Queen City Savings & Loan Ass'n v. Mannhalt

Williams, J.

(dissenting)—I dissent from the majority's interpretation of RCW 61.24.040(5). When a single obligation is secured by separate parcels of land in two or more counties, a deed of trust foreclosure sale may be held in any one of the counties containing a parcel. RCW 61.24.040(5) should not be limited to situations in which the security is a single parcel overlapping county lines.

A broader interpretation of the statute is entirely consistent with the objectives of the deed of trust act. See Cox v. Helenius, 103 Wn.2d 383, 387, 693 P.2d 683 (1985). Allowing one sale in a single county, as the majority noted, keeps the nonjudicial foreclosure process efficient and inexpensive. Moreover, it provides an adequate opportunity for interested parties to prevent wrongful foreclosure; notice requirements remain unchanged, and a unified proceeding reduces the inconvenience to challengers. In addition, conducting one sale promotes the stability of land titles by resolving all ownership questions at one time, rather than increasing uncertainty by fragmenting the process.

An earlier Washington statute which provided that a mortgagee "may proceed in the superior court of the county *299where the land or some part thereof lies" was interpreted to allow an action to foreclose a mortgage covering two properties in separate counties to be brought in either county. Empire State Sur. Co. v. Ballou, 66 Wash. 76, 80, 118 P. 923 (1911). Other jurisdictions have also interpreted statutes similar to RCW 61.24.040(5) to allow unified sales. See Federal Land Bank of Baltimore, Inc. v. Esham, 43 Md. App. 446, 406 A.2d 928 (1979); Bateman v. Carter-Jones Drilling Co., 290 S.W.2d 366 (Tex. Civ. App. 1956). See also 55 Am. Jur. 2d Mortgages § 560 (1971).

There is no logical reason to distinguish between judicial and nonjudicial foreclosures as they relate to place of sale rules. Multiple sales render the process expensive, inefficient and time consuming no matter who is conducting them. "Contemporaneous judicial scrutiny" would not provide any "greater opportunity for interested parties to prevent wrongful foreclosure", nor would it necessarily "produce a greater number of bidders". See majority, at 296. In fact, the notice provisions for nonjudicial foreclosures are more thorough than those for judicial foreclosures. Compare RCW 61.24.040-.045 with former RCW 6.24.010-.015. The nonjudicial foreclosure procedure affords the grantor full opportunity to cure the default, RCW 61.24.090, or restrain the sale and contest the default, RCW 61.24.130. The judicial process accomplishes little more.

Given a broad reading of RCW 61.24.040(5), I also dissent from the majority's conclusion that summary judgment should be entered in Mannhalt's favor. I agree with the majority's interpretation of the phrase "additional security only"; the Whatcom County property should have been sold before bidding began on the Snohomish County land. But because notice was adequate and the place of sale proper, requiring a particular sequence of offering when Queen City was the only bidder present would have been a useless act. Queen City had a valid and subsisting interest in the Whatcom County property as a result of the deed of *300trust sale, and I would affirm the summary judgment in its favor.

Review granted by Supreme Court January 5, 1988.