Bawden and Associates v. Smith

• Decision Date: 05 May 1982
• Docket Number: No. 17682,17682
• Citation: 646 P.2d 711
• Parties: BAWDEN AND ASSOCIATES and Dean Bawden, Plaintiffs and Respondents, v. Alvin R. SMITH and Sandra Smith, Defendants and Appellants.
• Court: Utah Supreme Court

Page 711

646 P.2d 711

BAWDEN AND ASSOCIATES and Dean Bawden, Plaintiffs and Respondents, v. Alvin R. SMITH and Sandra Smith, Defendants and Appellants.

No. 17682.

Supreme Court of Utah.

May 5, 1982.

Alvin R. Smith, pro se.

Thomas N. Crowther, Parsons & Crowther, South Jordon, for plaintiffs and respondents.

DURHAM, Justice:

Alvin Smith appeals an order denying his motion to vacate a sheriff's sale and set aside a deficiency judgment.

On March 2, 1979, defendants and appellant, Alvin and Sandra Smith (hereafter "Smith"), granted plaintiff and respondent, Bawden and Associates (hereafter "Bawden"), a mortgage on a .4326 undivided interest in real property (hereafter "Parcel 1") to secure Smith's promissory note in the amount of $12,500. On March 20, 1979, Smith granted Bawden another mortgage on the "Glenmoor Estates Property" (hereafter "Parcel 2") to secure Smith's second promissory note in the amount of $10,000.

Both mortgages were foreclosed in the same suit, with default judgment in a combined total of $26,418.29 being entered for Bawden on January 8, 1980. The default judgment was appealed to this Court and affirmed on the issue of the validity of the service of process. Bawden and Associates v. Smith, Utah, 624 P.2d 676 (1981).

Pursuant to the district court's Order of Sale, the sheriff conducted a foreclosure sale on May 27, 1980. Bawden bid $15,000 the only bid. In the return of the Order of Sale, the sheriff reported partial satisfaction of the $26,418.29 judgment by the $15,000 bid and an unsatisfied deficiency of $11,418.29. On September 29, 1980, a Deficiency Judgment in that amount plus interest and attorney's fees was entered against Smith. Smith moved to have it set aside, claiming that the sheriff's sale was invalid because both parcels of real estate were offered and sold as a unit rather than separately as required by the Utah Rules of Civil Procedure.

Rule 69(e)(3), Utah R.Civ.P., governing foreclosure sales, requires that "when the sale is of real property, consisting of several known lots or parcels, they must be sold separately." The parties agree that Rule 69(e)(3) applies and that only one bid, the $15,000 bid by Bawden, was offered at the foreclosure sale. The validity of the sale, therefore, depends on whether the single bid was for both parcels offered improperly as a unit, as alleged by Smith, or whether Bawden's bid was a proper offer only for Parcel 1, as claimed by Bawden. The record contains conflicting evidence on this factual question. The sheriff's return on the Order of Sale shows the $15,000 bid as being applied against the combined amounts due on both mortgages. The Deficiency Judgment, dated September 29, 1980, refers to the sale of real property described in the Order of Sale (which contains descriptions of both parcels) for the sum of $15,000, without any reference to an unsold parcel. The Supplemental Record, however, contains a certified copy of a Certificate of Sale executed by the sheriff showing the sale of Parcel 1 only.

Appellant argues that it is improper for this Court to consider the Supplemental Record for purposes of determining if the trial court's ruling was supported by competent evidence. This argument confuses evidence in a "supplemental record" with new evidence offered first on appeal.

Rule 75(h), Utah R.Civ.P., provides for modification of the record by the district court when the record is inaccurate, incomplete or erroneous.

... (I)f any difference arises as to whether the record truly discloses what occurred in the district court, the difference shall be submitted to and settled by that court and the record made to conform to the truth. If anything material to either party is omitted from the record on appeal by error or accident or is misstated therein, the parties by stipulation, or the district court, either before or after the record is transmitted to the Supreme Court, or the Supreme Court, on a proper suggestion or of its own initiative, may direct that the omission or misstatement shall be corrected, and if necessary that a supplemental record shall be certified and transmitted by the clerk of the district court.

The transmittal of a supplemental record requires a determination by the district court that proposed modifications of the record will serve to conform the record to an accurate account of the proceedings. The district court determined, after a hearing, that transmittal of the Certificate of Sale was necessary to clarify the record. The application of Rule 75(h), as a "remedial action to present a complete and accurate record of proceedings below," Boskovich v. Utah Construction Co., 123 Utah 387, 259 P.2d 885, 888 (1953), was appropriate in this case. The authorities cited by appellant on this point are distinguishable on their facts. ¹ They all involved refusals by this Court to consider depositions on appeal which were never before the trial court nor were offered to supplement the record under Rule 75(h). Consequently, the district courts had made no determination that they were necessary to conform the record to the proceedings actually before them. We therefore hold, on the basis of the Certificate of Sale in the Supplemental Record, that the trial court's finding that Parcel 1 was offered and sold separately as required by Rule 69(e)(3) is supported by competent evidence and should not be overturned.

A valid foreclosure sale, as occurred here with Parcel 1, results in the satisfaction of a specific mortgage debt from the sale proceeds attributable to the encumbered property. Section 78-37-1 et seq., U.C.A., 1953; 59 C.J.S. Mortgages § 605 (1949). If multiple parcels of realty are offered at a single foreclosure sale, the proceeds from each parcel are...