(concurring in part, dissenting in part).
It is true, as the majority opinion has held, that no precise deficiency judgment in dollars has been adjudged. Appellants cannot claim error, therefore, on this exact point of law.*
However, a foreclosure action was instituted and certain orders were entered by the trial court from which, appellants declare, there arises grievous civil error. I agree. As foreclosures evolve and advance in our courts, reminiscent of the dirty thirties, we, in the judiciary, must be ever so vigilant in insuring that lending institutions follow the required foreclosure procedures.
Appellants place themselves in peril, procedurally and substantively, by suffering a summary judgment to be taken against them. When I say appellants, I am referring to Milford and Margaret Braden, who are the father and mother of Millard M. Braden. This is a case wherein a mother and father pledged their modest home and a cabin in the Black Hills of South Dakota to help out their son in his business and will apparently lose all to a lending institution. Under my rationale, this case would be remanded to the lower court for the circuit court to go through the proper procedures in a foreclosure action; or, alternatively, if my Brothers on this Court would not so agree on a remand, that the trial court be directed to enter a complete extin-guishment of the debt (by guaranty) as relates to the parents of the principal debt- or. I sense that the circuit court judge himself had trepidations about the procedures followed, for he indicated that he would later determine, at the deficiency hearing, if he had strictly complied with the statutes.
An answer was filed on behalf of the aforesaid parents. Yet, no counsel resisted the summary judgment motion and the parents failed to appear, at the appointed time, either in person or by counsel at the summary judgment hearing. Their son’s lawyer did not come forward and represent them. After summary judgment was taken against these parents, they had an uphill battle to wage; and when it became apparent to them that the day of reckoning was at hand, i.e., that the pledged property was to be sold, they began to legally joust for their creditors’ rights. Appellants really did not sleep on the summary judgment proceedings for an answer had originally been interposed on their behalf. Said answer was interposed by an attorney employed by the parents’ son. If one anchors himself in thought to the legal position that the parents slept on their rights, still they had a right to come forward and to object to the procedures employed by appellee Bank pertaining to the implementation of the summary judgment. Put another way, the parents had the right to insist that proper foreclosure methods were used in taking their home and cabin away from *127them. As I believe that the procedures were improper, I dissent to that portion of the majority opinion which approves of the circuit court’s determinations in this respect. And in view of the footnote I have set forth herein, I find it inconceivable that a deficiency judgment can now be entered against the parents at a hearing subsequent to this appeal in the Supreme Court.
Where did the trial court get all of its facts? There was no testimony taken at the hearing. Why were extensive findings of fact and conclusions of law entered on a summary judgment bearing the date of January 11,1983? These are totally unnecessary and improper under SDCL 15-6-56(c). Some five months after the entry of judgment and notice of entry of judgment being served upon appellants, the trial court, ex partéd the appellants by receiving an affidavit of an appraiser and securing an additional Order. This Order established that the market value of the mortgaged home of the appellants was less than the amount of judgment. The law requires that the market value of the home be established by its fair and reasonable value. SDCL 21-47-16. Dissatisfied with this summary judgment procedure which was conceptually flawed, appellants filed a motion to vacate the judgment and also secured an Order of the court dated August 5, 1983, directing the appellee to foreclose its mortgage by action. It appeared that appellants would get relief from the ex parte proceeding and the faulty summary judgment procedure. Their relief was short lived. For, on August 23, 1983, the trial court dismissed appellants’ motion to vacate the judgment and also vacated its previous Order requiring appellee to foreclose the mortgage by action. Appellee, in effect, secured an entire foreclosure in a summary judgment action with detailed findings of fact and conclusions of law. Furthermore, no amended summary judgment was ever filed. The medicine was all made and appellants were procedurally punished because they first fell in default. No amended summary judgment was ever entered after the ex parte application which established that the market value of the property (their home) would be less than the mortgage. As regards my latter statement, there exists no such legal animal in foreclosure proceedings and it cannot be birthed from nine full typewritten pages of findings of fact and conclusions of law entered on a motion for summary judgment. Again, there is no such procedural animal existing under our state statute. Wilson v. Great Northern Ry. Co., 83 S.D. 207, 157 N.W.2d 19 (1968).
Having never established the fair and reasonable value of the home of the appellants, the trial court adjudicated in the Order dated June 9, 1983, that appellants would be responsible for any deficiency and that a general execution would lie for any deficiency. Appellants were thus locked into a monetary exposure in the future based upon illegal procedures and contrary to our holding in Todd v. Winkelman, 320 N.W.2d 525 (S.D.1982). The majority opinion, in its sixth paragraph, fails to point out that the trial court had early ordered a deficiency (although not in an exact dollar amount as I pointed out in my opening paragraph). The cabin sale proceedings (sold at private sale) should not be affirmed for the reason that the foreclosure proceedings on the home were flawed. The two are inextricably interwoven as security. Without establishing value, how can it be determined if the mortgagee bids fairly and in good faith? Perpetual Nat’l Life Ins. Co. v. Brown, 85 S.D. 330, 182 N.W.2d 216 (1970).
Lending and financial institutions must not circumvent the law in obtaining or in attempting to obtain deficiency judgments; without regard to the establishment of the value of the mortgaged property in foreclosure actions, you have a runaway horse on your hands.
Bank’s brief expressly reveals that "no deficiency judgment was sought” and “[t]he Bank is only proceeding pursuant to the U.C.C. sections to exhaust the security pledged, and has made no application for any deficiency judgment." Thus, I cannot agree that the Bank may now proceed below to secure a deficiency judgment, as suggested by the last substantive sentence of the majority opinion.