FEDERAL SAVINGS LOAN INS CORP v

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No. 89-348 IN THE SUPREME COURT OF THE STATE OF MONTANA 1990 FEDERAL SAVINGS AND LOAN INSURANCE CORPORATION, as Receiver for the Montana Federal Savings Bank, f/k/a Montana Savings and Loan Association, Plaintiff and Respondent, -vsDARWIN HAMILTON, MARY HAMILTON, et al., Defendants and Appellants. APPEAL FROM: District Court of the Eleventh Judicial District, In and for the County of Flathead, The Honorable Michael Keedy, Judge presiding. COUNSEL OF RECORD: For Appellant: Patrick M. Springer, Kalispell, Montana For Respondent : rt? c3 r-: -I { .. ,1 c-: -:> C-- Debra D. Parker; Murphy, Robinson, Heckathorn Kalispell, Montana & Phillips, <I I I Submitted on Briefs: Decided: Dec. 14, 1989 February 15, 1990 ~ustice Fred J. Weber delivered the Opinion of the Court. This appeal arises from an order by the District Court, Eleventh Judicial District, Flathead County, Montana, granting summary judgment in favor of plaintiff. peals. Defendant ap- We affirm. The issues presented for our review are: 1. Did the Hamiltons present a timely appeal of the amended summary judgment? Whether this case should be remanded for a determi- 2. nation of the adequacy of the sales price of land sold at a sheriff's sale. Mr. and Mrs. Darwin Hamilton purchased property near Kalispell, Montana, in 1982, for development as a mobile home subdivision. The Hamiltons entered an agreement with the owners of the land, Mr. and Mrs. Long, to purchase the property for $250,000. The Longs took a mortgage on the land at this time. That same year Mr. Hamilton borrowed $175,000 from Montana Savings and Loan Association for development costs. To secure this loan he executed a promissory note on March 16, 1982, and the Association also took a mortgage on the land. This promissory note stated that the note would come due on May 16, 1985. A year later, Mr. Hamilton borrowed an additional $44,000 from Montana Savings and Loan Association, which was used to purchase an additional seven acres adjoining the original property. He executed a promissory note for this amount, due May 16, 1985. At the same time he executed a deed of trust to the Association, naming it as beneficiary. On July 29, 1983, Mr. Hamilton executed a mortgage modification agreement and a promissory note for the additional amount of $144,000. Under this agreement, all three obliga- tions were consolidated into an indebtedness in the amount of $359,000, secured by the mortgage. This agreement stated a due date of August 1, 1984, with a possible twelve month extension under certain conditions. The Hamiltons gave personal guarantees of each promissory note. The mortgage modification also contained an agreement whereby the Longs subordinated their interest in the property to the Association. Mr. Hamilton began subdividing the property into mobile home lots, calling the subdivision "Green Tree Meadows." Seventeen of these lots were sold to individual parties; however, the development of the subdivision was not completed by the end of 1985, and the Hamiltons had not satisfied their obligations with the Bank. Montana Savings and Federal Savings Bank. Loan Association became Montana On August 14, 1985, the Federal Sav- ings and Loan Insurance Corporation (FSLIC) was appointed receiver for Montana Federal Savings Bank. On August 16, 1985, t h e r e c e i v e r c l o s e d t h e S a v i n g s Bank and began l i q u i dating the assets. plaint to O August 28, n foreclose against a l l e g i n g t h a t t h e y were t h r e e promissory n o t e s , 1986 FSLIC f i l e d a com- Darwin i n d e f a u l t under June 3 0 , 1986, o f Mary Hamilton, t h e t e r m s of the t h e Mortgage, t h e Deed o f T r u s t , and t h e Mortgage M o d i f i c a t i o n Agreement. t o t a l amount owing, and The c o m p l a i n t s t a t e d a i n c l u d i n g p r i n c i p a l and i n t e r e s t t h r o u g h $429,557. The Hamiltons d i d n o t d i s p u t e t h a t t h e y were i n d e f a u l t under t h e t e r m s o f t h e n o t e s . FSLIC moved fault, 1989, for summary j.udgment on t h e i s s u e of and moved f o r a d e f i c i e n c y judgment. in an amended order granting summary de- On March 2 1 , judgment, the c o u r t awarded FSLIC a d e c r e e o f f o r e c l o s u r e , and a judgment a g a i n s t Darwin and Mary Hamilton, t h e amount of $564,600 February 15, 1989). j o i n t l y and s e v e r a l l y , i n (which sum i n c l u d e d i n t e r e s t t h r o u g h The o r d e r a l s o s t a t e d : I n t h e e v e n t t h e p r o c e e d s of t h e s a l e a r e i n s u f f i c i e n t t o pay t h e amounts due t h e P l a i n t i f f , t o g e t h e r w i t h i n t e r e s t , c o s t s and a t t o r n e y s ' f e e s , t h e P l a i n t i f f s h a l l have a d e f i c i e n c y judgment a g a i n s t t h e Defendants Darwin Hamilton and Mary Hamilton, j o i n t l y and s e v e r a l l y , and s h a l l have execution thereon. On A p r i l 2 4 , 1989, t h e s h e r i f f o f F l a t h e a d County h e l d a p u b l i c s a l e of t h e property. FSLIC, t h e o n l y b i d d e r a t t h e s a l e , purchased t h e p r o p e r t y f o r $475,000. a deficiency judgment was granted to On May 1 6 , 1989, FSLIC against the Hamiltons in the amount of $99,306. Notice of entry of deficiency judgment was filed on May 19, 1989. The Hamiltons filed this appeal on June 16, 1989. Did the Hamiltons present a timely appeal of the amended summary judgment? This case involves two final orders. The amended summa- ry judgment was a final order, notice of which was entered March 24, 1989. ment. This order granted FSLIC a deficiency judg- The entry of a deficiency judgment in the amount of $99,306, was also a final order, notice of which was entered May 19, 1989. On appeal, Hamiltons contest both the propriety of the deficiency judgment and the amount of the deficiency judgment. The amount of the judgment will be discussed in Issue In contesting the propriety of the deficiency judgment, the Hamiltons are appealing the validity summary judgment. of Pursuant to Rule 5, M.R.App.P., the amended the Hamil- tons had thirty days from the date of entry of judgment, which was March 24, 1989, in which to appeal this order. This appeal was filed June 16, 1989. We hold that the appeal of this issue was not timely and will not be discussed. Whether this case should be remanded for a determination of the adequacy of the sales price of land sold at a sheriff's sale. After the sheriff's sale, FSLIC filed a Partial Satisfaction and Motion for Entry "Notice of of Deficiency Judgment," requesting that the court grant FSLIC a deficiency judgment against defendants in the amount of $99,306. On May 16, 1989 the court granted this motion, stating: On motion of the Plaintiff, deficiency judgment is hereby granted against the defendants, Darwin Hamilton and Mary Hamilton jointly and severally in the amount of $99,306.00. In this issue we discuss only the above-mentioned order, which entered the amount of the deficiency judgment. The Hamiltons object to the amount of this judgment, by urging that the sale price of $475,000, obtained at the sheriff's sale, was grossly inadequate. They urge that the fair market value of this property upon the completion and sale of each lot, is approximately $1 million. They base this on the fact that 17 of 81 lots have been sold at prices ranging from $11,000 to $13,000. The Hamiltons urge that the present case be remanded to District Court for a determination of the fair market value of the property at the time of sale, relying on the recent case of Trustees of Wash.-Idaho-Mont. Carpenters Employers Retirement Trust Fund v. Galleria Partnership (Mont. 1989), 780 P.2d 608, 46 St.Rep. 1661. In Galleria Partnership a piece of real property was bid in at the sheriff's sale for approximately 30% of its original appraised value. Although the issue of the adequacy of the sale price had not been raised in the lower court, we remanded to District Court for a determination of fair market value. We remanded "in the exercise of our equity jurisdic- tion." Galleria Partnership, 780 P.2d at 617. In the present case, however, the Hamiltons' request must fail. First, as FSLIC correctly notes, the Hamiltons did not petition the District Court in regard to the adequacy of the sales price. We acknowledge that an issue not pre-- sented to the District Court will not be addressed on appeal. Wyman v. DuBray Land Realty (Mont. 1988), 752 P.2d 196, 200, 45 St.Rep. 621, 625. consider this matter In view of Galleria Partnership we will in order that litigation will be terminated. Although several states have statutes requiring that the amount realized at a sheriff's sale must reflect the fair market value of the property, Montana statutes have no such requirement. See Galleria Partnership, 780 P.2d at 616-17. Further, in the present case defendants failed to submit any relevant evidence of fair market value on the date of sale. There is a total absence of facts demonstrating that $475,000 was not a fair price. We note that the face amount of the original obligation was $ 3 5 9 , 0 0 0 . The purchase price bid by the receiver in the amount of $ 4 7 5 , 0 0 0 substantially exceeded that of the original obligation, even though it was less than the total judgment of $ 5 6 4 , 0 0 0 . We conclude that the Hamil- tons have failed to present any evidence requiring an exercise of our equity jurisdiction. We conclude that Galleria Partnership is distinguishable from the present case. We affirm the District Court's grant- ing of the deficiency judgment. Affirmed. We Cmcur: /

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