Federal Land Bank of St. Paul v. Ziebarth

• Decision Date: 18 July 1994
• Docket Number: No. 930276,930276
• Parties: The FEDERAL LAND BANK OF SAINT PAUL, Plaintiff and Appellee, v. Carol A. ZIEBARTH, Defendant and Appellant. Silver Ziebarth, also known as Sylvester A. Ziebarth; Rocky Mountain Investment Properties, Inc.; Dakota Western Bank; United States of America; Leslie L. Wade; Idella S. Wade; and William W. Binek, individually and doing business as Binek Law Office, Defendants. Civ.
• Court: North Dakota Supreme Court

Page 51

520 N.W.2d 51

The FEDERAL LAND BANK OF SAINT PAUL, Plaintiff and Appellee, v. Carol A. ZIEBARTH, Defendant and Appellant Silver Ziebarth, also known as Sylvester A. Ziebarth; Rocky Mountain Investment Properties, Inc.; Dakota Western Bank United States of America; Leslie L. Wade; Idella S. Wade and William W. Binek, individually and doing business as Binek Law Office, Defendants.

Civ. No. 930276.

Supreme Court of North Dakota.

July 18, 1994.

John L. Sherman (argued), of Mackoff, Kellogg, Kirby & Kloster, PC, Dickinson, for plaintiff and appellee.

Carol A. Ziebarth (present, but did not argue), and Sylvester A. "Silver" Ziebarth, pro se.

MESCHKE, Justice.

Carol Ziebarth appeals from a supplemental judgment denying her motion to amend a prior judgment and assessing costs and attorney's fees, and from an order imposing sanctions limiting her ability to further litigate the foreclosure of her property. We modify the order imposing sanctions and otherwise affirm.

Ziebarth and her husband defaulted on loans from the Federal Land Bank of St. Paul. ¹ In 1987, the Bank sued to foreclose on mortgages of real property securing those loans. Following a series of bankruptcy filings, dismissals, and appeals, we summarily affirmed judgment of foreclosure against Ziebarth in Farm Credit Bank of St. Paul v. Ziebarth, 458 N.W.2d 513 (N.D.1990). We then affirmed a judgment evicting Ziebarth from the property. Farm Credit Bank of St. Paul v. Ziebarth, 485 N.W.2d 788 (N.D.), cert. denied, --- U.S. ----, 113 S.Ct. 501, 121 L.Ed.2d 437 (1992). The long and tortuous history of this litigation, and related cases, is set out in greater detail in Ziebarth v. Farm Credit Bank of St. Paul, 494 N.W.2d 145 (N.D.1992). See also Binek v. Ziebarth, 456 N.W.2d 515 (N.D.1990). Ziebarth has continued to attempt to relitigate these matters in a variety of state and federal forums.

This appeal involves Ziebarth's motion to amend the judgment of foreclosure, based upon claims that have been previously litigated. The Bank responded to the motion and requested an injunction restricting Ziebarth and her husband from further litigating questions previously decided about the land, the foreclosure, and the eviction. The trial court entered a supplemental judgment denying Ziebarth's motion to amend the judgment, and entered an order imposing sanctions that prohibited Ziebarth and her husband from further litigating issues related to the land, the foreclosure, and the eviction without first receiving permission from the trial court and paying prior judgments assessing costs and attorney's fees for frivolous litigation. Ziebarth appealed.

I. RELITIGATED ISSUES

Ziebarth again attempts to rehash issues that we have before decided adversely to her. One last time, we will for Ziebarth's benefit reiterate these well-settled rules of law that are res judicata in this case.

A. Foreign Corporation

We earlier rejected Ziebarth's argument that the Bank was not entitled to maintain an action in state court because it was a "foreign corporation" required to register with the Secretary of State under NDCC 10-22-19. Farm Credit Bank of St. Paul v. Ziebarth, 485 N.W.2d at 792. We have consistently rejected that argument in a series of challenges to the Bank's authority to sue in courts of this State. See, e.g., Farm Credit Bank of St. Paul v. Brakke, 483 N.W.2d 167, 169 (N.D.1992); Farm Credit Bank of St. Paul v. Rub, 481 N.W.2d 451, 457-458 (N.D.1992); Federal Land Bank of St. Paul v. Brakke, 447 N.W.2d 329, 330 (N.D.1989); Federal Land Bank of Saint Paul v. Anderson, 401 N.W.2d 709, 713 (N.D.1987); Federal Land Bank of Saint Paul v. Gefroh, 390 N.W.2d 46, 47 (N.D.1986). Furthermore, NDCC 10-22-03(2) exempts corporations engaged in banking or insurance from the registration requirements of NDCC 10-22-19. See Rott v. Jaeger, 510 N.W.2d 651, 653-654 (N.D.1994). The Bank was not required to register as a foreign corporation as a prerequisite to bringing the foreclosure action.

B. Homestead Exemption

Ziebarth asserts that Article XI, Section 22 of the North Dakota Constitution prohibits the forced sale of a homestead to satisfy a mortgage. We have rejected this argument in a series of cases, including an earlier appeal by Ziebarth. See Lake Region Credit Union v. Crystal Pure Water, Inc., 502 N.W.2d 524, 526-527 (N.D.1993); Farm Credit Bank of St. Paul v. Ziebarth, 485 N.W.2d at 792; Farm Credit Bank of St. Paul v. Brakke, 483 N.W.2d at 169-170; Farm Credit Bank of St. Paul v. Rub, 481 N.W.2d at 459; State ex rel. Board of University and School Lands v. Bladow, 462 N.W.2d 453, 455 (N.D.1990); Farm Credit Bank of St. Paul v. Stedman, 449 N.W.2d 562, 565-566 (N.D.1989); Podoll v. Brady, 423 N.W.2d 151, 153 (N.D.1988); Federal Land Bank of Saint Paul v. Gefroh, 418 N.W.2d 602, 603-605 (N.D.1988). The foreclosure and sale of Ziebarth's homestead was not unconstitutional.

C. Bankruptcy Stay

Ziebarth asserts that the district court was without jurisdiction to enter summary judgment in July 1989 because the action was stayed by Ziebarth's pending appeal from dismissal of her bankruptcy filing. This question was raised in Ziebarth's original appeal from the judgment of foreclosure that we summarily affirmed in 1990. See Farm Credit Bank of St. Paul v. Ziebarth, 458 N.W.2d 513 (N.D.1990). We will address this issue to finally put it to rest.

Although the record on this appeal does not include all of the relevant documents from Ziebarth's bankruptcy, the procedural and chronological history of her bankruptcy case is outlined in Binek v. Ziebarth, 456 N.W.2d at 516-517. The Bank brought this foreclosure action in 1987. On January 13, 1988, Ziebarth filed a bankruptcy petition, and all further proceedings in this action were stayed pursuant to 11 U.S.C. Sec. 362(a). Ziebarth's bankruptcy petition was dismissed on April 5, 1989, and she appealed to federal district court. After the April 5 bankruptcy dismissal, the Bank served an amended summons and complaint in this action, and summary judgment was entered on July 12, 1989. The next day, July 13, the bankruptcy court issued a stay pending Ziebarth's appeal of the dismissal.

Ziebarth argues that the filing of the notice of appeal from dismissal of her bankruptcy petition continued the automatic stay under 11 U.S.C. Sec. 362(a) and divested the state district court of jurisdiction over the foreclosure case. However, it is well settled that the automatic stay terminates upon dismissal of the bankruptcy petition [11 U.S.C. Sec. 362(c)(2)(B) ], and is not automatically revived by the filing of a notice of appeal from the dismissal. See, e.g., In re March, 988 F.2d 498, 499 (4th Cir.1993); In re Lashley, 825 F.2d 362, 364 (11th Cir.1987); In re Regency Woods Apartments, Ltd., 686 F.2d 899, 902-903 (11th Cir.1982); In re Weston, 110 B.R. 452, 456-457 (E.D.Cal.1989); In re Weathersfield Farms, Inc., 34 B.R. 435, 439 (Bankr.D.Vt.1983); Olson v. Commissioner of Internal Revenue, 86 T.C. 1314, 1318, 1986 WL 22148 (1986). See also F.R.B.P. 8005; Collier, Bankruptcy pp 8005.03, 8005.04 (1994). Furthermore, as In re Lashley, 825 F.2d at 364, reflects, the bankruptcy court's July 13 order of stay does not apply retroactively to stay the state court proceedings between April 5 and July 13.

We conclude that the district court had jurisdiction when the summary judgment was entered on July 12, 1989.

II. AUTHORITY TO ENTER "AMENDED" SUMMARY JUDGMENT

Ziebarth asserts that the July 12, 1989 summary judgment was not entered pursuant to the North Dakota Rules of Civil Procedure, because the Rules do not expressly provide for entry of an "amended summary judgment." Ziebarth claims that amendment of a judgment can only be done in accordance with NDRCivP 59 (New Trial) or NDRCivP 60 (Relief from Judgment).

We need not address the merits of Ziebarth's claim, because the July 12, 1989 judgment was not an amended judgment, but was in fact the first judgment entered in this case. Ziebarth's reference to a prior judgment in June, and entry of an amended judgment in July, clearly refers to the court's orders for judgment. The court's first "Order Granting Summary Judgment" was dated June 21, 1989. Ziebarth then made a motion to set aside the summary judgment that had not yet been entered. On July 7, 1989, the court issued an "Amended Order for Summary Judgment and Order Denying Motion to Set Aside Summary Judgment."

The judgment entered on July 12, 1989, was not an "amended" judgment, but was the original judgment of foreclosure. The court had the authority to enter an amended order for judgment any time before judgment was entered. See NDRCivP 54(b). Ziebarth's argument is without merit.

III. EX PARTE ORDER GRANTING EXTENSION OF TIME

Ziebarth asserts that the court erred in refusing to strike as untimely the Bank's response to her motion to amend judgment.

On April 12, 1993, a supplemental judgment was entered assessing costs and attorney's fees against Ziebarth for filing frivolous motions in this case. Ziebarth filed a motion to amend that supplemental judgment. Counsel for the Bank telephoned the trial court judge, requesting additional time to respond to Ziebarth's motion, and the judge orally granted a ten-day extension. Counsel for the Bank wrote a letter confirming that telephone conversation, but inadvertently failed to send a copy to Ziebarth. Ziebarth's motion to strike the Bank's return as untimely was denied by the trial court.

Under NDRCivP 6(b)(1), the court has the discretion to enlarge time limits without notice if the request is made before expiration of the original period:

(b) Enlargement. When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of...