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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                No. 13-CV-1473

                         MATTHEW ROGERS, APPELLANT,

                                       V.

                           ADVANCE BANK, APPELLEE.

                         Appeal from the Superior Court
                           of the District of Columbia
                                 (CAR-3260-12)

                         (Hon. Craig Iscoe, Trial Judge)

(Submitted November 25, 2014                           Decided March 5, 2015)

      Charles C. Iweanoge was on the brief for appellant.

      Matthew Cohen was on the brief for appellee.

      Before BLACKBURNE-RIGSBY and MCLEESE, Associate Judges, and KING,
Senior Judge.

      KING, Senior Judge: Appellant, Matthew Rogers (“Rogers”), appeals from

the trial court’s decision granting summary judgment to Advance Bank, appellee,

on a complaint for breach of contract, judicial foreclosure, and/or judicial sale.

Rogers argues that the court erred in granting the motion without first requiring

that the parties participate in mediation pursuant to D.C. Code § 42-815 (b)
                                          2


and § 815.02 (2012 Repl.).       After review of the record and relevant statutory

provisions, we conclude that summary judgment was proper in this case. In short,

we are satisfied that mediation is not specifically required1 when ordering a judicial

sale pursuant to D.C. Code § 42-816 (2012 Repl.). Accordingly, we affirm the

judgment of the trial court.



                           FACTUAL BACKGROUND



      On April 12, 2012, Advance Bank filed a complaint against Rogers and four

other defendants alleging fraud, unjust enrichment, and conspiracy in applying for

a residential mortgage loan used by Rogers to purchase a home in the northwest

quadrant of the city. Advance Bank claimed that Rogers intentionally submitted

false documentation regarding his income, employment, and education when he

applied for the residential loan and also certified that information by signing loan

documents at the closing. On December 5, 2012, Advance Bank filed an amended

complaint against Rogers, which added a claim for breach of contract to the

already existing claims.       At that point in the proceedings, all of the other

defendants had been dismissed from the case. Subsequently, Advance Bank filed a

      1
         While mediation is not required in these circumstances, we think it is well
within a reasonable exercise of its discretion for the court, as it did here, to order
the parties to engage in mediation.
                                         3


motion for partial summary judgment for the breach of contract and fraud claims.

On January 25, 2013, the court granted the motion for partial summary judgment

on the breach of contract claim in the amount of $720,887.00 (the original amount

of the loan), but denied the motion regarding the fraud claim. However, Advance

Bank asserted that it was owed an additional amount of $64,555.96 for interest,

late fees, and escrow advances. The court reserved judgment with respect to the

additional amount because Rogers asserted that there was a genuine dispute of

material fact regarding it.



      On July 2, 2013, Advance Bank filed a third amended complaint seeking the

additional sum of $64,555.96 discussed above. The amended complaint alleged

breach of contract, judicial foreclosure, and/or judicial sale in the alternative. On

July 23, 2013, Advance Bank filed a motion for summary judgment and argued

that judicial foreclosure was appropriate because there were no disputed facts

regarding Rogers’ default. Both parties attended an unsuccessful, court-ordered

mediation session, which took place on September 17, 2013. On November 18,

2013, the court granted the summary judgment motion as to the breach of contract

claim finding that there was no disputed fact that Rogers defaulted on the

residential loan and promissory note, which was evidenced by the record and his

admission. The court also granted summary judgment for the judicial sale claim,
                                          4


finding that it held the statutory authority under D.C. Code § 42-816.2 Although

there existed a power of sale provision in the deed of trust, which Advance Bank

could have used to initiate foreclosure proceedings under § 42-815, the court found

that a judicial sale was appropriate in light of Rogers’ opportunity to fully litigate

the case; opportunity to participate in a mediation session;3 and knowledge that

foreclosure would eventually occur. The court ordered the sale of the property and

Rogers to pay Advance Bank $96,198.78 in additional fees. This appeal followed.



                                   DISCUSSION



      We review a granting of summary judgment de novo, making an

independent review of the record in the same manner as the trial court does when

initially considering the parties’ motions. Holland v. Hannan, 456 A.2d 807, 814
      2
         Section 42-816 authorizes the court to order a judicial sale instead of a
judicial foreclosure. “A suit for judicial foreclosure to enforce a lien on real
property is historically an equitable action,” Johnson v. Fairfax Vill. Condo. IV
Unit Owners Ass’n, 641 A.2d 495, 506 (D.C. 1994), “which involves an
adjudication of the parties’ rights and obligations before any property is sold.”
Johnson v. Fairfax Vill. Condo. IV Unit Owners Ass’n, 548 A.2d 87, 88 n.1 (D.C.
1988).
      3
         As previously mentioned, the parties attended a court-ordered mediation
session on September 17, 2013. The mediation session was not successful and
Rogers argues that the session did not comply with the requirements of § 42-
815.02 because it was not geared toward loss mitigation, which provides the
homeowner with alternative options for curing the mortgage default in lieu of
foreclosure. D.C. Code § 42-815.02 (a)(5) (2012 Repl.).
                                          5


(D.C. 1983) (citing Wyman v. Roesner, 439 A.2d 516, 519 (1981)). Our role is not

that of a factfinder, but only to determine whether there exists a “genuine issue of

material fact on which a [reasonable] jury could [have found] for the non-moving

party.” Id. at 814-15. The burden rests with the moving party to prove that there is

no genuine issue of material fact, after reviewing the evidence in the light most

favorable to the non-moving party. Id. at 815. If that burden is met, “the moving

party is entitled to entry of judgment as a matter of law” and “[w]e will affirm the

entry of summary judgment . . . .” Id. at 814; Super. Ct. Civ. R. 56 (c).



      Rogers argues that the court erred in granting Advance Bank’s motion for

summary judgment because the mediation requirement set forth in § 42-815 (b)

and § 42-815.02 (b) was not satisfied. Although the parties participated in court-

ordered mediation, Rogers argues that it was inadequate because it was not the

type of loss-mitigation mediation required by § 42-815.02, which requires the

lender to attempt to reach an agreement that would mitigate the borrower’s loss by

providing other options in lieu of foreclosure. D.C. Code § 42-815.02 (a)(5). The

loss-mitigation meditation Rogers refers to could include discussion of the

“renegotiation of the terms of a borrower’s residential mortgage, loan

modification, refinancing, short sale, deed in lieu of foreclosure, and any other

options that may be available.” Id. Rogers claims that Advance Bank’s summary
                                           6


judgment motion requesting judicial foreclosure and/or judicial sale under § 42-

816 circumvented the requirements in § 42-815 (b) and § 42-815.02, and that § 42-

816 does not apply to residential mortgages. Advance Bank argues that there is no

mediation requirement under § 42-816 and the court correctly ordered judicial sale

after weighing the equities. In order to resolve this issue, we must determine the

statutory construction and history of the relevant provisions.



D.C. Code § 42-815 (b) states in relevant part:


             In the case of a residential mortgage . . . a foreclosure
             sale under a power of sale provision contained in any
             deed of trust, mortgage, or other security instrument,
             shall not take place unless the holder of the note secured
             by the deed of trust, mortgage, or security instrument, or
             its agent, shall: give written notice of default on a
             residential mortgage . . . send a copy of the notice . . . and
             obtain a mediation certificate[4] in accordance with § 42-
             815.02.[5]


D.C. Code § 42-816 states in relevant part:


      4
        D.C. Code § 42-815.02 (a) (7) (2012 Repl.) defines “mediation certificate”
as “a document issued by the Commissioner to the lender evidencing compliance
with the mediation requirements of this act.”
      5
         D.C. Code § 42-815.02 (b) (2012 Repl.) states, “Notwithstanding the
provisions of any other law, after a notice of default of a residential mortgage has
been given pursuant to § 42-815 (b) (1), the lender shall engage in mediation if the
borrower elects . . . . ”
                                         7




            In all cases of application to said court to foreclose any
            mortgage or deed of trust, the equity court shall have
            authority, instead of decreeing that the mortgagor be
            foreclosed and barred from redeeming the mortgaged
            property, to order and decree that said property be sold
            and the proceeds be brought into court to be applied to
            the payment of the debt secured by said mortgage . . . .


      These statutes were enacted by Congress in 1901. In 2001, the District of

Columbia Council repealed both statutes by enacting the “Protections from

Predatory Lending and Mortgage Foreclosure Improvements Act of 2000.” D.C.

Council Comm. on Econ. Dev., Report on Bill 13-800 at 1 (2000). The Act’s

purpose was to “update the District’s century-old mortgage foreclosure law to

provide consistency, finality, and borrower protections in the mortgage foreclosure

process” etc. Id. In 2002, § 42-815 and § 42-816 were revived when the Council

enacted the “Home Loan Protection Act of 2002,” which repealed the 2001

“Predatory Lending and Mortgage Foreclosure Improvements Act.” D.C. Council

Comm. on Consumer and Regulatory Affairs, Report on Bill 14-515 at 1, 35

(2002). Again, the Council’s goal was to prevent predatory lending practices and

ensure that foreclosures were “monitored under the old foreclosure laws,”

respectively § 42-815 and § 42-816. Id. at 35.
                                          8


      Finally, in 2011, upon recognition that the foreclosure laws still did not

provide adequate protection from predatory foreclosures, the Council enacted the

“Saving D.C. Homes from Foreclosure Amendment Act of 2010,” which amended

§ 42-815 by requiring lenders and home owners to participate in mediation prior to

foreclosure. D.C. Council Comm. on Consumer and Regulatory Affairs, Report on

Bill 18-691 at 2, 5 (2010). This meant that for any foreclosure “under a power of

sale provision in any deed of trust, mortgage, or other security instrument” a lender

had to issue a default notice in addition to the foreclosure notice and obtain a

mediation certificate. D.C. Code § 42-815 (b). The mediation requirement was

meant to ensure that foreclosure procedures were no longer “perfunctory routine

decisions” made by lenders without regard for the impact on families and

communities. D.C. Council Comm. on Consumer and Regulatory Affairs, Report

on Bill 18-691 at 7-8 (2010). This amending act did not cause any changes to the

law of judicial sales and judicial foreclosures under § 42-816.6 Id.




      6
          See also D.C. Code § 42-815.04 (2012 Repl.), referring to the “Saving
D.C. Homes From Foreclosure Clarification and Title Insurance Clarification
Amendment Act of 2013,” which amended § 42-815.01 et. seq. and states “the act
shall not apply to actions for judicial foreclosure under § 42-816.”
                                           9


      We are satisfied, based on the unambiguous language in both statutes,7

that § 42-815 controls when dealing with “power of sale” foreclosures under an

instrument such as a deed of trust and § 42-816 refers to judicial sales, where the

sale is requested by a lender then ordered by the court or an officer acting under

court order. See Huffines v. Am. Sec. and Trust Co., 71 F.2d 345, 348 (D.C. Cir.

1934). “Power of sale” foreclosures are referred to as non-judicial foreclosure and

are initiated privately by the mortgagor/lender. See Leake v. Prensky, 798 F. Supp.

2d 254, 256 (D.D.C. 2011) (“The District of Columbia is a non-judicial foreclosure

jurisdiction, which allows foreclosure pursuant to a ‘power of sale provision

contained in any deed of trust.”’(quoting D.C. Code § 42–815)). In short, non-

judicial foreclosures are private debt collection procedures conducted without

participation by the court. Pappas v. E. Sav. Bank, FSB, 911 A.2d 1230, 1237

(D.C. 2006) (foreclosure pursuant to power of sale clause in a deed of trust did not

constitute governmental action to warrant due process requirements). Thus it is

clear to us that the Council understandingly intended to protect District residents

from predatory practices by mortgagees because of the lack of oversight during the

      7
         “The initial step in statutory interpretation is to ‘first look at the language
of the statute by itself to see if the language is plain and admits of no more than
one meaning’ while construing the words in their “ordinary sense and with the
meaning commonly attributed to them.”’ Dobyns v. United States, 30 A.3d 155,
159 (D.C. 2011) (quoting Peoples Drug Stores, Inc. v. District of Columbia, 470
A.2d 751, 753 (D.C. 1983) (en banc)).
                                         10


non-judicial foreclosure process.    Judicial sales under § 42-816, however, are

wholly different from non-judicial foreclosures because of the court’s involvement

in the process, which reduces the risk of error and predatory foreclosure practices.

Therefore, § 42-816 authorizes the court to order a judicial sale and there is no

mediation requirement.



      In this case, Advance Bank filed its third amended complaint alleging breach

of contract, judicial foreclosure, and/or judicial sale in the alternative. The court

granted the motion for summary judgment finding that there was no genuine

dispute of material fact that Rogers defaulted on the loan or to the amount he

owed. As to the judicial sale under § 42-816, the court found that a mediation

certificate was not required before exercising its statutory authority. We agree that

the medication requirement expressed in § 42-815 is not applicable to judicial sales

pursuant to § 42-816. Therefore, the trial judge correctly granted the motion for

summary judgment.



      Rogers argues that granting a judicial sale circumvents the requirements set

forth in § 42-815 et. seq., particularly the mediation requirement. This argument

fails to take into account the protections provided by § 42-816 through the court’s

role in the foreclosure process. Although mediation is not required for a judicial
                                           11


sale, there exists judicial oversight, which embodies the Council’s intent in

amending § 42-815 (b) to include the mediation requirement. In any event, Rogers

was provided with the same protections of § 42-815 because the parties

participated in a court-ordered mediation in addition to the protections provided by

§ 42-816. We conclude that judicial sales pursuant to § 42-816 are not a means for

bypassing the requirements in § 42-815, but are only alternative procedures for

lenders seeking action with the court for a defaulted mortgage loan.



      Finally, Rogers argues that judicial sales under § 42-816 only apply to

commercial mortgages. He cites no authority in support of that argument and there

is no basis, in the statute itself or in the legislative history, for concluding that the

Council intended any such limitation on judicial sales. The fact that § 42-816 was

repealed by the “Protections from Predatory Lending and Mortgage Foreclosure

Improvements Act of 2000,” then revived by the “Home Loan Protection Act of

2002” also provides support for our conclusion that it is applicable to residential

mortgages. Accordingly, for the foregoing reasons, the judgment of the trial court

is



                                                      Affirmed.
