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Hazel v. Beek

February 18, 1997

LOIS HAZEL, RESPONDENT,
v.
LEONARD VAN BEEK AND MARJORIE VAN BEEK, HUSBAND AND WIFE, DBA J-LEN CONSTRUCTION, APPELLANTS.



Appeal from Superior Court of Whatcom County. Docket No: 83-2-01150-3. Date filed: 10/28/94. Judge signing: Hon. Michael F. Moynihan.

Order Denying Motion for Reconsideration and Changing Opinion April 28, 1997, Petition for Review Granted October 7, 1997,

Authored by Ronald E. Cox. Concurring: Faye C. Kennedy, H. Joseph Coleman.

The opinion of the court was delivered by: Cox

COX, J. -- In October 1993, the sheriff of Whatcom County sold at an execution sale the home of Leonard and Marjorie Van Beek. The sale satisfied a judgment Lois Hazel obtained against the Van Beeks in November 1983. On October 25, 1993, the sheriff mailed notice of the filing of the sheriff's return. November 2, 1993, was the tenth anniversary of the entry of the 1983 judgment against the Van Beeks. Fifteen days later and 23 days after the mailing of the notice of the sheriff's return of sale, the Van Beeks filed written objections to the sale. The trial court considered the objections, but rejected them and confirmed the sale. We hold that the objections were timely, but the confirmation of the sale was not. Accordingly, we reverse.

In early February 1981, Hazel contacted Leonard Van Beek, a general contractor, to discuss remodeling her home. Van Beek originally estimated that the remodeling would cost $25,000 to $35,000. He later revised that estimate upward to $35,000 to $40,000. Hazel authorized Van Beek to proceed with the job. By early 1982, Hazel had paid Van Beek over $90,000, but the work was still unfinished.

The Van Beeks then filed a Chapter 7 bankruptcy proceeding. Hazel sued them in bankruptcy court and obtained a judgment just over $59,000 on November 2, 1983. She then filed an abstract of judgment in Whatcom County Superior Court. Hazel also made a claim against Van Beek's $4,000 contractor's bond and garnished the Van Beeks' bank account. Notwithstanding these actions, the judgment remained largely unsatisfied.

The Van Beeks filed a Chapter 13 bankruptcy proceeding on January 31, 1984. Hazel objected to the Van Beeks' proposed bankruptcy plan. In August 1984, the bankruptcy court dismissed the case.

In August 1993, Hazel commenced execution sale proceedings to have the Whatcom County sheriff sell the Van Beeks' residence to satisfy the unpaid amount of the 1983 judgment. Hazel was the successful bidder at the October 15, 1993 sheriff's sale. November 2, 1993, was the tenth anniversary of the entry of the 1983 judgment that served as the basis for the sale. On November 17, 1993, the Van Beeks filed written objections to the sheriff's sale. At a November 19 hearing on the motion to confirm sale, the court considered the objections, but orally denied them and ruled that an order confirming sale should be granted.

Prior to entry of that order, the Van Beeks filed another Chapter 13 bankruptcy proceeding, which ended in dismissal. In October 1994, after dismissal of the bankruptcy case, the court entered the order confirming the October 1993 sale. The Van Beeks appeal.

I

Timeliness of Objections

We must first resolve a threshold issue that neither party adequately addresses on appeal. Hazel argues that the trial court erred by considering the Van Beeks' objections to confirmation. [TEXT DELETED BY COURT EMENDATION]. Hazel contends that the trial court erred by considering the Van Beeks' allegedly untimely objections to confirmation of the sheriff's sale. The argument is based on the fact that the objections were filed more than 20 days after the mailing of the notice of the filing of the sheriff's return of sale. The question of whether the trial court may consider objections that are not timely filed under this statute is a question of statutory construction that we review de novo. *fn2 Two statutes are at issue. RCW 6.21.110 (2) provides in relevant part:

The judgment creditor or successful purchaser at the sheriff's sale is entitled to an order confirming the sale at any time after twenty days have elapsed from the mailing of the notice of the filing of the sheriff's return . . . unless the judgment debtor . . . shall file objections to confirmation with the clerk within twenty days after the mailing of the notice of the filing of such return. *fn3

RCW 6.21.110(3) states in part:

If objections to confirmation are filed, the court shall nevertheless allow the order confirming the sale, unless on the hearing of the motion, it shall satisfactorily appear that there were substantial irregularities in the proceedings concerning ...


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