*1 withstanding the trust doc- to the terms of P.2d 553 provid- ument. We construe this statute FEDERAL SAVINGS FRONTIER trust document controls in ASSOCIATION, AND LOAN situations and that the Act is not most Plaintiff-Respondent, apply. If the trust document assumed to v. provision contrary has terms to the Act, document controls. the trust Maxine H. Harlan D. DOUGLASS and 68-1002(a)(l). also wife; The trust document Douglass, husband and and Ste- language of the trust man, controls when the single Hassing, ven Defen- J. unambiguous. document is clear and See dants-Appellants. Howard, 112 Idaho
Matter
Estate
No. 18748.
(1987);
First Nat. (1991); Kumberg Kumberg, 5
P.2d 769 Be-
Kan.App.2d
cause we find unambiguous, in this case to be
document
the trust document controls. The Act does
not affect the outcome of our decision.
Accordingly, uphold the decision of we in- magistrate that the undistributed
come in this case is to be awarded to Klingensmith. Ap-
estate of Mrs. Costs
pellant. attorney No fees awarded. TROUT, McDEVITT, C.J., BISTLINE, Tern,
JJ., FULLER, J., Pro concur. act any contrary prudence, discretion and would terms of in the absence of instrument, management in accordance with the the trust their affairs. in the own act; provisions of this or (b) gives the trustee If the trust instrument preceding if neither of the rules of admin- charging crediting receipt an discretion in applicable, accordance with istration is partly principal expenditure to income or equitable reasonable and in view of what each, imprudence partiality no inference of the interests of those entitled to income an has made from the fact that the trustee arises principal, entitled to and in well as of those contrary provision of this act. to a allocation ordinary view the manner in which men of *2 Cooke, LaManna, Cogswell, Smith & Curran, Thompson Sandpoint, Delay, & Elam, Pontarolo, P.S., WA, Spokane, and Boise, Boyd, defendants-appel- Burke & Joseph Delay argued. P. lants. Eberle, Berlin, Kading, Turnbow & Chtd., Boise, Stoel, Rives, McKlveen, Boise, Boley, Grey, plaintiff- Jones & respondent. Higer argued. Dale G. McDEVITT, Chief Justice. AND
BACKGROUND PRIOR PROCEEDINGS February respondent, On Fron- Savings tier Federal and Loan Association (“Frontier”), complaint against ap- filed a pellants, Douglass, Harlan D. Maxine H. Douglass, Hassing (“Doug- and Steven J. Hassing”). alleged lass and Frontier Hassing executed a note and property in deed of trust certain real Idaho, County, Kootenai dated October 1985, to secure indebtedness to Frontier in $1,300,000.00. July the amount of On alleged Frontier pay monthly failed to install- result, ment due on the note. As a Fron- nonjudicial tier effected foreclosure of trust, the deed of and held a trustee’s sale February on 1989. At the time of alleged following Frontier due amounts (1) principal the note: the amount of $1,293,608.21; (2) interest in the amount of $84,536.49; (3) charges late in thе $3,211.88. addition, amount of Frontier alleged following it incurred the ex- penses: taxes and insurance on the real $4,235.37; (2) property in the amount of trustee fees and costs the amount of $4,094.30; (3) appraisal fees the amount $3,200.00; attorney fees amount of $600.00. trustee, it was not the rather purchased the real when $869,000.00. Pioneer; Apply- sale for than
the trustee’s $20,606.01 figure and the in net appointment First American 4. The received from the to the rents as trustee was made before the res- amounts above-listed fees and ignation of Pioneer as evidenced *3 incurred, Doug- alleged costs Frontier in the order which were record- $500,680.24 Hassing lass and still owed ed; plus February interest from deposit deed of 5. Frontier failed to $25,- requested Frontier. Frontier also and note with the trustee as trust in attorney pursuant 000.00 fees to the required under the terms of the deed term of the note. trust; filed, complaint par- After the was both provides 6. The trustee’s deed that “the summary judgment. ties moved for beneficiary upon said made demand granted district court Frontier’s motion for pursu- property to sell said Trustee summary judgment, and entered an order deed of ant to the terms of said requiring Douglass Hassing pay and Frontier failed to make such trust.” $241,811.46, per interest at $36.65 Pioneer, upon and such demand day May from until thе date of the demand made on First American was judgment, attorney and fees and costs. then-existing on the trust- not made ee; RAISED ON APPEAL ISSUES The trustee’s deed certification of ac- Douglass and raise a number of knowledgment was defective because First, they appeal to this Court. issues signator sign pres- one did not (the beneficiary) argue that Frontier notary; ence of a recovering statutory precluded from defi- 8. The trustee’s deed was void because ciency judgment by allowed 45-1512 I.C. § by executed the trustee it was not by estoppel waiver or because the notice improper resignation and because of sale stated that trustee’s “[t]he appointment; and the trust elects to sell or cause fiduciary its re- 9. The trustee breached satisfy obligation____” be sold Douglass lationship and Hass- with Second, they ar- (Emphasis appellant’s.) by acting of trust ing under the deed invalid, precluding the sale was gue that of Frontier. solely and on behalf multiple deficiency judgment, due to viola- Further, Douglass Hassing argue nonjudicial deed of trust fore- tions of the calculating the district court erred dam- regard, Douglass statute. In this closure ages, should reverse the Hassing point following: to the 54(d), upon court based I.R.C.P. district failed to nominate First 1. Frontier 12-121, 54(e), and I.C. 12-120 or §§ Company Title Insurаnce American reverses the district if this Court (“First American”) as successor court, attorney fees and they are entitled to Company Pioneer Title trustee to 41. Fi- appeal pursuant to I.A.R. costs on (“Pioneer”) writing pursuant requests attorney fees on nally, Frontier 45-1504(2), Pioneer’s res- after appeal. September ignation as trustee on 1988; ANALYSIS 2. Frontier failed to obtain Pioneer’s Es- Argument Regarding A. Waiver and notice
resignation by failing to serve toppel. appoint a successor of intention trustee Pioneer and Hass The thrust of Hassing, pursuant to I.C. § language of the ing’s argument goes to the 1504(2); lan sale and similar notice of trustee’s of default: bene requested guage that notice of de- the notice 3. Frontier “[t]he trust ficiary to sell or cause the be issued First American elects fault action, (4)No proceeding suit or sold to said obli- to be then to recover the debt been instituted Essentially, Douglass Hass- gation.” deed, or remaining secured saying that Frontier has are waived thereof, if action or any part estopped asserting from to a instituted, action proceeding has been deficiency judgment, set forth in I.C. dismissed. proceeding has been 45-1512, because the relevant sale and notice of added.) the notice of trustee’s (Emphasis provides proper- that the sale of the default permits a benefi- Idaho Code § ty will a defi- ciary deed of trust to seek under a un- (1957)1 a trustee’s sale ciency judgment sets forth after Idaho Code 45-1505 provides: It der a deed of trust. the conditions under which the trustee a trust deed advertisement judgment—Action foreclose Money 45-1512. *4 provides: and sale. It obligation.—At seeking due on balance deed, any sale within 3 months after trust time 45-1505. Foreclosure of trust, hereinbefore may under a deed of when.—The trustee foreclose may provided, money judgment by trust deed advertisement and sale un- upon the obli- sought for the balance due der this act if: gation such deed of trust was for which (1) deed, any assignments The trust security, action the given as and such by the trust deed the trustee or the bene- complaint plaintiff shall set forth his ficiary any appointment of a succes- and the entire amount of indebtedness mortgage trustee are recorded in rec- sor by such deed of trust and was secured proper- ords in the counties in which the for which the same was sold the amount situated; ty described in the deed is the fair market value at the date of (2) by grantor There is a default sale, together with interest from such person owing obligation per- other an sale, attorney[ date of cоsts of sale and ] formance of which is secured rendering judgment fees. Before by their trust deed or successors inter- find the fair market value of court shall respect any provision est with in the property the real sold at the time of sale. deed which authorizes sale in the event judgment for may The court not render provision; of default of such the en- more than the amount beneficiary The trustee or shall due at the tire amount of indebtedness have filed for record in the office of exceeds the fair market val- time of sale county recorder in each the trust wherein time, with interest from date ue property, part parcel, or some is situ- judg- in no event but ated, a identifying notice of default ment exceed the difference between by stating deed of trust the name or sold amount for which such names of the trustor or trustors and and the entire amount of indebted- giving page the book and where by the of trust. ness secured deed recorded, description same is or a statutes, containing above-quoted property, trust a state- 45-1512, (1957) and were ment that a breach 45-1505 I.C. § § part an act security which the in trust both enacted in 1957 as transfer and occurred, relating of trust. An setting the nature to deeds Act Relat forth 181, 5, 12, Trust, ch. such breach and his election to sell To Deeds §§ Of of or cause to be sold such 345, 347, property to 1957 Idaho Session Laws 351-52. Thus, copy pari and a these statutes are in materia obligation; such together parts by registered such notice or certified and must be construed any person requesting Canyon Highway mail to such no- the act. Dist. Curtis 73, 82, provided. tice of record as hereinafter No. 122 Idaho amended, prior 1. Code in this to this § 45-1505 was closure amendment, case occurred time, apply first ch. we the 1957 version of I.C. § nonjudicial Session Laws 1122. Since the fore- 45-1505. Kincaid, (1992); complied with the Achenbach v. 25 Idaho Frontier relevant stat- words, P. utes. In other Frontier’s actions statutory evidence its intent to follow (3) of Subdivision I.C. 45-1505 re scheme so that it could seek a quires that the trustee or file a Hassing’s Douglass’ and note identifying notice of default the deed of containing, among things, other setting statement forth his or her “election Multiple B. Argument Regarding Viola- to sell or cause to be sold such Deed Nonjudicial tions obligation.” (Emphasis add Statute, Trust Foreclosure I.C. § 45- ed.) Douglass Hassing argue that the relevant of the notice of trustee’s Hassing essentially argue Douglass and default, regarding sale and notice of Fron made that there were cumulative errors property to satisfy tier’s election to sell the tоto, and, errors, Frontier these taken in obligation, is inconsistent with I.C. require the district this Court reverse 45-1512, resulting waiving record, however, Our review of the court. being quasi-estopped asserting from alleged that none of the errors establishes deficiency judgment. to seek How are violations of the statute. ever, it is clear that the relevant pro- Subdivision *5 in the notice of trustee’s sale and notice of vides: 45-1505(3). required by default is I.C. It § death, dissolution, “[wjaiver voluntary, is a In the event of well settled that relinquishment incapacity, disability resignation of the
intentional of a known trustee, beneficiary may advantage.” Tiffany City Payette, nominate of 396, 403, writing qualified another trustee. Pro- Idaho 825 P.2d however, (1992), vided, beneficiary may, quoting Corp. v. that the King, Brand S 731, 734, (1981). resignation 639 P.2d reason obtain serving upon trustee Nothing record the trustee before trust, voluntarily grantor in the deed of establishes that Frontier and and address, notice of intentionally relinquished their last known to seek successor trustee. deficiency judgment. appoint intention to registered given by Said notice shall be We must construe I.C. 45-1505 §§ mail, days twenty or certified together, they parts are 45-1512 since both mailing date of the notice .after the act, directly relating to the of the same appoint a successor trustee intention to Douglass’ subject same matter. If a succes- nominate correct, Hassing’s argument were I.C. Upon recording sor trustee. the mort- 45-1505(3) would render I.C. § gage county or counties records of Every beneficiary or meaningless. time a is recorded of the which the trust deed complied requirements with the trustee trustee, appointment aof successor 45-1505(3),they permit- would not be with all trustee shall be vested successor deficiency judgment after the ted to seek original trustee. powers of the because, argues, appellant sale may not be Provided that a trustee agreed accept the amount would have beneficiary’s nomination changed at the at the sale in full satisfaction of received by the after foreclosure has commenced quasi-estoppel In order for and is filing of the notice of default would have had to have apply, proceeding timely. knowledge position, with taken an earlier Hassing’s first as- Douglass’ As rights, and its inconsistent with of the facts error, the nomina- signment regarding position that it was entitled to seek its later as successor trustee judgment, the detriment of tion of First American Pioneer, KTVB, error. The record Hassing. we find no Douglass and Inc. 279, 282, voluntarily re- clearly shows that Pioneer City, Boise signed September trustee оn clearly shows that The record any delay providing appointed prejudiced by succes- and First American was instruments to First American. day. sor trustee on the same Frontier’s regard comply in this with the lan- actions error, assignment regarding The sixth guage of the statute. trustee, upon the is also not demand to sell again, Douglass and error. Once Douglass’ Hassing’s second as American was not arguing are that First error, signment regarding Frontier’s Frontier made de- the trustee at the time failure to serve notice of its intention to held, already have mand it. As we appoint First American as successor trust clearly that Pioneer had the record shows ee, also fails. The second and third sen resigned as trustee and that First Ameri- 45-1504(2), provide tences of I.C. properly appointed as trustee. can was notice, clearly apply are intended to error, regard- assignment The seventh those situations where the trustee refuses signator ing of the trustee’s deed not Here, resign. voluntarily Pioneer re signing presence notary, in the of a also signed. argument fails. This relates to wheth- error, assignment The third re er the deed could be recorded and not to garding request Frontier’s for issuance of validity of the deed or sale. American, the notice of default First error, eighth assignmеnt relating requirement also not error. There is no deed, simply to execution of the trustee’s resignation that a of trustee be recorded. another attack on whether First American ap fact is that First American was properly appointed as successor trust- pointed appoint successor trustee and that ee, and, above, for the fails. reasons stated recorded, ment was giving thus First error, assignment The ninth re- powers trustee, original American all garding fiduciary relationship the trustee 45-1504(2), complying with the grantors, with the also fails. The record requirements first of three fore before *6 accepted shows that First American Fron- proceed, 45-1505(1). closure could I.C. § $869,000.00. Frontier, acting tier’s bid of Furthermore, the record shows that American, through only First was the bid- notice of default was executed after Fron sale, der at the and the trustee under the appointed tier had First American as suc obligated terms of the notice sale was cessor trustee. accept Frontier’s bid. Code § assignment error, regard- fourth 1506(8) dictates, alia, inter that: “[t]he appointment of First American be- parcel trustee shall sell the in one fore the recordation of resigna- Pioneer’s separate parcels or in at auction to the tion, requirе- also must fail. There is no highest Any person, including bidder. resignation ment that the of a trustee be deed, beneficiary may under the trust bid recorded. sale____” (Emphasis at the trustee’s add- ed.) addition, 45-1506(9) assignment error, The fifth provides re garding deposit purchaser the sale shall the deed of trust and “[t]he pay price forthwith required by note with the trustee bid and re- trust, ceipt payment the trustee execute deed of also fails. The shall record shows and chaser____” pur- deliver trustee’s deed to such that First American received the notice of added.) default, (Emphasis Frontier provided “a breach of only Thus, bidder at the sale. for which such transfer has obligated accept First American was beneficiary occurred ... and that the elects Frontier’s bid and deliver the trustee’s deed to sell or cause the trust to be upon receipt to Frontier payment. obligation.” sold to Further more, the deed of trust does not state when Argument Regarding C. the District deposit the deed of trust and note must be Damages. Court’s Calculation of facts, ed with the trustee. Based on these conclude correctly (which we that the district court Idaho Code ruled Hassing above) were quoted beneficiary’s establishes the deficiency judgment, to seek a as well ed where are authorized stat- contract”). calculating judg- as the formula for ute or plain- ment. The statute states that “£he reasons, foregoing For the affirm the we tiff shall complaint set forth his [or her] decision of the district court. the entire amount for which the same was attorney appeal Costs and fees on sold and the fair market value at the date Frontier. sale, together with interest from such date of costs of and attorney sale TROUT, JJ., concur. JOHNSON fees.” I.C. 45-1512. This amount “taxes, assessments, include such items as BAKES, J., (following Pro Tern premiums for insurance advances made 1, 1993), February retirement on concurs. in accordance with the BISTLINE, Justice, dissenting. trust____” terms of the deed I.C. 45- 1506(12). originally The district court’s award com- This office circulated to the plied membership pro- with these limitations. a final draft of a posed majority opinion, much of which now provides The deed of trust that in the comprises dissenting opinion. That default, event of the holder of the note can opinion majority, failed to obtain a and now payable declare the whole amount due and meaningless history, ancient other than “and the same shall thereafter bear inter- serving collegiality to demonstrate the (16%).” est percent at the rate of sixteen presently the Court as constituted. Justice provides payment The note for the of inter- McDevitt, authoring opinion his fully est until the entire indebtedness is gained majority, embodies much of paid. language clearly gives This Frontier what this office wrote earlier. alleged to receive the interest it 16% owing. in the amounts We hold that Fron- aside, Putting that I add that observation tier is entitled to this rate of interest until majority opinion McDevitt’s Justice is well judgment. the date of written; represents it one view. I write to which, my compari- set forth initial views D. Request Attorney Frontier’s Fees opinion son drafted Justice Appeal. McDevitt, primarily relate to the main is- sue, i.e., message Frontier send to requests attorney what did fees on note, Douglass advising them appeal pursuant provisions in the trust, 12-120(3) going Doug- that Frontier was to sell the *7 deed of and I.C. and §§ purpose property lass trust for the stated, is, satisfy such note, provision appearing The first of the obligation. paragraph page in the second on states: similarly: Justice McDevitt has written any brought Should action be for the any principal collection of or interest of Subdivision of I.C. 45-1505 re- § Note, undersigned promises quires beneficiary that the trustee or file thereof, identifying pay including all costs such addi- a notice of default the deed of containing, among other attorney tionаl sum as fees as the court trust and may adjudge things, setting a statement forth his or reasonable. her ‘election to sell or cause to be sold Douglass Hassing were and the “under- obligation.’ property satisfy such such signed” promised pay who reasonable attorney fees in the There im- ambiguity event that an action is no whatever statement, brought any principal mediately foregoing to collect and it is a in- provision, interest. Pursuant to this and true and It was statement. accurate prevailing party because Frontier is the on cumbent Frontier to select the lan- use, appeal, attorney guage we award reasonable fees it would and it did so. Frontier appeal prefer retrospect likely to Frontier. See Hellar v. Cen- would arrusa, 571, 578, 45-1505(3) language 682 P.2d of I.C. stated that § (1984)(“attorney property fees are to be award- would be sold “toward satis- unpaid speak selling proper- debt. But that lan- in terms of such trust faction” used, guage things ty proceeds was not are as satis- applying toward states, i.e., Douglass McDevitt Justice faction of the debtor’s property be sold satisfy “selling will debt speaks statute in terms of such (including Douglass his co- satisfy obligation,” a dif- property to such defendants). written, Language clearly distinction, ference a distinctiоn with sentence, quoted is the above leaves no liberty not at to disre- which Frontier is room tortuous misconstruction. Fron- gard—not in- if this Court is to retain its complains statutory language tier tegrity. language because of the havoc which that paragraph quoted, In the above Justice plan reap yet wreak on its second correctly McDevitt illustrates the conten- holdings Douglass harvest from whatever Hassing tions of relevant may have left. That lament particular statutory language legislature, would be better made to the 45-1505(3). required by assert is authoring body which was the of I.C. 45- § provision requires That a notice of default 1505(3). clear, Equally Frontier has taken trust, identifying the deed of a borrower’s seeking legislature’s no remedial action breach, and a trustee’s “election to sell or 45-1505(3), revision of I.C. thus evidenc- property satisfy cause to be sold such
ing the decision sleeping dog wise to let a obligation.” satisfy” lan- “to lie. guage entirely ambiguity; without “to- Justice McDevitt next states: equally ward satisfaction” would be so. Hassing argue the Everyone paying knows when on an ac- relevant of the notice of trust- count, pay he or she does not off the ac- default, ee’s regarding sale notice of might perchance pro- count. It that the Frontier’s election to sell the mortgage ceeds from a foreclosure sale satisfy obligation, is inconsistent debt, satisfy equally likely, would but 45-1512, with resulting in Frontier proceeds selling realized on out an im- waiving being quasi-estopped from as- poverished might farmer his or serting to seek a deficiency indebtedness, her in which event the fore- judgment. However, it is clear that the not, may, may closer discover other as- relevant in the notice of trust- sets. ee’s sale and required notice of default is Judge Magnuson attempted light to shed 45-1505(3). by I.C. It is well settled on these circumstances wherein neither of ‘[wjaiver voluntary, intentional parties responsibili- involved bears relinquishment of a known or ad- ty questionably for the worded statute: vantage.’ Tiffany City Payette, point phrase: defendants to the [T]he 396, 403, 121 Idaho 825 P.2d [sic, ‘And that elects to the] (1992), quoting Corp. King, Brand S. sell or cause the to be obligation,’ sold to (1981). Nothing in the record before this *8 closing which was set forth in the sen- court establishes that Frontier voluntari- Default, tence by of the Notice of issued ly intentionally relinquished 7, September on Frontier 1988. Defen- deficiency judgment. to seek plaintiff thereby dants claim the waived Little needs to be said relative to the above any deficiency judgment. claim to a statement that “it is clear that the relevant рoint defendants also to the fol- language in the notice of trustee’s sale and lowing sentence used the Notice of required notice of default by is Trustee’s Sale: 1505(3).” enough, True the so It ‘Said sale will satisfy reads. would amount to fundamental be made ... to procedural error or lack of if the process obligation by pursu- a secured party given proceeding power were not notice of a ant to the of sale conferred in (defen- wherein he or she is by involved. But the fact the deed of trust executed dants) (First still that American, remains the statute does not as succes- 816
sor)
security
quota-
for the benefit and
of
This Court understands
these
(frontier)
regarding
‘satisfaction of obli-
tions
gation,’ to
been used to describe
have
subject
This
was also mentioned a second
purpose of
to indi-
rather than
Sale,
in the Notice of
time
Trustee’s
cate,
[sic],
by
a
anyway
waiver
it
wherein
was stated:
beneficiary
deficiency.3
any claim a
of
‘The
elects
or cause
to sell
by
defined
Law Dic-
‘Waiver’ is
Black’s
to be sold tionary,
Edition as:
Third
obligation.’
said
voluntary relin-
‘The
or
intentional
An examination of the Notice of De-
quishment
right.’
a known
of
quotation
fault shows the first
was a
‘estoppel,’ which
distinguished
It is
from
part
printed
of the
form
Fron-
used
or
misleading
is based on some
conduct
of
of
tier. Such examination
the Notice
which,
person,
being
language of one
subject
Trustee’s Sale indicates the first
on,
of
operates
prejudice
relied
to the
part
print-
quotation therein was
another.
form,
quotation
ed
the second
while
King,
v.
Idaho ease Brand S
typewritten
was
form.
In the
of
therein
set out
731],
Ida.
102
at 734
731
Idaho
quotations
form
[sic
The last three
above
429],
waiver
P.2d
it was stated that
basis
defendants’
[639
contention
voluntary,
relinquishment
intentional
is a
right to la-
Frontier somehow waived its
advantage.4
of a known
deficiency,
claim a
ter
forfeited
Development
Riverside
right,
these
did
In the case of
inasmuch as
instruments
Ritchie,
657],
v.
mention warn the
be
the conflict
waiver,
a
the intention to waive must
between those inferences. Their review
clearly appear. Seaport
Dippel, v.
only
of the
issue
waiver
extended
to de
(App.).6
Ida. 736
P.2d
[735
1047]
termining if the record before them was
This Court concludes there was not
justify
sufficient
the district court’s
statutory
any
requirement
or contractual
finding that Riverside
did
waive its
specifi-
notice to the defendants
right to terminate the lease....
On [103
cally
recite the
of a deed of
p.
Idaho
P.2d at
of their
at]
[650
662]
deficiency.
to claim a
intended
decision, they stated that waiver is fore
legislature
enacting
in
Section 45-
question
intent,
most a
in
and
order to
phrase
‘to satisfy
1505(3)
utilized
establish
waiver the intention to waive
clearly appear....
obligation’
proceeds
such
mean
They
must
upheld
applied
the sale would be
to the obli-
entry
partial
trial court’s
of a
sum
mary judgment which
gation.7
finding
included a
Their enactment of this section
Independent
way
to the
estoppel,
things
surface
& Oil Co.
Gas
v.
if such
and
matters
Co.,
T.B. Smith
51 Idaho
pleaded
P.2d 317
properly
proven.
are
words,
In other
Independent
opinion
Gas
Court’s
this
estoppel might
it is conceivable that an
dealt
principles
with distinctions between the
apply
sometimes
in a
at the
case where
same
estoppel by approving
waiver
Judge
adopting
support
time the evidence would not
the con-
opin-
Robert M. Terrell’s memorandum
impliedly
clusion that some
been
had
denying
ion
a motion for a
trial.
new
Id. at
intentionally waived.
719-24,
of Idaho Code estoppel issue. they as enacted 45-1512 Ida- and/or time Section right provides the of a ho Code which of cor- Both notices of sale and default a a beneficiary of trust deed seek rectly Doug- property the describe (de- money judgment for balance the due the security lass in trust as deeded ficiency) upon obligation the for which Frontier, and its recordation. benefit of given security. as such deed of trust was accuracy regard to the There is no issue in (See 181 of Chapter the Session The total validity of those notices. Idaho.) of The right past Laws of the State unpaid the due obli- amount of $1,293,- deficiency judg- gation to seek obtain a forth on notices was set the interest, 608.21, all due as of provided plus accruing ment is Idaho statute September specifically 1988. and need not be claimed or reiterated in the notice of default or no- contention, Turning Douglass’s first of sale.8 tice trustee’s of default and the both Frontier’s notice the fol- notice sale contained trustee’s
After this Court’s review of facts language, application of which lowing herein, presented it the defen- concludes elects to sell disputed: “[t]he dants, Douglass, including Harlan were property the trust be sold cause justified upon relying afore- I, obligation,” pp. R. Vol. 100- satisfy said quotations a as waiver Frontier appeared added), once (emphasis any rights it had to later seek a defi- part notice of default as ciency judgment. form, printed notice twice This concludes the documents a printed form and as part as as resignation related Pioneer’s trust- essence, Douglass typewritten addition. ee, First Amer- appointment Frontier’s used in contends that both trustee, Notice of De- ican as Frontier’s misled inappropriately notices Frontier’s fault the First American’s Notice of understanding him that he was not into require- all fulfilled the Trustee’s Sale any resulting going pursued for defi- to be pertinent ments of the statutes or the stated, his perception ciency. Otherwise trust, properly deed of were made the was Frontier had determina- parties All enti- executed and recorded. public sale expose tion to proceed- notice of these tled receive would for whatever amount ings did such trust- receive notice. attempt a forego any fetch to obtain properly conducted. ee’s sale was might very well deficiency judgment, which Opinion, Accordingly, he has asserted Judge Magnuson’s be valueless. Memorandum added). estop- resulted (emphasis the above R. 164-68 and footnotes by Frontier of its pel and/or waiver The notice of default mentioned above deficiency a to seek Judge opinion under I.C. Magnuson’s written bears completion of the fore- judgment after the signatures presi- two vice procedure is Although this dents, acknowledged closure sale.9 duly on the same date statutes, it applicable Idaho dis- available under as the instrument executed. The waiver, and may given up by specific a contentions be trict court also discussed other amounting estoppel germane also conduct parties, both none of which are court, as herein- The district noted dispositive conclusion which waiver. because noted, correctly overly I.C. paragraph is 9. As the district court The final sentence of this require “right that a creditor affirma- 1512 does not broad in that to seek deficiency judg- judgment" provides. tively to seek If reserve is all that the statute ment; any provides time within 3 timely brought, money judgment may it that “[a]t “a be ... upon obligation under a deed of trust sought months after sale for the balance due sought judgment may bal- given money for the which such deed of trust was securi- for which ty____” be other obstacles which ance There security____” grantor/trustor given trust was seeks to ex- deed of surface whenever deficiency judgment. act a 45-1512.
«19
claim, debt,
above,
discharge,
language
to
or
as a
understood the contested
answer
like);
serving
legal
v. Lani
as
no function other than describ-
demand or the
Waters
471,
general
i.e.,
er,
(1967)
ing
purpose
Ga.App.
157
796
116
S.E.2d
(“satisfaction”
going
discharge
which was that there
be an
of an obli
was
to
is the
ap-
auction sale
Frontier’s
him
gation by paying
party
conducted
what
contract);
pointed and
Accord-
her,
mortgage,
instructed trustee.
or
or
as on a
lien
above,
ingly, as
summarily
noted
the court
Threshermen & Farmers
Pennsylvania
not, by
determined
had
Hill,
that Frontier
waiv-
Ga.
Casualty Ins. Co. v.
113
Mut.
estoppel,
er
giving
conduct
rise to
(1966) (“satisfac
283,
App.
The should it on Federal after foreclosed due Frontier quasi estoppel have been satisfied. property of defen- the encumbered statutory right With full awareness of its clear, beyond abundantly It is dants. deficiency judgment, Frontier in- to seek a cavil, beneficiary” informed that “the default language into its notices of serted Hassing that it had elected Douglasses and was inconsistent to be sell cause trust pursuing Douglass a defi- “to with later view, and this lawsuit would naturally have cured the default differed from the knowledgeable have been avoided. which was that one so estoppel quasi Accordingly, we hold that the lаw. applied further hold to this case. We be practically estoppel with the quasi all fours are satis- 11. Keesee elements of that the controversy, underlying changed In that circumstances. have their The sellers fied here. here, awry buyer expense when the the transaction went subjecting position, Fetzek, purchasing buyer, on an in- litigation. who was More- unwanted of avoidable and contract, over, defaulted: stallment collect the balance now seek to contract, buyer previously the whereas has been established. It is But here reliance required to cure the been would have buyer, undisputed cured that the who had an existing buyer The has been default. then response refer- default notice earlier remedies, unfairly prejudiced, stands to suffer an forego ring decided to to ‘other’ detriment, as a result unconscionable curing because the the default in instance change position. We conclude that consequence sellers' sellers' notice told him that estoppel, accompanied this case quasi curing conse- for not would forfeiture—a reliance, limiting justifies their the sellers to willing accept. buyer quence he was remedy. original forfeiture as choice of if ‘oth- it is uncontrovertеd—that claims—and Keesee, 362-63, mentioned, P.2d at 906-97. he would er’ remedies had been DEEDS, obligation.” Nothing is now ch. TRUST sold to In what (Vol. 8A), particularly could have been more certain than Fron- identical which first found the tier’s statement the election thus made. 5(3) of appeared in ch. the Idaho Douglasses were entitled Code, approved upon enactment decla- to believe that the loss their encumbered emergency, ration of an March 1957: i.e., assets, property, would be *13 (3) beneficiary The trustee shall have or obligation. sold in of satisfaction their in the re- filed for record the office of majority, apparently believing itself county each corder in wherein the trust obliged to to come the rescue of Frontier part parcel, or is situ- property, some or Savings, predicates contrary Federal po- its ated, identifying a notice of the default “Every the hypothesis sition on slim that: by stating trust the name or deed of beneficiary complied time a or trustee with names of the trustor or trustors and 45-1505(3), requirements they the of I.C. § giving page the book and where the [beneficiary per- recorded, or would not be description or of same is a the trustee] mitted property, containing to seek after and state- becausе, ment argue, the sale that breach [defendants] security the transfer in trust agreed accept would have to occurred, setting has and forth the na- at in amount received the sale full satisfac- ture of such breach and his election to obligation.” tion of the at property or cause to be sold to sell such at accept- 557. That statement satisfy obligation', copy such and a reality ed as sound. It is the resultant by registered such notice or certified blindly encountered Frontier in Federal any person requesting mail to such no- falling into pitfall which resulted from provided. tice of record as hereinafter legislature’s poor language in choice legisla- it to Apparently never occurred drafting enacting and I.C. 45-1505. § personnel employed to draft the tive above any It is attorney submitted that iswho that there could be foreclosure actions oth- to some extent English conversant with the er than for total satisfaction the borrow- possessed language, and of reasonable sponsored er’s indebtedness. Whoever law, in schooling processes obviously legislation did not oversee the readily would in see there in fact and language selection of relative to foreclos- reading truth one correct pas- of that inconceivable, ing. put, it Otherwise is not Nevertheless, sage. majority opinion likely indeed but that there have been other problem avoiding encounters no in the irre- foreclosures whereat the lender knew and plaintiff futable fact that neither Frontier way impecu- realized a fair to treat an nor majority the Court are liberty pursue nious borrower would be to what ignore found Frontier obtained, Fed- monies way could eral’s foreclosure notice: “Pursuant to I.C. ap- strive to obtain some remuneration for 45-1505, plication due, i.e., trustee on the indebtedness to- to sell or satisfaction cause be sold such ward indebtedness rath- elect[s] than in er satisfaction. property obligation.” such full majority grips declines come to with the event, abundantly it is clear that Federal, realization that it had period time, long extending for a from stated in notices of sale default and spring enactment it elected to sell the trust toward year of 1957 to midsummer of this obligation, satisfaction such would not thirty-six lapse years, of over beset, have found itself thereafter be- 1505 has remained intact as it first sieged, beleaguered. If, perchance, Moreover, it written. is clear and unam- enough pay sale netted cash return biguous. span For оver the of more than the due amount of century defendants’ indebted- pro- one-third of that statute has ness, proceed- right then that event no further vided the the lender foreclose a ings required. would be pro- trust deed advertisement and case, (or his trustee or Under the circumstances of
vided
lender
reliance,
beneficiary),
complied
require-
with
with no evidence to rebut actual
45-1505, i.e.,
positions of
proper
of inconsistent
ments of I.C.
evidence
Federal,
es-
is Frontier Federal
filing of a notice of default which identifies Frontier
topped, by application
by providing
the deed of trust
the name or
doctrine
trustors,
giv-
deny Doug-
estoppel
quasi-estoppel,
names of
the trustor
page
rely
plain, unambigu-
the same is
the book
where
lass’
on the
recorded, stating the nature of the breach
ous
of the Notice
Sale?
sell or cause to be sold
his election to
Douglass denied his Constitu-
Was
such
process?
tional
to due
seem,
Unfortunately,
it
Fron-
so would
B. ARGUMENT
pause
tier
did
to consider avail-
Federal
*14
options, one which was to not make
able
opinion justifies their decision
majority
The
to
sold such
an “election to sell or cause
be
provision
45-
by relying on
obligation.”'
property
satisfy such
to
The
that this statute
[trust]
court asserts
obligation
simply
The
that
was
to file
authorizes the trustee
Douglasses
indebted to Fron-
and the
were
identifying
a Notice Default
the deed
Federal,
to
position
and not in
tier
among
things,
other
a
containing,
trust and
being
upon
avoid the foreclosure
visited
setting
statement
forth his or her ‘election
them, according
provisions
to the
of I.C.
to
property
sell
to
sold such
to
or cause
be
45-1505.
added).
obligation’ (emphasis
satisfy
§
majority opinion:
The
in its
court stated
and those stated
For
reasons above
However, it is clear that
the relevant
dissenting opinion
my
to this Court’s
language
of trustee’s sale
in the notice
Opinion
April
No.
issued
required
I.C.
and notice of default is
grant rehearing.
I would
45-1505(3).
§
Doug-
majority
that if
further states
PART II.
correct,
argument
I.C.
lass’
was
§
Defendants-appellants’
on re-
counsel
(the
1505(3) would render I.C.
45-1512
Dominick, a
hearing,
gifted
K.
writ-
Bobbi
statute)
deficiency
meaningless.
narrow,
er,
very
single
has researched
most,
only
applies
to a
At
the statute
us,
which is before
and favors
issue
however,
Default,
ex-
the Court
Notice of
well-written, fair,
dispas-
Court with
apply
to
to the Notice
tended
statute
singularly
com-
overview of the
not
sionate
question that
Trustee’s
There is no
Sale.
readily adopted
is
plex litigation, which
is clear and
provision
of I.C.
A.
incorporated
Appendix
herein as
applies only
Default. How-
to Notice of
ever,
opinion in-
majority
in its
the Court
A.
APPENDIX
application of the
correctly extended the
statute to the Notice
Sale.
OF THE ISSUES
A. STATEMENT
relied
proceedings, Douglass
In these
pursuant
Rule 42 of Idaho
Appellants,
to
principally and
upon
Notice of Sale
Rules,
Appellate
this court for
petitioned
secondarily
of Default.
on the Notice
rehearing
following
issues:
he
his
that
Douglass
affidavit
stated
language in the
upon
unequivocal
relied
(1)Did Douglass
(appellants’) have
Sale,
his detriment. This
Notice of
to
clear, unambiguous
rely
to
on the
uncontroverted, undisputed
statement
language of the Notice of Sale which stated
and is an
fact.
established
“satisfy”
to
property
would be sold
45-1505(3) is
obligation, thereby precluding
Douglass asserts
underlying
language
took the
quasi-estop-
waiver or
clear and that
Frontier Federal
literally
to mean
pel,
asserting any right to a deficien-
the Notice
Sale
from
un-
‘satisfy’ the
cy judgment?
was sold to
of;
rightful
give
demands
to
what
to;'
off;
pay
requite).
to
derlying obligation.
language
This
did not
notifying Douglass
In
in-
authorize a
action
Frontier.
language
tended to sell
interpretation.
has no other
Frontier,
obligation
Frontier im-
Justice Bistline in his
оwed
dissent states:
plicitly represented that the debt would
determining
effect
the notices
Significantly,
thereby discharged.
by Doug-
of default and of sale received
only
contained
lass,
“to be sold to
obli-
forms,
preprinted
but
it also had
gation”
reasonably susceptible
manually typed
printed
been
on the
form
vague,
meaning.
satisfy”
one
“To
is not
giving
used for
notice
trustee’s sale.
phraseology
unknown
has a
but
well-
affidavit,
Douglass,
his
avers that he
settled
general
definition known
relied
detri-
to his
populace. “Satisfy”
“to
is defined as
ment. No
reason
been
conceivable
carry out
discharge
the terms of
...
...
advanced
to demonstrate
(a
meet a
financial
credi-
rely upon
was not entitled to
words
tor).” Webster’s Third New Internation-
English language
which were entire-
al Dictionary
Roget’s Thesaurus
ly
import
clear
which were
defines “satisfy”
supply fully
“[t]o
wholly unattributable
him.
As stated
completely,”
synonyms,
and lists as
“an-
*15
Douglass’s
6,
in
affidavit
December
swer, fill, fulfill,
Roget’s II,
meet.”
The
1989, he would have attended the fore-
(1980).
New
“Satisfy”
Thesaurus
also
is
closure sale and
entered bid but for his
an establish
term art in the business
notices,
reliance on
the
led him to
world and in
judiciary.
the
de-
Black’s
deficiency
no
judgment
believe that
“satisfy”
fines
dis-
answer or
“[t]o
sought.
would be
charge,
claim, debt, legal
аs a
demand or
the like
comply actually
... To
fully
Douglass,
It was clear to
who is entitled
demand;
extinguish,
with a
to
by pay-
process,
property
to due
that the trust
was
performance.”
ment or
Black’s
Dic-
Law
obligation
sold to
the
Fron-
be
tionary
(6th
1990).
1342
ed.
tier.
Additionally, several courts have con
by apply-
Justice Bistline also stated that
strued the term. See Boca Ratone Co.
ing Idaho
the
proceed-
law to
facts in these
Commissioner,
(3d
v.
statute.
uncontroverted
davit,
explained
he would have at-
he
that
decision to read
Court’s
tended the foreclosure sale
bid
45-1505(3) together
denies
had
known that a
he
right
process.
his
to due
of no-
possible.
Such lack
Fourteenth Amendment
United
Notice of Trustee’s Sale
tice
provides
part
Constitution
no
States
that
Douglass’ right to due
blatant violation of
life,
(shall) deprive any person
‘state
process guaranteed by
Fourteenth
liberty,
process
property,
without due
’
Amendment
the U.S. Constitution
affidavit,
By
law ...
uncontroverted
I,
Article
of the Idaho State
Section
Douglass alleges
he
that
relied
Constitution.
wording
clear
of Trustee’s
the Notice
been
Sale
his detriment.
and United States
Under both the Idaho
deprived
proper
his without
procedural
due
Constitutions
process
due
of law.
per-
guaranteed, requiring that a
process is
given
judicial process
be
son involved
recognized
‘parties
It has been
meaningful oppor-
meaningful notice and a
rights are
are entitled
whose
to be affected
Rudd,
tunity
heard;
to be heard. Rudd
they
to be
and in order that
(1983).
first
noti-
Idaho
Douglass was his constitutional the seizure denied case the replevin. of right proper to The Court should under a writ notice. faulty place stamp approval not its on a Court stated: disregard the should not U.S.
The Court Douglass’ Fourteenth Constitution provide for statutes the issuance [T]he Rights I.C. interpreting Amendment ordering agents writs state to seize a 45-1505(3). language plain § person’s possessions, simply upon ex simple, Court can come to one and the parte application any person other property was logical conclusion: the sold posts who claims a to them and a security provides bond. Neither statute given possessor notice be analogy An can be drawn from the exam- property, gives and neither statute ple person a when served with possessor opportunity an to chal- complaint. summons and He has lenge any the seizure at kind of prior rely meaning clear solely hearing. he language or otherwise is denied due Shevin, supra process. Fuentes v. at at S.Ct. majority opinion The Court’s states that Fuentes, As in I.C. 45-1512 and I.C. § get meaning in order to the full 45-1505, even together when construed § Sale, Notice of Trustee’s Douglass’ posses-
allow the state to seize and I.C. 45-1512 ‘must be to- construed parte sions ex application. Frontier’s gether.’ ruling In effect the Court is that Fuentes, Douglass’ process As person rely cannot on the clear violated give because these statutes do not of a Notice of Trustee’s Sale. The Court’s opportunity ‘an challenge ruling requires person that in order prior seizure at hearing.’ kind properly impending notified anof fore- Supreme United States Court has against closure action him he must addi- explained also tionally look 45-1505 and then process only by together is afforded construe it with I.C. 45-1512. [D]ue “hearing” kinds of “notice” and are statutes, he Once has construed he establishing aimed validity, ator must conclude probable least the validity, of under- Trustee’s Notice Sale the obli- lying against alleged claim debtor gation really ‘satisfy’ mean does deprived before he can be his property obligation, but means brought against can also be him. proper This is not notice. Family Corp., Sniadach v. Finance *17 1820, 1823, U.S. 89 S.Ct. The purpose Court’s decision defeats the effect, L.Ed.2d the Court’s and intent Notice Trustee’s Sale. allowing deficiency decision Douglass. No statutes were served on against Douglass proper without notice Douglass penalized should not because equates summary to unconstitutional sei- he relied on Notice of Trustee’s Sale Douglass’ (the zure of amount of statutory and did not seek out additional deficiency judgment). statutory The law and then togeth- ‘construe’ statutes scheme of I.C. 45-1512 and I.C. § proper Douglass er for notice. prop- acted constitutionally by failing defective by erly relying solely the Notice of provide proper required by notice as Trustee’s Sale and should not bе denied his due procedural process. right Constitutional due process court, majority The constru- [of the] result. together, the two statutes fails to recti- fy inadequate notice and ensure that C. CONCLUSION constitutionally required procedural safe- Douglass guards justifiably are The relied followed. Court should clear properly statutory language statutory conclude that the lan- inserted into the Notice guage used Sale Notice Trustee’s Sale Trustee’s and Notice Default process stating denies his that the sale of the towas insufficient notice. ‘satisfy’ meaning unambiguous
‘satisfy’ is clear as ex-
plained by Justice Bistline's dissent. uncon- I.C. 45-1505 deprive Douglass his
stitutionally affording proper him process
to due deficiency judgment. The
notice of the minority opinion adopt
Court should that the Notice of Trustee’s Sale find proceedings precludes Frontier’s these
recovery judgment. of a rehearing granted.
petition for should be day this 20th
Respectfully submitted
May, 1993.
ELAM, BOYD, BURKE AND Chartered
By Dominick /s/ Bobbi K.
DELAY, CURRAN, & THOMPSON
PONTAROLO, P.S. Joseph Delay
By P. /s/ Delay, P.
Joseph WSBA No.
Attorneys Appellants Heck,
Dennis HECK and Christine wife, Plaintiffs-
husband and
Appellants, ID, Offices, Nampa, Eismann Law Eismann, COUN- B. COMMISSIONERS OF CANYON Richard plaintiffs-appellants. Idaho, TY, Canyon County, Defen- argued.
dants-Respondents. Atty., Canyon County Pros. Deputy Civil Caldwell, defendants-respondents. 20217. No. Saari, argued. Charles L. Idaho, Supreme Boise, January Term. JOHNSON, Justice. authority of This concerns the case
April county regulate the sale of fireworks. Fire- Idaho State conclude that We Law, through 39- works I.C. §§ (the law) au- preempts the fireworks retail thority regulate of counties We sane” fireworks. of “safe and sale genuine issue that there is a also conclude