Arnold v. Gebhardt, 78-889
| Decision Date | 06 December 1979 |
| Docket Number | No. 78-889,78-889 |
| Citation | 43 Colo.App. 387,604 P.2d 1192 |
| Parties | Jimmie D. ARNOLD and Juanita Arnold, Plaintiffs-Appellees and Cross-Appellants, v. Richard G. GEBHARDT, Public Trustee of the County of Boulder, State of Colorado, Defendant-Appellee and Cross-Appellee, and Thomas Harvey Thompson, Jr. and Claudia Lee Thompson also known as Claudia L. Thompson, Defendants-Appellants and Cross-Appellees. . I |
| Court | Colorado Court of Appeals |
Newcomer & Douglass, William A. Ahlstrand, Boulder, for plaintiffs-appellees and cross-appellants.
Hutchinson, Black, Hill, Buchanan & Cook, Forrest E. Cook, Boulder, for defendant-appellee and cross-appellee.
Law Offices of William Pehr, David W. Pehr, Westminister, for defendants-appellants and cross-appellees.
Plaintiffs, Jimmie D. Arnold and Juanita Arnold, filed an action against the Public Trustee of Boulder County and Thomas H. Thompson and Claudia L. Thompson seeking to have the public trustee's foreclosure sale set aside or to have the period of time for redemption extended. The trial court entered a final judgment allowing plaintiffs additional time in which to redeem their property. The Thompsons appeal, contending, Inter alia, that the trial court made erroneous findings of fact and that the trial court erred in providing equitable relief after the expiration of the statutory redemption period. Plaintiffs cross-appeal against the public trustee. We affirm.
In 1975, the Arnolds executed a deed of trust on the subject property to secure payment of a promissory note to the United Bank of Broomfield. The property is used by the Arnolds to conduct an iron welding business from which they earn their livelihood. The Arnolds defaulted on the note, and the bank commenced a foreclosure proceeding with the public trustee's office in February 1978. The foreclosure sale was held on April 4, 1978, and the Thompsons submitted the highest bid for the property. At the time of the sale, the public trustee made an initial determination that a six-month redemption period was applicable to the property and the office file was marked accordingly.
In April 1978, the Arnolds employed a real estate agent and asked him to place their property on the market. In furtherance of that objective, the agent contacted the public trustee's office in early May 1978 and inquired as to the redemption period for the property in the foreclosure proceeding. A deputy public trustee advised the agent that the redemption period was 180 days and that the date for redemption was October 4, 1978. The agent informed the Arnolds of his phone conversation with the public trustee's office and advised them that they had until October 4, 1978, to redeem the property.
Around June 16, 1978, the public trustee, after consulting with his attorney, determined, contrary to his initial opinion, that the subject property was non-agricultural and that the 75-day redemption period as provided in § 38-39-102, C.R.S.1973, was applicable. On June 20, 1978, a public trustee's deed was issued to the Thompsons.
The Arnolds first learned that the public trustee's deed had been issued on June 23, 1978. On June 26, 1978, the Arnolds filed their complaint for equitable relief alleging that the six-month period of redemption was applicable because the property was agricultural and that they had relied upon the public trustee's statements to their agent that the redemption period was six months. They further alleged that the public trustee failed to give them proper notice of their redemptive rights, and prayed that the sale should be set aside for gross inadequacy of price.
A hearing on the Arnolds' motion for preliminary injunction was held. At the conclusion of the hearing, the parties agreed that the trial court should enter a final judgment on all issues except plaintiffs' claims for damages, because no additional evidence would be offered at a trial on plaintiffs' claim for a permanent injunction.
The trial court ruled that the 75-day redemption period was applicable to the property and dismissed plaintiffs' claims against the public trustee. The court further ruled that the plaintiffs had established a compelling case for the invocation of the court's equitable power to extend the redemption period and granted plaintiffs an additional 27 days in which to redeem the property by depositing the full price paid by the Thompsons plus all incidental costs and expenses into the registry of the court. The plaintiffs deposited the necessary sums within the time allotted, and, in a post-judgment order, the trial court ordered the Thompsons to convey title to the property to the plaintiffs. The court also dismissed without prejudice the plaintiffs' claim for damages.
The Thompsons'...
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