CitiFinancial, Inc. v. Balch

Skoglund, J.,

¶ 43. dissenting. The majority errs in concluding that the probate court need only approve a “mortgage deed” but not the note that gives life to that deed. The law plainly requires court approval for the entire transaction. I would affirm the trial court’s order granting summary judgment to the ward’s estate. I therefore dissent.

¶ 44. As the majority recognizes, any guardian who wishes to mortgage her ward’s property must file a motion with the probate court. The probate court can authorize a mortgage only if it benefits the estate and serves one of five enumerated purposes. 14 V.S.A. § 2201. In its decree, the probate court “shall fix the amount for which the mortgage . . . may be given, the terms thereof and the rate of interest which may be paid thereon.” Id. § 2202 (emphasis added). This language can only refer to a promissory note that accompanies a mortgage deed. The use of the word “shall” means that this is a mandatory, not a discretionary, requirement. See, e.g., State v. Rafuse, 168 Vt. 631, 632, 726 A.2d 18, 19 (1998) (mem.) (“Statutes generally use ‘shall’ as imperative or mandatory language. In its ordinary significance, it is a word of command, and it is inconsistent with a concept of discretion.” (citation omitted)).

¶ 45. The majority simply ignores this language. It construes the word “mortgage” to mean a “mortgage deed,” ante, ¶ 27, but it does not explain how the probate court can set the amount, terms, and interest rate of a deed. The majority emphasizes the different legal obligations associated with a note and a mortgage, *40but it does not explain why a difference in legal effect obviates the plain language of the statute cited above. The majority eliminates this requirement from the statute, an approach we must reject. We “presume that language is inserted in a statute advisedly,” and we “do not construe the statute in a way that renders a significant part of it pure surplusage.” Trombley v. Bellows Falls Union High Sch., 160 Vt. 101, 104, 624 A.2d 857, 860 (1993) (quotation omitted).

¶ 46. Applying well-established principles of statutory construction, it is evident that the Legislature intended the word “mortgage” to include the loan that accompanies the conveyance of a mortgage deed. See In re Margaret Susan P., 169 Vt. 252, 262, 733 A.2d 38, 46 (1999) (stating that, in interpreting a statute, Court must consider it “as a whole, looking to the reason and spirit of the law and its consequences and effects to reach a fair and rational result”). This interpretation recognizes the interrelated nature of these two instruments. See, e.g., Island Pond Nat’l Bank v. Lacroix, 104 Vt. 282, 294, 158 A. 684, 690 (1932) (explaining that when a mortgage is used to secure payment of a debt, “the debt is the principal thing, and the mortgage is an incident of it which accompanies and follows the debt wherever that may be assigned”); Huntington v. McCarty, 174 Vt. 69, 71, 807 A.2d 950, 952 (2002) (when note and mortgage are made at same time, and in relation to same subject, they are to be construed together as if they were parts of same instrument). It gives meaning to all of the statutory language. See, e.g., State v. Ben-Mont Corp., 163 Vt. 53, 57, 652 A.2d 1004, 1007 (1994) (“Our interpretation must ... if possible, give meaning and effect to all the statutory language.”). It carries out the purpose of the statute. And it is consistent with a dictionary definition of the term “mortgage.” See Black’s Law Dictionary 1031 (8th ed. 2004) (defining “mortgage” to include “a deed or contract . . . specifying the terms” of a conveyance of title to property that is given as security for payment of debt, and also, “[l]oosely, the loan on which such a transaction is based”). Indeed, it applies the meaning of the term “mortgage” used in common parlance. When people talk about paying their “mortgage,” they are referring to the loan that gave rise to a mortgage deed, not the mortgage deed itself.

¶ 47. The whole point of taking out a mortgage is to borrow money for the ward’s benefit. Thus, in filing a motion to mortgage *41real estate, a guardian must describe “the amount of money-necessary to be raised, the nature and amount of the obligation to be secured and the purpose for which the money or security is required.” 14 V.S.A. § 2202. The probate division may authorize a mortgage only “to prevent a sacrifice of the estate; to make repairs and improvements upon the estate; to pay debts, legacies or charges of administration; to pay an existing mortgage, lien or tax on the estate, or to support a ward.” 14 V.S.A. § 2201. Mindful of these requirements, and the information provided by the guardian, the probate court will assess what action is necessary to meet the ward’s needs and determine, as directed by statute, the amount of any mortgage loan, its terms, and an appropriate rate of interest. This approach reflects the Legislature’s careful decision to “guard[] the rights of wards in their real estate.” Doty v. Hubbard, 55 Vt. 278, 283 (1882).

¶48. The majority reasons that, because no one would suggest that the licensing law applied to an unsecured promissory note, the law must not apply to promissory notes generally. Ante, ¶ 36. This case is not about a guardian’s general authority to execute promissory notes on behalf of a ward, however. Instead, this case involves a very specific type of borrowing — the borrowing of money using the ward’s real estate as security. The Legislature has clearly limited a guardian’s ability to engage in such transactions. Whatever general authority guardians have to borrow money for their wards, it is a basic principle of statutory construction that “[a] more specific statutory provision will prevail according to its terms over a more general statutory provision.” Rafuse, 168 Vt. at 632, 726 A.2d at 19.

¶ 49. In short, we need not wait for the Legislature to amend the laws to prohibit guardians from unilaterally executing “mortgage loans” on behalf of their wards. The Legislature has already spoken and expressly prohibited such transactions. It has given the probate court, not the guardian or the lender, the power to determine how much money may be borrowed against the ward’s estate and at what rate. The law was not followed here.

¶ 50. I would affirm the trial court’s decision. I am authorized to state that Justice Burgess joins this dissent.