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
Falcon,
A. Squires,
Randall C. Lester;
Squires & Lester,
Great Falls,
Matteucci,
Montana
For Respondent:
Greg A. Luinstra;
Falls,
Montana
Submitted
Filed:
Luinstra
& Semansky,
on Briefs:
Decided:
y ,,.I
Great
September
12, 1996
December 10, 1996
Justice
Karla
M. Gray delivered
the Opinion
Stuart
appeals
Douglas
possession
Blaine
entered
County,
judgment
(Bank),
by
on
filed
the
its
We address
1.
Bank
foreclosure
properly
f/k/a
his
motion
the following
based
issues
Court
on
its
judgment
District
motion
Security
to alter
of
Court,
for
summary
State
Bank
or amend and
We affirm.
on appeal:
err
in granting
conclusion
sale under the Small Tract
summary judgment
that
the
nonjudicial
Financing
Act of Montana was
in granting
summary judgment
conducted?
2.
Did the District
to the Bank based on its
notice
Bank,
of possession.
Did the District
the
the
denying
the
Judicial
granting
by Rocky Mountain
the judgment
from
Seventeenth
order
and from orders
amending
to
(Stuart)
of the Court
to
vacate
foreclosure
sale
conveyed
FACTS
AND
facts
beneficiary,
principal
PROCEDURAL
property
secured
Financing
Stuart's
amount of $80,000.
On July
residential
Montana.
to
to
the
nonjudicial
Act
of Montana?
BACKGROUND
covering
County,
was not entitled
after
are undisputed.
indenture
trust
Stuart
property
the Small Tract
in Blaine
the
trust
that
under
a trust
property)
err
conclusion
the
The following
executed
Court
The trust
a trustee
Stuart
property
(trust
indenture,
and named the
obligation
The trust
1979,
28,
to
the
indenture
Bank
which
Bank as
in
the
was modified
in
1991 and rerecorded.
Stuart
subsequently
and a successor
trustee
defaulted
on his
(trustee)
began nonjudicial
2
obligation
to the Bank
foreclosure
proceedings
on the trust
Act of Montana
of
the
(STFA).
foreclosure
sale.
The trustee
in excess
accepted
over
recorded
a trustee's
Stuart
Stuart's
bidder
and his
of
the
counsel
foreclosure
owed the Bank $97,051.63
taxes
in
on the trust
at the foreclosure
bid,"
the trust
in possession
of the trust
vacate
trust
The Bank did
property
after
the
to relinquish
sale
which
The trustee
deed conveying
proceedings.
to refuse
"credit
objection.
foreclosure
continues
date
owed delinquent
made a $69,900
remained
the
Stuart
Financing
of $15,500.
It
of 1995.
notified
Stuart
he also
The Bank was the only
April
the Small Tract
and the
of the sale,
and interest;
property
under
proceedings
At the time
principal
property
then
executed
and
to the Bank.
property
during
the
send him a notice
to
foreclosure
possession
in
the trustee
property
not
held
sale,
of the trust
and
he
property
to the Bank.
On May 18, 1995,
of the trust
property
fees and costs
the Bank's
invalid
did
trust
follow
property
entitled
pursuant
incurred
it
Stuart
the
outstanding
argued
for
procedures
after
the
foreclosure
fees
in the action
bid,"
debt
it
owed by Stuart,
3
possession
MCA, and for
to obtain
sale;
for
applied
attorney
In answering
the foreclosure
summary judgment,
under which
for
possession.
that
statutory
to attorney
"credit
complaint
was not a cash sale as required
The Bank moved for
called
its
to § 71-l-319,
in the action
complaint,
because
not
the Bank filed
by law;
possession
sale
was
the Bank
of
the
and the Bank was not
possession.
contending
that
its
so-
the amount bid against
complied
with
the statutory
requirements
Stuart
for
a nonjudicial
was not entitled
filed
to notice
a cross-motion
the Bank applied
instead,
conducted
because
Alternatively,
for
that
the
the
notice
therefore,
did
argued
was premature
post-sale
his
not
that
to
the sale.
sale
the
granted
the
that
Stuart
pay
the
the
Bank's
he
improperly
trustee
in
cash.
complaint
for
MCA, entitled
Bank's
that
debt;
was
and the Bank did not give
Stuart,
and
outstanding
because § 70-27-104,
to vacate
according
after
foreclosure
Bank
sale
He did not dispute
amount against
Stuart
possession
to vacate
summary judgment.
the bid
claimed,
STFA foreclosure
him to
such notice;
complaint
should
be
dismissed.
The District
judgment
In
on the basis
addition
properly
to
conducted
the
thereafter,
reasonable
County
costs
Sheriff
subsequently
District
that
of the parties'
its
conclusions
and Stuart
court
filed
the
that
fees
in
the
facts
sale
Bank was entitled
costs
was
to vacate
to
from the Blaine
possession.
memorandum of
summary
and briefs.
to notice
and assistance
obtaining
for
foreclosure
was not entitled
and attorney
its
motion
stipulated
that
determined
(Sheriff)
Bank's
The
as directed
Bank
by
the
order
and
decision
on
Court.
Stuart
for
Court
a stay
motion.
moved to alter
of execution
or amend the summary judgment
pending
The District
Court
the District
entered
in favor
of the Bank and subsequently
stay
execution.
of
Later,
the
court
Court's
a judgment
granted
Stuart's
denied
Stuart's
of possession
motion
motion
for
to
alter
or
affidavit
amend and
lifted
the
of attorney
fees
incurred
In response
the Sheriff,
the District
by deleting
for
to a motion
the order
possession
refused
Bank applied
for
District
Court
assistance
fees
could
the
filed
amended its
judgment
until
its
of
of possession
appealed
application
to determine
Stuart
to the Bank and the
Stuart
on the Bank's
on behalf
to respond.
possession
of assistance.
a hearing
filed
the Bank made a demand
had an opportunity
rule
Bank
clarification
of assistance
a writ
and
in the action.
to relinquish
or hold
to which
for
Court
and Stuart
subsequently
stay,
before
for
the
a writ
the amount of
of
attorney
the Bank is entitled.
STANDARDOF REVIEW
Summary judgment
fact
exist
of law.
of
Rule 56(c),
criteria
Inc.
1996),
(Mont.
determine
whether
case,
and, via
their
asserted
Court
the
court.
Jarrett
922 P.2d 485, 481, 53 St.Rep.
such
a
review
the moving party
entitlement
having
a district
applying
used by that
as a matter
this
issues
granted
of material
Jarrett,
of law.
however,
the
parties
cross-motions
to judgment
the
for
as a matter
court's
grant
same Rule
56(c),
V. Valley
Park,
671, 672 (citation
that
requires
met its
issues
of material
to judgment
We review
nova,
the absence of genuine
to judgment
facts
de
Ordinarily,
omitted).
is entitled
M.R.Civ.P.
judgment
M.R.Civ.P.,
In
when no genuine
and the moving party
summary
both
is proper
we first
burden
of establishing
fact
and entitlement
922 P.2d at 487.
agreed
on the
summary judgment,
material
each party
The District
as a matter
of law.
motion
summary judgment,
Bank's
5
for
we
need only
determine
nonjudicial
was not
whether
foreclosure
entitled
it
was correct
sale was properly
to notice
to vacate
in concluding
conducted
the trust
that
and that
the
Stuart
property.
DISCUSSION
Did the District
Court err
in granting
summary
1.
judgment to the Bank based on its conclusion
that the
nonjudicial
foreclosure
sale under the STFA was properly
conducted?
Nonjudicial
are governed
STFA foreclosure
by statute
part,
that
"[tlhe
price
bid
in
maintains
cash
beneficiary,
the
that
the
Bank
the
required
by the STFA.
requires
indebtedness.
did
that
not
pay
shall
trust
was not
properly
cash
for
trust
foreclosure
the
the plain
sales
indenture
on the other
sale
that
The Bank
the amount of its
Stuart,
He contends
pay the
MCA.
the
bid by applying
foreclosure
because
as
it,
in relevant
sale
71-l-315(4),
STFA permitted
outstanding
contends
[foreclosure]
Section
to pay the price
to Stuart's
statute
at the
. .'I
and requirements
The STFA provides,
in Montana.
purchaser
that
sale procedures
bid
hand,
conducted
property
language
be conducted
only
as
of the
on cash
bids.
We have not previously
bid
price
interpreting
words it
in
cash"
interpreted
the phrase
in
§ 71-l-315(4),
contained
we look
a statute,
Werre v. David
contains.
P.2d 625, 631 (citing
Clarke
897 P.2d 1085,
Gulbrandson
500,
901
unambiguous,
P.2d
first
1088);
573,
the statute
577.
to the plain
(1996),
275 Mont.
v. Massey (1995),
v.
Where
speaks for
6
Carey
the
itself
"shall
MCA.
meaning
language
In
of the
376, 385,
271 Mont.
(1995),
pay the
913
412,
416,
272 Mont.
494,
is
and we will
clear
and
not resort
to other
means of interpretation.
Clarke,
897 P.2d
legislature
at
Werre,
1088).
must be given
In
their
this
913 P.2d at 631 (citing
regard,
usual
words
and ordinary
used by
the
meaning.
Werre,
undefined
by the
913 P.2d at 631.
The proper
interpretation
of the word "cash,"
legislature
in enacting
the STFA, is determinative
nonjudicial
foreclosure
sale
315(4),
of
MCA, and we previously
that
In
word.
definition
189,
of "cash"
mining
claims.
agreed
to deposit
at a local
deposited
299,
302,
meaning
Syndicate
we discussed
of an agreement
for
upon ratification
Sidwell,
a substantial
the
the sale of
the plaintiff
had
credit
of the agreement
297 P.2d at 299-300.
by
The
sum of money, but not the entire
to the defendant's
credit
and then
sued
at the bank after
for
specific
the
performance.
297 P.2d at 302.
whether
amount
of
we discussed
agreement,
to the terms
meaning
Sidwell,
in the context
was ratified
stipulated
equivalent
297 P.2d
Sapphire
the
5 71-l-
a sum of money in cash to the defendant's
In addressing
reference
196,
with
the ordinary
The New Mine
stockholders.
amount required,
Sidwell,
v.
bank immediately
agreement
complied
Under the terms of the agreement,
the defendant's
plaintiff
here
have determined
Sidwell
130 Mont.
(1956),
as
at issue
of whether
immediate
paid
the plaintiff's
cash
constituted
the concepts
or time
deposit
immediately
297 P.2d at 302 (quoting
compliance
"cash"
money paid
or
promptly
14 C.J.S.
7
than the
with
of cash and credit.
of payment,
payment;
of less
the
"'With
has been defined
down;
money
after
purchasing.'"
Cash, p. 16)
or
(citations
its
Courts
omitted).
Sidwell,
this
ordinary
promptly
after
the
phrase
price
in money or its
bid
"shall
the foreclosure
315(4),
$69,900
pay the
price
equivalent
sale satisfies
"cash"--as
equivalent
Placed
in
bid
paid
the
in
used in
immediately
context
cash,"
immediately
the requirement
the Bank was the trust
on the
acceptance
trust
of its
the outstanding
bid
indebtedness
to
of
at the
of
the
paying
the
or promptly
after
set forth
in § 71-I-
beneficiary.
It
foreclosure
sale
credited
the bid
trustee,
owed to it
Stuart's
Stuart's
precisely
the
followed
by the
Bank for
application
by Stuart.
outstanding
outstanding
same way that
Stuart
nonjudicial
indenture
of a money payment of the bid
amount
accepted
property
bid by the
amount
equivalent
trustee
to
"credit
bid"
STFA
of
outstanding
debt,
the
Stuart's
by
the
in cash as required
that
to
the
amount of
sale,
to
the
as
indenture
payment by the purchaser
by § 71-l-315(4),
8
trustee--
cash to
the
reduce
the
that
beneficiary
defined
trust
Bank in
therefore,
indenture
MCA.
the
reduced
the
indebtedness--would
trust
amount
constitutes
cash
to
of
is
amount because it
in
after
amount to
indebtedness
We conclude,
Bank.
foreclosure
bid
over
and,
bid
Application
indebtedness
a payment
turning
owed the
application
bid
meaning of the word,
MCA.
Here,
amount
omitted).
purchase.
statutory
the
cash as the antonym of credit.
MCA--means money or its
§ 71-l-315(4),
the
define
297 P.2d at 302 (citation
Applying
or
generally
the
an
at
a
prompt
grantor's
of the price
Stuart
contends
was a credit
sale
the definition
333 (5th
pay for
that
the Bank's purchase
prohibited
by § 71-l-315(4),
of a credit
the goods at a later
The definition,
while
MCA.
contained
sale,
as a "sale
ed. 1979),
of the trust
in which
the buyer
is not applicable
valid,
He relies
on
in BLACK'S LAW DICTIONARY
as contrasted
time,
property
is permitted
with
to
a cash sale."
to the facts
before
US.
Here,
the Bank was not permitted
would be the
instrument
case if
pursuant
by installments
discussed
Stuart's
cash
either
Bank's
debt
a lump sum payment
constituted
a cash sale
Stuart's
MCA.
than
a credit
on Greenberg
124 N.W.2d 438, to any avail.
to Greenberq
for
"completely
4411, Greenberq
courts
Sidwell,
merely
generally
amount in
that
exemplifies
cash
302.
cashier's
While
an escrow
Rather,
as
amount
to
bid
the
of
context
sale
at issue
the
v. Alter
Stuart
antonym
Greenberq
certified
account.
in
the
here
sale.
Company (Iowa
correctly
our observation
as
or payment
of the price
(see Greenberq,
Moreover,
checks,
bid
as
or other
cites
a cash sale and a credit
creatures"
define
297 P.2d at
cash includes
of a bid
the proposition
opposite
In
the
the foreclosure
rather
reliance
of
payment
by 5 71-l-315(4),
time"
form of a note
application
advanced by Stuart,
Nor is
are
the
outstanding
indeed,
1963),
to which
above,
definition
were in the
a later
over time would be made in the future.
as required
was,
the bid
to pay "at
124 N.W.2d at
in Sidwell
of
sale
that
See
credit.
addressed
whether
checks
or the placement
Greenberq,
124 N.W.2d
at
441.
Nothing
foreclosure
sale
As
a
before
basis
of
a different
The court
for
3-223,
an idle
statutorily
enacted
intended
but
"not
to
Under
aid
our
in
their
it
is
"idle
in
application
the just
will
affirm
result
regardless
(Mont.
1996),
that
the plain
court's
of
the
determine
915 P.2d
decision
court's
201,
has been
maxims
of
might
which
53 St.Rep.
are
MCAI
MCA.
5 71-l-315(4),
whether--or
MCA.
[the
l-3-101,
of
to
what
otherwise
aid
In any event,
reaches
343,
we
the correct
Bowen v.
reasoning.
206,
See § l-
such
meaning
of § 71-l-315(4),
a district
requires.
maxim of jurisprudence
maxim of jurisprudence
acts"
to actually
indebtedness--would
Section
to
§ 71-l-
the cash to the
application."
unnecessary
extent--the
would return
of
we have
interpret
beneficiary
we note
Court
than
provisions
of
the
as a matter
any of the other
just
interpretation
MCA, above,
acts"
Montana,
to qualify
in
to
which the law never
While the "idle
MCA.
that
to the borrower's
act,
that
District
conclusion
indenture
in turn,
application
the
to judgment
concluded
pay cash to the trustee--who,
be to require
that
legal
a trust
argument
sale.
we observe
MCA, as requiring
beneficiary
Stuart's
the Bank was entitled
above.
315(4),
supports
us was a credit
matter,
that
on the
reached
Greenberq
final
determined
law
in
346
McDonald
(citations
omitted).
We hold
that
summary judgment
nonjudicial
the
to
foreclosure
District
the
Court
Bank based
did
on its
not
err
conclusion
sale under the STFA was properly
in
granting
that
conducted.
2.
Did the District
Court err in granting
summary
judgment to the Bank based on its conclusion
that Stuart
10
the
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
entitled
contends
that,
to possession
pursuant
of
STFA nonjudicial
foreclosure
vacate
property.
the
the trust
trust
trust
property
indenture
remaining
in
Accordingly,
provide
prior
did
and,
trust
arise
prior
days
Stuart
that
his
his
the
tenth
notice
the tenancy
at
after
in
of
the
will
by
the
sale.
the Bank to
the trust
and obtaining
to
interest
MCA, requires
to vacate
the
notice
execution
day
was
after
he became a tenant
§ 70-27-104,
a thirty-day
to terminating
to
MCA, it
ten
giving
maintains
past
that
property
Stuart
therefore,
he argues
5 71-I-319,
sale without
not
possession
him with
the
to
possession
property
of the
property.
The parties'
clear
basis
for
trust
property
stipulated
determining
prior
cannot
resolve
the
tenant
at will
under
in order
the trust
specific
Stuart
the trust
question
§ 71-l-319,
whether
a sufficiently
had an interest
indenture.
of whether
in the
Thus,
Stuart
we
became a
MCA. We need not do so, however,
he was entitled
to notice
to vacate
property.
property
governing
do not provide
whether
to executing
to determine
In this
trust
facts
real
case,
with
Stuart
executed
a trust
the Bank as beneficiary.
property
mortgages
11
indenture
covering
the
Except where statutes
are inconsistent
with
the
laws
governing
trust
mortgage
on real
property
mortgages.
indenture,
indentures,
like
pledged,
of
of
Stuart
obligated
those
terms,
indenture,
or
set
between
which
two
property
possession,
indenture
according
in
a trust
for
the
MCA;
88, 93, 885 P.2d 511, 514.
trust
out
real
MCA; § 28-2-101,
268 Mont.
to perform
expressly
is
title
the contractual
himself
Therefore,
agreement
See § 71-l-101,
Weldon v. Montana Bank (1994),
By executing
deemed to be a
to do, something--by
delivery
an act.
MCA.
is a contract--an
to do, or not
is
to the laws governing
See § 71-l-305,
without
performance
indenture
and is subject
a mortgage,
or more parties
is
property
a trust
in July
to its
Paragraph
of 1979,
terms.
15
of
One of
the
trust
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
in the event such possession
has not previously
sale,
been delivered
by Grantor.
Stuart
was the grantor
the purchaser
at the foreclosure
Stuart
therefore,
of the trust
specifically
property
Notwithstanding
was statutorily
vacate
notice
landlords
before
MCA, clearly
termination
indenture;
sale.
Pursuant
contracted
Paragraph
15,
Stuart
to provide
He relies
to
tenants
give
at
least
a tenancy
at will.
was enacted
in
to
of the tenancy
without
12
adequate
the Bank
notice
to him to
MCA, which
one month
Section
protect
the sale.
that
on § 70-27-104,
written
70-27-104,
a tenant
notice.
15,
possession
day after
contends
terminating
order
to Paragraph
a thirty-day
property.
the Bank was
to surrender
to the Bank on the tenth
required
the trust
requires
named in the trust
against
Even assuming
is a tenant
at will,
104, MCA.
the
executing
the
foreclosure
to
which
trust
not err
conclusion
the
issues
contends
the
it
Sheriff
to
property.
application
for
request
to writs
entitled
involve
Dodd v.
&
Court.
reasons,
this
Court
a writ
Court
this
still
113 Mont.
we reject
of assistance.
13
the
of a writ
trust
the
pending
Bank's
before
decisions
(1948),
relating
177,
129 P.2d 224.
of assistance
the Bank's
the
support
122 Mont.
536,
Bank
directing
of
that
court
the
relate
the
by the Bank in
v. Gibbs
the issuance
do not
from
is
Simon (1942),
Court
sale.
First,
however,
Fuller
this
which
possession
of trial
under
to vacate
appeal.
obtaining
our review
MCA,
the District
foreclosure
the cases cited
for
issue
his
of assistance
They are not authority
For these
in
the
to vacate
to notice
to a writ
in
following
We conclude,
that
matters
reflects,
Moreover,
of possession.
199 P.2d 851;
it
record
a writ
Court.
of its
is
day
15, to
to the Bank based on its
entitled
by Stuart
assist
The
we hold
several
By
paragraph
to notice
the STFA nonjudicial
raised
that
District
was not
may waive
under § 70-27-104,
summary judgment
the Bank raises
Finally,
to
basis,
he
benefit."
been entitled.
was not entitled
On that
after
have
via
tenth
waived any benefit
Stuart
property
the
his
that
of § 70-27-
' [alnyone
for
on
in granting
that
solely
property
Stuart
MCA.
that
and agreeing,
otherwise
claim
to the benefit
indenture
Stuart
he might
§ 70-27-104,
trust
trust
that
of Stuart's
MCA, provides
intended
a law
sale,
therefore,
did
l-3-204,
of
the
the validity
he is not entitled
Section
advantage
vacate
arguendo
request
by
that
The Bank also
incurred
reason
that
in
for
its
efforts
raising
the District
entitled
to
Indeed,
Stuart's
District
Court's
attorney
fees
remittitur
matter
entitled
possession
already
notice
fees
Bank
of
ability
to
since
on this
of
the record
a hearing
Stuart
did not,
and,
issue
opinion.
Affirmed.
We concur:
Justices
14
its
Bank is
action
to
the
court's
short-circuited
on
for
of attorney
the
however,
therefore,
will
Its
reflects
the
and affidavit
hold
that
in
responded
merely
fees
that
incurred
has
fees
of the property.
appeal
to attorney
determination
to attorney
has determined
attorney
the
is
is unclear
to be awarded.
issues
it
a memorandum of costs
entitlement
Court's
that
to gain
Court
to submit
fees.
Bank's
this
reasonable
possession.
directive
contends
become
the
amount
of
appeal
the
the District
final
when