Kansas City Life Ins. Co. v. Bratsky Farms, 89-48
| Decision Date | 14 September 1989 |
| Docket Number | No. 89-48,89-48 |
| Parties | KANSAS CITY LIFE INSURANCE COMPANY, a corporation, Plaintiff and Respondent, v. BRATSKY FARMS, a Montana corporation, Defendant and Appellant. |
| Court | Montana Supreme Court |
L.R. Bretz, Billings, in Pro. Per., for defendant and appellant.
Byron H. Dunbar, U.S. Atty., Frank D. Meglen, Asst. U.S. Atty., Billings, for plaintiff and respondent.
L.R. Bretz appears pro per as the sole stockholder of Bratsky Farms, Inc. He appeals from an order of the District Court for the Thirteenth Judicial District, Yellowstone County, which denied his motion to vacate an October 31, 1988, order denying a motion to quash or vacate a writ of assistance. We affirm.
Bretz raises five issues relating to the validity of a foreclosure sale of property owned by Bratsky Farms, Inc.
Bratsky Farms, Inc., owned a ranch in Carbon County, Montana, on which Kansas City Life Insurance Company held a mortgage. The individuals named as defendants in this action held stock in Bratsky Farms, Inc., at the time this action was filed. On March 19, 1984, the District Court issued a Judgment and Decree of Foreclosure against the defendants. On the same date, the court issued an order of sale of the property. Also on that date, Bratsky Farms, Inc., filed for bankruptcy, resulting in an automatic stay of the foreclosure proceedings.
On February 26, 1985, after the stay was lifted by order of the bankruptcy court, the Carbon County Sheriff issued a certificate of sale to Kansas City Life Insurance Company. On February 20, 1986, the Farmers Home Administration (FmHA), a junior lienholder, redeemed the property by paying Kansas City Life Insurance Company the sum of $337,384.77. The Bratskys made application to lease the property from FmHA, but their application was rejected and their right to appeal that decision has been exhausted.
Bretz claims sole shareholder status in Bratsky Farms, Inc., beginning January 15, 1988. On June 1, 1988, FmHA filed a motion for an order for writ of assistance, asking for assistance to obtain immediate possession of the ranch, which Leo C. and Louise J. Bratsky still occupied. The writ was issued June 1, 1988. It commanded the sheriff of Carbon County to enter the property and eject the Bratskys.
Bretz filed a motion to quash the writ of assistance. The District Court denied the motion and Bretz appeals.
Was the sheriff's sale void because it was based on improper statutory notice?
Bretz argues that the publication notice of the February 26, 1985, sheriff's sale did not comply with § 25-13-701, MCA. He also argues that due process was denied him because actual notice of the sale was never given to Bratsky Farms, Inc., or to its trustee in bankruptcy.
Section 25-13-701, MCA, requires that notice of sale on execution be given
(c) in case of real property, by posting a similar notice, particularly describing the property, for 20 days in three public places in the county where the property is situated and also where the property is to be sold, which may be either at the courthouse or on the premises, and publishing a copy thereof once a week for the same period in some newspaper published in the county, if there be one, which notice shall be substantially as follows: ...
The affidavit of publication shows that notice was published on February 7, 14, and 21, 1985. The sheriff's sale took place on February 26, 1985. Bretz points out that only 19 days passed between the date of the first posted notice and the date of the sale.
The District Court cited Burton v. Kipp (1904), 30 Mont. 275, 76 P. 563. In that case, this Court held that the notice requirement in the antecedent to the above statute is directory only and that the failure to observe it does not avoid the sale as to a purchaser who is free from fault. Burton, 76 P. at 566. The Court also held that the remedy provided in what is now § 25-13-702, MCA, (that a sheriff selling without the required notice is liable for $500 to the aggrieved party) must be deemed exclusive.
Bretz cites several cases involving sheriff's sales of personal property, but those cases do not apply here, as this was a sale of real property. He also cites Sink v. Squire (Mont.1989), 769 P.2d 706, 46 St.Rep. 352, which discussed service of process, not notice of a sheriff's sale. We hold that Burton controls and that the provision of 19 days' notice instead of 20 days' notice does not invalidate the sheriff's sale.
Is the FmHA notice of redemption deficient?
Bretz argues that the FmHA notice of redemption is deficient in that it does not set forth exactly what was owed on the judgment, what the purchase price was, what interest had been paid, what taxes had been paid, or what the purchaser's lien debt was. He also points out that the notice erroneously gives the date of the foreclosure sale as April 24, 1984.
Section 25-13-806, MCA, sets forth the requirement for a notice of redemption:
Notice of redemption, liens, and taxes and assessments paid. Written notice of redemption must be given to the sheriff and a duplicate filed with the county clerk, and if any taxes or assessments are paid by the redemptioner or if he has or acquired any liens other than that upon which the redemption was made, notice thereof must in like manner be given to the sheriff and filed with the county clerk, and if such notice be not filed, the property may be redeemed without paying such tax, assessments, or lien.
The statute does not require that the notice include any of the information Bretz lists. The notice of redemption given in this case provided a description of the real property, the date of the judgment and decree of foreclosure, and the amount of the judgment. It gave the total amount paid in redemption and was signed by an agent of FmHA as redemptioner. It is true that the date given in the notice as the date of the foreclosure sale is incorrect; it is the date of the originally-scheduled sale,...
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Bank of Baker v. Mikelson Land Co., 98-297
... ... the District Court erred in relying on Kansas City Life Ins. Co. v. Bratsky Farms (1989), ... ...