First State Bank of Forsyth v. Chunkapura

MR. JUSTICE WEBER,

dissenting:

In my dissent to the original option, I concluded that in its elimination of the statutory right of judicial foreclosure with its companion right to a default judgment, the majority had decreed an unjust taking of a valuable property right from every lender in Montana who had used trust indentures. I then concluded that this Court should enforce the plain meaning of the statute and leave to the legislature any changes in the Small Tract Financing Act. I reaffirm that position.

I do approve the action of the majority in at least limiting the adverse effect of the majority opinion in the matter set forth in the Order on Rehearing. As I again review the statutes, I am unable to find any statutory justification for the distinction between trust indentures on occupied, single-family residential property, and trust indentures on other types of real property.

I encourage the Montana Legislature to review the Small Tract Fi*68nancing Act and the effect of the present opinion. In doing so they properly can consider a modification to include fair market value provisions.

I would still reverse the District Court.

MR. JUSTICE GULBRANDSON joins the foregoing dissent.