tait's actions.  He supports this claim with a procedural argument:                                                                                                                                                                                                                                                   that the   



bank, "[a]s the movant on summary judgment, . . . had the exclusive duty to submit                                                                                                                                                                                                                                                  



evidence   that   'it  did  not  materially   participate'   in   any   of   Robinson   Tait's   alleged  



misconduct" and failed to do so.                                                                                                      



                                                       Wendt's "material participation" argument relies on                                                                                                                                                                  Alaska Trustee, LLC                                                



v.  Ambridge , in which we held that an individual could not be liable for violations of the                                                                                                                                                                                                                                                         



FDCPA unless he met two conditions: (1) he was a debt collector, and (2) he had "taken                                                                                                                                                                                                                                                 



an action that violates the FDCPA," which we further defined as requiring that the                                                                                                                                                                                                    

                                                                                                                                                                                                                                                                                           13  In other words,  

individual " 'materially participated' in the specific violation alleged."                                                                                                                                                                                                                                                            



a debt collector's mere proximity to an alleged FDCPA violation could not by itself make  

                                                                                                                                                                                                                                                                                                                                            



the debt collector liable for it.  But the "material participation" test does not determine  

                                                                                                                                                                                                                                                                                                                        



whether someone is a debt collector; it determines whether a debt collector can be held  

                                                                                                                                                                                                                                                                                                                                               



liable for a violation. Because the bank, as an entity collecting its own debt, is not a debt  

                                                                                                                                                                                                                                                                                                                                           



collector by definition, we do not need to reach the "material participation" element in  

                                                                                                                                                                                                                                                                                                                                                         



                            13  

                                                                                                                                                                                                                                                                                                                      

                                                       372 P.3d 207, 222-24 (Alaska2016)(quoting Del Campo v.Am. Corrective  

                                                                                                                                                                                                                                                                 

 Counseling Serv., Inc., 718 F. Supp. 2d 1116, 1127 (N.D. Cal. 2010)).  



                                                                                                                                                                           -8-                                                                                                                                                                                 7532  


----------------------- Page 9-----------------------

this case.               Simply stated, the FDCPA does not prohibit an entity like the bank from                                                                                                   



materially participating in the collection of its own debt.                                                                               



                                Because the bank could not violate the FDCPA while collecting its own                                                                                               



debt, and because Wendt has not articulated a viable theory for holding the bank liable                                                                                                           



for Robinson Tait's actions, we affirm the superior court's grant of summary judgment                                                                                                   

to the bank on Wendt's FDCPA claims.                                                           14  



                B.	             The Superior Court Did Not Err By Deciding That The Bank Did Not  

                                                                                                                                                                                                      

                                Violate The UTPA.  

                                                                



                                Wendt also argues that the bank's debt collection practices violated the  

                                                                                                                                                                                                       



UTPA. But his perfunctory argument on this point rests entirely on the principle that any  

                                                                                                                                                                                                       

violation of the FDCPA is also a violation of the UTPA.15  

                                                                                                                                                                                     

                                                                                                                                               Because of our conclusion  



                                                                                                                                                                                                           

that the bank did not violate the FDCPA, we necessarily reject the argument that it  



                                                      

violated the UTPA as well.  



                                                                                                                                                                                               

                C.	             Wendt Waived His Claim That The Notice Of Default Failed To Notify  

                                                                                                                                                                 

                                The Subsequent Lienholder As Required By State Law.  



                                                                                                                                                                                     

                                Wendt next argues that thebank violatedtheAlaskanonjudicial foreclosure  



                                                                                                                                                                                                        

statute by failing to send a copy of the notice of default to a subsequent lienholder, the  



                                                                                                                                                                                              

holder of the third deed of trust on the property.  Under AS 34.20.070(c)(4), a trustee  



                                                                                                                                                                                              

must, within 10 days of recording the notice of default, mail a copy to "any person  



                                                                                                                                                                                                

having a lien or interest subsequent to the interest of the trustee in the trust deed, where  



                14              We "may affirm on any ground in the record, not only those argued by the                                                                                                



parties."   Espeland v. OneWest Bank, FSB                                                            , 323 P.3d 2, 8 (Alaska 2014).                           



                15              See Ambridge, 372 P.3d at 226 (observing that "a violation of the FDCPA  

                                                                                                                                                                                            

isinescapably an 'unfair or deceptiveact[]or practice[]' under AS45.50.471(a)"because  

                                                                                                                                                                                             

of legislative mandate that we consider Federal Trade Commission Act  (FTCA) in  

                                                                                                                                                                                                         

interpreting UTPA, and the FDCPA expressly states that violation of it violates FTCA  

                                                                                                                                                                                               

as well (alterations in original) (citing AS 45.50.545; 15 U.S.C. § 1692(a) (2012))).  

                                                                                                                                                                                   



                                                                                                    -9-	                                                                                           7532
  


----------------------- Page 10-----------------------

the lien or interest appears of record or where the trustee or the beneficiary has actual                                                                                                                   



notice of the lien or interest."                                             The affidavit of mailing that accompanied the notice of                                                                                 



default to the Wendts does not list the subsequent lienholder, and the bank does not seem                                                                                                                     



to dispute Wendt's assertion that the subsequent lienholder was not notified of the sale.                                                                                                                      



                                  But Wendt did not raise the subsequent lienholder argument in the superior                                                                                          



court.   "Arguments raised for the first time on appeal are generally waived, but those                                                                                                                      



                                                                                                                                                                                                                       16  

explicitly raised in the trial court may be expanded or refined in appellate argument."                                                                                                                                      



Wendt did allege in his complaint that the notice of default "was not mailed to prior  

                                                                                                                                                                                                             



lienholders on the property, i.e., the holder of the first mortgage" (emphasis added), but  

                                                                                                                                                                                                                   



he did not allege deficient notice to subsequent lienholders, either in his complaint or in  

                                                                                                                                                                                                                      



his opposition to the bank's summary judgment motion. The superior court accordingly  

                                                                                                                                                                                             



addressed the prior lienholder argument on summary judgment, noting that because  

                                                                                                                                                                                                      



"AS 34.20.070(c) requires notice to subsequent lienholders but not prior lienholders,"  

                                                                                                                                                                  



the           bank              "complied                       with             AS            34.20.070(c)."                                  The             court's                order              clearly  

                                                                                                                                                                                                     



assumed - reasonably, based on the parties' arguments - that there was no issue  

                                                                                                                                                                                                             



related to subsequent lienholders.  Because neither the superior court nor the bank had  

                                                                                                                                                                                                                 



the opportunity to address the subsequent lienholder issue before Wendt raised it on  

                                                                                                                                                                                                                    

appeal, we consider it waived.17  

                                                                                   



                 D.	              The Alleged Violations Of The Foreclosure Statute Do Not Make The  

                                                                                                                                                                                                                

                                  Sale Inherently Unfair And Unreasonable.  

                                                                                                              



                                  Finally,  Wendt  argues  that  the  notices  of  default  violated  state  law  

                                                                                                                                                                                                                



                 16              Adkins   v.   Collens,   444   P.3d   187,   195   (Alaska   2019)   (internal footnote  



omitted).  



                 17               See  Harvey  v.   Cook,   172  P.3d  794,   802  (Alaska  2007)  (observing  that  it  



would be  "both  unfair  to  the  trial  court  and  unjust  to  the  opposing  litigant"  to  allow  a  

party  to  introduce  a  new  issue  on  appeal  (quoting  In  re  Marriage  of W                                                                                                   alker, 138 Cal.  

App.  4th   1408,   1418  (2006))).  



                                                                                                        -10-	                                                                                                 7532
  


----------------------- Page 11-----------------------

governing nonjudicial foreclosures by failing to include either the "cure amount" or                                                                             



contact information sufficient to allow the debtor to discover the cure amount.  Wendt                                        



concedes   that   neither   the   cure   amount   nor   related   contact   information is                                                         expressly  

                                     18  but he argues that the debtor's right to that information should be  

required by statute,                                                                                                                                             



implied.  As support he points to our decision in Hagberg v. Alaska National Bank, in  

                                                                                                                                                      



which  we  found  that  the  debtor's  statutory  right  "to  call  a  halt  to  a  nonjudicial  

                                                                                                                                               



foreclosure by paying costs and by bringing his payments current carries with it an  

                                                                                                                                                                 

implied duty on the part of the beneficiary to accept a tender of the sum in default,"19 and  

                                                                                                                                                               



our decision in Farmer v. Alaska USA Title Agency, Inc., in which we held that the  

                                                                                                                                                                



lender's statutory duty to advise the debtor, on request, of the amount in default requires  

                                                                                                                                                       

that the lender "provide the figure . . . at a reasonable time before foreclosing."20                                                                          We  

                                                                                                                                                               



have not yet decided whether the lender should be affirmatively required to provide a  

                                                                                                                                                                    

cure amount without waiting for the debtor to ask for it.21                                                     But we need not decide that  

                                                                                                                                                               



issue here.  Even if we assume a debtor has such a right, the deficiencies alleged in this  

                                                                                                                                                               



case do not justify the extraordinary measure of undoing the foreclosure sale.  

                                                                                                                                            



             18           See  AS  34.20.070(b)  (listing  information  that  must  be  included  in  notice  of  



default).  



             19           585  P.2d  559,  562  (Alaska   1978).  



             20           336  P.3d  160,  164  (Alaska  2014)  (alteration  in  original)  (quoting  Young  v.  



Embley,   143  P.3d  936,  947  (Alaska  2006)).  



             21           In both Hagberg and Young, the debtor had requested the amount in default  

                                                                                                                                                         

but the bank had refused to respond, Hagberg, 585 P.2d at 560, or responded only on the  

                                                                                                                                                                

morning of the sale, Young, 143 P.3d at 947.  And in Farmer, the required cure figures  

                                                                                                                                                         

were appropriately given in response to the debtor's request.  336 P.3d at 165.  

                                                                                                                                              



                                                                               -11-                                                                         7532
  


----------------------- Page 12-----------------------

                     We       will     set     aside       a    foreclosure          sale      only      if    "the      procedure  



                                                                                                         22  

followed . . . inherently rendered the sale unfair and unreasonable."                                                             

                                                                                                             We have set aside  



                                                                                                                                 

foreclosure sales when parties have been deprived of their substantive foreclosure rights  



                                                                                                                                

or  were  denied  meaningful notice.                        In  Young  v.  Embley we unwound  a sale when  



                                                                                                                                  

reinstatement figures were not provided to a junior lienholder at a reasonable time  

                                                                    23  In Rosenberg v. Smidt we found a sale to  

                                                                                                                                       

despite repeated requests for those figures. 



be voidable because the creditor did not make a diligent effort to give notice to the  

                                                                                                                                    

debtors.24  

                 



                     Not  every  statutory  deficiency  renders  the  sale  inherently  unfair  and  

                                                                                                                                   



unreasonable.  In Farmer we upheld a sale even though the debtor had not been given  

                                                                                                

notice of the sale's postponement.25                      We reasoned that because the debtor had received  

                                                                                                                            



proper initial notice, he would have learned of the postponement and the new date if he  

                                                                                                                                      

had appeared at the originally scheduled time.26  

                                                                  



                     Of the statutory violations that Wendt alleges, the one that is potentially  

                                                                                                                         



most consequential is the lack of contact information in the notice of default; without that  

                                                                                                                                    



information,  debtors  cannot  exercise  their  recognized  right  to  request  the  amount  

                                                                                                                             



necessary to cure.  But in earlier cases in which we have set aside a foreclosure sale  

                                                                                                                                   



because of the inability to cure, the interested party had actually attempted to exercise  

                                                                                                                             



           22        Cook  Schuhmann  & Groseclose,  Inc.  v.  Brown  & Root,  Inc.,  116  P.3d  592,  



596  (Alaska  2005).  



           23         143  P.3d  at  947-48.  



           24        727  P.2d  778,  783,  786  (Alaska   1986).  



           25        336  P.3d  at   163-64.  



           26        Id.  at   163.  



                                                                 -12-                                                            7532
  


----------------------- Page 13-----------------------

                             27  

this right.                        Wendt never alleged that he was unaware of his right to cure, nor did he                                                                                                                                            



allege that he actually attempted - or even wanted - to request the reinstatement                                                                                                                                     

                                                                                                                                                                                             28   Because Wendt was  

amount. He now "bears the consequence of his own inattention."                                                                                                                                                                                     



not prevented from actually asserting a substantive right, the sale was not inherently  

                                                                                                                                                                                                                                



unfair and unreasonable, and the superior court did not err by declining to set the sale  

                                                                                                                                                                                                                                                   



aside.  



V.                  CONCLUSION  



                                       We AFFIRM the judgment of the superior court.  

                                                                                                                                                                      



                    27                 See,  e.g.,  Hagberg v. Alaska Nat'l Bank                                                                          , 585 P.2d 559, 562 (Alaska 1978);                                                



 Young, 143 P.3d at 947 (junior mortgagee preserved her rights under the foreclosure                                                                                                                                         

statute because she repeatedly requested the cure amount).                                                                                        



                    28                 Farmer, 336 P.3d at 163.  

                                                                                                     



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