concurring and dissenting.
[¶ 31] I concur with the majority opinion except to the extent it holds Rule 5, N.D.R.Civ.P., requires service of the notice before foreclosure sale in accordance with that rule prior to the sale. I would like to concur in that portion because, as the majority points out, the owner of the foreclosed property has important interests to protect. Pre-sale personal notice may give the owner a better opportunity to be aware of the time and place to appear to protect those interests. However, since personal notice is not constitutionally required under these circumstances, I believe compliance with the statutory notice provisions is sufficient. See Endicott-Johnson Corp. v. Encyclopedia Press, Inc., 266 U.S. 286, 288-89, 45 S.Ct. 61, 69 L.Ed. 288 (1924); Taylor v. Slick, 178 F.3d 698, 703 (3rd Cir.1999), cert. denied — U.S. -, 120 S.Ct. 797, — L.Ed.2d -, 68 USLW 3312 (Jan. 10, 2000); United States v. New Mexico Landscaping, Inc., 785 F.2d 843, 848-49 (10th Cir.1986); Production Credit Ass’n v. Williamson, 107 N.M. 212, 755 P.2d 56, 58 (N.M.1988).
[¶ 32] Our statutes direct the sheriff to provide notice of a foreclosure sale through public advertisement of the time and place of the sale. The sheriff is not a party to the foreclosure suit. I do not believe Rule 5’s reference to “every written notice” can be read so broadly as to include service of notices which are prepared outside the litigation by non-parties to the litigation. In this I agree with the analysis of the Montana Supreme Court in its recent consideration of Rules 81(c) and 5(a), M.R.Civ.P., which are similar to our rules similarly numbered.
[¶ 33] In Bank of Baker v. Mikelson Land Co., 1999 MT 76, 979 P.2d 180, the Montana Supreme Court considered whether an owner (Mikelson) who had participated in a foreclosure proceeding received proper notice of the sale. Notice had been given publicly by the sheriff in accordance with the governing statute, but neither the owner nor the owner’s attorney was served under Rule 5. The court held that Rule 5 service was not required:
While Mikelson’s argument relating to these rules is less than clear, it is clear that they do not — either standing alone or taken together — require service of the notice of the sale on Mikelson or Mikelson’s counsel. Nothing in the statutes governing execution sales and notice thereof renders acts associated with execution sales acts in a district court civil proceeding, as contemplated by Rule 81(c), M.R.Civ.P. Similarly, the Rule 5(a), M.R.Civ.P., requirement that every written notice be served on all parties relates only to written notices within a district court civil proceeding. That requirement does not relate to execution sales, which are governed by the notice requirements contained in § 25-13-701, MCA, which — as discussed above — were met here.
Id. at ¶ 21. Accord: United States v. New Mexico Landscaping, Inc., 785 F.2d at 848-49; Production Credit Ass’n v. Williamson, 755 P.2d at 57.
[¶ 34] I do not read Tormaschy v. Tormaschy, 1997 ND 2, 559 N.W.2d 813, to require a different result. In Tormaschy this Court examined Rule 81, N.D.R.Civ. *128P., which provides: “Special statutory proceedings, whether or not listed in Table A, are excepted from these rules insofar as they are inconsistent or in conflict with the procedure and practice provided by these rules.”
[¶ 35] Appellants in Tormaschy argued that pleading waiver was unnecessary because Chapter 32-17, N.D.C.C., governing quiet title actions, did not require waiver to be specially pled. We rejected that argument, following federal courts in concluding “silence is not an inconsistency, for when an excepted statutory proceeding is silent on a certain procedural issue, the general rules of civil procedure become applicable.” Id. at ¶ 14.
[¶ 36] Chapter 32-19, N.D.C.C., governing real estate mortgage foreclosures, is a special statutory proceeding under Rule 81 and it is not silent on the procedures for giving notice. Section 32-19-08 directs sales “upon the notice and in the manner prescribed by law for the sale of real property upon execution.”
[¶ 37] Section 28-23-04, N.D.C.C., which prescribes the notice of sale in a foreclosure, was amended in 1989 to provide mailed notice prior to the sale to nonowner defendants whose names do not appear in the public notice. Mailed notice is not required to owners who are identified in the public notice of sale. This section requires the officer conducting the sale to give public notice. Since that officer is not a party to the foreclosure litigation, I do not read Rule 5 to cover the notice which the officer, by statute, is required to give.
[¶ 38] MARY MUEHLEN MARING, J., concurs.