dissenting in part.
I respectfully disagree with Part I of the Court’s opinion, holding that the trustee’s sale must be set aside. Idaho Code § 45-1506(2) provides that notice of the trustee’s sale “shall be given by registered or certified mail to the last known address of ... [t]he grantor in the trust deed____” Here, it is undisputed that the requisite notice was timely sent by certified mail to the grantor, Robert Bishop, at his residence address and at his post office box, in Blackfoot, Idaho. At Bishop’s specific request, the Blackfoot Post Office followed a general practice of placing in his post office box all mail, whether addressed to the box or to the residence. Accordingly, when the post office received the two envelopes containing notices of the trustee’s sale, a notice of arrival of certified mail was placed in Bishop’s box. When the mail was not claimed within five days, a second such notice was placed in the box. When the mail still was not claimed, the envelopes were marked “unclaimed” and returned to the sender approximately eighteen days after the first notice had been placed in the box. Bishop later acknowledged, in response to a Request for Admissions, that he had received notice of the arrival of certified mail but that he “just failed to pick mail up at the window.”
*30The majority today holds that Bishop “did not receive notice in the form and under the procedure required by the trust deed foreclosure statutes.” But in my view, I.C. § 45-1506(2) does not allow a grantor to frustrate foreclosure proceedings simply by failing to claim his certified mail. The statute does not require proof that the grantor actually received the mailed notice; it requires only that the notice be sent “by registered or certified mail to the last known address____” Although the majority relies upon Roos v. Belcher, 79 Idaho 473, 321 P.2d 210 (1958), that case merely stands for the proposition that notice sufficient under the trust deed statutes is also sufficient to meet constitutional due process requirements. Roos does not impose any notice requirement beyond that contained in the statutes themselves.
Moreover, as the majority acknowledges, this is not a case where the grantor was wholly uninformed of the pending sale. Bishop admitted that on or about March 24, 1982, he became aware that his property would be sold pursuant to the deed of trust securing his loan from Security Finance. The sale occurred on August 5, 1982. The record does not disclose that Bishop cured the default or took any legal steps to test the validity of the sale proceedings during the interim.
The majority further suggests that Bishop, as an “occupant” of the subject property, also was entitled to personal service of the notice of default, pursuant to I.C. § 45-1506(5). That section does indeed require occupants to be served notice “in the manner in which a summons is served.” But it provides that “if the real property be vacant then such notice shall be posted in a conspicuous place on the said premises.” The record contains an affidavit by a private process server, stating that he attempted unsuccessfully on six different occasions, including several days and a weekend, to serve Bishop at the residence. Finding no one at home on any of these occasions, the process server, according to his affidavit, posted the notice of sale on the front door of the house. Bishop denied seeing the posted notice.
The district court, noting that the process server’s affidavit and Bishop’s denial framed a genuine issue of material fact, properly refused to rule on whether Bishop had been adequately served as an “occupant.” In contrast, the majority perceives the issue as one of law, holding that a posted notice would be inadequate under the statute because the property was not “vacant.” I do not know what definition of vacancy the majority has employed, but I would hold, if it were necessary to do so, that when no one is found at home on six different occasions, the property may be deemed “vacant.”
More fundamentally, however, I believe it is unnecessary to determine whether Bishop was adequately served as an “occupant” in addition to receiving notice as a “grantor.” Idaho Code § 45-1508 provides, in pertinent part, as follows:
A sale made by a trustee under this act shall foreclose and terminate all interest in the property covered by the trust deed of all persons to whom notice is given under subsection (2) of section 45-1505 [which, due to a clerical error, should read section 45-1506]____ The failure to give notice to any of such persons shall not affect the validity of the sale as to persons so notified.
As noted above, proper notice was given to Bishop as a “grantor” in the manner provided by I.C. § 45-1506(2). Consequently, any defect in the notice given to other persons under that subsection, or to him as an “occupant” under I.C. § 45-1506(5), would not affect the validity of the sale. Although in some circumstances failure to give an “occupant” proper notice of sale might affect the subsequent relationship between the purchaser and the “occupant,” I do not believe that such circumstances are presented by the instant case.
I would affirm the summary judgment of the district court in its entirety.