No. 96-080
IN THE SUPREMECOURT OF THE STATE OF MONTANA
1996
ROCKY MOUNTAIN BANK, f/k/a
SECURITY STATE BANK,
Plaintiff and Respondent,
APPEAL FROM: District Court of the Seventeenth Judicial District,
In and for the County of Blaine,
The Honorable John C. McKeon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William A. Squires, Randall C. Lester; Matteucci,
Falcon, Squires & Lester, Great Falls, Montana
For Respondent:
Greg A. Luinstra; Luinstra & Semansky, Great
Falls, Montana
Submitted on Briefs: September 12, 1996
Decided: December 10, 1996
Filed: y ,,.I
Justice Karla M. Gray delivered the Opinion of the Court
Douglas Stuart (Stuart) appeals from the judgment of
possession entered by the Seventeenth Judicial District Court,
Blaine County, on its order granting the motion for summary
judgment filed by Rocky Mountain Bank, f/k/a Security State Bank
(Bank), and from orders denying his motion to alter or amend and
amending the judgment of possession. We affirm.
We address the following issues on appeal:
1. Did the District Court err in granting summary judgment
to the Bank based on its conclusion that the nonjudicial
foreclosure sale under the Small Tract Financing Act of Montana was
properly conducted?
2. Did the District Court err in granting summary judgment
to the Bank based on its conclusion that Stuart was not entitled to
notice to vacate the trust property after the nonjudicial
foreclosure sale under the Small Tract Financing Act of Montana?
FACTS AND PROCEDURAL BACKGROUND
The following facts are undisputed. On July 28, 1979, Stuart
executed a trust indenture covering residential property (trust
property) in Blaine County, Montana. The trust indenture, which
conveyed the trust property to a trustee and named the Bank as
beneficiary, secured Stuart's obligation to the Bank in the
principal amount of $80,000. The trust indenture was modified in
1991 and rerecorded.
Stuart subsequently defaulted on his obligation to the Bank
and a successor trustee (trustee) began nonjudicial foreclosure
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proceedings on the trust property under the Small Tract Financing
Act of Montana (STFA). The trustee notified Stuart and his counsel
of the foreclosure proceedings and the date of the foreclosure
sale. At the time of the sale, Stuart owed the Bank $97,051.63 in
principal and interest; he also owed delinquent taxes on the trust
property in excess of $15,500.
The Bank was the only bidder at the foreclosure sale held in
April of 1995. It made a $69,900 "credit bid," which the trustee
accepted over Stuart's objection. The trustee then executed and
recorded a trustee's deed conveying the trust property to the Bank.
Stuart remained in possession of the trust property during the
foreclosure proceedings. The Bank did not send him a notice to
vacate the trust property after the foreclosure sale, and he
continues to refuse to relinquish possession of the trust property
to the Bank.
On May 18, 1995, the Bank filed its complaint for possession
of the trust property pursuant to § 71-l-319, MCA, and for attorney
fees and costs incurred in the action for possession. In answering
the Bank's complaint, Stuart argued that the foreclosure sale was
invalid because it was not a cash sale as required by law; the Bank
did not follow statutory procedures to obtain possession of the
trust property after the foreclosure sale; and the Bank was not
entitled to attorney fees in the action for possession.
The Bank moved for summary judgment, contending that its so-
called "credit bid," under which it applied the amount bid against
the outstanding debt owed by Stuart, complied with the statutory
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requirements for a nonjudicial STFA foreclosure sale and that
Stuart was not entitled to notice to vacate after the sale. Stuart
filed a cross-motion for summary judgment. He did not dispute that
the Bank applied the bid amount against his outstanding debt; he
claimed, instead, that the foreclosure sale was improperly
conducted because the Bank did not pay the trustee in cash.
Alternatively, Stuart argued that the Bank's complaint for
possession was premature because § 70-27-104, MCA, entitled him to
post-sale notice to vacate and the Bank did not give such notice;
therefore, according to Stuart, the Bank's complaint should be
dismissed.
The District Court granted the Bank's motion for summary
judgment on the basis of the parties' stipulated facts and briefs.
In addition to its conclusions that the foreclosure sale was
properly conducted and Stuart was not entitled to notice to vacate
thereafter, the court determined that the Bank was entitled to
reasonable costs and attorney fees and assistance from the Blaine
County Sheriff (Sheriff) in obtaining possession. The Bank
subsequently filed its memorandum of costs as directed by the
District Court.
Stuart moved to alter or amend the summary judgment order and
for a stay of execution pending the District Court's decision on
that motion. The District Court entered a judgment of possession
in favor of the Bank and subsequently granted Stuart's motion for
stay of execution. Later, the court denied Stuart's motion to
alter or amend and lifted the stay, and the Bank filed its
affidavit of attorney fees incurred in the action.
In response to a motion for clarification filed on behalf of
the Sheriff, the District Court amended its judgment of possession
by deleting the order of assistance until the Bank made a demand
for possession and Stuart had an opportunity to respond. Stuart
subsequently refused to relinquish possession to the Bank and the
Bank applied for a writ of assistance. Stuart appealed before the
District Court could rule on the Bank's application for a writ of
assistance or hold a hearing to determine the amount of attorney
fees to which the Bank is entitled.
STANDARDOF REVIEW
Summary judgment is proper when no genuine issues of material
fact exist and the moving party is entitled to judgment as a matter
of law. Rule 56(c), M.R.Civ.P. We review a district court's grant
of summary judgment de nova, applying the same Rule 56(c),
M.R.Civ.P., criteria used by that court. Jarrett V. Valley Park,
Inc. (Mont. 1996), 922 P.2d 485, 481, 53 St.Rep. 671, 672 (citation
omitted). Ordinarily, such a review requires that we first
determine whether the moving party met its burden of establishing
both the absence of genuine issues of material fact and entitlement
to judgment as a matter of law. Jarrett, 922 P.2d at 487.
In this case, however, the parties agreed on the material
facts and, via their cross-motions for summary judgment, each party
asserted entitlement to judgment as a matter of law. The District
Court having granted the Bank's motion for summary judgment, we
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need only determine whether it was correct in concluding that the
nonjudicial foreclosure sale was properly conducted and that Stuart
was not entitled to notice to vacate the trust property.
DISCUSSION
1. Did the District Court err in granting summary
judgment to the Bank based on its conclusion that the
nonjudicial foreclosure sale under the STFA was properly
conducted?
Nonjudicial STFA foreclosure sale procedures and requirements
are governed by statute in Montana. The STFA provides, in relevant
part, that "[tlhe purchaser at the [foreclosure] sale shall pay the
price bid in cash . .'I Section 71-l-315(4), MCA. The Bank
maintains that the STFA permitted it, as the trust indenture
beneficiary, to pay the price bid by applying the amount of its bid
to Stuart's outstanding indebtedness. Stuart, on the other hand,
contends that the foreclosure sale was not properly conducted
because the Bank did not pay cash for the trust property as
required by the STFA. He contends that the plain language of the
statute requires that foreclosure sales be conducted only on cash
bids.
We have not previously interpreted the phrase "shall pay the
price bid in cash" contained in § 71-l-315(4), MCA. In
interpreting a statute, we look first to the plain meaning of the
words it contains. Werre v. David (1996), 275 Mont. 376, 385, 913
P.2d 625, 631 (citing Clarke v. Massey (1995), 271 Mont. 412, 416,
897 P.2d 1085, 1088); Gulbrandson v. Carey (1995), 272 Mont. 494,
500, 901 P.2d 573, 577. Where the language is clear and
unambiguous, the statute speaks for itself and we will not resort
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to other means of interpretation. Werre, 913 P.2d at 631 (citing
Clarke, 897 P.2d at 1088). In this regard, words used by the
legislature must be given their usual and ordinary meaning. Werre,
913 P.2d at 631.
The proper interpretation of the word "cash," undefined by the
legislature in enacting the STFA, is determinative of whether the
nonjudicial foreclosure sale at issue here complied with 5 71-l-
315(4), MCA, and we previously have determined the ordinary meaning
of that word. In Sidwell v. The New Mine Sapphire Syndicate
(1956), 130 Mont. 189, 196, 297 P.2d 299, 302, we discussed the
definition of "cash" in the context of an agreement for the sale of
mining claims. Under the terms of the agreement, the plaintiff had
agreed to deposit a sum of money in cash to the defendant's credit
at a local bank immediately upon ratification of the agreement by
the defendant's stockholders. Sidwell, 297 P.2d at 299-300. The
plaintiff deposited a substantial sum of money, but not the entire
amount required, to the defendant's credit at the bank after the
agreement was ratified and then sued for specific performance.
Sidwell, 297 P.2d at 302.
In addressing whether the plaintiff's deposit of less than the
stipulated amount of cash constituted compliance with the
agreement, we discussed the concepts of cash and credit. "'With
reference to the terms or time of payment, "cash" has been defined
as meaning immediate payment; money paid down; money or its
equivalent paid immediately or promptly after purchasing.'"
Sidwell, 297 P.2d at 302 (quoting 14 C.J.S. Cash, p. 16) (citations
7
omitted). Courts generally define cash as the antonym of credit.
Sidwell, 297 P.2d at 302 (citation omitted).
Applying this ordinary meaning of the word, "cash"--as used in
§ 71-l-315(4), MCA--means money or its equivalent paid immediately
or promptly after the purchase. Placed in the context of the
statutory phrase "shall pay the price bid in cash," paying the
price bid in money or its equivalent immediately or promptly after
the foreclosure sale satisfies the requirement set forth in § 71-I-
315(4), MCA.
Here, the Bank was the trust indenture beneficiary. It bid
$69,900 on the trust property at the foreclosure sale and, after
acceptance of its bid by the trustee, credited the bid amount to
the outstanding indebtedness owed to it by Stuart. Application of
the bid amount to Stuart's outstanding indebtedness is the
equivalent of a money payment of the bid amount because it reduced
the amount of Stuart's outstanding indebtedness to the Bank in
precisely the same way that a payment in cash to the trustee--
followed by the trustee turning over that amount of cash to the
Bank for application to Stuart's indebtedness--would reduce the
amount Stuart owed the Bank. We conclude, therefore, that an
accepted "credit bid" by the trust indenture beneficiary at a
nonjudicial STFA foreclosure sale, defined as the prompt
application of the bid amount to the trust indenture grantor's
outstanding debt, constitutes payment by the purchaser of the price
bid in cash as required by § 71-l-315(4), MCA.
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Stuart contends that the Bank's purchase of the trust property
was a credit sale prohibited by § 71-l-315(4), MCA. He relies on
the definition of a credit sale, contained in BLACK'S LAW DICTIONARY
333 (5th ed. 1979), as a "sale in which the buyer is permitted to
pay for the goods at a later time, as contrasted with a cash sale."
The definition, while valid, is not applicable to the facts before
US.
Here, the Bank was not permitted to pay "at a later time" as
would be the case if the bid were in the form of a note or other
instrument pursuant to which either a lump sum payment or payment
by installments over time would be made in the future. Rather, as
discussed above, the Bank's application of the bid amount to
Stuart's outstanding debt constituted payment of the price bid in
cash as required by 5 71-l-315(4), MCA. In the context of the
definition advanced by Stuart, the foreclosure sale at issue here
was, indeed, a cash sale rather than a credit sale.
Nor is Stuart's reliance on Greenberg v. Alter Company (Iowa
1963), 124 N.W.2d 438, to any avail. While Stuart correctly cites
to Greenberq for the proposition that a cash sale and a credit sale
are "completely opposite creatures" (see Greenberq, 124 N.W.2d at
4411, Greenberq merely exemplifies our observation in Sidwell that
courts generally define cash as the antonym of credit. See
Sidwell, 297 P.2d at 302. Moreover, Greenberq addressed whether
cash includes cashier's checks, certified checks or the placement
of a bid amount in an escrow account. Greenberq, 124 N.W.2d at
441. Nothing in Greenberq supports Stuart's argument that the
foreclosure sale before us was a credit sale.
As a final matter, we observe that the District Court
determined that the Bank was entitled to judgment as a matter of
law on the basis of a different legal conclusion than we have
reached above. The court concluded that to interpret § 71-l-
315(4), MCA, as requiring a trust indenture beneficiary to actually
pay cash to the trustee--who, in turn, would return the cash to the
beneficiary for application to the borrower's indebtedness--would
be to require an idle act, which the law never requires. See § l-
3-223, MCA. While the "idle acts" maxim of jurisprudence has been
statutorily enacted in Montana, we note that such maxims are
intended "not to qualify any of the other provisions of [the MCAI
but to aid in their just application." Section l-3-101, MCA.
Under our interpretation of the plain meaning of 5 71-l-315(4),
MCA, above, it is unnecessary to determine whether--or to what
extent--the "idle acts" maxim of jurisprudence might otherwise aid
in the just application of § 71-l-315(4), MCA. In any event, we
will affirm a district court's decision which reaches the correct
result regardless of the court's reasoning. Bowen v. McDonald
(Mont. 1996), 915 P.2d 201, 206, 53 St.Rep. 343, 346 (citations
omitted).
We hold that the District Court did not err in granting
summary judgment to the Bank based on its conclusion that the
nonjudicial foreclosure sale under the STFA was properly conducted.
2. Did the District Court err in granting summary
judgment to the Bank based on its conclusion that Stuart
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was not entitled to notice to vacate the trust property
after the nonjudicial foreclosure sale under the STFA?
Section 71-l-319, MCA, provides:
The purchaser at the trustee's sale shall be entitled to
possession of the property on the 10th day following the
sale, and any persons remaining in possession after that
date under any interest, except one prior to the trust
indenture, shall be deemed to be tenants at will.
The Bank contends that, pursuant to 5 71-I-319, MCA, it was
entitled to possession of the trust property ten days after the
STFA nonjudicial foreclosure sale without giving Stuart notice to
vacate the trust property. Stuart maintains that his interest in
the trust property did not arise prior to his execution of the
trust indenture and, therefore, he became a tenant at will by
remaining in possession past the tenth day after the sale.
Accordingly, he argues that § 70-27-104, MCA, requires the Bank to
provide him with a thirty-day notice to vacate the trust property
prior to terminating the tenancy and obtaining possession of the
property.
The parties' stipulated facts do not provide a sufficiently
clear basis for determining whether Stuart had an interest in the
trust property prior to executing the trust indenture. Thus, we
cannot resolve the specific question of whether Stuart became a
tenant at will under § 71-l-319, MCA. We need not do so, however,
in order to determine whether he was entitled to notice to vacate
the trust property.
In this case, Stuart executed a trust indenture covering the
trust property with the Bank as beneficiary. Except where statutes
governing real property mortgages are inconsistent with the laws
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governing trust indentures, a trust indenture is deemed to be a
mortgage on real property and is subject to the laws governing real
property mortgages. See § 71-l-305, MCA. Therefore, a trust
indenture, like a mortgage, is a contract--an agreement between two
or more parties to do, or not to do, something--by which property
is pledged, without delivery of title or possession, for the
performance of an act. See § 71-l-101, MCA; § 28-2-101, MCA;
Weldon v. Montana Bank (1994), 268 Mont. 88, 93, 885 P.2d 511, 514.
By executing the contractual trust indenture in July of 1979,
Stuart obligated himself to perform according to its terms. One of
those terms, expressly set out in Paragraph 15 of the trust
indenture, is that:
Grantor agrees to surrender possession of the hereinabove
described trust property to the purchaser at the
aforesaid sale on the tenth (10th) day following said
sale, in the event such possession has not previously
been delivered by Grantor.
Stuart was the grantor named in the trust indenture; the Bank was
the purchaser at the foreclosure sale. Pursuant to Paragraph 15,
therefore, Stuart specifically contracted to surrender possession
of the trust property to the Bank on the tenth day after the sale.
Notwithstanding Paragraph 15, Stuart contends that the Bank
was statutorily required to provide a thirty-day notice to him to
vacate the trust property. He relies on § 70-27-104, MCA, which
requires landlords to give tenants at least one month written
notice before terminating a tenancy at will. Section 70-27-104,
MCA, clearly was enacted in order to protect a tenant against
termination of the tenancy without adequate notice.
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Even assuming arguendo the validity of Stuart's claim that he
is a tenant at will, he is not entitled to the benefit of § 70-27-
104, MCA. Section l-3-204, MCA, provides that ' [alnyone may waive
the advantage of a law intended solely for his benefit." By
executing the trust indenture and agreeing, via paragraph 15, to
vacate the trust property on the tenth day following the
foreclosure sale, Stuart waived any benefit under § 70-27-104, MCA,
to which he might otherwise have been entitled. We conclude,
therefore, that Stuart was not entitled to notice to vacate under
§ 70-27-104, MCA. On that basis, we hold that the District Court
did not err in granting summary judgment to the Bank based on its
conclusion that Stuart was not entitled to notice to vacate the
trust property after the STFA nonjudicial foreclosure sale.
Finally, the Bank raises several matters which do not relate
to the issues raised by Stuart in his appeal. First, the Bank
contends that it is entitled to a writ from this Court directing
the Sheriff to assist it in obtaining possession of the trust
property. The record reflects, however, that the Bank's
application for a writ of assistance is still pending before the
District Court. Moreover, the cases cited by the Bank in support
of its request involve our review of trial court decisions relating
to writs of possession. & Fuller v. Gibbs (1948), 122 Mont. 177,
199 P.2d 851; Dodd v. Simon (1942), 113 Mont. 536, 129 P.2d 224.
They are not authority for the issuance of a writ of assistance by
this Court. For these reasons, we reject the Bank's request that
this Court issue a writ of assistance.
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The Bank also contends that it is entitled to attorney fees
incurred in its efforts to gain possession of the property. Its
reason for raising this matter is unclear since the record reflects
that the District Court already has determined that the Bank is
entitled to reasonable attorney fees incurred in its action for
possession. Indeed, the Bank has responded to the court's
directive to submit a memorandum of costs and affidavit of attorney
fees. Stuart's notice of appeal merely short-circuited the
District Court's ability to hold a hearing on the amount of
attorney fees to be awarded. Stuart did not, however, appeal the
Bank's entitlement to attorney fees and, therefore, the District
Court's determination of that issue will become final when
remittitur issues on this opinion.
Affirmed.
We concur:
Justices
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