Sally N. Jones FITCH, Appellant (Defendant), v. BUFFALO FEDERAL SAVINGS AND LOAN ASSOCIATION, a corporation organized and existing under the laws of the United States of America, Appellee (Plaintiff)
No. 87-227
Supreme Court of Wyoming
March 25, 1988
751 P.2d 1309
[REDACTED] The victim also testified that when she returned to her car after making the telephone call, the man in the phone booth, appellant, appeared at her car door. Appellant then pushed his way into her car. As he did this, the victim screamed and bit appellant‘s hand. In retaliation, appellant bit the victim on the nose. Once inside the car, the two struggled over the car keys. When asked what he was planning to do, appellant replied, “*** Shut up. I will stab you. Shut up or I will hit you ***,” and kept pushing on the victim. The victim testified that at that point:
“I knew that he was stronger than I was, and it was like he had his hands in front, and there was a possibility that he had a knife somewhere. I wasn‘t about to question him at this time to show me the knife or to display it. I was really scared. I was frightened for my life at this point. He tried to drive away. He said he would stab me. I was very upset and trying to collect my thoughts, I guess, at the same time for survival. ***” (Emphasis added.)
Appellant‘s actions clearly constituted physical force reasonably calculated to cause the victim‘s submission. Further, appellant threatened the victim with death or serious bodily injury if she did not cooperate by indicating that he would stab or hit her. Finally, based on the victim‘s testimony quoted above, it is clear that the victim was in fear of her life, and she reasonably believed that appellant had the present ability to execute his threats. We do not believe there was any deficiency in the evidence in this respect. The evidence proved that the victim was overcome by superior strength and that resistance on her part would have been futile. Each element of the charged crime was proven beyond a reasonable doubt in the mind of the jury such that it could find appellant guilty.
Despite this, appellant maintains that he was not the perpetrator of the crime. Appellant concedes that he made a sexual remark to the victim as she approached the telephone booth, but contends that after making the statement he left the area. Clear evidence to the contrary was before the jury. The victim gave a written description of appellant to the investigating officers the evening she was assaulted. She later picked appellant‘s picture out of a photo array and made an in-court identification of appellant, testifying that her memory of the perpetrator‘s face was very strong in her mind. The evidence at trial was sufficient to support appellant‘s conviction.
Affirmed.
James P. Castberg, Cheyenne, for appellant.
John R. Perry of Goddard, Perry & Vogel, Buffalo, for appellee.
Before BROWN, C.J., and THOMAS, CARDINE, URBIGKIT and MACY, JJ.
Appellant Sally Fitch challenges an order granting summary judgment in favor of appellee Buffalo Federal Savings and Loan Association. Appellant defaulted on a promissory note, and appellee foreclosed on the property securing that debt. Foreclosure was by advertisement and sale under a power of sale clause in the mortgage. The proceeds of the sale were applied to the debt and appellee sued appellant for the deficiency. The trial court granted appellee summary judgment on that suit. Appellant presents two issues in her appeal:
“I. There is no statutory authority or judicial precedence which gives the Appellee the right to sue for a deficiency after foreclosure and sale of a mortgage by advertisement.
“II. Appellee by its failure to advise and inform Appellant of her possible liability in the event of a deficiency should be estopped from bringing an action to recover a deficiency.”
We affirm.
On August 2, 1982, appellant signed a promissory note for $130,000 principal with interest at 17 1/2 percent. Appellee secured the debt with a real estate mortgage on property owned by appellant located in Johnson County, Wyoming. The mortgage contained a power of sale provision, and further stated that, upon default, the mortgagee could invoke “*** any other remedies permitted by applicable law. ***” The mortgage did not expressly warn the mortgagor that a suit for deficiency was possible after a foreclosure by advertisement and sale.
Appellee published proper notice in a local newspaper in December 1986 and January 1987, stating that public sale would occur on January 13, 1987, at 10:00 a.m. on the steps of the Johnson County Courthouse. The sheriff conducted the sale as advertised, selling the property to appellee for a high bid of $66,000, and certified that the sale was fair and lawful in all respects. Appellee applied the $66,000 to the $150,209.17 balance on the note, leaving a deficiency of $84,209.17.
Appellee then filed a complaint in district court on February 17, 1987, seeking a judgment for the deficiency on the note, interest and attorney‘s fees. Appellant answered, admitting the facts set out above concerning the default, foreclosure and sale. She argued, however, that appellant‘s election to foreclose and liquidate the property under power of sale operated to extinguish the remaining debt on the note. The answer also asserted equitable estoppel as an affirmative defense.
Appellee moved for summary judgment on May 15, 1987. After a continuance, appellant traversed appellee‘s motion and filed her own motion for summary judgment. Appellee traversed that motion, and argument on both motions took place on July 14, 1987. The court considered both motions and entered the order appealed from on August 18, 1987.
The material facts in this case are not disputed and the issues presented concern matters of law. Boehm v. Cody Country Chamber of Commerce, Wyo., 748 P.2d 704, 710 (1987).
DEFICIENCY AFTER FORECLOSURE UNDER POWER OF SALE
[REDACTED] The fact pattern set out above is a side effect of Wyoming‘s “boom and bust” economy. Appellant executed a promissory note secured by a mortgage when land prices and interest rates were high. She defaulted and the mortgage was foreclosed upon when land values were low. As a result, the mortgagee‘s bid on the property at the sheriff‘s sale reduced the outstanding debt on the loan by less than half. The lender now has the land and expects to be fully paid on the note. The mortgagor would rather not think about the inevitable deficiency judgment and a possible rendezvous with the bankruptcy courts. Chances are that the mortgagee‘s best hope to recover on the note is through a prompt resale of the property. Wechsler, Through the Looking Glass: Foreclosure by Sale As De Facto Strict Foreclosure—An Empirical Study of Mortgage Foreclosure and Subsequent Resale, 70 Cornell L.Rev. 850, 876-878, 895-896 (1985). Unfortunately for appellant, Wyoming mortgage law convinces us that a deficiency action after foreclosure by power of sale is proper.
[REDACTED] Wyoming is a “lien theory” mortgage state in which a mortgagor has a statutory right of redemption after mortgaged property has been foreclosed upon and sold.
“(a) Except as provided with respect to agricultural real estate, it is lawful for any person, his heirs, executors, administrators, assigns or guarantors whose real property has been sold by virtue of an execution, decree of foreclosure, or foreclosure by advertisement and sale within three (3) months from the date of sale, to redeem the real estate by paying to the purchaser, his heirs, executors, administrators or assigns, or to the sheriff or other officer who sold the property, for the benefit of the purchaser, the amount of the purchase price or the amount given or bid if purchased by the
execution creditor or by the mortgagee under a mortgage, together with interest at the rate of ten percent (10%) per annum from the date of sale plus the amount of any assessments or taxes and the amount due on any prior lien which the purchaser paid after the purchase, with interest. On payment of this amount the sale and certificate granted are void.” (Emphasis added.)
This statutory right of redemption expressly applies to foreclosure sales based on judicial decree, execution or advertisement and sale.
[REDACTED] The Wyoming legislature has also attempted to promote mortgage lending by statutorily providing for foreclosure by advertisement and sale pursuant to a valid power of sale clause in a mortgage or deed of trust. See generally
Appellant urges that this void in the Wyoming mortgage statutes should be interpreted to mean that a mortgagee must seek his deficiency in an initial suit on the note and the mortgage before foreclosure. She directs us to the statutes of other states that protect certain mortgagors from post-foreclosure sale deficiency suits.1
Some western states protect mortgagors by prohibiting deficiency judgments after foreclosure on mortgages or deeds of trust by advertisement and sale. See
Other states allow deficiency suits but require judicial supervision in valuing the property to determine the amount of the deficiency after foreclosure by advertise-
Other western states have no statutory restrictions at all on the right to sue for a deficiency remaining after foreclosure on a mortgage or deed of trust under power of sale. In Colorado, a deficiency action is most likely to follow foreclosure and sale on a deed of trust. See, e.g., Motlong v. World Savings and Loan Association, 168 Colo. 540, 452 P.2d 384, 386 (1969); and
[REDACTED] These statutes and our research lead us to two conclusions: (1) many state legislatures have decided statutorily to protect certain mortgagors from deficiency judgments; and, (2) where a state legislature has not passed such protection into law, deficiency judgments after foreclosure by advertisement and sale, on deeds of trust or purchase money mortgages, are allowed when the foreclosure and sale was proper and equitable. 55 Am.Jur.2d Mortgages § 905, pp. 784-785 (1971 & Cum.Supp.1986). See generally G. Nelson and D. Whitman, Real Estate Finance Law, §§ 8.1-8.3, pp. 594-615 (2d ed. 1985). Our legislature has protected power of sale mortgagors by granting them an unqualified three-month statutory period of redemption following any foreclosure and sale. A mortgagor also is free to challenge a declaration of default by lawsuit. Further, a defaulting mortgagor can contest the propriety of an advertisement and sale foreclosure in equity. We will not legislate protections from deficiency judgments after foreclosure by advertisement and sale, where our legislature has not provided for them in plain and unambiguous language. That is not our function. See D & L Building, Inc. v. Maltby Tank and Barge, Inc., Wyo., 747 P.2d 517, 520 (1987).
Appellant next argues that appellee should have expressly stated in its mortgage that it would seek a deficiency judgment after advertisement and sale if necessary. The absence of such a clause, it is urged, should estop appellee from bringing this deficiency action, because appellant had no notice of the possibility for a deficiency action when she signed the mortgage. In Roth v. First Security Bank of Rock Springs, Wyo., 684 P.2d 93, 96 (1984), we stated:
“Equitable estoppel precludes a party who knows the truth from denying the assertion of any material fact with which he induced another to change his position where such other person is ignorant of the facts, had a right to rely upon the assertions, and suffers an injury. 28 Am.Jur.2d Estoppel and Waiver § 27. Estoppel arises only when a party, by acts, conduct, or acquiescence causes another to change his position. Boise Cascade Corp. v. First Security Bank of Anaconda, 183 Mont. 378, 600 P.2d 173 (1979). The elements consist of a lack of knowledge, reliance in good faith, and action or inaction which results in an injury. 28 Am.Jur.2d Estoppel and Waiver § 35. We have stated that two necessary components of equitable estoppel are (1) that the party lacked the knowledge of the facts and was without means to discover them; and (2) that he relied upon the actions of the parties sought to be charged and changed his position. ***”
[REDACTED] Appellant argues that silence in the mortgage concerning a possible deficiency action, was the denial of a material fact that induced her to sign the note and mortgage. She claims to have been ignorant of that possibility and to have relied upon the express terms and covenants in the mortgage when making her decision to sign the promissory note. This argument ignores the fact that appellant is imputed to have had constructive knowledge of the possibility of a deficiency action after foreclosure by advertisement and sale. As explained above, there has never been any indication in the Wyoming statutes or common law that a deficiency action could not occur following foreclosure by advertisement and sale. Both parties had an equal opportunity to investigate this fact. Appellant was informed in the mortgage that appellee could invoke any legal remedy available to it. Therefore, appellee‘s silence on the matter cannot work an estoppel. See 28 Am.Jur.2d Estoppel and Waiver § 53, p. 667 (1966 & Cum.Supp.1986).
A borrower would have less to complain about if all mortgagees were to spell out exactly what course they might follow when a borrower defaults on a promissory note or in the mortgage. The legislature might, at some point, require such a disclosure. For now though, a deficiency action after foreclosure by advertisement and sale is legal and mortgagors should be aware of that possibility.
Affirmed.
URBIGKIT, J., filed a dissenting opinion.
URBIGKIT, Justice, dissenting.
This decision brings mortgagee, as the drafter of the loan documents, more rights than it chose to claim by the written agreement. In absence of a mortgage provision impressing an obligation for deficiency after a power-of-sale foreclosure, I would hold, at least where the lender as seller under the mortgage is also the purchaser, that no deficiency rights should be created by court decision for the underbidding lender. Rights of the mortgagee should not be expanded beyond what it did obtain by agreement or may be mandated by procedural statute. The latter, of course, does not exist in Wyoming, and consequently is not applicable to this controversy. I would consequently apply to it the standard that what you get is what you bargained to receive. State Farm Mutual Auto Insurance Co. v. Petsch, 261 F.2d 331 (10th Cir.1958); Adobe Oil & Gas Corporation v. Getter Trucking, Inc., Wyo., 676 P.2d 560 (1984); McCartney v. Malm, Wyo., 627 P.2d 1014 (1981).
Since for whatever reasons of contractual attainment the printed mortgage form as
Kelly CARSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
No. 87-201
Supreme Court of Wyoming
March 25, 1988
Julie D. Naylor, Appellate Counsel, Public Defender Program, for appellant.
Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., and Paul S. Rehurek, Asst. Atty. Gen., for appellee.
Before BROWN, C.J., and THOMAS, CARDINE, URBIGKIT and MACY, JJ.
URBIGKIT, Justice.
Kelly Carson, convicted of auto burglary, appeals from the trial court‘s closing-argument rejection of his use of a nonintroduced prop as demonstrative evidence. We affirm the discretionary decision of the trial court in denial of the demonstration which was to be a visibility test of the cord on a radar detector.1 In essence, this is a sufficiency-of-the-evidence jury verdict with denied strategy of defense counsel directly presented as the appeal issue.
On November 21, 1986, Ms. Cindy Pater parked her Trans Am vehicle near the Wonder Bar in Casper, and someone thereafter, during the course of the evening, broke the passenger-side window of the vehicle and “offed and awayed” with a Cobra radar detector. At issue was the perpetrator‘s identity, with the evidence in conflict by eyewitness identification at the scene and countervailing alibi defense of the defendant‘s attendance at a north Casper trailer court birthday party for himself.2 The eye-
Notes
“Defendant further states that he will pursue a defense of alibi in accordance with Rule 16.1 of Wyoming Rules of Criminal Procedure and hereby notifies the state that the Defendant was at the Wonder Bar located at 256 South Center, during that period of time in the presence of Tim Lattea, address unknown, but who works at Ed‘s Auto Wrecking, at 5600 Hanley, Mountain View, Wyoming, and in the