Rocky Mountain Bank v. Stuart

• Citation: 928 P.2d 243,280 Mont. 74
• Decision Date: 10 December 1996
• Docket Number: No. 96-080,96-080
• Parties: ROCKY MOUNTAIN BANK, f/k/a Security State Bank, Plaintiff and Respondent, v. Douglas STUART, Defendant and Appellant.
• Court: United States State Supreme Court of Montana

Page 243

928 P.2d 243

280 Mont. 74

ROCKY MOUNTAIN BANK, f/k/a Security State Bank, Plaintiff and Respondent, v. Douglas STUART, Defendant and Appellant.

No. 96-080.

Supreme Court of Montana.

Submitted on Briefs Sept. 12, 1996.

Decided Dec. 10, 1996.

William A. Squires, Randall C. Lester; Matteucci, Falcon, Squires & Lester, Great Falls, for Defendant and Appellant.

Greg A. Luinstra; Luinstra & Semansky, Great Falls, for Plaintiff and Respondent.

GRAY, Justice.

Douglas Stuart (Stuart) appeals from the judgment of possession entered by the Seventeenth Judicial District Court, Blaine County, on its order granting the motion for summary judgment filed by Rocky Mountain Bank, f/k/a Security State Bank (Bank), and from orders denying his motion to alter or amend and amending the judgment of possession. We affirm.

We address the following issues on appeal:

1. Did the District Court err in granting summary judgment to the Bank based on its conclusion that the nonjudicial foreclosure sale under the Small Tract Financing Act of Montana was properly conducted?

2. Did the District Court err in granting summary judgment to the Bank based on its conclusion that Stuart was not entitled to notice to vacate the trust property after the nonjudicial foreclosure sale under the Small Tract Financing Act of Montana?

FACTS AND PROCEDURAL BACKGROUND

The following facts are undisputed. On July 28, 1979, Stuart executed a trust indenture covering residential property (trust property) in Blaine County, Montana. The trust indenture, which conveyed the trust property to a trustee and named the Bank as beneficiary, secured Stuart's obligation to the Bank in the principal amount of $80,000. The trust indenture was modified in 1991 and rerecorded.

Stuart subsequently defaulted on his obligation to the Bank and a successor trustee (trustee) began nonjudicial foreclosure proceedings on the trust property under the Small Tract Financing Act of Montana (STFA). The trustee notified Stuart and his counsel of the foreclosure proceedings and the date of the foreclosure sale. At the time of the sale, Stuart owed the Bank $97,051.63 in principal and interest; he also owed delinquent taxes on the trust property in excess of $15,500.

The Bank was the only bidder at the foreclosure sale held in April of 1995. It made a $69,900 "credit bid," which the trustee accepted over Stuart's objection. The trustee then executed and recorded a trustee's deed conveying the trust property to the Bank.

Stuart remained in possession of the trust property during the foreclosure proceedings. The Bank did not send him a notice to vacate the trust property after the foreclosure sale, and he continues to refuse to relinquish possession of the trust property to the Bank.

On May 18, 1995, the Bank filed its complaint for possession of the trust property pursuant to § 71-1-319, MCA, and for attorney fees and costs incurred in the action for possession. In answering the Bank's complaint, Stuart argued that the foreclosure sale was invalid because it was not a cash sale as required by law; the Bank did not follow statutory procedures to obtain possession of the trust property after the foreclosure sale; and the Bank was not entitled to attorney fees in the action for possession.

The Bank moved for summary judgment, contending that its so-called "credit bid," under which it applied the amount bid against the outstanding debt owed by Stuart, complied with the statutory requirements for a nonjudicial STFA foreclosure sale and that Stuart was not entitled to notice to vacate after the sale. Stuart filed a cross-motion for summary judgment. He did not dispute that the Bank applied the bid amount against his outstanding debt; he claimed, instead, that the foreclosure sale was improperly conducted because the Bank did not pay the trustee in cash. Alternatively, Stuart argued that the Bank's complaint for possession was premature because § 70-27-104, MCA, entitled him to post-sale notice to vacate and the Bank did not give such notice; therefore, according to Stuart, the Bank's complaint should be dismissed.

The District Court granted the Bank's motion for summary judgment on the basis of the parties' stipulated facts and briefs. In addition to its conclusions that the foreclosure sale was properly conducted and Stuart was not entitled to notice to vacate thereafter, the court determined that the Bank was entitled to reasonable costs and attorney fees and assistance from the Blaine County Sheriff (Sheriff) in obtaining possession. The Bank subsequently filed its memorandum of costs as directed by the District Court.

Stuart moved to alter or amend the summary judgment order and for a stay of execution pending the District Court's decision on that motion. The District Court entered a judgment of possession in favor of the Bank and subsequently granted Stuart's motion for stay of execution. Later, the court denied Stuart's motion to alter or amend and lifted the stay, and the Bank filed its affidavit of attorney fees incurred in the action.

In response to a motion for clarification filed on behalf of the Sheriff, the District Court amended its judgment of possession by deleting the order of assistance until the Bank made a demand for possession and Stuart had an opportunity to respond. Stuart subsequently refused to relinquish possession to the Bank and the Bank applied for a writ of assistance. Stuart appealed before the District Court could rule on the Bank's application for a writ of assistance or hold a hearing to determine the amount of attorney fees to which the Bank is entitled.

STANDARD OF REVIEW

Summary judgment is proper when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. We review a district court's grant of summary judgment de novo, applying the same Rule 56(c), M.R.Civ.P., criteria used by that court. Jarrett v. Valley Park, Inc. (1996), 277 Mont. 333, 922 P.2d 485, 487 (citation omitted). Ordinarily, such a review requires that we first determine whether the moving party met its burden of establishing both the absence of genuine issues of material fact and entitlement to judgment as a matter of law. Jarrett, 922 P.2d at 487.

In this case, however, the parties agreed on the material facts and, via their cross-motions for summary judgment, each party asserted entitlement to judgment as a matter of law. The District Court having granted the Bank's motion for summary judgment, we need only determine whether it was correct in concluding that the nonjudicial foreclosure sale was properly conducted and that Stuart was not entitled to notice to vacate the trust property.

DISCUSSION

1. Did the District Court err in granting summary judgment to the Bank based on its conclusion that the nonjudicial foreclosure sale under the STFA was properly conducted?

Nonjudicial STFA foreclosure sale procedures and requirements are governed by statute in Montana. The STFA provides, in relevant part, that "[t]he purchaser at the [foreclosure] sale shall pay the price bid in cash...." Section 71-1-315(4), MCA. The Bank maintains that the STFA permitted it, as the trust indenture beneficiary, to pay the price bid by applying the amount of its bid to Stuart's outstanding indebtedness. Stuart, on the other hand, contends that the foreclosure sale was not properly conducted because the Bank did not pay cash for the trust property as required by the STFA. He contends that the plain language of the statute requires that foreclosure sales be conducted only on cash bids.

We have not previously interpreted the phrase "shall pay the price bid in cash" contained in § 71-1-315(4), MCA. In interpreting a statute, we look first to the plain meaning of the words it contains. Werre v. David (1996), 275 Mont. 376, 385, 913 P.2d 625, 631 (citing Clarke v. Massey (1995), 271 Mont. 412, 416, 897 P.2d 1085, 1088); Gulbrandson v. Carey (1995), 272 Mont. 494, 500, 901 P.2d 573, 577. Where the language is clear and unambiguous, the statute speaks for itself and we will not resort to other means of interpretation. Werre, 913 P.2d at 631 (citing Clarke, 897 P.2d at 1088). In this regard, words used by the legislature must be given their usual and ordinary meaning. Werre, 913 P.2d at 631.

The proper interpretation of the word "cash," undefined by the legislature in enacting the STFA, is determinative of whether the nonjudicial foreclosure sale at issue here complied with § 71-1-315(4), MCA, and we previously have determined the ordinary meaning of that word. In Sidwell v. The New Mine Sapphire Syndicate (1956), 130 Mont. 189, 196, 297 P.2d 299, 302, we discussed the definition of "cash" in the context of an agreement for the sale of mining claims. Under the terms of the agreement, the plaintiff had agreed to deposit a sum of money in cash to the defendant's credit at a local bank immediately upon ratification of the agreement by the defendant's stockholders. Sidwell, 297 P.2d at 299-300. The plaintiff deposited a substantial sum of money, but not the entire amount required, to the defendant's credit at the bank after the agreement was ratified and then sued for specific performance. Sidwell, 297 P.2d at 302.

In addressing whether the plaintiff's deposit of less than the stipulated amount of cash constituted compliance with the agreement, we discussed the concepts of cash and credit. " 'With reference to the terms or time of payment, "cash" has been defined as meaning immediate payment; money paid down; money or its equivalent paid immediately or promptly after purchasing.' " Sidwell, 297 P.2d at 302 (quoting 14 C.J.S. Cash, p. 16) (citations omitted). Courts generally define cash as the antonym of credit. Sidwell, 297 P.2d at 302 (citation omitted).

Applying this ordinary meaning of the word, "cash"--as used in § 71-1-315(4), MCA--means money or its equivalent paid immediately or promptly after the purchase....