Opposition Brief — Savoy v. Cascade County Sheriff's Department

Supreme Court brief1995

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Text

No. 94-173

In The

Supreme Court of the United States

October Term, 1994

WALTER SA\

P (tioner.

CASCADE COUNTY SHERIFE’S DEPARTMENT:

AND UNITED STATES OF AMERICA.

BY AND THROUGH THE FARMERS Hom}

ADMINISTRATION, [TS AGEN

Respondents

N PETETION FOR WREE OF CER TORAL

[tO TH: MONTANA SUPRIEMI

BRIEF FOR RESPONDENT CCSD

IN OPPOSITION

Mark F. Higgins’

Ugrin, Alexander, Zadick & Higgins, P.(

#2 Railroad Square

P.O. Box 1746

Great Falls, Montana 59403-1746

felephone (406)771-0007

Attorneys for Re spondent

Cascade County Sheriff's Department

Counsel of record

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY

Ue AND WHEN A

AT THE TIME OF FILMING.

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUED.

QUESTIONS PRESENTED

1. Does petitioner have a protected

property interest in the instant matter and. if so.

was he afforded due process in the redemption

procedure?

2. Did the Cascade County Sheriff's

Department properly proceed in issuing the

Sheriff's Deed to the FmHA after recein ing a court

order to do so?

TABLE OF CONTENTS

QUESTIONS PRESENTED ............

TABLE OF CONTENTS .............. ii

TABLE OF AUTHORITIES ........... iil

FURRIIC TION ooo ccc cacccncncce. l

STATEMENT OF THE CASE .......... 2

FEDERAL QUESTION WHEN RAISED . . 3

STATEMENT OF THE FACTS ......... 3

RUPEE 666 ick oo ee 9

I. matrodettion ................ y)

oo ae 10

A. Petitioner Did Not Enjoy a

Protected Property Interest . 10

B. Petitioner Is Not Entitled to

SPWe FOE cok sc iv ans 1]

C. Statutory Parameters for

Redemption in Montana ... 12

D. Any Failures to Comply with

Statutory Mandates Are

Technical Only .........., 16

APPENDIX

eee

TABLE OF AUTHORITIES

Cases Page

Dixon yv. Love

431 U.S. 105

52 L.Ed.2d 172

97 S.Ct. 1723 oo Sia 10

GESA Fed. Credit Union v. Mutual Life Ins. Co.

105 Wash.2d 248

faa fae (2041986) Ww. wititiétits 11, 16

Household Finance Corp. v. Bacon

58 Ore. App. 267

648 P.2d 421 a 17, 18

Ingraham vy. Wright

430 U.S. 651

51 L.Ed.2d 711

97 S.Ct. 1401 ts 10

Lester v. J&S Investment Co.

171 Mont. 149

557 P.2d 299 a 11, 14

Mathews y. Eldridge

424 U.S. 319

47 L.Ed.2d 18

96 S.Ct. 893 (1976) ..........020~2C«” 12

Memphis Light, Gas & Water Div. v. Craft

436 U.S. 1

56 L.Ed.2d 30

1 SCu UD . 2.5). se. 10-12

Tech-Fluid Serv. v. Gavilan Operating

Utah App.

oie Bo: Te. | 11, 16

Statutes Page

Montana Code Annotated

25-13-801 2, 18

25-13-807 7

United States Code

ae Uo. § 1257{a)....

In the

Supreme Court of the United States

October Term, 1994

No. 94-1735

WALTER SAVOY.

Petitioner,

CASCADE COUNTY SHERIPE’S DEPARTMENT:

AND UNITED STATES OF AMERICA,

BY AND THROUGH THE FARMERS HOME

ADMINISTRATION, ITS AGENCY,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE MONTANA SUPREME COUR’

BRIEF FOR RESPONDENT CCSD

IN OPPOSITION

JURISDICTION

The Supreme Court of the United States does

not have jurisdiction over this matter as alleged by

petitioner, pursuant to 28 USC. § 1257(a).

Petitioner does not enjoy a protected property

interest and, consequently, there is no privilege or

right properly claimed under the United States

Constitution. Further, the majority of petitioner's

claimed errors revolve around the application of

State statutes under which there are no claims of

constitutional violation. Consequently, it is urged

by respondent Cascade County Sheriff's

Department (“CCSD”) that jurisdiction be

declined.

The statutes involved are Mont. Code Ann.

§§ 25-13-801, et seg., attached io the appendix

hereto as Exhibit A.

STATEMENT OF THE CASE

The initial complaint in this action was filed

on August 17, 1990, in Cascade County, Montana,

seeking declaratory judgment and petition for writ

of mandamus. A hearing on the writ of mandamus

was held in December of 1990, and an order issued

as a result of that hearing on December 20, 1990.

A copy of that order is attached as Exhibit B to

the appendix hereto. At the time of that hearing,

petitioner Walter Savoy (“Savoy’’) was present,

represented by counsel, and testified. He also

called witnesses to testify on his behalf. As a result

of that hearing, as well as the arguments and briefs

of the parties, the state district court ordered that

the Cascade County Sheriff's Department (herein-

after “CCSD”) issue the deed to the Farmers

Fiome Administration (“FmHA”), finding that

there had been substantial compliance with

redemption statutes.

Following that hearing and completion of

some discovery, all parties moved for summary

judgment. Summary judgment arguments were

heard on November 29, 1993, and an order was

issued by Judge McCarvel on December 16, 1993,

granting summary judgment in favor of FmHA and

CCSD. The grant of summary judgment was

appealed by Savoy to the Montana Supreme Court,

which affirmed the grant of summary judgment by

written opinion dated December 13, 1994. Savoy's

petition for rehearing was denied on January 18,

1995.

FEDERAL QUESTION WHEN RAISED

Petitioner has consistently alleged from the

outset of his complaint that the redemption

Statutes were not complied with by FmHA and,

consequently, that CCSD should not have issued

the deed to FmHA. Savoy raises no question as to

the constitutionality of the statutes, only alleging

that the statutes were not substantially complied

with and that as a consequence the petitioner has

been deprived of property without due process of

law. The crux of petitioner’s complaint has always

been lack of strict compliance with the redemption

statutes by FmHA, thereby entitling petitioner to

the deed to the property in question.

STATEMENT OF THE FACTS

On February 28, 1989, a judgment and decree

of foreclosure was entered in the Montana Eighth

Judicial District Court, Cascade County, Cause

No. BDV-86-991, a case initially brought by

Interstate Production Credit Associates (“IPCA”)

against Hugh Sands and Rita Sands, the Federal

Land Bank of Spokane, the United States of

America, and First National Bank of Fairfield.

The Federal Land Bank of Spokane then filed a

cross-claim against Hugh Sands and Rita Sands,

Richard Garren and Jane Garren, the United

States of America, and First National Bank of

Fairfield.

In February of 1989, judgments and decrees

of foreclosure were entered on both the complaint

and the cross-complaint. IPCA obtained a

judgment against the defendants, and as part of

that judgment the sale of the subject real property

was ordered. The Federal Land Bank of Spokane

also obtained a judgment and decree of fore: losure

on its cross-claim. As a part of its judgment, the

Federal Land Bank of Spokane was allowed to sell

Tract II of the real property described in the

foreclosure action. The court ordered that Tract I]

be sold at a judicial foreclosure sale. An order of

sale was issued by the court on March 23, 1989,

directing CCSD to sell the described real property

under both the complaint and the cross-complaint

and the judgments rendered thereunder.

On May 23, 1989, pursuant to the order of

sale, Sheriff Barry Michelotti did cause the sale to

take place, and sold the real property by tract as

ordered by the court. Tract I was purchased by

petitioner, as was Tract I]. Both were auctioned

separately and purchased separately. Tract | was

purchased for $3,001; Tract I] was purchased for

$85,000. On May 24 1989, Undersheriff James

Burns, the deputy in charge of the sale, prepared

the Sheriff's Certificate of Sale on Decree or Order

of Sale. On May 17, 1990, Patrick Sands.

successor-in-interest to Hugh and Rita Sands,

provided to Sheriff Barry Michelotti a Notice of

Redemption by the successor-in-interest to the

judgment debtors. Attached as Exhibits A and D

to the Notice of Redemption was a certified copy

of the Sheriff's Certificate of Sale on Decree or

Order of Sale, and a Quit Claim Deed wherein

Hugh D. Sands and Rita D. Sands transferred their

interests in the subject property to Patrick Sands.

Sheriff Michelotti, by Undersheriff John Strandell.

issued a Sheriff's Certificate of Redemption on

May 21, 1990, in relation to Tract I, and presented

that, along with a check in the amount of

$3,180.06, to petitioner Walter Savoy.

On May 17, 1990, Sheriff Michelotti received

a document entitled “Notice of Redemption” from

FmHA. The document described the property to

be redeemed as Tract II, and contained a legal

description of Tract II. The document also

identified the property as that which was sold to

petitioner on May 23, 1989. Accompanying the

Notice of Redemption was a check in the amount

of $90,030.14. This amount represented the

purchase price of $85,000, together with statutorily

allowed interest. Also accompanying the Notice of

Redemption was a letter directed to Walter Savoy

from Susan Hensley, who was represented to be

the County Supervisor of FmHA. The letter

informed petitioner that the property identified as

Tract I] and purchased by petitioner on May 23,

1989, for the price of $85,000 was being redeemed

by FmHA. The last sentence of the letter directed

Mr. Savoy to contact Ms. Hensley if he had any

questions.

Sheriff Michelotti, by and through

Undersheriff John Strandell, prepared a Sheriff's

Certificate of Payment Price of Real Property and

Decree of Foreclosure. This document appropri-

ately described Tract II in its entirety by legal

description, and represented that FmHA, a

judgment debtor, tendered the appropriate amount

of money, including principal plus accrued interest

up to the time of redemption.

Sometime after the stated intention to

redeem, petitioner contacted CCSD and had a

meeting with Undersheriff John Strandell and

Deputy Richard Duncan. Petitioner presented

questions about the redemption process, and

Undersheriff Strandell cited petitioner specific

Statutes pertaining to redemption and made them

available to petitioner (Strandell Depo.. p. 6).

Undersheriff Strandell also recalls that the

petitioner was unhappy because he did not feel

that at the time of the sale the redemption rights

were appropriately explained, and no one explained

to him who had the right to redeem (Strandell

Depo., p. 7). Undersheriff Strandell told petitioner

during this conversation that he could not provide

legal advice to petitioner in relation to the

redemption. This meeting took place sometime

prior to May 24, 1990 (Strandell Depo., pp. 8-9).

CCSD did not hear anything further in

relation to the redemption until June 8, 1990, at

which time a letter was received from attorney

Gary Deschenes, who is currently representing

petitioner. Mr. Deschenes’ letter cited very

generally to Mont. Code Ann. § 25-13-807 in

support of the general proposition that the

redemption was not appropriate. Demand was

made that the Sheriff's Deed be issued to

petitioner. A response by letter was made on

June 21, 1990, explaining that the general nature of

the complaint of “irregularity” precluded any real

review, but invited Mr. Deschenes to further

discuss the matter. On June 26, 1990,

Mr. Deschenes confirmed, after discussion, that

CCSD would do nothing further until a court order

was in place instructing CCSD as to who should

receive the deed.

The next communication from the petitioner

was his complaint seeking a writ of mandamus

directing CCSD to issue the deed to petitioner.

The matter was schedule for hearing on the

petition for writ of mandamus on December 4.

1990. Petitioner was present, testified. and called

witnesses to testify in his behalf. Agents of the

FmHA were present and testified. as well.

Cascade County Sheriff Barry Michelotti was

present and available for testimony, but provided

no testimony and took no position in relation to

which party should receive the deed. only taking a

position on the propriety of an award of attorney

fees against CCSD. On December 20. 1990, the

court, by order, denied the petition for writ of

mandamus. In that order, the lower court

specifically held that the FmHA did present a

certified copy of the judgment decree that

evidenced its right to redeem. In that judgment

decree, the mortgage of FmHA was described by

recording information and by date. In the order,

the lower court found, “The Cascade County

Sheriff's Department performed all duties and

responsibilities statutorily required of it in a

reasonable, diligent and prudent matter.” Findings

of Fact, Conclusions of Law, and Order (12/20/90),

p. 6, 1 7.

The petition for writ of mandamus was

denied, and petitioner was denied an award of

attorney fees against CCSD. The court also

specifically found substantial compliance by FmHA

with the redemption statutes, and that because

FmHA was clearly a party entitled to redeem, any

variation from the procedural aspect of the

redemption statutes was not fatally defective.

Consequently, the lower court ordered that CCSD

issue a deed to FmHA for the property described

as Tract II]. Pursuant to that court order, the

Sheriff's Deed was finally issued to FmHA in

January of 1991.

On December 16, 1993, after complete

briefing and oral arguments, the court entered an

order awarding summary judgment to CCSD and

FmHA. That order, which is attached hereto as

Exhibit C, reveals that an affidavit had been

received by counsel for petitioner in June of 1989,

indicating that the amount of money owed to the

FmHA under its mortgage in relation to Tract Il

was in excess of $400,000. The court also indicated

in its findings of fact that CCSD received from

kmHA, with the Notice of Intention to Redeem, a

certified copy of the Judgment Decree of Fore-

closure. In that judgment decree, the mortgage

held by FmHA relative to Tract II was set forth

with sufficient clarity and identified appropriately

by date and recording information so as to allow

any interested person to search the appropriate

records and obtain the information relative to the

mortgage.

It is that order from which the appeal to the

Montana Supreme Court was taken and, further,

serves as a basis for the petition herein

ARGUMENT

I. Introduction

Petitioner's argument that as a result of the

foreclosure sale he enjoyed a property right is

inaccurate and incorrect. Petitioner enjoyed no

such protected property right. Instead. the defects

of which petitioner complains are technical, at

most, and because petitioner's interest in the prop-

erty was an equitable one, it does not reach the

Stature of “property” within the meaning of the

due process clause.

Even if petitioner's interest in the property

did acquire the status of “property” within the

parameters of the due process clause, petitione:

was afforded adequate due process, both procedur-

ally and substantively.

Il. Discussion

A. Petitioner Did Not Enjoy a

Protected Property Interest

Petitioner claims that it is without dispute

that he enjoyed a protected interest in property.

However, the issue is not so simple as petitioner

would have this Court believe. In Memphis Light,

Gas & Water Div. v. Craft, 436 o. 1, 56 L.Ed.2d

30, 98 S.Ct. 1554 (1978), this Court recognized that

there are procedural constraints on governmental

actions that work a deprivation of property relating

only to interests that acquire the stature of prop-

erty within the meaning of the due process clause

and its parameters. This Court has on numerous

occasions recognized that there are instances where

the “property” did not acquire the stature of being

protected by the due process clause. In Ingraham

v. Wright, 430 U.S. 651, 51 L.Ed.2d 711, 97 S.Ct.

1401 (1977), this Court noted that there were no

procedural safeguards constitutionally mandated in

school disciplinary cases. In Dixon v. Love, 431

U.S. 105, 52 L.Ed.2d 172, 97 S.Ct. 1723 (1977), this

Court found that an evidentiary hearing was not

necessary prior to revocation of a driver's license

based upon repeated traffic offenses.

Numerous state courts have determined that

the statutes setting forth the procedural parameters

of redemption are procedural only and do not

affect substantive rights of the purchaser. See,

Tech-Fluid Serv. v. Gavilan Operating, Utah

App. ___, 787 P.2d 1328 (1990): GESA Federal

Credit Union v. Mutual Life Ins. Co., 105 Wash.2d

248, 713 P.2d 728 (Wash. 1986).

The Montana Supreme Court has noted that

the right of redemption “is not a property interest

in any sense of the term but is a bare personal

privilege.” See, Lester v. J&S Investment Co., 17)

Mont. 267, 557 P.2d 299, 301 (1976).

Consequently, it is not without dispute that

the petitioner enjoyed a_ protected property

interest. To the contrary, it is asserted by

respondent CCSD that there was no protected

property interest here, in that, at most, the

petitioner enjoyed an equitable interest in the

property and one that could be terminated by the

simple exercise of one’s redemption rights.

B. Petitioner Is Not Entitled to Due

Process

Even if this Court were to determine that

petitioner enjoyed a protected property interest,

the inquiry does not end there. As this Court

stated in Memphis Light, supra:

An elementary and_ fundamental

requirement of due process in any

proceeding which is to be accorded

finality is notice reasonably calculated,

under all the circumstances, to apprise

interested parties of the pendency of

the action and afford them = an

opportunity to present their objection.

Id.. . 436 U.S. at 13, 56 L-Ed.2d at 41.

The parameters of due process are based on

three separate factors: (1) property interests that

will be affected by the official action; (2) the risk of

an erroneous deprivation through the procedures

used and the value, if any, of additional or

substitute procedural safeguards: and (3) the

government’s interest, including the function

involved and the fiscal and administrative burdens

that the additional or substitute procedural require-

ment would entail. See, Mathews v. Eldridge, 424

U.S. 319, 324, 47 L.Ed.2d 18, 96 S.Ct. 893 (1976).

This Court acknowledged in Mathews that there are

areas where the government may act without

providing additional advance procedural

safeguards.

Consequently, because there is no protected

property interest here, the due process clause does

not control. Even if it did control, there 1s no

indication that the procedural safeguards that are

in place are not adequate.

C. Statutory Parameters for

Redemption in Montana

The petitioner complains that the FmHA

failed to comply with various statutory mandates.

Some of the alleged deficiencies do not at all affect

petitioner's status or position in the instant

litigation. For instance, whether the FmHA filed

a notice with the Clerk and Recorder's Office does

not affect the status of the petitioner in the instant

matter, and has no bearing whatsoever on whether

petitioner was afforded the appropriate notice.

Further, if FmHA had complied with the provision

of serving a copy of the docket of the judgment or

mortgage, petitioner would still be no further

ahead than what he was when the FmHA provided

a certified copy of the foreclosure order and judg-

ment in the underlying matter, which sufficiently

and clearly described the mortgage upon which

FmHA was relying for its redemption interest.

Petitioner claims that payment of proper

funds was not made. However, petitioner admitted

during the December, 1990, hearing that he had

received the money to which he was entitled for

Tract If. He also admitted that prior to this

redemption, he understood and knew that Tract |

had already been redeemed by a party separate

and apart from FmHA. Consequently, it seems

contradictory for petitioner to be claiming that he

then believed that FmHA was trying to redeem

both tracts, when in fact the notice referred only to

Tract II and the amount of money presented was

only for Tract II. At no time has the FmHA

attempted to redeem Tract I, in that it was

properly redeemed at or about the same time that

this instant redemption took place, by another,

unrelated party. The redemptioner of Tract I has

been in possession of the property since its

redemption, and that has not been the subject of

any litigation. Consequently, the petitioner's claim

that the payment of proper funds has not been

made is a specious argument, and deserves no

consideration.

An affidavit was not produced by FmHA to

indicate the amount currently owing on the lien.

However, as was noticed by the lower court's order

awarding summary judgment in 1993, counsel for

petitioner had received an affidavit dated June of

1989, 11 months prior to the redemption by

FmHA, which indicated that the amount owed by

the debtor to FmHA under the mortgage was over

$400,000. During the 1993 summary judgment

arguments, counsel for petitioner specifically noted

that the petitioner was concerned about the land.

“That's what he wants [the land], not the cash.”

See, Transcript on Appeal, Hearing (11/29/93),

p. 13, Il. 9-10, Exhibit D hereto.

Unfortunately, it is clear that what petitioner

wants 1s the land, but that is not what he is entitled

to, nor was he ever entitled to it. Petitioner

purchased the land at a foreclosure sale and it was,

consequently, subject to a one-year period of

redemption. As noted by the Montana Supreme

Court in Lester v. J&S Investment Co., supra, in

taking possession of the property at a foreclosure

sale, “[T]he buyer is taking a calculated chance

that the mortgagor will be unable to redeem and

thus the buyer may have gained the property at a

bargain price.”” Id., 557 P.2d at 301.

Here, while the petitioner gained an equitable

interest for the period of one year ata “bargain

price,” the mortgagor and/or a junior mortgagee

was able to redeem and, consequently, the “calcu-

lated chance” that petitioner took in purchasing

the property was not successful. Here, though,

petitioner cannot claim that the money that he paid

for Tract II was not returned to him along with the

appropriate statutorily-allowed interest.

Petitioner has been deprived of no property.

He has been paid for the property which he

attempted to obtain at a bargain price. There has

been no taking of any property whatsoever, much

less a wrongful taking or taking in violation of due

process.

There was no effort on behalf of FmHA to

redeem both tracts tor the price of one. To the

contrary, as petitioner well understood, FmHA

redeemed Tract II and the person entitled to

redeem Tract I did so at about the same time.

Petitioner's efforts to mislead this Court into

believing that FmHA either was trying to redeem

two tracts for the price of one or was not paying a

sufficient amount of money for the redemption of

Tract II are misguided. All parties knew and/or

understood that the tracts were sold separately and

were redeemed separately.

D. Any Failures to Comply with

Statutory Mandates Are Technical

Only

There is a great deal of argument in the

lower court as to whether substantial compliance,

or strict compliance, was required (with the

redemption statutes). In his brief to this Court,

petitioner cites and relies upon the case of Tech-

Fluid Serv. v. Gavilan Operating, 787 P.2d 1328

(Utah App. 1990). Tech-Fluid stands for a proposi-

tion other than that which was cited by petitioner

in his brief to this Court. In Tech-Fluid, the Utah

appellate court noted that all that was needed was

substantial compliance with the procedural aspects

of the redemption statutes. In that case, the

redemptioner tendered the correct amount of

money within the redemption period, and tendered

some proof of an assignment from the mortgagor

of redemptioner’s right to redeem. He also

included a “Notice of Redemption” which provided

additional facts. The Utah court noted that these

requirements “are procedural in nature and do not

affect substantive rights of the purchaser.” /d., 787

P.2d at 1334.

The Washington court had an opportunity to

discuss a situation factually similar to the one at

bar. In GESA Federal Credit Union v. Mutual Life

Ins. Co., 105 Wash.2d 248, 713 P.2d 728 (1986), the

purchaser had failed to file a statement of payment

of irrigation tax assessments with the county

auditor. These payments totalled approximately

$245,000. The purchaser was statutorily required

to provide actual notice of the cost of the

redemption. The court held that even though the

Statement of irrigation tax payments was not

provided, there had been substantial compliance

with the appropriate statute. In so holding, the

Washington court noted that some redemption

Statutes confer a statutory right of redemption.

while others establish the procedure by which that

right is perfected. These latter statutes are

remedial in nature and to be liberally construed.

If there is a technical procedural error or an error

in the statutes establishing the procedure by which

the right of redemption is perfected, a forfeiture

requirement would not only be unjust but would

also be inconsistent with the purpose of the statute

because it does not affect substantive rights. As

the Washington court noted, to allow such a result

would be an exultation of form over substance.

Here, it cannot seriously be argued without

torturing facts, logic and the truth, that the

petitioner was given the amount of his sale price

with the appropriate statutory interest. The tender

of payment was made within the period of time

allowed for redemption. Consequently, any

deviation or failure to comply with the statutes

regarding redemption is technical in nature and.

consequently, harmless, as it did not affect a

substantive right.

In Household Finance Corp. v. Bacon. 58 Ore.

App. 267, 648 P.2d 421 (1982), the Oregon court

addressed the issue of failure to provide to the

Sheriff the affidavit of an amount due and the

notice of intend to deem. Both items were

statutorily required. Noting that the redemption

statutes were remedial in nature and could be

liberally construed, the court stated:

Those provisions are for the benefit and

protection of the Sheriff, who may

refuse to allow the redemption if those

requirements are not met. The Sheriff

did not refuse and is not now

complaining.

Id., 648 P.2d at 423.

Here, it is clear that Mont. Code Ann.

§ 25-13-801 establishes the right of redemption.

The statutes following Mont. Code Ann.

§ 25-13-801 set forth the procedure for redemption

and are, consequently, remedial in nature and to

be liberally construed. The lower court was correct

in adopting the substantial compliance test, and

appropriately applied that test in the instant

matter.

The petitioner alleges that CCSD failed to

enforce the provisions of the statutes and,

consequently, participated in the taking of property

without due process of law. What the petitioner

fails to recognize is that CCSD did not issue a

deed until January of 1991, some 30 days after the

time that the court issued its order regarding the

writ of mandamus. In that order, CCSD was

required by the court to issue the deed in favor of

FmHA. After entry of that order, CCSD had no

alternative but to follow the valid December, 1990,

court order.

In the lower courts, the CCSD argued judicial

immunity as a result of its conduct pursuant to the

December, 1990, order. There is no mention in

petitioner's brief to this Court of that argument.

However, the record below clearly reflects that

CCSD is entitled to absolute judicial immunity as

a result of its enforcing and implementing a valid

court order. Parenthetically, the December, 1990,

court order directing CCSD to issue the deed has

remained unchallenged and has not been the

subject of any appeal. Consequently, the order is

final and ultimately controls the conduct of CCSD

in issuing the deed to the appropriate party

CONCLUSION

Petitioner has raised some novel arguments in

his briefs, both in the lower courts and to this

Court. However, it is imperative that CCSD point

out that petitioner has been deprived of nothing.

While he wanted the land and not the cash, as was

recognized by his attorney in hearings before the

lower courts, that is not a right to which he was

entitled. He took a “calculated risk,” hoping that

he would obtain the property at a bargain price.

He took the property subject to a one-year

redemption, which meant that he could lose the

property, any time within the one-year period, to

either the debtor or another party entitled to

redeem. That is the only thing that occurred here:

the property was redeemed by a party entitled to

do so. The redemption was done within the period

of time statutorily mandated, and Savoy received

the appropriate amount of money. That should

end the inquiry, and the petition for writ of

certiorari should be denied.

DATED this jot” day of May, 1995.

UGRIN, ALEXANDER, ZADICK

& HIGGINS, P.C.

wie aol

i-Mark F. Higgins

#2 Railroad Square

P.O. Box 1746

Great Falls, Montana 59403

Attorneys for Respondent

Cascade County Sheriff's

Department

—

CERTIFICATE OF MAILING

I hereby certify that the foregoing was duly

served upon the respective attorneys for each of

the parties entitled to service by depositing a copy

in the United States mails at Great Falls, Montana,

enclosed in a sealed envelope with first class

postage prepaid thereon and addressed as follows:

Gary S. Deschenes

Attorney at Law

P.O. Box 3502

Great Falls, MT 59403

George F. Darragh, Jr.

Assistant U.S. Attorney

212 Federal Building

P.O. Box 3446

Great Falls, MT fry

DATED this A o of May/ 1995.

LTS =.

/GGRIN. ALEXANDE R PADIC DICK

& HIGGINS, P.C.

APPENDIX

EXHIBIT A

RD 6 eed

LOLS EXECUTION OF JUDGMENT Lema ne.

Part 8

Redemption of Real Property

Part Cross-References . Redemption by multiple mortgagors

Docketing of judgment — lien, 25-9-301. 71-41-2311. fi

Rights of redemption applicable, 71-1-228 Liens generally, Title 71. ch 3

Action to redeem mortgage, 71-1-230.

25-13-801. Who may redeem. (1) Property sold subject to redemption.

as provided by 25-13-710, or any part sold separately may be redeemed in the

manner hereinafter provided by the following persons or their successors in

interest:

(a) the judgment debtor, the judgment debtor's spouse, or his successor

in interest in the whole or any part of the property and, if the judgment debtor

or successor be a corporation, a stockholder thereof;

(b) acreditor having a lien by judgment, mortgage, or attachment on the

property sold or on some share or part thereof subsequent to that on which

the property is sold. If a corporation be such creditor, then any stockholder

thereof may redeem.

(2) The persons mentioned in subsection (1)(b) of this section are, in this

part, termed “redemptioners’.

History: En. Sec. 230, p. 181, L. 1867; re-en. Sec. 280, p. 87, Cod. Stat. 1871; re-en.

Sec. 330, p. 129, L. 1877; re-en. Sec. 330, Ist Div. Rev. Stat. 1879; re-en. Sec. 341, let Div.

Comp. Stat. 1887; amd. Sec. 1234, C. Civ. Proc. 1895; re-en. Sec. 6837, Rev. C. 1907; amd.

Sec. 1, Ch. 107, L. 1913; re-en. Sec. 9442, R-LC.M. 1921; Cal. C. Civ. Proc. Sec. 701; amd.

Sec. 1, Ch. 16, L. 1927; re-en. Sec. 9442, R.C.M. 1935; amd. Sec. 55, Ch. 535, L. 1975; R.C.M.

1947, 93-5834.

Cross-References Disposal of foreclosed agricultural land,

Docketing of judgment — lien, 25-9-301. Title 25, ch. 13, part 9.

Prejudgment attachment, Title 27, ch. 18.

25-13-802. Time for redemption — amount to be paid. The judgment

debtor or redemptioner may redeem the property from the purchaser any time

within 1 year after the sale on paying the purchaser:

(1) the amount of his purchase with interest at a rate established by the

judgment in the action that led to the execution sale, up to the time of

redemption;

(2) the amount of any assessment or taxes which the purchaser may have

paid thereon after purchase and interest on such amount;

(3) the amount of any repairs, maintenance expenses, or other expendi-

tures that the purchaser may reasonably have made after purchase for the

maintenance of the property, with interest on the amounts from the date of

expenditure; and

(4) if the purchaser is also a creditor having a prior lien to that of the

redemptioner other than the judgment under which such purchase was made,

the amount of such lien with interest.

History: En. Sec. 231, p. 181, L. 1867; re-en. Sec. 281, p. 88, Cod. Stat. 1871; amd. Sec.

331, p. 129, L. 1877; re-en. Sec. 331, let Div. Rev. Stat. 1879; re-en. Sec. 342, 1st Div. Comp.

Stat. 1887; amd. Sec. 1235, C. Civ. Proc. 1895; re-en. Sec. 6838, Rev. C. 1907; re-en. Sec.

9443, R.C.M. 1921; Cal. C. Civ. Proc. Sec. 702; re-en. Sec. 9443, R.C.M. 1935; amd. Sec. 1,

Ch. 103, L. 1937; R.C.M. 1947, 93-5835; amd. Sec. 1, Ch. 503, L. 1991.

Cross-References

“Year” defined, 1-1-301.

25-13-5053 CIVIL PROCEDURE 1016

25-13-8053. Subsequent redemptions — when permitted, amount

paid. (1) If property be so redeemed by a redemptioner, another redemptioner

may, within 60 days after the last redemption, again redeem it from the last

redemptioner on paying the sum on such last redemption with interest

thereon at the rate established by the judgment in the action that led to the

execution sale, the amount of any assessment or taxes which the last

redemptioner may have paid thereon after the redemption by him with like

interest on such amount, and the amount of any liens held by the said last

redemptioner prior to his own, with interest; but the judgment under which

the property was so sold need not be so paid as a lien. The property may be

again, and as often as any redemptioner is so disposed, redeemed from any

previous redemptioner, within 60 days after the last redemption, on paying

the sum paid on the last previous redemption with interest thereon at the rate

established by the judgment in the action that led to the execution sale, the

amount of any assessment or taxes which the last previous redemptioner paid

after the redemption by him with like interest thereon, and the amount of any

liens, other than the judgment under which the property was sold, held by the

last redemptioner previous to his own, with like interest.

(2) If the judgment debtor or the judgment debtor's spouse redeem, the

judgment debtor or the spouse must make the same payments as are required

to effect a redemption by a redemptioner.

History: En. Sec. 232, p. 182, L. 1867; re-en. Sec. 282, p. 88, Cod. Stat. 1871; amd. Sec.

332, p. 129, L. 1877; re-en. Sec. 332, lst Div. Rev. Stat. 1879; re-en. Sec. 343, 1st Div. Comp.

Stat. 1887; amd. Sec. 1236, C. Civ. Proc. 1895; re-en. Sec. 6839, Rev. C. 1907; en. Sec. 2,

Ch. 107, L. 1913; re-en. Sec. 9444, R.C.M. 1921; Cal. C. Civ. Proc. Sec. 703; amd. Sec. 2,

Ch. 16, L. 1927; re-en. Sec. 9444, R.C.M. 1935; amd. Sec. 2, Ch. 103, L- 1937; amd. Sec. 56,

Ch. 535, L. 1975; R.C.M. 1947, 93-5836( part); amd. Sec. 2, Ch. 503, L. 1991.

25-13-804. Redemption by stockholder or corporation. (1) If a stock-

holder of a corporation redeems, the corporation, within 1 year after the date

of sale, may redeem by paying to the redemptioner or the sheriff for his benefit

the amount paid to effect the redemption, with interest thereon at the rate

established by the judgment in the action that led to the execution sale from

the date of redemption until the date of such payment, together with any taxes

or assessments that may have been paid by the redemptioner, with like

interest thereon.

(2) When a stockholder redeems, any other stockholder or stockholders

may, at any time after such redemption and within 60 days after the expira-

tion of 1 year from the date of sale, contribute to the redemption by paying to

the redeeming stockholder or depositing with the sheriff for his benefit a sum

which bears the same proportion to the amount necessary to redeem which

the number of shares owned by such contributing stockholder or stockholders

bears to the number of shares of such corporation outstanding, with interest

on such sum from the date of redemption until the date of contribution at the

rate established by the judgment in the action that led to the execution sale,

together with a like proportion of the taxes or assessments paid by such

redeeming stockholder, with like interest thereon; and if the corporation does

not redeem the property within the time and in the manner and form as

aforesaid, the said redeeming and contributing stockholders shall be entitled

to receive a sheriff's deed for such property so redeemed and shall succeed to

+ eer neem

LOL? EXECUTION OF JUDGMENT 25-15-807

the said property as tenants in common in such proportions, respectively, as

they shall respectively pay or contribute to such redemption as aforesaid. The

redeeming or contributing stockholder shall, in all cases when applying to

redeem or contribute as aforesaid, present an affidavit setting forth the

number of shares of stock owned by him and, to the best of his knowledge, the

number of shares of stock of the corporation outstanding.

History: En. Sec. 232, p. 182, L. 1867; re-en. Sec. 282, p. 88, Cod. Stat. 1871; amd. Sec.

332, p. 129, L. 1877; re-en. Sec. 332, 1st Div. Rev. Stat. 1879; re-en. Sec. 343, Ist Div. Comp.

Stat. 1887; amd. Sec. 1236, C. Civ. Proc. 1895; re-en. Sec. 6839, Rev. C. 1907; en. Sec. 2,

Ch. 107, L. 1913; re-en. Sec. 9444, R.C.M. 1921; Cal. C. Civ. Proc. Sec. 703; amd. Sec. 2,

Ch. 16, L. 1927; re-en. Sec. 9444, R.C.M. 1935; amd. Sec. 2, Ch. 103, L. 1937; amd. Sec. 56,

Ch. 535, L. 1975; R.C.M. 1947, 93-5836(3); amd. Sec. 3, Ch. 503, L. 1991.

25-13-805. Redemption by debtor from spouse. If the spouse of a

judgment debtor redeem, the judgment debtor, within 1 year after the date of

sale, may redeem by paying the spouse or the spouse's successors in interest

or the sheriff for the benefit of the spouse or the successors in interest of the

spouse the amount paid to effect the redemption, with interest thereon at the

rate established by the judgment in the action that led to the execution sale

from the date of redemption until the date of such payment, together with any

taxes or assessments tnat may have been paid by the spouse or the successors

in interest of the spouse, with like interest thereon.

History: En. Sec. 232, p. 182, L. 1867; re-en. Sec. 282, p. 88, Cod. Stat. 1871; amd. Sec.

332, p. 129, L. 1877; re-en. Sec. 332, 1st Div. Rev. Stat. 1879; re-en. Sec. 343, Ist Div. Comp.

Stat. 1887; amd. Sec. 1236, C. Civ. Proc. 1895; re-en. Sec. 6839, Rev. C. 1907; en. Sec. 2,

Ch. 107, L. 1913; re-en. Sec. 9444, R.C.M. 1921; Cal. C. Civ. Proc. Sec. 703; amd. Sec. 2,

Ch. 16, L. 1927; re-en. Sec. 9444, R.C.M. 1935; amd. Sec. 2, Ch. 103, L. 1937; amd. Sec. 56,

Ch. 535, L. 1975; R.C.M. 1947, 93-5836(4); amd. Sec. 4, Ch. 503, L. 1991.

25-13-806. Notice of redemption, liens, and taxes and assessments

paid. Written notice of redemption must be given to the sheriff and a duplicate

filed with the county clerk, and if any taxes or assessments are paid by the

redemptioner or if he has or acquired any liens other than that upon which

the redemption was made, notice thereof must in like manner be given to the

sheriff and filed with the county clerk, and if such notice be not filed, the

property may be redeemed without paying such tax, assessments, or lien.

History: En. Sec. 232, p. 182, L. 1867; re-en. Sec. 282, p. 88, Cod. Stat. 1871; amd. Sec.

332, p. 129, L. 1877; re-en. Sec. 332, Ist Div. Rev. Stat. 1879; re-en. Sec. 343, Ist Div. Comp.

Stat. 1887; amd. Sec. 1236, C. Civ. Proc. 1895; re~en. Sec. 6839, Rev. C. 1907; en. Sec. 2,

Ch. 107, L. 1913; re-en. Sec. 9444, R.C.M. 1921; Cal. C. Civ. Proc. Sec. 703; amd. Sec. 2,

Ch. 16, L. 1927; re-en. Sec. 9444, R.C.M. 1935; amd. Sec. 2, Ch. 103, L. 1937; amd. Sec. 56,

Ch. 535, L. 1975; R.C.M. 1947, 93-5836( part).

Cross-References Fees of County Clerk, 7-4-2631.

Liability of clerk relating to duties as re-

corder, 7-4-2623.

25-13-807. Papers redemptioner must produce. A redemptioner

must produce, to the officer or person from whom he seeks to redeem, and

serve with his notice to the sheriff:

(1) a copy of the docket of the judgment under which he claims the right

to redeem, certified by the clerk of the court or by the clerk of the district court

in the county where the judgment is docketed; or if he redeem upon a mortgage

or other lien, a note of the record thereof, certified by the county clerk; or if

25-13-808 CIVIL PROCEDURE O18

upon an attachment, a copy of the affidavit of attachment. certified by the

clerk of the district court:

(2) acopy of any assignment necessary to establish his claim. verified by

the affidavit of himself or of a subscribing witness thereto:

(3) an affidavit by himself or his agent showing the amount then actually

due upon the lien.

History: En. Sec. 234, p. 182, L. 1867; re-en. Sec. 284, p. 88, Cod. Stat. 1871; re-en.

Sec. 334, p. 131, L. 1877; re-en. Sec. 334, lst Div. Rev. Stat. 1879; re-en. Sec. 345, let Div.

Comp. Stat. 1887; amd. Sec. 1238, C. Civ. Proc. 1895; re-en. Sec. 6841, Rev. C. 1907; re-en.

Sec. 9446, R.C.M. 1921; Cal. C. Civ. Proc. Sec. 705; re-en. Sec. 9446, R.C.M. 1935; R.C.M.

1947, 93-5838.

Cross-References

Search of records, 7-4-2621.

25-13-808. To whom redemption money paid. The payment men-

tioned in 25-13-802 through 25-13-806 may be made to the purchaser or

redemptioner, as the case may be, or for him to the officer who made the sale

or, in case his term of office has expired, to his successor in office.

History: En. Sec. 233, p. 182, L. 1867; en. Sec. 283, p. 88, Cod. Stat. 1871; re-en. Sec.

333, p. 129, L. 1877; re-en. Sec. 333, ist Div. Rev. Stat. 1879; re-en. Sec. 344, 1st Div. Comp.

Stat. 1887; re-en. Sec. 1237, C. Civ. Proc. 1895; re-en. Sec. 6840, Rev. C. 1907; re-en. Sec.

9445, R.C.M. 1921; Cal. C. Civ. Proc. Sec. 704; re-en. Sec. 9445, R-C.M. 1935; R-C.M. 1947,

93-5837 (part).

25-13-809. Effect of redemption by debtor or debtor's spouse —

certificate of redemption. (1) If the debtor redeem, the effect of the sale is

terminated and the debtor is restored to his own estate. If the spouse redeem,

such spouse shall become the owner of the debtor spouse’s interest, subject to

any liens thereon at the time of the execution sale.

(2) Upon a redemption by a debtor or the debtor's spouse, the person to

whom the payment was made must execute and deliver to him or her a

certificate of redemption, acknowledged or proved before an officer authorized

to take acknowledgments of conveyances of real property. Such certificate

must be filed and recorded in the office of the county clerk of the county in

which the property is situated, and the county clerk must note the record

thereof in the margin of the record of the certificate of sale.

History: En. Sec. 232, p. 182, L. 1867; re-en. Sec. 282, p. 88, Cod. Stat. 1871; amd. Sec.

332, p. 129, L. 1877; re-en. Sec. 332, lst Div. Rev. Stat. 1879; re-en. Sec. 343, 1st Div. Comp.

Stat. 1887; amd. Sec. 1236, C. Civ. Proc. 1895; re-en. Sec. 6839, Rev. C. 1907; en. Sec. 2,

Ch. 107, L. 1913; re-en. Sec. 9444, R.C.M. 1921; Cal. C. Civ. Proc. Sec. 703; amd. Sec. 2,

Ch. 16, L. 1927; re-en. Sec. 9444, R.C.M. 1935; amd. Sec. 2, Ch. 103, L. 1937; amd. Sec. 56,

Ch. 535, L. 1975; R.C.M. 1947, 93-5836( part).

Cross-References

Power of judicial officers to take acknow-

ledgments, 3-1-404.

25-13-810. When purchaser entitled to conveyance. If no redemp-

tion be made within 1 year after the sale, the purchaser or his assignee is

entitled to a conveyance; or if so redeemed, whenever 60 days have elapsed

and no other redemption has been made and notice thereof given and the time

for redemption has expired, the last redemptioner or his assignee is entitled

to a sheriff's deed; but in all cases, the judgment debtor shal! have the entire

period of 1 year from the date of the sale to redeem the property.

1O1W EXECUTION OF JUDGMENT 25-13-8223

History: En. Sec. 232, p. 182, L. 1867; re-en. Sec. 282, p. 88, Cod. Stat. 1871: amd. See.

332, p. 129, L. 1877; re-en. Sec. 332, let Div. Rev. Stat. 1879; re-en. Sec. 343, lst Div. Comp.

Stat. 1887; amd. Sec. 1236, C. Civ. Proc. 1895; re-en. Sec. 6839, Rev. C. 1907: en. Sec. 2.

Ch. 107, L. 1913; re-en. Sec. 9444, R.C.M. 1921; Cal. C. Civ. Proc. Sec. 703; amd. Sec. 2.

Ch. 16, L. 1927; re-en. Sec. 94-44, R.C.M. 1935; amd. Sec. 2, Ch. 103, L. 1937: umd. Sec. 36,

Ch. 535, L. 1975; RLC.M. 1947, 93-5836( part).

Cross-References

“Year” defined, 1-1-3011.

25-13-811. Who to execute conveyance. In all cases when, under the

provisions of this chapter, a purchaser of property at execution sale shall be

entitled to a conveyance of the same, such conveyance shall be executed to

him by the officer who made the sale if he still be in office, but i , the case the

officer who made such sale is not in office at the time the purchaser may be

entitled to such conveyance, then the conveyance shall be executed by his

successor in office.

History: En. Sec. 233, p. 182, L. 1867; en. Sec. 283, p. 88, Cod. Stat. 1871; re-en. Sec.

333, p. 129, L. 1877; re-en. Sec. 333, Ist Div. Rev. Stat. 1879; re-en. Sec. 344, lst Div. Comp.

Stat. 1887; re-en. Sec. 1237, C. Civ. Proc. 1895; re-en. Sec. 6840, Rev. C. 1907: re-en. Sec.

9445, R.C.M. 1921; Cal. C. Civ. Proc. Sec. 704; re-en. Sec. 9445, R.C.M. 1935; R.C.M. 1947,

93-5837( part).

25-13-812 through 25-13-820 reserved.

25-13-821. Possession of lands during redemption period. The pur-

chaser of lands at execution sales is not entitled to the possession thereof as

against the execution debtor during the period of redemption allowed by law

while said execution debtor personally occupies the land as a home for himself

and his family. The intention hereof being to insure to such debtor the

possession of his land during the year of redemption.

History: En. Sec. 1, Ch. 230, L. 1921; re-en. Sec. 9449, R.C.M. 1921; amd. Sec. 1, Ch.

150, L. 1933; re-en. Sec. 9449, R.C.M. 1935; R.C.M. 1947, 93-5841( part).

25-13-822. Rents and profits during redemption period, account-

ing. (1) The purchaser, from the time of the sale until a redemption, and a

redemptioner, from the time of his redemption until another redemption, are

entitled to receive from the tenant in possession the rents of the property sold

or the valu2 of the use and occupation thereof. But when any rents or profits

have been received by the judgment creditor or purchaser or his or their

assigns from the property thus sold preceding such redemption, the amount

of such rents and profits shall be a credit upon the redemption money to be

paid. Any payments made under 25-13-802(2) and (3) must be subtracted from

the credit for rents and profits.

(2) If the redemptioner or judgment debtor, before the expiration of the

time allowed for such redemption, demands in writing of such purchaser or

creditor or his assigns a written and verified statement of the amount of such

rents and profits thus received, the period for redemption is extended 5 days

after such sworn statement is given by such purchaser or his assigns to such

redemptioner or debtor. If such purchaser or his assigns shall, for a period of

1 month from and after such demand, fail or refuse to give such statement,

such redemptioner or debtor may bring an action in any court of competent

jurisdiction to compel an accounting and disclosure of such rents and profits,

and until 15 days from and after the final determination of such action, the

right of redemption is extended to such redemptioner or debtor

25-1:3-823 CIVIL PROCEDURE 1020

History: En. Sec. 236, p. 183, L. 1867; rep. Sec. 751, p. 187, Cod. Stat. 1871; en. Sec.

1240, C. Civ. Proc. 1895; re-en. Sec. 6843, Rev. C. 1907; re-en. Sec. 9448, R-C.M. 1921; Cal.

C. Civ. Proc. 707; re-en. Sec. 9448, R.C.M. 1935; R.C.M. 1947, 93-6840; amd. Sec. 5, Ch. 503,

L. 1991.

25-13-823. Restraint of waste during redemption period. Until the

expiration of the time allowed for redemption, the court may restrain the

commission of waste on the property, by order granted with or without notice,

on the application of the purchaser or the judgment creditor. But it is not

waste for the person in possession of the property at the time of sale or entitled

to possession afterward, during the period allowed for redemption, to continue

to use it in the same manner in which it was previously used, to use it in the

ordinary course of husbandry, to make the necessary repairs of buildings

thereon, or to use wood or timber on the property therefor or for the repair of

fences or for fuel for his family while he occupies the property.

History: En. Sec. 235, p. 182, L. 1867; re-en. Sec. 285, p. 89, Cod. Stat. 1871; re-en.

Sec. 335, p. 131, L. 1877; re-en. Sec. 335, let Div. Rev. Stat. 1879; re-en. Sec. 346, 1st Div.

Comp. Stat. 1887; re-en. Sec. 1239, C. Civ. Proc. 1895; re-en. Sec. 6842, Rev. C. 1907; re-en.

Sec. 9447, R.C.M. 1921; Cal. C. Civ. Proc. Sec. 706; re-en. Sec. 9447, R.C.M. 1935; R.C.M.

1947, 93-5839.

Cross-References Waste prohibited, 71-1-106.

When defendant may be arrested, Injunction to prevent injury to property,

27-16-102. 71-1-227.

Injunctions, Title 27, ch. 19.

General duty of care, 28-1-201.

25-13-824. Enjoining injury to property after sale and before con-

veyance. The court or judge may, by injunction, upon good cause shown,

restrain the party in possession from doing any act to the injury of real

property after a sale on execution, before a conveyance.

History: En. Sec. 240, p. 93, Bannack Stat.; re-en. Sec. 261, p. 188, L. 1867; re-en. Sec.

310, p. 95, Cod. Stat. 1871; re-en. Sec. 360, p. 139, L. 1877; re-en. Sec. 360, let Div. Rev.

Stat. 1879; re-en. Sec. 372, 1st Div. Comp. Stat. 1887; re-en. Sec. 1318, C. Civ. Proc. 1895;

re-en. Sec. 6878, Rev. C. 1907; re-en. Sec. 9496, R.C.M. 1921; Cal. C. Civ. Proc. Sec. 745;

re-en. Sec. 9496, R.C.M. 1935; R.C.M. 1947, 93-6220( part).

Cross-References Waste prohibited, 71-1-106.

When defendant may be arrested, Injunction to prevent injury to property,

27-16-102. 71-1-227.

Injunctions, Title 27, ch. 19.

General duty of care, 28-1-201.

25-13-825. Damages for injury to property after sale and before

conveyance. When real property has been sold on execution, the purchaser

thereof or any person who may have succeeded to his interest may, after his

estate becomes absolute, recover damages for injury to the property by the

tenant in possession after sale and before possession is delivered under the

conveyance.

History: En. Sec. 262, p. 188, L. 1867; re-en. Sec. 311, p. 95, L. 1871; re-en. Sec. 361,

p. 139, L. 1877; re-en. Sec. 361, 1st Div. Rev. Stat. 1879; re-en. Sec. 373, lst Div. Comp.

Stat. 1887; re-en. Sec. 1319, C. Civ. Proc. 1895; re-en. Sec. 6879, Rev. C. 1907; re-en. Sec.

9497, R.C.M. 1921; Cal. C. Civ. Proc. Sec. 746; re-en. Sec. 89497, R.C.M. 1935; R.C.M. 1947,

93-6221.

Cross-References Damages generally, Title 27, ch. 1, part 2.

Injury to property defined, 27-1-106. Measure of damages, Title 27, ch. 1, part

APPENDIX

EXHIBIT B

WALTER H. SAVOY,

vs. : NO. BDV-90-769

CASCADE COUNTY SHERIFF'S

DEPARTMENT; and UNITED STATES OF : FINDINGS OF FACT,

AMERICA, by and through the : CONCLUSIONS OF LAW

Farmers Home Administration, its : AND ORDER

agency,

Defendants

On December 4, 1990, Plaintiff's Petition for Writ of

Mandamus came on for hearing. Plaintiff was present and

represented by Gary Deschenes, Defendant, United States of

America, was present and represented by George Darragn, and

Defendant, Cascade County Sheriff's Department, was present and

represented by Nancy P. Cory. Oral testimony was heard and

counsel presented varicus authorities to the Court for its

consideration. Based upon the testimony, arguments of counsel,

and all pleadings on fi herein, and the Court being fully

informed, the Court makes the following:

FINDINGS OF FACT

On or about February 28, 1989, a judgment and decree of

were enterecz in the case of Interstate Production

fore

Credit Ass'n, Plaintiff? vs. Hugh Sands, et ai., Defendants, Cause

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Page 4

Tr.

The Cascade County Sheriff's Department is statutorily

required to accept papers and documents relative to the redemption

wes’

process, and to prepare and execute a Sheriff's Deed at the

-~-

conclusion of the redemption pericda.

tii.

In this case, the Cascade County Sheriff's Department

received a certified copy of the judgment and decree of

forecicsure. In that judgment and decree, the mortgage held by

the Farmers Home Administration relative to Tract II was set forth

ufficient clarity and was identified appropriately by date

and recording information.

Iv.

The Cascade County Sheriff's Department did not receive an

affidavit of an amount actually due upon the mortgage from the

Farmers Home Administration on May 17, 1990. Thi informatio

does not affect Farmers Home Administration's ability to redeem or

propriety as 4a redeeming party, but is relevant only if a

psequent redemption were attempted.

Vv.

The notice provided by Walter Savoy, by and through his

counsel of record, of his objection to the notice of redemption

came after the redemption period expired. The notice of

redemption was presented six days prior to the expiration of the

redemption period.

Page §

VI.

The Cascade County Sheriff's Department performed a

and responsibilities Statutorily required of it in a reascnable

Giligent and prudent manner.

When demand was made by Farmers Home Administration upon the

Cascade County Sheriff's Department for issuance of a Sherif<’s

Deed, the Cascade Coun l

nty Sheriff's Department a

from the Plaintiff to execute a Sh 3

Scade County Sheriff's Department has no Giscretion as to which

Party should be issued the deed.

Visi.

The equities of this matter are not such as to justify an

award of attorney fees to the Plainti*‘¢

IX.

Plaintiff's damages, if any, were not incurred as a result of

any act or omission on the part of the Cascade County Sheriff's

Department. Attorney fees incurred by Plaintiff‘ in prosecuting

thi litigation were not incurred as a result of any act or

omission of the Cascade County Sheriff's Department.

BASED upon the foregoing Findings of Fact and Conclusions of

Law, the Court enters the following:

Page 6

ORDER

1. That the Petition for Writ of Mandamus is heresy denied.

2. That Plaintif! be awarded no damages or attorney fees as

against the Cascade County Sheriff's Department.

ae That the notice of redemptio

Adin:nistration to the Cascade County Sher

fatally defective, but substantially complied w

statutes, so as to allow the Cascade County Sher:ff's Department

to proceed with its cbligations pursuant to Mo t

statutes.

4. The United States of America has substantially complied

with the requirements of the statutes concerning the documents

required in which to perfect their right of redempticn. Plaintiff

has made no showing of prejudice and he has received everything he

is entitled to receive under the applicable statutes. Plaintif?

by accepting the tencer of the United States of America’s check

and having failed to state his objections to the attempted

redemption has waived these objections.

S. Plaintiff's application for a Writ of Mandamus being

equitable in nature, having failed to show any prejudice, the

United States of America having substantially complied with the

statutes, IT IS HEREBY ORDERED that the Plaintiff's Writ and

application for mandamus is denied.

6. The record showing that no other party has attempted to

redeem the property, 60 days having elapsed from the time the

United States attempted to redeem the property on May 17, 1990, IT

IS HEREBY ORDERED that the Sheriff of Cascade County shall issue 4

Page 7

APPENDIX

EXHIBIT C

. | PILED)

DEC 16 193

NANCY MORTON

Court Clerk

DErUTY

MONTANA EIGHTH JUDICIAL DISTRICT COURT, CASCADE COUNTY

WALTER H. SAVOY,

Plaintiff,

“Te No. BDV-90-769

CASCADE COUNTY SHERIFF’S

DEPARTMENT; and UNITED STATES

OF AMERICA, by and through the

Farmers Home Administration,

its agency,

eee eee eee ee es

Defendants.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

On November 29, 1993, a hearing was held by the Court on all

parties’ motions for summary judgment. The plaintiff was present

and represented by Gary Deschenes. Defendant United States of

America was represented by George Darragh and Defendant Cascade

County Sheriff’s Department was represented by Nancy P. Cory. The

Court noted all parties had filed motions for summary judgment and

oral testimony was heard and counsel presented various authorities

to the Court for its consideration in determining the various

motions for summary judgment. Based upon the briefs presented

the Court arguments of counsel, all pleadings on file e

’

ae)

sé

“a

re iding al 11 jary recently f ed with tne r? he r*

being fully informed, the ourt makes ‘he f Wi j

FINDINGS OF TAC.

n Kr about February 28 1989 1 jdamen’ ind lecree f

foreciosure were entered in "he case if Interstate Production

Credit Ass’n, Plaintiff vs. Hugh Sands, et al., Defendants, ~ause

No. BDOV-86-991, in the Montana Elght? Judicial iat t ourt,

‘ancade ‘ounty Pursuant to this judgment and jecree f

foreciosure, an rder if sale was issued ommanding the ascade

ounty Sheriff to sell the real property described in the udgnent

and decree by tracts

On or about May 23, 1989, 4a Sherifft’s taie war

Yaintif?’, Walter “Savoy purchased the property known 4s

for $3001.00 and “Tract II" for $85,000.00, which property was

ated in Cascade County, Montana, and the property Gescriptson a}

each tract was separately set forth in the judgn

foreclosure, as well as the order of sale

Ili.

On May 17, 1990, the Farmers Home Administration s ibm

the Cascade County Sherif?’s Department notice of its intention to

redeem the subject property known as “Tract 3” The notice of

intention to redeem was in the form of a etter directed *o Barry

Michelotti Sheriff, of the Cascade County Sheriff’s Oepartment

th that letter 4

The Farmers Home Administration also presented wi

ree above-described to

i @ ria .

its ignt to redeem Aliso anclosed witr “ne May 17 9 ? e f

. ? ‘ r * ¢ -

intention to redeem was a Treasury M@cKk #30842361191 i “ne

; -

amount if 290,030.14 This amount of money represente the

4 urcnase fr i+ ¢ ‘ ef @ ”

pul , price paid by Plaintiff? for Tract I! with interest a? si

’

, percer 6%) per annum for 1360 days, a& statut mrily mandated

)

Iv.

On Or about the same Gate, the Farmers Home Administratior

4 Submitted to the Cascade County Shnerif?’’s Department a notice of

, redemption

iv v

i r e ‘*

’ At or about the same time Tract [I was heing redeemed uy *ne

ha Farner Home Administration, Tract I was als being redeemed from

_ ae

led piaintifts by an assignee or successor in interest of the dentor

. Plaintiff? received a check in the appropriate amount from the

15 won

ed redemptioner for "Tract [." No legal cnallenge nas been initiated

6 |

16 , 48 to the redemption of “Tract [" and there were no subsequent

17 redemctions.

{

ig VY

19 s .

' mm Or ahout May 17, #%1990, the “Cascade County ne > ie

ag Ps

eu Department prepared and recorded a Sherif!’s Certificate of Payment

é: Price ¢ Real Property under Decree of Foreclosure TY sOCUMENT®

22 r tar *rhar ae Parm - He ‘ - . -

recitec nat -i@ Farmers Home AGminisetra®*.ior 4 sqger 2 .&

és United Utates of America, had tendered and paid tne amount of

pai ni !

24 $90,039.14, Which amount represented tne purchase price of “Tract

25 ‘+ ” e*ocertner di th ntereat by “he 7 rcrnater 9 4 ~¢ ee AA tar

* 79 » ~ss ~t+-€f D>, - oa pe ee “ose ,€ P rs “ &- ae

On or about May 17, 1990, the date the Farmers Home

Administration provided the Cascade County Sheriff with notice of

its intention to redeem the property, the same n tice was given to

Plaintiff by the Farmers Home Administration. That notice stated

that the property being redeemed by the Farmers Home Administration

was Tract II, the property Plaintiff had purchased for $85,000.00.

The May 17, 1990 notice to Plaintiff reflects that the notice of

redemption was also sent with that letter.

VIII.

The notice of redemption provided to the Cascade County

Sheriff’s Department by the Farmers Home Administration was not

recorded at the Cascade County Clerk and Recorder’s Department.

IX.

Sometime after May 17, 1990, but before June 8, 1990,

plaintiff contacted Cascade County Sheriff’s Office and had 4a

meeting with Deputy Sheriffs John Strandell and Richard Dunc

During this meeting, plaintiff was informed of the redemption, but

was told that the Cascade County Sheriff’s Department could not

provide legal advice.

xX.

On June 8, 1990, the plaintiff, through his counsel, notified

the Cascade County Sheriff’s Department generally that he was

contending that the redemption notice the Farmers Home

Administration was defective. The June 8, 1990 letter authored by

Gary Deschenes, counsel for plaintiff, indicated plainti

intention to protest both redemption of Tract I and Tract

‘

no wm

did not set forth the nature of the plaintiff’s objections to the

notice of redemption. The letter only generally alleged that both

of the redemptions were in violation of §25-13-807, M.C.A.

XI.

Plaintiff filed a petition for writ of Mandamus, Complaint for

Declaratory Judgment, and alleged violation of constitutional

rights for taking of property without due process of law, naming

the Cascade County Sheriff’s Department and Farmers Home

Administration as defendants.

XII.

On or about December 5, 1990, the Court heard plaintiff’s

petition for Writ of Mandamus. The plaintiff testified at the

hearing as did Susan Hensleigh from Farmers Home Administration.

Subsequent to that hearing, and or about December 20, 1990, the

Court entered comprehensive Findings of Fact, Conclusions of law

and Order denying plaintiff’s petition for Writ of Mandamus.

Subsequent to the December, 1990 order above-referred to,

parties proceeded with various discovery including depositions of

three Sheriff’s deputies, John Strandell, Richard Duncan, and James

Burnes, and the Sheriff of Cascade County. Plaintiff also depcsed

employees of Farmers Home Administration who were involved with the

redemption of "Tract II". Noth ng in these depositions which have

been reviewed by the Court revealed any conflict with the

underlying facts as set forth in this Court’s o

laintiff’s petition for writ of Mandamus entered in December of

™~

Ve)

The only contact by any members of the Cascade County

s office with plaintiff prior to the June 8th

correspondence from Deschenes and other than at the judicial sale

in May of 1989 occurred after the redemption was affected by

Farmers Home Administration. The only contacts then between

plaintiff and the Cascade County Sheriff’s Department were in an

effort to provide to plaintiff the U.S. Treasury check submitted by

Farmers Home Administration. During none of the contacts between

Cascade County Sheriff’s Department and plaintiff were there any

indications that the Sheriff’s Department did anything other than

attempt to appropriately provide to plaintiff the proceeds of the

redemption from Farmers Home Administration.

XV.

Following the December, 1990 hearing the Court directed the

Cascade County Sheriff’s Department to issue the Sheriff’s deed to

Farmers Home Administration. The Sheriff of Cascade County issued

the Sheriff’s deed pursuant to this order.

XVI.

Counsel for plaintiff herein represented one of the parties in

the underlying foreclosure action and in that capacity had received

in June of 1989 an affidavit from an employee of Farmers Home

Administration showing that the unpaid interest and principal owing

sia

to Farmers Home Administration under its mortgage in relation

"Tract II" was in excess of $400,000.00.

BASED upon the foregoing Findings of

cow

CONCL USIONS OF . AW

The United States of America, by and through its agent,

si)

Farmers Home Administration, was a party enti

property on May 17, 1990, under and pursuant to Montana statutes,

by virtue of a mortgage held by the Farmers Home Administration.

II.

The Cascade County Sheriff’s Department is statutorily

required to accept papers and documents relative to the redemption

process, and to prepare and execute a Sheriff’s Deed at the

u“

ie)

v8)

conclusion of the redemption period. The Sher

pursuant to the Court’s Order dated December 20, 1990, to issue the

Sheriff’s deed to Farmers Home Administration.

Itt.

Here, the Cascade County Sheriff’s Department received a

certified copy of the judgment and decree of foreclosure with the

notice of intention of Farmers Home Administration to redeem. [In

that judgment decree, the mortgage held by the Farmers Home

Administration relative to Tract II was set forth with sufficient

clarity and was identified appropriately by date and recording

information. The information provided in the judgment decree was

sufficient to allow any person to appropriately search the records

and obtain information relative to the mortgage. The documents

submitted by Farmers Home Administration provided the sheriff with

adequate evidence of its right to redeen.

Iv.

Cascade County Sheriff’s Department did not receive an

affidavit of an amount due upon the mortgage from the Farmers Home

Administration on May 17, 1990, and at no time thereafter. This

affidavit does not affect Farmers Home Administration’s ability to

redeem or propriety as a redeeming party, but is relevant only if

a subsequent redemption were attempted. Plaintiff had actual

knowledge of Farmers Home Administration redemption. sf «

subsequent redemption were attempted, there ~*s sufficient

information in the judgment and decree that accompanied the notice

of intention to redeem to allow any inquisitive party to obtain the

information that would be in an affidavit of amount due.

Vv.

The notice of redemption was presented six days prior to the

expiration of the redemption period. The notice provided by

plaintiff, by and through his counsel of record, of his objection

to the notice of redemption came after the redemption period

expired. Further, the notice of objection was vague, ambiguous and

set forth no specific grounds of objection. There is no evidence

that prior to the redemption period expiring plaintiff made any

effort to determine the amount actually due and owing to Farmers

Home Administration upon its mortgage. It is plainly apparent that

plaintiff’s objections demonstrate 4 preconceived desire to refuse

to accept tender. If plaintiff had pointed out his objections

Farmers Home Administration would have had time to remedy technical

deficiencies. If one fails to state his objections to a tender, he

is deemed to have waived then.

VI.

Redemption statutes are remedial in natur ana are to be

liberally construed. In the absence of prejudice to the other

parties, substantial compliance with the redemption statutes is

sufficient to effect a redemption. Plaintiff received the full

amount he was entitled to by the redemption. Plaintiff took no

action to effect a subsequent redemption, if he was a party

entitled to, and therefore has failed to show any prejudice.

VII.

Upon redemption, the redemptioner is subrogated to the rights

of the purchaser at the Sheriff sale which rights included the

right to demand and receive a sheriff’s deed to the premises if no

further redemption was had within 60 days. The redemption

transfers to the redemptioner all the right, title, and interest

acquired by the purchaser. Title vests upon receiving the

sheritf’s deed to the premises which includes title free from

encumbrances.

VIII.

The Cascade County Sheriff’s Department performed all of its

statutory duties and responsibilities in a reasonable, diligent and

prudent manner.

IX.

When demand was made by Farmers Home Administration upon the

Cascade County Sheriff’s Department for issuance of a Sheriff’s

Deed, the Cascade County Sheriff’s Department also had a demand

from the plaintiff to execute a Sheriff’s Deed to him. The Cascade

County Sherif?’s Department did nothing until ordered by

oO we

in December of 1990 to issue the deed to Farmers Home

Administration. When receipt of that order was obtained, the

Cascade County Sheriff’s Department appropriately issued its

Sheriff’s Deed to Farmers Home Administration as ordered to do so

by this Court.

Prior to the December, 1990 order of this Court requiring the

Cascade County Sheriff’s Departments to issue the deed to Farmers

Home Administration, Cascade County Sheriff’s Department had no

obligation to issue the deed to Plaintiff Walter Savoy.

XI.

The Cascade County Sheriff’s Department appropriate! ~vaited

for the outcome of the Petition for Writ of Mandamus in order to

determine which party was entitled to the Sheriff’s Deed.

xII.

Because Farmers Home Administration was a party entitled to

redeem and provided sufficient basis for any person to obtain

information concerning the amount due upon the mortgage held by

Farmers Home, plaintiff has not suffered any damages by Farmers

Home’s failure to provide the affidavit showing the amount due and

owing.

xIII.

Plaintiff was not damaged in any way as a result of any act or

omission on the party of Cascade County Sheriff’s Department or the

Farmers Home Administration.

BASED upon the foregoing Findings of Fact and Conclusions of

Law,the Court enters the following:

QRDER

l. There are no materiai and relevant facts at issue herein

and summary judgment is appropriate.

2. Based upon the undisputed material facts as presented to

the Court, the Cascade County Sheriff’s Department Motion for

Summary Judgment is well taken and should be granted in its

entirety.

a. That the Motion for Summary Judgment filed by United

States of America, by and through Farmers Home Administration, is

well taken an¢@ should be granted in its entirety.

4. That plaintiff’s Motion for Summary Judgment against

Cascade County Sheriff’s Department is hereby denied.

S. That plaintiff’s Motion for Summary Judgment against the

United States of America, by and through the Farmers Home

Administration, is hereby denied.

IT IS HEREBY ORDERED that the Motion for Summary Judgment

filed by Cascade County Sheriff’s Department shall be granted and

the Motion for Summary Judgment filed by United States of America,

by and through the Farmers Home Administration, be granted in their

entirety.

DATED this : = of December, 1993.

feb an mite Tere

District Court Judge

cc: Gary Deschenes

George Darragh

Nancy P. Cory

APPENDIX

EXHIBIT D

SS eee

IN THE SUPREME COURT

OF THE STATE OF MONTANA

WALTER H. SAVOY,

PLAINTIFF AND APPELLANT,

-Y$-

CASCADE COUNTY SHERIFF’S DEPARTMENT AND

UNITED STATES OF AMERICA, BY AND THROUGH THE

FARMER'S HOME ADMINISTRATATION, its agency,

DEFENDANTS AND RESPONDENT

GARY S$. DESCHENES

DESCHENES LAW OFFICE

SUITE 508, STRAIN BUILDING

GREAT FALLS, MT 59401

ATTORNEYS FOR PLAINTIFF AND APPELANT

GEORGE DARRAGH, JR.

ASSISTANT U.S. ATTORNEY

P.O. BOX 3447

GREAT FALLS, MT 59403

ATTORNEY FOR THE FARMER’S HOME ADMINISTRATION

NANCY CORY

UGRIN, ALEXANDER & ZADICK

P.O. BOX 1746

GREAT FALLS, MT 59403

ATTORNEY FOR CASCADE COUNTY SHERIFF’S OFFICE

VOLUME 1, PAGES 1 THROUGH 53

both parcels of land as Farmer’

redeem, but more importantly he didn’t just bargain

for that money plus the half percent interest per

month that the statute allows, what he bargained for

was the land. That’s what he’s prejudiced by,

that’s what he didn’t get, and that’s why we have

been here today.

This case has taken so long. Mr. Savoy is

very concerned about the land, that’s what he wants,

not the cash.

Farmer’s Home Administration, after being

told to follow the statutes, didn’t, and if you

don’t follow the law, don’t follow the steps,

substantial compliance doesn’t come into effect at

all, because you have to start compliance.

My briefs go into the various cases, aside

from Dupnik, basically I believe they all point out

they all support Mr. Savoy’s position. I don’t know

if you want me to go into those. I don’t think

there is a real argument. They speak clearly for

themselves. Montana cases that will talk about

strict compliance in Montana, those are what I would

like to take a look at.

In particular, out of the nine briefs, Your

Honor, I am sorry for the delay, there is a couple

uw)

ana;

Mont

CYATRIT

am |

™

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.