concurring specially.
[¶21] I reluctantly concur in the result reached by the majority opinion. Foreclosure by action of a mortgage on real estate is in the nature of an action in rem and would appear to be governed by the laws of the state in which the real estate is situated. Thus my reluctance to concur in the result reached by the majority opinion centers on the precedent apparently established by the choice-of-law issue. For example, can a lender, as a condition of giving a loan, require a hapless borrower to agree, through a choice-of-law provision in a mortgage agreement, to forego the anti-deficiency protections of the North Dakota statutes, ch. 32-19 of the North Dakota Century Code, in favor of an unrelated jurisdiction that has no such protections against deficiency judgments? If so, might such a contract be void as against the public policy of North Dakota? These concerns are not the issues raised in this case but, to the extent the majority opinion relies primarily on the choice of laws for its result, l am concerned.
[¶22] Nevertheless, the facts of this case do not involve the scenario I outline above; rather, the. plaintiffs seek to avoid the protections given the mortgagor by the California statutes on the California property by seeking a deficiency judgment on the North Dakota property covered by the mortgage. Thus,, to the extent a mortgage foreclosure sounds in equity perhaps the more equitable result would be to reverse and remand to require the court to find the fair market value of the, California property at the time of sale and to render a deficiency judgment only if the proceeds of that property and the North Dakota property are insufficient to satisfy the mortgage. I recognize the time limitations in the California statutes in which such action must be taken in order to obtain a deficiency judgment. While. I question whether or not those statutes govern an in rem foreclosure on the North Dakota property, under the circumstances of this case I concur in the result reached in the majority opinion.
[¶23] Gerald W. VandeWalle, C.J.