Unpublished Disposition, 844 F.2d 793 (9th Cir. 1986)

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US Court of Appeals for the Ninth Circuit - 844 F.2d 793 (9th Cir. 1986)

UNITED STATES of America, Plaintiff-Appellee,v.R.D. SMITH AND SONS, INC., Raymond D. Smith, aka RaymondSmith and Ray Smith, Defendants-Appellants.

Nos. 87-3531, 87-3663.

United States Court of Appeals, Ninth Circuit.

Submitted Jan. 4, 1988.* Decided April 11, 1988.

Before EUGENE A. WRIGHT, ALARCON and POOLE, Circuit Judges.


MEMORANDUM** 

Raymond Smith appeals pro se from the Order confirming sale that followed foreclosure of his FmHA mortgage. His several arguments fail. Most have no basis in law. We reject those without discussion. His argument concerning jurisdiction over "the dead person, R.D. Smith & Sons, Inc." we reject because that corporation's status is irrelevant to disposition of these appeals. Affirmed.

This court can affirm on any basis presented in the record. Trerice v. Pederson, 769 F.2d 1398, 1400 (9th Cir. 1985). That rule guides our disposition here.

On June 28, 1978 the government, acting through the Farmers' Home Administration, loaned R.D. Smith & Sons, Inc. and Kaye Smith approximately $1,000,000. The necessary promissory notes, which provided for joint and several liability, were signed by (1) Kaye Smith and (2) R.D. Smith & Sons, Inc. That same day, those parties (and others) executed and delivered a mortgage to secure those notes. That mortgage was duly recorded June 30, 1978.

R.D. Smith & Sons, Inc. and Kaye Smith fell behind in payment of the notes and mortgage. The government sued. Its amended Complaint named as defendants all parties to the mortgage, including among others, R.D. Smith & Sons, Inc., Raymond D. Smith, and Kaye Smith (aka Kathleen D. Smith and Kathleen D. Rowley). The United States stipulated that it had "no claim against the personal assets of defendants other than the mortgaged property." Amended Complaint at 3. All parties except Raymond Smith and R.D. Smith & Sons, Inc. consented to judgment, defaulted or disclaimed.

Raymond Smith contested the action and counterclaimed pro se for actual and punitive damages of approximately $55,000,000. The district judge found that the debtors had become delinquent under the terms of the notes and mortgage, and that "after taking all actions required under the applicable regulations, the FmHA declared the indebtedness ... immediately due and payable, duly accelerating said indebtedness." July 1, 1986 Findings of Fact and Conclusions of Law at 3. Judge Quackenbush "awarded judgment against R.D. Smith and Sons, Inc. and against the mortgaged property." Judgment at 2. He expressly provided that " [e]ven in the event that the sum received from the sale [of the mortgaged property] is deficient to pay the judgment in full, no deficiency judgment is provided for herein." Judgment at 3.

Raymond Smith's best argument was that as to R.D. Smith & Sons, Inc., a two-year statute of limitation, R.C.W. 23 A. 28.250, barred action on the debt which the mortgage secured. Thus, he claimed, no action was possible on the mortgage. See Pratt v. Pratt, 209 P. 535, 536 (Wa.1922). Like the district court, we are not convinced that the statute applied in this case. But we need not resolve that question.

As noted above, Kaye Smith and all other interested parties either consented to judgment, defaulted or disclaimed before trial. They thereby waived any statutes of limitation that might imaginably have applied to the action.

Having considered the parties' testimony and documentary evidence the trial court determined that the debt (1) had been owing and (2) was duly accelerated. Noting Kaye Smith's pre-trial confession of judgment, the court entered judgment also against R.D. Smith & Sons, Inc. and the mortgaged property. It concluded that

the mortgage should be foreclosed and defendants R.D. Smith & Sons, Inc.; Raymond D. Smith aka Raymond Smith and Ray Smith; Kay Smith [and all remaining defendants]; and all persons claiming by, through or under them, should be forever barred and foreclosed from asserting any right title or interest in and to said property, and said property should be ordered sold....

July 1, 1986 Findings of Fact and Conclusions of Law at 6. We conclude that the mortgage was validly foreclosed.1 

Because Smith points to no subsequent "substantial irregularity" in the sale proceedings, see RCW 6.24.100(2), he states no grounds requiring that the Order Confirming Sale and the Order denying reconsideration thereof be vacated.

Smith's challenge based on the rejection of his bid at the sale is without merit. The "judgment" he sought to bid was void ab initio.

The issue of the Coleman v. Block injunction was not raised below and will not be considered on appeal. Moreover, it appears to be utterly without merit.

It would be idle to address Smith's remaining challenges. Finding no defect or irregularity in the sale or confirmation proceedings, we AFFIRM.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

 1

Raymond Smith claimed title to the property only as distributee of R.D. Smith & Sons' assets. To foreclose R.D. Smith & Sons' interest in the mortgaged property it was not necessary that they remain personally liable on the underlying debt. See Seattle First-National Bank v. Hart, 573 P.2d 827, 828-29 (Wash.Ct.App.1978)