(Dissenting).
{22} There are several reasons why I cannot agree with the majority. First and foremost is the concept of equity as it is applied in this appeal. I have reached the conclusion that relying on the concept of equity misses the mark, resulting in inequity.
{23} The majority relies upon the betterment statute, Section 42-4-17, to get around the obvious and clear language of the redemption statute, Section 39-5-18. The redemption statute sets out those specific expenditures that must be reimbursed by a property owner or his assignee who redeems property that has been sold at a foreclosure sale. I believe that the betterment statute as applied in these circumstances is contrary to sound public policy.
Public Policy
{24} The redemption statute recognizes that a family may have lived in a home for five, ten, or more years and have been paying faithfully on the mortgage. But, for reasons of bad health, a job lost, a recession or other social calamity, the family falls upon hard times and cannot keep up the mortgage payments. The bank or other lending institution then forecloses upon their interest in the home, and it is sold at a foreclosure sale.
{25} We see little justice in a family losing a home for which it has been paying all these years. The legislature has sought to make it as reasonable (we cannot say “easy”) as possible for the family to get their home back through the redemption process.
The Redemption Statute, Section 39-5-
18
{26} This statute deals with the rights and obligations of a person (or his assigns) who is trying to redeem real property lost at a foreclosure sale. Subsection A limits the time within which a redeemer may seek return of the foreclosed property to nine months from the date of the foreclosure sale, and Subsection D limits the amount of money that the redeemer has to pay to get his property back. The kinds of payments that are required under the redemption statute go directly to the taxes owed and payments such as mortgage payments that are designed to avoid any additional defaults or foreclosures. These are payments that protect the property. These are the essentials, not the extras.
{27} Here, the district court determines that the amount of money necessary for redemption, “shall include the money paid at the sale and all taxes, interest, penalties and payments made in satisfaction of liens, mortgages, and encumbrances.” Section 39-5-18(D). And, not more.
The Betterment Statute, Section 42-4-17
{28} I disagree with the manner in which the majority has applied the betterment statute. I believe the legislature intended that statute to apply in ejectment, where Plaintiff is legally entitled to possession of the premises.
{29} I see important distinctions which make these two statutes incompatible. Section 42-4-17 of the betterment statute gives the redeemer ten years from the date of purchase to pay purchaser for the value of his “improvements.”
{30} The redemption statute does not even mention the word “improvements.” Furthermore, the redeemer only has nine months-not ten years-in which to pay the foreclosure sale purchaser the statutory amount owed to him.
Equity and Unjust Enrichment
{31} Unlike payments for outstanding taxes, interest and penalties, mortgages or encumbrances, the foreclosure sale purchaser, Mr. Reule, was not spending money to protect or preserve the real estate. He was spending money to improve the real estate, to make it more valuable. He spent Ten Thousand Dollars on the house in the first five weeks after purchasing it at the foreclosure sale. Was he trying to put the cost of the house improvements out of reach of the original owner who might try to redeem it?
{32} It is reasonable to assume that any foreclosure sale purchaser knows that the owner of the real estate would not have lost his property if he had the money to bring the mortgage payments, taxes, penalties and interest current. Such a purchaser knows that it will be difficult for that owner to raise sufficient funds to get his property back.
{33} The purchaser also knows that if he puts ten or twenty thousand dollars, or more, in “improvements” into the property, the would-be redeemer has no chance to ever get his property back because it has been placed farther outside his reach. “Equity” is defined as “Justice administered according to fairness as contrasted with the strictly formulated rules of common law.” Black’s Law Dictionary 540 (6th ed.1990). How do the concepts of equity and unjust enrichment fit into our system of justice in this case? Poorly, I believe.
{34} The majority may be more comfortable because there is only Ten Thousand Dollars worth of improvements in this case. What is to stop another court from invoking so-called equity if a purchaser makes $50,-0000 or $100,000 worth of “improvements?” Where do we draw the line?
{35} The majority is more concerned with any possible unjust enrichment of Redeemer than they are in forcing Redeemer to pay for so-called improvements he did not ask for and cannot afford. More important, these improvements are something Redeemer doesn’t want, and the property doesn’t need.
{36} Invoking the unjust enrichment concept in this case opens an avenue of abuse where the foreclosure sale purchaser has no limits on the improvements he can make to the property for which he can then demand reimbursement. The wisdom of the framers of the redemption statute is that they understood that we need a mechanism to limit the amount of extra costs and expenses a redeemer has to pay to get his property back.
{37} I respectfully dissent.