Production Credit Ass'n of Mandan v. Obrigewitch, 890353

• Decision Date: 31 October 1990
• Docket Number: No. 890353,890353
• Citation: 462 N.W.2d 115
• Parties: PRODUCTION CREDIT ASSOCIATION OF MANDAN, a corporation, Plaintiff and Appellee, v. Joe M. OBRIGEWITCH, Jr., a/k/a Joe Obrigewitch, a/k/a Joe M. Obrigewitch, Magdelena Obrigewitch, a/k/a Magdelana Obrigewitch, a/k/a Magdalena Obrigewitch, a/k/a Magdelena E. Obrigewitch, a/k/a Magdelina Obrigewitch, 3J Living Trust, Common Title Bond & Trust, Joel Obrigewitch, Karla Obrigewitch, Karen Obrigewitch, Kurt Obrigewitch, Jennifer Obrigewitch, Amy Joe Obrigewitch, Jami Lee Obrigewitch, Dan Porter Motors, Inc., E.L. Price Bank, First National Bank of Belfield, and all other persons unknown, claiming any estate or interest in or lien or encumbrance upon, the real estate described in the Complaint, Defendants. and Joe M. OBRIGEWITCH, Jr., Magdelena Obrigewitch and Kurt Obrigewitch, Third-Party Plaintiffs, v. Robert WINGENBACH and Thomas Bair, Third-Party Defendants and Appellees, Joe M. Obrigewitch, Jr. and Kurt Obrigewitch, Defendants, Third-Party Plaintiffs and Appellants. Civ.
• Court: North Dakota Supreme Court

Page 115

462 N.W.2d 115

PRODUCTION CREDIT ASSOCIATION OF MANDAN, a corporation, Plaintiff and Appellee, v. Joe M. OBRIGEWITCH, Jr., a/k/a Joe Obrigewitch, a/k/a Joe M.

Obrigewitch, Magdelena Obrigewitch, a/k/a Magdelana

Obrigewitch, a/k/a Magdalena Obrigewitch, a/k/a Magdelena E.

Obrigewitch, a/k/a Magdelina Obrigewitch, 3J Living Trust,

Common Title Bond & Trust, Joel Obrigewitch, Karla

Obrigewitch, Karen Obrigewitch, Kurt Obrigewitch, Jennifer

Obrigewitch, Amy Joe Obrigewitch, Jami Lee Obrigewitch, Dan

Porter Motors, Inc., E.L. Price Bank, First National Bank of

Belfield, and all other persons unknown, claiming any estate

or interest in or lien or encumbrance upon, the real estate

described in the Complaint, Defendants.

and

Joe M. OBRIGEWITCH, Jr., Magdelena Obrigewitch and Kurt

Obrigewitch, Third-Party Plaintiffs, v. Robert WINGENBACH and Thomas Bair, Third-Party Defendants and Appellees, Joe M. Obrigewitch, Jr. and Kurt Obrigewitch, Defendants,

Third-Party Plaintiffs and Appellants.

Civ. No. 890353.

Supreme Court of North Dakota.

Oct. 31, 1990.

Thomas B. Bair, of Bair, Brown & Kautzmann, Mandan, for plaintiff and appellee Production Credit Ass'n of Mandan and for third-party defendants and appellees Robert Wingenbach and Thomas Bair.

Joe M. Obrigewitch, Jr., and Kurt Obrigewitch, Belfield, pro se.

VANDE WALLE, Justice.

Joe M. Obrigewitch, Jr., and Kurt Obrigewitch appealed from a default judgment entered in a real estate mortgage-foreclosure action brought by Production Credit Association of Mandan (PCA). We affirm.

On March 30, 1983, Joe and Magdelena executed a mortgage on land in Stark County as security for repayment of their debt with PCA. On June 5, 1983, PCA and Joe and Magdelena Obrigewitch executed a "Basic Loan Agreement" setting forth the terms and conditions applying to loans from PCA to Joe and Magdelena. On November 9, 1983, Joe and Magdelena granted PCA a security interest in personal property as additional security for their debt.

On October 14, 1987, Joe and Magdelena executed a "Supplementary Loan Agreement" in which they agreed that the outstanding principal balance on their debt was $94,530.33 and that that balance would be paid on or before February 1, 1988, unless the parties agreed in writing to different repayment terms. No subsequent agreement for different repayment terms was made, and Joe and Magdelena failed to pay the balance due.

PCA commenced this action in Stark County to foreclose on the real estate mortgage. ¹ 1] After the time for filing an answer had expired, PCA moved for a default judgment. The appellants engaged in several procedural maneuvers, including an attempted interlocutory appeal which was dismissed by this court. Subsequently, and pursuant to notice, a hearing on PCA's motion for default judgment was held in Billings County on September 11, 1989. After determining that the time for answering the complaint or to make a proper response had expired, the court granted default judgment.

The appellants contend that the hearing on the motion for default judgment in Billings County was improper because the foreclosure action was on land in Stark County. The appellants argue that the action was improperly venued.

Section 28-04-01, N.D.C.C., provides:

"Venue of actions relating to real property. An action for any one of the following causes must be brought in the county in which the subject matter of the action, or some part thereof, is situated, subject to the power of the court to change the place of trial upon agreement of counsel or in other cases provided by statute:

* * * * * *

"4. For the foreclosure of a mortgage upon real property." [Emphasis added].

Section 28-04-07(3), N.D.C.C., authorizes the court to change the place of trial ² when "the ends of justice would be promoted by the change."

This action was originally brought in Stark County in compliance with Section 28-04-01, N.D.C.C. PCA's counsel, the defendants, and the judge in this case were all scheduled for a hearing on the same day, September 11, 1989, in Billings County on a different case. The notice of hearing for this case was served by mail on July 31, 1989, and specifically stated that the hearing on pending motions would be in the Billings County courthouse on September 11, 1989. Although the appellants assert that they "strenuously" objected to the hearing in Billings County, this record does not reflect that the appellants made a prehearing objection to the venue in Billings County. Furthermore, we are unable to determine whether or not the appellants objected at the hearing because they did not order a transcript of the September 11, 1989 hearing in Billings County. The appellants have a duty under Rule 10, N.D.R.App.P., to order a transcript, and they must suffer the consequences if they do not. Dakota Bank & Trust Co. of Fargo v. Federal Land Bank, 437 N.W.2d 841 (N.D.1989). In the absence of any record of an objection by the appellants, we cannot say that the court abused its discretion in conducting this hearing in Billings County to take advantage of the presence of the parties and the judge and to promote the "ends of justice." See Stonewood Hotel v. Davis Development, 447 N.W.2d 286 (N.D.1989).

The appellants assert that the trial court erred in granting a foreclosure judgment because there was not a valid promissory note under the requirements of Section 41-03-04, N.D.C.C.

Section 41-03-04, N.D.C.C., describes the form for negotiable instruments under the Uniform Commercial Code. Although an obligation secured by a mortgage must be valid and supported by consideration, the obligation need not meet the exacting standards of negotiability under the Uniform Commercial Code. E.E.E., Inc. v. Hanson, 318 N.W.2d 101 (N.D.1982). Generally, any obligation capable of being reduced to money value may be secured by a mortgage. Id.

There is nothing in this record to indicate that the supplementary loan agreement was not valid and supported by consideration. We therefore conclude that the obligation secured by the mortgage was valid.

The appellants also contend that the provision for the payment of attorney fees in the Basic Loan Agreement ³ renders the agreement void and extinguishes the debt.

Section 28-26-04, N.D.C.C., provides:

"Attorney's fee in instrument void.--Any provision contained in any note,...