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Millay v. Cam

December 30, 1996

JACK M. MILLAY, APPELLANT,
v.
ELENA K. CAM AND RAYMOND BLAISDELL, RESPONDENTS.



Appeal from Superior Court of Skamania County. Docket No: 91-2-00111-3. Date filed: 12/16/94. Judge signing: Hon. Ted Kolbaba.

Petition for Review Granted June 3, 1997,

Authored by Carroll C. Bridgewater. Concurring: Karen G. Seinfeld, David H. Armstrong.

The opinion of the court was delivered by: Bridgewater

BRIDGEWATER, J.--In this case, which concerns serial redemptions of real property, we are asked to decide whether a prospective redemptioner's declaratory action to dispute the "sum required" to redeem under RCW 6.23.080 is equal to tendering payment or tolls the statutory redemption period. We hold that, because the statute requires payment within a specified period, filing a declaratory action neither tolls the running of the period of redemption nor acts as payment. We affirm.

This lawsuit involves property known as Biba Hot Springs Resort, Inc. Biba defaulted on its loans, mortgagees foreclosed on the property, and a sheriff's sale was held. Thereafter, the interest-holders began the process of redeeming the property under the redemption statutes, RCW 6.23.

This appeal concerns the last of several redemptions between interest-holders Jack M. Millay and Elena Cam. Millay redeemed the property from Cam, Cam redeemed it from Millay by paying $267,853.08 to the sheriff, and the sheriff gave her a Certificate of Redemption. Just eight days before the 60-day redemption period closed, *fn1 Millay again attempted to redeem from Cam. He filed his intent to redeem with the sheriff and requested that Cam provide him with a payoff statement including those amounts mentioned in RCW 6.23.040. Those amounts consist of the sum paid on the last previous redemption, the amount of assessments, liens and mortgages paid since that redemption, and interest.

Two days before the end of the 60-day redemption period, Cam's attorney notified Millay directly about other liens that Millay would have to pay, liens that raised the "sum required" to $509,817.92. Millay expected that the "sum required" would be the price Cam last paid to redeem from him, or $267,853.08, plus eight percent interest.

Millay suspected that the liens to which Cam referred were invalid.

With only one day to submit the "sum required" to redeem, Millay was in a quandary. He was unwilling to pay the sum presented by Cam, yet wanted to redeem the property before the deadline. He thought that if he paid a lesser amount the sheriff would either reject his offer or bring a declaratory judgment action to determine the proper sum. He did not want Cam to hold his money without interest while the suit was pending and did not place money in escrow with the superior court because he believed that it would cause administrative problems with the court.

On the last day to redeem, Millay decided not to pay any amount. Instead, he filed a declaratory judgment action to determine the correct "sum required." He argued that his court action tolled the redemption statute or at least substituted for payment so as to preserve his right to redeem. Millay never asserted that he was prejudiced by Cam's failure to file a formal notice of the liens as required by RCW 6.23.050. *fn2 He only asserted that her statement did not comply with RCW 6.23 in general because it did not verify the lien amounts that she demanded.

The trial court concluded the following in favor of Cam: that RCW 6.23 does not require Cam to produce an accounting of the "sum required" to redeem; that a declaratory judgment action was not the functional and legal equivalent of redemption; that Millay, by failing to tender funds before the expiration of the 60-day redemption period as required in RCW 6.23.040(1), failed to redeem the property from Cam; and that Cam's sheriff's deed should remain in full force and effect.

I

Millay contends that his declaratory judgment action effectively tolled the statutory redemption period and acted in place of tender because neither RCW 6.23.040 nor 6.23.080 requires tender when the "sum required" is in dispute.

"The right to redeem property sold under execution is a creature of statute and depends on the provisions of the statute creating the right." *fn3 The interpretation of a statute is a question of law that we review de novo. *fn4 Our primary objective in interpreting a statute is to ascertain and give effect to the Legislature's intent as manifested by the statute's express language. *fn5 "Where the language of a statute is plain, unambiguous, and certain, there is ...


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