                                          No. 01-449

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2002 MT 100


INDEPENDENCE BANK, f/k/a
FIRST SECURITY BANK OF HAVRE,

              Plaintiff and Respondent,

         v.

JAMES J. HALSETH, CAMIA L. HALSETH,
and STATE OF MONTANA, STATE MUTUAL
INSURANCE COMPENSATION FUND,

              Defendants and Appellant.



APPEAL FROM:         District Court of the Seventeenth Judicial District,
                     In and for the County of Blaine,
                     The Honorable John C. McKeon, Judge presiding.


COUNSEL OF RECORD:

              For Appellant:

                     James J. Halseth, Pro Se, Harlem, Montana

              For Respondent:

                     Chris R. Young, Attorney at Law, Havre, Montana


                                                   Submitted on Briefs: January 31, 2002

                                                                Decided: May 10, 2002
Filed:


                     __________________________________________
                                       Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.


¶1    James J. Halseth (Halseth) appeals from the judgment entered

by the Seventeenth Judicial District Court, Blaine County, on its

findings of fact, conclusions of law and decree of foreclosure.                     We

affirm.

¶2    The sole issue on appeal is whether the District Court erred

in determining that Halseth was not entitled to possession of the

mortgaged property during the statutory redemption period.
                                     BACKGROUND

¶3    In 1993, Halseth executed a promissory note in favor of First

Security Bank of Havre, now known as Independence Bank (Bank),

secured by a mortgage on real property he owned in Blaine County.

In   1994,    he   executed     three    more    promissory       notes   along   with

security agreements giving the Bank security interests in his farm

machinery, equipment and crops.             Halseth subsequently defaulted on

the promissory notes and, in October of 1999, the Bank filed a

foreclosure action in the District Court.                The District Court held

a bench trial, at which Halseth stipulated that he had defaulted on

the notes and the Bank was entitled to foreclose.                     He contended,

however, that he currently was residing on the Blaine County

property and, therefore, was entitled to possession of the property

for the one-year redemption period following the foreclosure sale.
¶4    The District Court entered findings of fact, conclusions of

law and a decree of foreclosure, granting the Bank the right to

take possession of the real and personal property at issue, sell it


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and apply the proceeds toward the judgment amount.                      The court

further    determined      that   Halseth   was    not    entitled   to    retain

possession of the property during the following year because he was

not residing there.        The court entered judgment on the decree and

Halseth appeals.

                             STANDARD OF REVIEW

¶5      Whether a debtor occupies mortgaged property so as to allow

him or her to retain possession following a foreclosure sale is a

question of fact to be determined by the trial court.                Interstate

Prod. Credit Ass'n v. DeSaye (1991), 250 Mont. 320, 322, 820 P.2d

1285, 1287.         We will affirm a district court’s findings of fact

unless they are clearly erroneous.          DeSaye, 250 Mont. at 322, 820

P.2d at 1287.        A finding of fact is clearly erroneous if it is not

supported by substantial evidence of record, if the court has

misapprehended the effect of the evidence or if a review of the

record leaves us with the definite and firm conviction that a

mistake has been committed.        DeSaye, 250 Mont. at 323, 820 P.2d at

1287.     Substantial evidence is that which a reasonable mind might

accept as adequate to support a conclusion and, while consisting of

more     than   a    scintilla    of   evidence,    may     be   less     than   a

preponderance.        Foley v. Arvidson, 2000 MT 388, ¶ 8, 304 Mont. 43,

¶ 8, 16 P.3d 389, ¶ 8.

                                  DISCUSSION

¶6   Did the District Court err in determining that Halseth was not
entitled to possession of the mortgaged property during the
statutory redemption period?




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¶7   Following a judicial foreclosure of mortgaged real property,

the judgment debtor has the statutory right to redeem the property

from the purchaser at the sheriff’s sale any time within one year

after the sale.   See §§ 25-13-802 and 71-1-228, MCA.        During this

one-year redemption period, the purchaser is not entitled to

possession of the property if the debtor “personally occupies the

land as a home for himself and his family.”     Section 71-1-229, MCA.

 Halseth contended in the District Court that he resided on the

Blaine County property which was the subject of the foreclosure

proceeding and, therefore, was entitled to retain possession of the

land during the redemption period.
¶8   In   determining   whether   Halseth   occupied   the   property   as

required by § 71-1-229, MCA, the District Court looked to § 1-1-

215, MCA, which provides as follows:

     Every person has, in law, a residence. In determining
     the place of residence, the following rules are to be
     observed:

     (1) It is the place where a person remains when not
     called elsewhere for labor or other special or temporary
     purpose and to which the person returns in seasons of
     repose.

     (2) There may only be one residence. If a person claims
     a residence within Montana for any purpose, then that
     location is the person’s residence for all purposes
     unless there is a specific statutory exception.

     (3) A residence cannot be lost until another is gained.

     . . . .

     (6) The residence can be changed only by the union of act
     and intent.

Based on the testimony at trial and the above guidelines, the

District Court found that Halseth resided in Harlem, Montana, had

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not shown the requisite union of act and intent to change his

residence to the Blaine County property and, as a result, did not

reside on that property.       The court then concluded that, because

Halseth did not reside on the Blaine County property, he did not

occupy the property as his home as required in § 71-1-229, MCA,

and, therefore, was not entitled to retain possession during the

statutory redemption period.

¶9     Halseth does not challenge the District Court’s application of

§ 1-1-215, MCA, in reaching its decision and, as a result, we do

not address the propriety of applying the criteria set forth

therein to the requirements of § 71-1-229, MCA.                   Halseth does

assert, however, that the court’s finding of fact regarding his

lack of intent--under § 1-1-215, MCA--to make the Blaine County

property his residence is clearly erroneous.
¶10    Halseth testified at trial that he moved into a camper trailer

on the Blaine County property in June of 2000 for the sole purpose

of    establishing   his   right   to   retain   the    property    during   the

redemption period following foreclosure.            Prior to that time, he

resided in a house he owns in Harlem, Montana, and for which he

pays the mortgage, property taxes and insurance.                   Halseth also

testified that the Harlem house was being rented by his girlfriend,

but there was no written rental agreement and no rent receipts; nor

had she paid any rent in the five months prior to the trial.                 He

further    testified   that   he   still    stays      at   the   Harlem   house

occasionally.    Additionally, although the telephone service to the

Harlem house is in his girlfriend’s name, Halseth gives out--and


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receives calls at--that telephone number for both business and

personal purposes, even though he has telephone service at the

Blaine County property.

¶11    Halseth does not dispute that, prior to June of 2000, the

Harlem house was his legal residence.                 Moreover, as a matter of

law,    Harlem      remains         Halseth’s   legal       residence      until    he

demonstrates, by         the union of act and intent, that he has changed

his    residence.        See    §    1-1-215,   MCA.        The   above    testimony

establishes that, while he moved to the camper trailer on the

Blaine County property, Halseth retained ties to his Harlem home

and    did   not   intend      to    relinquish   his       residence     in   Harlem.

Consequently,       we     conclude       Halseth’s     testimony        constitutes

substantial evidence supporting the District Court’s finding that

he did not demonstrate the union of act and intent necessary to

change his residence from Harlem to the Blaine County property.                     We

further conclude that the court’s finding is not otherwise clearly

erroneous.
¶12    Halseth argues the District Court should have found he did

intend to make the Blaine County property his permanent residence

and points to portions of his trial testimony which he asserts

supports such a finding.              However, we review a district court’s

findings of fact only to determine whether substantial evidence

supports those findings, not whether the evidence would support

contrary findings.        In re Estate of Bradshaw, 2001 MT 92, ¶ 20, 305

Mont. 178, ¶ 20, 24 P.3d 211, ¶ 20 (citations omitted).                         As we

concluded    above,      substantial      evidence     of    record     supports   the


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District Court’s finding of fact regarding Halseth’s lack of intent

to make the Blaine County property his residence.

¶13   Based on its finding that the Blaine County property was not

Halseth’s legal residence pursuant to § 1-1-215, MCA, the District

Court determined that Halseth did not occupy the property as

required in § 71-1-229, MCA, and, therefore, was not entitled to

retain possession during the statutory redemption period.     Having

concluded the court’s finding of fact was not clearly erroneous, we

hold that the District Court did not err in determining that

Halseth was not entitled to possession of the mortgaged property

during the statutory redemption period.
¶14   Affirmed.



                                          /S/ KARLA M. GRAY
We concur:

/S/   JAMES C. NELSON
/S/   PATRICIA COTTER
/S/   JIM REGNIER
/S/   W. WILLIAM LEAPHART




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