                                                                     November 19 2013


                                        DA 13-0183

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                       2013 MT 349



STEVEN L. CAVANAUGH,

           Plaintiff and Appellant,

     v.

CITIMORTGAGE, INC., ABN AMRO MORTGAGE
GROUP, INC., MORTGAGE ELECTRONIC
REGISTRATION SYSTEM, INC., HOLLAND
AND HART LLP, SCOTT MITCHELL, MICHELLE
SULLIVAN, KATIE SCOTT and ERIN THEOBALD,

          Defendants and Appellees.
___________________________________________

CITIMORTGAGE, INC.,

           Counterclaimant and Third-Party Plaintiff and Appellee,

     v.

STEVEN L. CAVANAUGH,

           Counterclaim Defendant and Appellant,

     and

SUSAN L. CAVANAUGH, FIRST INTERSTATE
BANK and CAPITAL ONE BANK (USA), N.A.,

          Third-Party Defendants.
______________________________________________

SUSAN L. CAVANAUGH,

           Third-Party Counterclaimant and Appellant,

     v.

CITIMORTGAGE, INC., and ABN AMRO
MORTGAGE GROUP, INC.,

           Third-Party Counterclaim Defendants and Appellees.
APPEAL FROM:     District Court of the Eighteenth Judicial District,
                 In and For the County of Gallatin, Cause No. DV-11-506A
                 Honorable Holly Brown, Presiding Judge


COUNSEL OF RECORD:

          For Appellants:

                 Steven L. Cavanaugh (Self-Represented), Belgrade, Montana

                 Susan L. Cavanaugh (Self-Represented), Belgrade, Montana

          For Appellees:

                 W. Scott Mitchell; Michelle M. Sullivan, Holland & Hart, LLP,
                 Billings, Montana



                                              Submitted on Briefs: October 30, 2013
                                                         Decided: November 19, 2013


Filed:

                 __________________________________________
                                   Clerk




                                         2
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1      Steven L. Cavanaugh and Susan L. Cavanaugh appeal from the judgment and

decree of foreclosure issued by the Eighteenth Judicial District Court, Gallatin County,

denying them the right to redeem the foreclosed property. We affirm.

¶2      The following issues are presented on appeal:

¶3      Issue One: Whether the Cavanaughs are entitled to a right of redemption because

their property was foreclosed by judicial procedure, rather than by advertisement and

sale?

¶4      Issue Two: Whether the Cavanaughs are entitled to a right of redemption because

their property is a multi-family residence?

                  PROCEDURAL AND FACTUAL BACKGROUND

¶5      On December 22, 2006, Susan Cavanaugh executed a promissory note to ABN

AMRO Mortgage Group, Inc., in the amount of $316,000. The same day, she and her

husband, Steven Cavanaugh, executed a deed of trust pledging their home in Belgrade,

Montana, as security for the note. On her loan application, Susan stated that the purpose

of the loan was to refinance her primary residence. She did not identify any rental

income and indicated that the property had only one unit. In 2007, ABN AMRO merged

with CitiMortgage, Inc. CitiMortgage was the surviving entity and the beneficiary of the

deed of trust.

¶6      In December 2008, Susan did not submit a monthly payment, and the loan entered

default. Susan did not cure the default, and after a period of negotiation, a trustee’s sale


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was scheduled for February 22, 2010. The Cavanaughs began a series of attempts to

avoid foreclosure, culminating in the filing of a complaint and request for injunctive

relief. The trustee’s sale was canceled pending resolution of the action. On August 31,

2010, the Cavanaughs and CitiMortgage entered a settlement agreement, as part of which

they stipulated to the dismissal of the complaint. CitiMortgage agreed to forbear from

exercising its right to foreclosure for a period of up to six months. The Cavanaughs

agreed to make payments to CitiMortgage in the amount of $550 per month beginning

August 31, 2010, and ending January 31, 2011.

¶7     The Cavanaughs failed to make the required payments, and a second trustee’s sale

was scheduled for June 20, 2011. Steven filed a second lawsuit on May 17, 2011, and the

trustee’s sale was again canceled. CitiMortgage named Susan as a third-party defendant

and asserted a counterclaim and third-party claim for judicial foreclosure.         Susan

responded and also asserted a counterclaim.

¶8     On August 30, 2012, CitiMortgage moved for summary judgment on its

counterclaim and third-party claim for judicial foreclosure, counts one through four of

Steven’s complaint, and all counts of Susan’s third-party counterclaim. The District

Court granted CitiMortgage’s motions on December 21, 2012, and entered a judgment

and decree of foreclosure on February 7, 2013. The judgment stated that the Cavanaughs

were not entitled to a statutory right of redemption, and CitiMortgage was not entitled to

a deficiency judgment. The Cavanaughs appeal only that portion of the judgment stating

that they are not entitled to redeem the property.

                               STANDARD OF REVIEW

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¶9      We review a district court’s conclusions of law de novo, to determine whether

they are correct. First Security Bank v. Abel, 2008 MT 161, ¶ 13, 343 Mont. 313, 184

P.3d 318.

                                      DISCUSSION

¶10     Issue One: Whether the Cavanaughs are entitled to a right of redemption because

their property was foreclosed by judicial procedure, rather than by advertisement and

sale?

¶11     The Cavanaughs urge that because the foreclosure of their property was by judicial

procedure, rather than by “advertisement and sale” as contemplated in the Small Tract

Financing Act, §§ 71-1-301 to 321, MCA, they are entitled to the right of redemption that

attends the foreclosure of a traditional mortgage.

¶12     Following the foreclosure of a conventional mortgage, the borrower is entitled to

redeem the property from the purchaser at any time within one year after the sale.

Section 25-13-802, MCA. The borrower is also entitled to remain in possession of the

property during this one-year redemption period. Section 25-13-821, MCA. In 1963, the

banking industry found that this one-year period discouraged potential investment in and

development of foreclosed properties. First State Bank of Forsyth v. Chunkapura, 226

Mont. 54, 57, 734 P.2d 1203, 1205 (1987). The industry therefore proposed a “quid pro

quo” to the Legislature: lenders would give up their deficiency judgment rights, in

exchange for which borrowers would give up their rights of redemption and possession.

Chunkapura, 226 Mont. at 57, 734 P.2d at 1205. The Legislature adopted this proposal



                                             5
as part of the Small Tract Financing Act. Chunkapura, 226 Mont. at 57-58, 734 P.2d at

1205.

¶13     The Small Tract Financing Act now provides for real property up to 40 acres to be

secured by a deed of trust, rather than a conventional mortgage. Section 71-1-304(1),

MCA.      Under the Small Tract Financing Act, a lender may elect to foreclose by

“advertisement and sale,” or by judicial procedure. Section 71-1-304(3), MCA. The

Small Tract Financing Act specifically states that when a lender forecloses by

advertisement and sale, the lender is not entitled to a deficiency judgment, § 71-1-317,

MCA, and the purchaser is entitled to take possession of the property ten days after the

sale, § 71-1-319, MCA.

¶14     We have previously been asked to interpret the provisions of the Small Tract

Financing Act to determine what remedies apply when a property secured by a deed of

trust is foreclosed on by judicial procedure. Chunkapura, 226 Mont. at 55, 734 P.2d at

1203. Our holding in Chunkapura made clear that when a lender elects to foreclose by

judicial procedure, rather than by advertisement and sale, “the lender (mortgagee) may

not recover a deficiency judgment against the borrower (mortgagor), and the borrower

has no right of redemption as is accorded borrowers in judicial foreclosures of

conventional mortgages.” 226 Mont. at 55, 734 P.2d at 1203. We have periodically

confirmed our holding in Chunkapura, and it is now well-settled that regardless of the

manner of foreclosure, when a property is secured by a deed of trust, the Small Tract

Financing Act does not entitle a lender to a deficiency judgment or a borrower to a right

of redemption. See Abel, ¶ 26; Midfirst Bank v. Ranieri, 257 Mont. 312, 315, 848 P.2d

                                            6
1046, 1048 (1993); First Federal Sav. & Loan Ass’n of Missoula v. Anderson, 238 Mont.

296, 300, 777 P.2d 1281, 1283 (1989).

¶15    Here, after two forestalled attempts at a trustee’s sale, CitiMortgage elected to

proceed by judicial foreclosure, as was its right under § 71-1-304(3), MCA. The judicial

foreclosure of a deed of trust does not bring the foreclosure action outside the scope of

the Small Tract Financing Act, as the Cavanaughs claim. Chunkapura, 226 Mont. at 55,

734 P.2d at 1203. Whether the foreclosure occurs by trustee’s sale or judicial procedure,

the remedies must be consistent with the provisions of the Small Tract Financing Act.

Chunkapura, 226 Mont. at 55, 734 P.2d at 1203. Therefore, the Cavanaughs are not

entitled to a one-year right of redemption.

¶16    Issue Two: Whether the Cavanaughs are entitled to a right of redemption because

their property is a multi-family residence?

¶17    The Cavanaughs next argue that the rule stated in Chunkapura is not applicable to

their property, because at the time of foreclosure, it was not a single family residence.

Our holding in Chunkapura was limited on rehearing to “occupied, single family

residential propert[ies].” 226 Mont. at 66, 734 P.2d at 1210. The character of a property

as an “occupied, single family residential property” is determined at the time that the

deed of trust is executed. Anderson, 238 Mont. at 301, 777 P.2d at 1284. Where a

property is a single family residential home at the time the deed of trust is executed, but is

briefly used as a rental property prior to a foreclosure sale, the property is still considered

a single family residence. Ranieri, 257 Mont. at 316, 848 P.2d at 1048 (citing Anderson,

238 Mont. at 301, 777 P.2d at 1284).

                                              7
¶18   Here, Susan’s loan application indicated that the home was her primary residence,

not an investment property. She stated that the home had only one unit. She did not

report receiving any rental income from the property. The Cavanaughs’ home was a

single family residence at the time the deed of trust was executed. Its character at the

time of foreclosure is immaterial. Anderson, 238 Mont. at 301, 777 P.2d at 1284. The

rule stated in Chunkapura governs here, and therefore, the Cavanaughs are not entitled to

a right of redemption.

¶19   Affirmed.


                                               /S/ MIKE McGRATH


We Concur:

/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ LAURIE McKINNON
/S/ JIM RICE




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