Davis Mfg. and Supply Co. v. Coonskin Properties, Inc.
| Decision Date | 28 January 1982 |
| Docket Number | No. 80CA0545,80CA0545 |
| Parties | The DAVIS MANUFACTURING AND SUPPLY COMPANY, a Colorado corporation, Plaintiff, v. COONSKIN PROPERTIES, INC., Defendant-Appellee, v. ALCOA CONSTRUCTION SYSTEMS, INC., The Bank of Telluride, David H. Hirsh, Michael D. Long, d/b/a Long Bros. Corp., United Construction of Durango, Inc., Robert D. Whitaker, d/b/a Montrose Drywall Company, Genevieve S. Jansky, Animas Aggregates, Inc., Martin Young, The First National Bank of Montrose, Colorado, B & D Electric, Inc., Jack Vickery, Architect and Contractor, Gingery Associates, Inc., Engineers, James Buck Associates, Engineers, and The Public Trustee of the County of San Miguel and the State of Colorado, Defendants, v. RETAserv CORPORATION, Foreclosure Purchaser-Appellant, v. Raymond MAYER, Intervenor-Appellant, v. BANCO URQUIJO, S. A., Applicant for Intervention-Appellee. . III |
| Court | Colorado Court of Appeals |
Woodrow, Roushar & Weaver, Frank J. Woodrow, Montrose, for defendant-appellee.
Fairfield & Woods, Patrick F. Kenney, Robert A. Holmes, Denver, for foreclosure purchaser-appellant.
Hamilton, Hamilton, Shand & McLachlan, P. C., E. B. Hamilton, Jr., R. Martin Rhodes, II, Durango, for intervenor-appellant.
Cashen, Cheney, Johnston, Adamson & Campbell, Thomas F. Cheney, Montrose, for applicant for intervention-appellee.
This action involves the execution sale of nonagricultural lands under order of court. RETAserv Corporation (RETAserv), the purchaser at the sale, and Raymond Mayer, the holder of a subsequent judgment lien, appeal the court's order extending the redemption period from 75 days to six months, thereby permitting Banco-Urquijo, S.A. (Banco), a subsequent judgment lienor, to redeem and to receive a sheriff's deed. Mayer also appeals the order allowing RETAserv, the holder of the certificate of purchase, to pay his judgment and thus extinguish Mayer's right to redeem from sale and have a sheriff's deed issued to him. We reverse.
This case is a consolidation of various actions to foreclose on a mortgage, two deeds of trust, and numerous mechanics' and judgment liens on a ski lodge located in Telluride, Colorado, titled in Coonskin Properties, Inc. (Coonskin). By stipulation between the parties to these original actions, the trial court issued a decree of foreclosure in which the county sheriff was directed to sell the property "in the same manner as prescribed by statute for the sale of land on execution" and to apply the net proceeds of sale to pay off the named creditors' claims, with any balance to be paid into the registry pending further order of court. The decree also provided that, following sale, the sheriff was to execute and deliver a certificate of purchase to the highest bidder and, "upon expiration of the period of redemption provided by law," was to deliver a deed to the holder of the certificate of purchase "unless the property is sooner redeemed." Most of the parties to the stipulation had orally agreed that Coonskin should be entitled to a six month redemption period.
The sale was held on October 31, 1979. The sheriff announced at the sale that a six month redemption period would apply. RETAserv and Mayer were the principal bidders. The sheriff delivered a certificate of purchase to RETAserv, the high bidder at $550,000. After deducting the expenses of sale and the disbursements to the various creditors then of record, the balance of over $316,000 was paid by court order to Coonskin.
On December 14, 1980, in its order approving the sale after a hearing, the court found that the property was not "agricultural real estate" within the meaning of § 38-39-102(3), C.R.S.1973, and that the oral agreement as to a six month redemption period was not binding on the purchaser, RETAserv. It then ruled that the proper redemption period was 75 days as specified in § 38-39-102(1), C.R.S.1973. Coonskin then filed a timely C.R.C.P. 59 motion directed to that order.
Subsequent to the sale but prior to the expiration of the 75 day redemption period, two additional judgments were entered against Coonskin and were duly recorded. On the 75th day, Mayer, the owner by assignment of one of these judgments, filed his notice of intent to redeem. See § 38-39-103(2), C.R.S.1973. Prior to 5 p. m. on that day, RETAserv paid to the clerk of the district court the principal amount of both judgments "in full satisfaction" of those judgments. Mayer refused the tender, and RETAserv petitioned the court for an order to issue a satisfaction of this judgment.
Meanwhile, within the period prescribed in § 38-39-103(1), C.R.S.1973, Mayer tendered to the sheriff the sum necessary to redeem. The sheriff, however, refused to issue a certificate of redemption, and the offered funds were withdrawn. Mayer then filed, that same day, his motion for order for redemption, asking the court to order the sheriff to execute and deliver to him a certificate of redemption and a sheriff's deed. In the motion, he stated that he was ready, willing, and able to pay the sums necessary to redeem to such parties as the court might designate.
On March 17, 1980, Banco moved to intervene, based on a complaint in conversion filed that date against Coonskin and others.
The various pending motions were heard, and, on April 4, 1980, the court issued its order in which it found that the property was worth "considerably more than the amount paid by RETAserv." Based on that fact, plus the oral agreement by most of the original parties to a six month redemption period, the announcement thereof at the sheriff's sale, "and the existence of other potential and substantial creditors who might benefit from the value of said property," the court concluded that Coonskin "and such other judgment creditors as may qualify" were entitled to a full six month redemption period from October 31, 1979. It then directed that RETAserv, as purchaser at the sale, or Coonskin, as owner, could pay and thereby satisfy the liens of any subsequent judgment creditors including Mayer. Finally, the order provided that in the event of redemption, RETAserv was to receive "all amounts paid, including interest as previously ordered by the court (12%), expenses of preserving the said property as are authorized by statute, as well as reasonable attorney's fees and costs expended by RETAserv in these proceedings." Banco's motion to intervene was denied.
On April 28, based on a stipulation by Coonskin, judgment was entered against Coonskin and others and in favor of Banco in the amount of approximately $1,200,000. The same day, Banco filed its notice of intent to redeem. Also on that day, RETAserv and Banco entered into a settlement agreement, which was approved by and made an order of the court. In this agreement, RETAserv acknowledged: (1) that Banco had the right to redeem from the foreclosure sale; (2) that it had received from Banco $645,872.57 in full payment of the cost of redemption; (3) that Banco was entitled to RETAserv's rights under the previous orders, including the right to pay off any and all other judgment creditors; (4) that RETAserv would surrender its certificate of purchase to the clerk of the court pending further order of court; and (5) that, at the conclusion of the redemption period, Banco would apply to the court for an order to issue sheriff's deed and RETAserv would not object thereto. The agreement further provided:
"Nothing herein shall be construed a waiver or relinquishment of any right of RETAserv Corp. to pursue its motion for new trial and any appeal thereof regarding the period of redemption herein."
On April 28 and 30, based on RETAserv's payment of $20,382.15 (the.$19,958.26 principal plus interest) into the registry, 1 the court ordered the clerk to satisfy Mayer's judgment and to pay this amount to Mayer. On May 9, on Banco's application, the six month redemption period having expired, the court authorized the sheriff to sign a certificate of redemption and a deed in favor of Banco. The deed was signed May 15.
RETAserv and Mayer both filed new trial motions directed to the April 4 order. Both motions were denied. RETAserv, in its motion and on appeal, claims the only error to have been extension of the redemption period to six months. Mayer takes the same position on extension of the redemption period, but also contends that the court erred (1) in holding that the purchaser at the sale, RETAserv, could pay Mayer's judgment and thus prevent redemption by him and (2) in the interest rate and other expenses allowed to RETAserv and Banco. Banco and Coonskin appear separately on this appeal, but take identical positions urging affirmance on all grounds.
RETAserv and Mayer contend that the court abused its discretion in extending the statutory redemption period from 75 days to six months. We agree.
The right to redeem from an execution sale is purely statutory. Paddack v. Staley, 13 Colo.App. 363, 58 P. 363 (1899). Sections 38-39-102(1) and 38-39-103, C.R.S.1973, specify that the owner of nonagricultural land may redeem within 75 days from date of sale and, if it does not redeem within that time, encumbrancers and lienors with liens subsequent to the lien upon which the sale was held may redeem in order of seniority within additional specified periods.
A court is not justified in invoking its equity powers to set aside a sale or extend...
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