First National Bank v. Energy Fuels Corp.

JUSTICE LOHR

dissenting:

The majority construes section 38-39-103, C.R.S. 1973, to permit partial redemption from a real property foreclosure sale. I respectfully dissent.

The facts are stated in the majority opinion.

The right of redemption from a real property foreclosure sale is purely statutory. Walker v. Wallace, 79 Colo. 380, 246 P. 553 (1926). Thus, we must look to the statute to determine the characteristics of that right. The amount to be paid to effect redemption is specified:

“[The redeeming encumbrancer or lienor] may redeem ... by paying all redemption amounts theretofore paid with interest and the amount of all such liens [liens used to effect prior redemptions] with interest prior to his own . . . .” (Emphasis added.)

Section 38-39-103(1), C.R.S. 1973.

The redemption amounts include “the sum for which the property was sold, with interest from the date of sale at the rate specified in the original instrument, together with any taxes paid or other proper charges as now provided by law, . . . .” Section 38-39-102, C.R.S. 1973.1 They also include amounts paid by prior encumbrancers or lienors to effect redemption. Section 38-39-103, C.R.S. 1973. The statute does not authorize the holder of a judgment lien on the interest of one of two joint tenants to redeem such interest by paying half of the redemption amounts.

The clear prescription of the amount to be paid removes any ambiguity in the term “liens . . . prior to his own.” Section 38-39-103(1), C.R.S. 1973. Because redemption of the entire interest sold at foreclosure sale by payment of all redemption amounts is the only form of redemption contemplated by the statute, a lien on any part of those rights is prior to a later lien on all of those rights.

Section 38-39-103(1), C.R.S. 1973, allows a creditor holding a lien “on the sold premises or some part thereof (emphasis added) to redeem from the foreclosure sale. The majority concedes that a creditor with a lien on an undivided interest in a parcel may redeem the entire parcel from a foreclosure sale as long as no other redemption rights exist based on liens encumbering other undivided interests. If such other redemption rights exist, however, the majority concludes that the entire scheme for redemption changes, each lienor being permitted to redeem only the interest to which *548his lien extends. Yet the statute, explicit in its recognition of redemption by those holding interests in “some part” of the sold premises, nowhere provides for the proportional redemption scheme envisioned by the majority.

For many years we have recognized that the holder of a judgment lien on an undivided interest in real property may redeem the entire property from a sale in foreclosure of a prior lien on the entire property. Moreover, he must redeem the entire property if he is to redeem at all; partial redemption is not permitted. Walker v. Wallace, supra; see Chain O’Mines, Inc. v. Williamson, 101 Colo. 231, 72 P.2d 265 (1937); Leach v. Torbert, 71 Colo. 85, 204 P. 334 (1922); Bailey v. Erny, 68 Colo. 211, 189 P. 18 (1920). In Walker v. Wallace, supra, we stated that, under the statute then in effect, “that property which has been sold in an execution sale in its entirety or en masse, if redeemed at all, must be redeemed en masse.”2 79 Colo. 380, 384, 246 P. 553, 554 (1926). We went on to hold:

“As Walker was obligated to pay, if he redeemed, the entire amount for which the land had been sold, together with interest, and as there is no provision in our statute for a redemption at all except by payment of the entire sum, and not a moiety of that sum, for which the land was sold at the sale redeemed from, it follows necessarily that he may redeem, if at all, in whole only. To the same effect is Martin v. Sprague, 29 Minn. 53, 11 N.W. 143; O’Brien v. Krenz, 36 Minn. 136, 30 N.W. 458; Sharpe v. Baker, 51 Ind. App. 547, 571, 96 N.E. 627, 99 N.E. 44.”

79 Colo. 380, 385, 246 P. 553, 554-5 (1926). See F. Stork and D. Sears, Colorado Security Law 218 (1955). Changes in the statutes since the cited cases were decided have not extended to authorization of partial redemption.

Although statutory content governs the results of statutory redemption cases, it is worthy of note that the general rule is “that a mortgage is an entire thing, and must be redeemed as such, and that the mortgagee cannot be compelled to divide his debt and his security.” 9 G. Thompson, Commentaries on the Modern Law of Real Property 745 (1958); see 52 Mich. L. Rev. 312 (1953); 55 Am. Jur. 2d Mortgages § 886 (1971); 59 C.J.S. Mortgages § 834 (1949).

The majority correctly points out that to require First National Bank of Southglenn to pay the amount secured by Energy Fuels’ lien on Ben Pickering’s interest as a condition to redeeming from the sale of Kathleen Pickerings’ interest utilizes Kathleen Pickering’s property interest to reduce Ben Pickering’s debt. However, the construction adopted by the majority leads to other problems not raised as issues in this case. It *549subjects the original purchaser at the foreclosure sale to the prospect of becoming a co-owner with a lienor who redeems less than all of the property interests sold. This leaves the original purchaser with a property interest of uncertain value3 and marketability. The prospect of such a result, against which a first lienor has no means of protection, cannot have a favorable effect on commercial transactions.

In no area of the law are certainty and predictability more important than in the law of real property. Numerous and important commercial transactions occur daily based upon the predictability of legal consequences of documents and relationships. The statute which we construe in this case does not contemplate partial redemption. In electing to prohibit partial redemption, the legislature had conflicting policies and interests to evaluate. Their choice is clearly expressed, and is confirmed by case law of long standing. Walker v. Wallace, supra. I would not warp the statute in an effort to avoid a result which may not be fully equitable to all parties in this case.

I would affirm the judgment of the court of appeals.

The statute as amended now requires payment of interest at the default rate if specified in the original instrument. Section 38-39-102, C.R.S. 1973 (1979 Supp.).

Walker was a judgment lienor of one of the two cotenants whose interests had been sold in proceedings to foreclose a mortgage on the cotenants’ interests. The mortgage was prior to Walker’s judgment lien.

It requires no appraisal expertise to conclude that an undivided one-half interest in a piece of real property is not worth one-half the value of the entire real property.