First Western Bank v. Wickman, 930188
Decision Date | 01 March 1994 |
Docket Number | No. 930188,930188 |
Citation | 513 N.W.2d 62 |
Parties | FIRST WESTERN BANK, Plaintiff and Appellee, v. Alice WICKMAN, Defendant and Appellant. Civ |
Court | North Dakota Supreme Court |
James J. Coles of Snyder Coles Lawyers, Bismarck, for defendant and appellant.
Richard P. Olson of Olson, Burns and Lee, Minot, for plaintiff and appellee.
"Clerical mistakes" in judgments may be corrected under Rule 60(a), N.D.R.Civ.P. This case construes the term, clerical mistake.
In this foreclosure action, the defendant, Alice Wickman, claims the amount of the judgment is a "clerical mistake" because it is inconsistent with the bank's notice before foreclosure. The district court denied Wickman's Motion to Correct Clerical Error. We affirm. Rule 60(a) is for correcting errors due to oversight or omission and is not a substitute for direct appeal on substantive matters of fact or law.
First Western Bank lent Alice Wickman $600,000. To secure payment, First Western acquired a mortgage on Wickman's real property located in Ward County, North Dakota. Wickman defaulted and First Western began a foreclosure action. As required by N.D.C.C. Sec. 32-19-20, First Western served Wickman with a notice before foreclosure. The notice listed Wickman as owing $468,947.47 in principal, and $63,693.19 in interest.
First Western's complaint seeking foreclosure used the same principal amount as the notice, but listed $66,583.69 as outstanding accrued interest. The complaint sought judgment "[d]etermining and adjudging the amount due the Plaintiff under the terms and conditions of said note and mortgage, including principal, interest, advance for taxes if any, and costs and disbursements of the action."
A court trial was held on January 21, 1992. First Western called only one witness, Warren Sandness, Vice President of First Western Bank. Relying on several exhibits, Sandness testified Wickman owed $468,947.47 in outstanding principal on her loan. Sandness testified the total interest due on the loan, as of the day of trial, was $135,902.46, for a total amount owing of $604,849.93. Through cross-examination, Wickman attempted to dispute Sandnesses' computations, but did not produce her own evidence.
The district court, in its memorandum opinion ordering judgment of foreclosure, found, in part:
1
In its findings of fact, conclusions of law, and order for judgment, the district court found:
"That the amounts due and owing on said note are as follows: due on principal of note $468,947.47; interest due as of January 21, 1992, $135,902.46; for a total due on January 21, 1992, of $604,849.93, with further interest accruing after January 21, 1992, at the rate of $96.36 per day."
Judgment in favor of First Western was entered on February 6, 1992. Notice of entry of judgment was served on Wickman on February 10, 1992. Wickman did not appeal from the judgment. A sheriff's sale was held on April 1, 1992. At the sale, the property was sold for $600,000 to First Western. The sale was confirmed by order of the court on April 1, 1992.
On March 5, 1993, 28 days before the expiration of the redemption period, and over one year after notice of entry of judgment, Wickman moved to correct a clerical error in the judgment. Wickman argued the judgment must be in error because the interest amount in the judgment was different from the figure in the notice before foreclosure and the complaint.
First Western argued the notice before foreclosure and the complaint omitted some of the interest due, and the judgment reflected the true amount owing.
In its order denying Wickman's motion, the district court, concluded:
On appeal, Wickman concentrates her argument on the contention that, in North Dakota, a judgment is void or voidable to the extent it exceeds the face amount on the notice before foreclosure. Although novel, Wickman's argument is irrelevant.
Rule 60(a), N.D.R.Civ.P., provides:
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