                               NO.    94-061
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                     1994

WALTER H. SAVOY,
          Plaintiff-Appellant,


CASCADE COUNTY SHERIFF'S DEPT.;
and UNITED STATES OF AMERICA,
                                                        UEC 13 1994
by and through the FARMER'S HOME
ADMINISTWTION, its agency,
          Defendants-Respondents.




APPEAL FROM:   District Court of the Eighth Judicial District,
               1n and for the County of Cascade,
               The Honorable John McCarvel, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
                   Gary S. Deschenes,       Deschenes Law office,       Great
                   Falls, Montana
          For Respondent:
                   George Darragh, Jr., Assistant U.S. Attorney, Great
                   Falls, Montana; Nancy Cory, Great Falls, Montana


                             Submitted on Briefs:     September   15,    1994
                                             Decided: December 13, 1994
Filed:
Justice Fred J. Weber delivered the Opinion of the Court

       This is   an appeal from a grant of summary judgment to
defendants in this case by the Eighth Judicial District Court,
Cascade County, Montana.     We affirm.
       We consider the following issues on appeal:
I.     Did the District Court err when it determined that Farmer's
Home Administration had substantially complied with the redemption
statutes found a.t 5 25-13-801, et seq., MCA?
II.    Did the District Court err when it determined that Farmer's
Home Administration was a proper party to redeem?
III.   Did the District Court err when it determined that the Cascade
County Sheriff's Office had acted appropriately in not presenting
Mr. Savoy with the deed to Tract II?
       The   real property   involved here was the subject of a
foreclosure action brought by the Federal Land Bank of Spokane
against Hugh D. and Rita D. Sands.       The foreclosure action involved
three tracts of land,     only two of which enter into this action,
Tract I, and Tract II.
       A decree of foreclosure was entered on February 28, 1989, by
the Eighth Judicial District Court upon stipulation of the five
junior lienholders and the default of the Sands. The court ordered
a sale of the property on March 23, 1989, and the property was sold
at a Sheriff's Sale.    Tract I and Tract II were purchased by Walter
H. Savoy (Savoy) to whom the Sheriff issued a Certificate of Sale
dated May 24, 1989.     Savoy paid $3,001 for Tract I and $85,000 for
Tract II.
                                     2
     The statutory period for redemption is one year.        Thus, any
redemptioner had until May 23, 1990, to redeem the property from

Savoy .

     On May 17, 1990, Patrick Sands, a     successor-in-interest    to
Hugh and Rita Sands provided to Sheriff Barry Michelotti a notice

of redemption for Tract I.   The Sheriff's Office issued a sheriff's

certificate of redemption on May 21, 1990, for Tract I at the same

time Patrick Sands issued to Sheriff Michelotti a check in the

amount of $3,180.06.

     Also, on or about May 17, 1990, Farmer's Home Administration
(FmHA) sent a copy of a letter to the Sheriff of Cascade County

addressed to Savoy stating that it was redeeming, for $85,000,

Tract II of the :property purchased by Savoy at the March 23, 1989
foreclosure sale.   The letter told Savoy to contact Ms. Hensleigh,
the County Supervisor for FmHA,   if he had any questions.

     Also attached to the letter sent to the Sheriff was a copy of

the decree of foreclosure     in favor of Federal Land Bank that

included a list of the lienholders on the property, of which FmHA

is listed as second, third and fifth lienholders having mortgages

on the property.    Also attached to the letter sent to the Sheriff

was a check for $90,030.14, of which $85,000 was the purchase price

paid by Savoy and the remainder representing the interest accrued

on this money from the date of sale.

      Sometime before June 8, 1990, Savoy contacted the Sheriff's

Office.   He had questions about the process of redemption and

Deputy Sheriffs John Strandell and Richard Duncan directed Savoy to


                                  3
§§ 25-13-801, et seq., MCA,      and suggested that he obtain legal
counsel.

     On June 8, 1990, the Sheriff's Office received a letter from
Savoy's counsel stating that neither of the redemptions of Tract I

and Tract II were appropriate and citing § 25-13-807, MCA, in

support of this proposition.         The letter directed the Sheriff to

issue deeds for Tract I and Tract II to Savoy because the Notices

of Redemption are invalid.

     On August 17, 1990,     Savoy filed a Complaint for Declaratory

Judgment and Petition for Writ of Mandamus.                 The    United    States

attempted to have the action removed to federal court, but Judge
Paul Hatfield refused jurisdiction on October 26, 1990.                A hearing

was held on December 4,      1990,    and   the    Eighth   Judicial       District
Court heard oral arguments concerning the writ of mandamus. On

December   20,   1990,   the court issued its findings of fact and

conclusions of law, denying Savoy's request for Writ of Mandamus.

     Following the December ruling, the court ordered the Sheriff's
Office to issue the deed to FmHA.            The    Cascade       County    Sheriff

issued the deed pursuant       to this order.           Also following the

December ruling, the parties engaged in discovery.                  FmHA and the

Cascade County Sheriff's Office moved for summary judgment as did

Savoy .    A hearing was held on November 29, 1993, and the court

granted summary judgment to FmHA and the Cascade County Sheriff's
Office.

      Savoy appeals this grant of summary judgment.



                                      4
                           Standard of Review

     The standard for reviewing a grant of summary judgment is the

same as that used by the district court.      Emery v. Federated Foods,

Inc. (l.9931,   262 Mont. 83, 863 P.2d 426.   We must determine whether
there is an absence of genuine issues of material fact and whether

the moving party is entitled to judgment as a matter of law.

Minnie v. City of Roundup (1993), 257 Mont. 429, 849 P.2d 212.

                                   I.

     Did the District Court err when it determined that Farmer's

Home Administration had substantially complied with the redemption
statutes found a't § 25-13-801, et seq., MCA?

     The redemption statutes with which we are directly concerned

in this case are the following:

     25-13-806.    Notice of redemption, liens, and taxes and
     assessments paid. Written notice of redemption must be
     given to the sheriff and a duplicate filed with the
     county clerk, and if any taxes or assessments are paid by
     the redemptioner or if he has or acquired any liens other
     than that upon which the redemption was made, notice
     thereof must in like manner be given to the sheriff and
     filed with the county clerk, and if such notice be not
     filed, the property may be redeemed without paying such
     tax, assessments, or lien.
     215-13-807.      Papers redemptioner   must   produce.   A
     redemptioner must produce, to the officer or person from
     whom he seeks to redeem, and serve with his notice to the
     sheriff:
           (I) a copy of the docket of the judgment under which
     he claims the right to redeem, certified by the clerk of
     the court or by the clerk of the district court in the
     county where the judgment is docketed; or if he redeem
     upon a mortgage or other lien, a note of the record
     thereof, certified by the county clerk; or if upon an
     attachment,    a copy of the affidavit of attachment,
     certified by the clerk of the district court;
           (2) a copy of any assignment necessary to establish
     his claim, .verified by the affidavit of himself or of a
     subscribing witness thereto;
           (3) an affidavit by himself or his agent showing the

                                    5
     amount then actually due upon the lien
     25-13-808. To whom redemption money paid. The payment
     mentioned in 25-13-802 through 25-13-806 may be made to
     the purchaser or redemptioner, as the case may be, or for
     him to the officer who made the sale or, in case his term
     of office has expired, to his successor in office.
We will first review the pertinent findings of fact and conclusions
of law on the part of the District Court.
     Findinus     of Fact:        On February 28,      1989,   a decree of
foreclosure was entered in the case of Interstate Production Credit
Ass'n, plaintiff, v. Hugh Sands, et al., in the District Court. On
May 23,   1989,    a sheriff's sale was held and plaintiff Savoy
purchased the property known as Tract I for $3,001 and Tract II for
$85,000, with the property located in Cascade County and with the
property description of each tract set forth in the judgment and
decree of foreclosure.
     On May 17, 1990, six days less than one year after the date of
sheriff's sale, the FmHA submitted to the Cascade County Sheriff's
Department a notice of its intention to redeem the property known
as Tract II.      The notice was attached to a letter addressed to
Savoy .   FmHA also presented to the Sheriff with that letter a
certified copy of the judgment decree in the action brought by
Federal Land Bank as evidence of its right to redeem.                 Also
enclosed with the notice to the Sheriff was a United States
Treasury check      in   the   amount   of $90,030.14, which covered the
original purchase price of $85,000 with interest at six percent for
360 days as mandated by statute.             At the same time Tract II was
being redeemed by FmH.A, Tract I was redeemed by an assignee of the

                                         6
original     debtor.       The notice of       redemption provided to     the
Sheriff's Office was not filed at the clerk and recorders office
(which did not meet the requirement of 5 25-13-806, MCA, which

requires that notice be filed with the county clerk).               Some time
between May 17,        1990 and June 8, 1990,       Savoy's counsel went over
the     documents   in   the   Sheriff's   files.    On June 8, 1990, Savoy

through his attorney notified the Sheriff that he was contending

that the redemption notice of FmHA was defective and such letter

indicated plaintiff was protesting the redemption of both Tracts I

and II, pursuant to § 25-13-807, MCA. No explanation of the nature
of plaintiff's objections to the notice of redemption was given.

        The District Court findings referred to various motions and

hearings conducted by it,          and also to depositions taken by the

parties.     Following a hearing in December 1990, the District Court

ordered the Sheriff to issue a sheriff's deed to FmHA and that was

done.
        The District Court then adopted various conclusions of law

including the following:

                                   III.
             Here,   the Cascade County Sheriff's Department
        received a certified copy of the judgment and decree of
        foreclosure with the notice of intention of Farmers Home
        Administration to redeem. In that judgment decree, the
        mortgage held by the Farmers Home Administration relative
        to Tract II was set forth with sufficient clarity and was
        identified    appropriately by     date   and   recording
        information.    The information provided in the judgment
        decree   was    sufficient to    allow   any  person to
        appropriately search the records and obtain information
        relative to the mortgage.     The documents submitted by
        Farmers Home Administration provided the sheriff with
        adequate evidence of its right to redeem.


                                           7
                                IV.
          Cascade County Sheriff's Department did not receive
     an affidavit of an amount due upon the mortgage from the
     Farmers Home Administration on May 17, 1990, and at no
     time thereafter. This affidavit does not affect Farmers
     Home Administration's ability to redeem or propriety as
     a redeeming party, but is relevant only if a subsequent
     redemption   were  attempted.     Plaintiff  had  actual
     knowledge of Farmers Home Administration redemption.

                                 V.
          The notice of redemption was presented six days
     prior to the expiration of the redemption period.     The
     notice provided by plaintiff, by and through his counsel
     of record, of his objection to the notice of redemption
     came after .the redemption period expired. Further, the
     notice of objection was vague, ambiguous and set forth no
     specific grounds of objection. There is no evidence that
     prior to the redemption period expiring plaintiff made
     any effort to determine the amount actually due and owing
     to Farmers Home Administration upon its mortgage.   It is
     plainly apparent that plaintiff's objections demonstrate
     a preconceived desire to refuse to accept tender. If
     plaintiff had pointed out his objections Farmers Home
     Administration would have had time to remedy technical
     deficiencies.   If one fails to state his objections to a
     a tender, he is deemed to have waived them.

                                 VI.
          Redemption statutes are remedial in nature and are
     to be liberally construed. In the absence of prejudice
     to the other parties, substantial compliance with the
     redemption statutes is sufficient to effect a redemption.
     Plaintiff received the full amount he was entitled to by
     the redemption.    Plaintiff took no action to effect a
     subsequent redemption, if he was a party entitled to, and
     therefore has failed to show any prejudice.
The District Court then issued its order granting summary judgment

to FmHA,   and the plaintiff Savoy appeals from that.

     We agree that the legal conclusion of the District Court was
correct as to the remedial nature of redemption statutes.      We hold
that redemption statutes are remedial in nature and are to be

liberally construed and that in the absence of some form of

prejudice    to   parties   involved,   substantial   compliance   with


                                    8
redemption     statutes is       sufficient     to affect a   redemption in
connection     with   mortgage   foreclosure.    A general statement to that

effect was stated by this Court in Dipple v.               Neville,    et al.

(1928),   82 Mont. 280, 291, 267 P. 214.          In the Utah case of United

States v. Loosley (19761, 551 P.2d 506, the Utah court said the

following in      connection       with a     redemption   from a     mortgage

foreclosure:

     .   . The main purpose of a mortgage is to ensure the
     payment of the debt for which [it] stands as security;
     and foreclosure is allowed when necessary to carry out
     that objective.     But foreclosure is in the nature of a
     forfeiture, which the law does not favor. The proceeding
     is one in equity in which principles of equity should be
     applied. . .
           Consis,tent with the foregoing, rules and statutes
     dealing with redemption are regarded as remedial in
     character and should be given liberal construction and
     application to permit a property owner who can pay his
     debts to do so, and thus make his creditor whole, and
     save his property.      Therefore, if a debtor, acting in
     good    faith,   has   substantially  complied  with   the
     procedural requirements of the rule in such a manner that
     the lender mortgagee is not injured or adversely
     affected, and is getting what he is entitled to, the law
     will not aid in depriving the mortgagor of his property
     for mere      falling  short of exact compliance      with
     technicalities.

See also cases cited in Loosely including 55 Am.Jur, Mortgages,

Sec. 867.      With the foregoing rule of law as the background, we

will consider the arguments of Savoy.
      Savoy objects to the failure of FmHA to present the Sheriff's

Office with a certified copy of               its existing mortgage and an

affidavit of the amount owed under that mortgage, both of which are

required to be presented to the Sheriff's Office by the provisions

of § 25-13-807, MCA.        Savoy is technically correct in making this

objection.      However,    the letter from FmHA directed to Savoy, of

                                         9
which a copy was served upon the Sheriff's Office with a copy of

the   original   Federal   Land   Bank    foreclosure,       specifically    stated

that FmHA was redeeming Tract II.                   The decree of foreclosure

furnished contained a list of the lienholders on Tract II, and FmHA

was listed as holding mortgages in the second, third and fifth lien

position.     The mortgages were described by specific reference to

the book and page of recording in the office of the clerk and

recorder.     Savoy's own affidavit of December 28, 1990, states that

his attorney went      to the Sheriff's Office and reviewed the

documents in the Sheriff's file.              Thus,    Savoy's attorney had the

list of mortgages      and their priorities.                 Savoy is properly

chargeable with that knowledge.

      Savoy contends he was prejudiced because no amount was listed

as still owing under the FmHA mortgages.              As previously stated, the

letter from FmHA to Savoy gave him the name and telephone number of

a person to call in FmHA if he had any questions.                  Savoy made no

attempt to determine an amount owing on the mortgages or any other

aspect   of   information.    The only significant reason for Savoy

needing the amount of the mortgage would have been if Savoy had

himself wished to redeem the property.                Savoy had 60 days from the

time FmHA redeemed to himself redeem under the provisions of 5 25-

13-803, MCA.     The record discloses that Savoy made no attempt of

any   tYPe    to redeem nor       does        the   record   contain   any   facts

demonstrating that Savoy desired to redeem.

      So far as the amount owing to FmHA, we conclude that Savoy had

sufficient notice had he desired to redeem and that he sustained no

                                         10
prejudice as a result of FmHA's failure to file an affidavit of the
amount owing with the Sheriff's Office.
        Savoy had adequate knowledge that FmHA was a mortgage holder
on the property he had purchased known as Tract II and that a
substantial amount of money was undoubtedly owing under three
mortgages.     Savoy knew that he had 60 days in which to attempt
redemption from FmHA and made no attempt to redeem or to discover
any additional facts.     We further point out that FmHA gave notice
of redemption to Savoy six days before the end of its redemption
period and had Savoy notified FmHA that he had questions or desired
additional information of record,       FmHA could have furnished the
same.      We agree with the conclusion of the District Court that
Savoy    received .the full amount to which he was      entitled for
redemption purposes and that Savoy took no action to affect a
subsequent redemption and has failed to show any prejudice as a
result of the technical failures of FmHA to comply with the
redemption statutes.     We agree with the District Court that there
are no questions of material fact.       We affirm the holding of the
District Court that FmHA substantially complied with the redemption
statutes and therefore was entitled to judgment as a matter of law.
We hold the District Court did not err in granting summary judgment
to FmHA.
                                  II.
        Did the District Court err when it determined that Farmer's
Home Administration was a proper party to redeem?
        Savoy argues that the papers supplied to the Sheriff's Office

                                   11




                                                       -
admit that FmHA has no judgment against the property.           Further,
Savoy     claims   that the papers    submitted to    the   Sheriff were

inadequate to prove that FmHA had an open mortgage still existing

on the property.       FmHA argues that it is a proper party and the

court so found.
        Section 25-13-801, MCA, states:

        Who may redeem.       (1)    Property  sold subject to
        redemption, as provided by 25-13-710, or any part sold
        separately may be redeemed in the manner hereinafter
        provided by the following persons or their successors in
        interest:

        ibi . a. creditor having a lien by judgment, mortgage, or
        attachment on the property sold or on some share or part
        thereof subsequent to that on which the property is sold.

We have determined that Savoy had adequate notice that FmHA had a

legitimate mortgage on the property he bought at the foreclosure
sale.     Therefore,   FmHA,   being the holder of a mortgage, had the

statutory right to redeem the property from Savoy.

        We hold that the District Court did not err in determining

that FmHA was a proper party to redeem Tract II.

                                    III.

        Did the District Court err when it determined that the Cascade

County Sheriff's Office had acted appropriately in not presenting

Mr. Savoy with the deed to Tract II?

        Savoy argues that the Sheriff's Office should have known that

the redemption was insufficient and should have issued Savoy the

deed immediately upon his request.         The Sheriff argues that he had

requests from two different parties for issuance of the final deed

to Tract II of the property and that he had to await the court's

                                     12
decision concerning to whom to issue the deed.

      The    court   determined   that    the   Sheriff's   Office   acted

appropriately.       We conclude that the record indicates that the

Sheriff had no alternative but to await the court's order.             The

record also shows that immediately upon issuance of the order FmEiA

received the deed.      We hold the District Court did not err when it

determined that the Cascade County Sheriff's Office had acted

appropriately in not presenting Mr. Savoy with the deed to Tract

II.

      Affirmed.




We Concur:




             Justices




                                     13
Justice Karla M. Gray, concurring in part and dissenting in part.


       As far as it goes, I concur in the Court's discussion on issue

III.    As to issues I and II,        I respectfully dissent.           Given the

remedial nature of mortgage redemption statutes,                   I agree that

substantial compliance should be sufficient to effect a redemption

in a mortgage foreclosure action.               I do not agree, however, that

FmHA was in substantial compliance with the redemption statutes at
issue in this case.

       The Court's analysis and resolution of issue I focuses almost

totally on what Savoy did or did not do in response to FmHA's

attempt to redeem.         That   focus    is    entirely   inappropriate;     the

issue is      whether     m substantially           complied with       statutory

requirements,    not whether or how Savoy responded.              On that issue,

I strenuously disagree with the Court's analysis and result. I

note in this regard that the Court does not even bother to analyze

the    "substantial     compliance"   question,     but goes directly to the

"prejudice"    question.     I submit that even the Loosley language on

which the Court relies does not validate such an approach, but
clearly requires the "substantial compliance" analysis to precede

any    "prejudice"    analysis;   only    where    substantial    compliance    has

been established--as is not the case here, in my view--can a court

proceed    to a prejudice         analysis.         Instead,     the   court   here

approaches the case backwards by using a lack of prejudice to

itself establish substantial compliance.
       Insofar as is relevant here,            § 25-13-807, MCA, required FmHA


                                          14
to produce to the person from whom redemotion is souqht I) a
certified copy of the judgment or of the docket of the judgment; 2)

a certified note of the record of the mortgage; and 3) an affidavit

showing the amount actually due.           The Court concedes that only one

of these requirements was met.           It then may have concluded, without

SO   stating,     that meeting      one of     three    applicable      statutory

requirements      constitutes "substantial      compliance."         In doing so,

the Court totally--and inappropriately--vitiates the statutory

requirements.      I cannot agree.

      Moreover,    the Court's focus on Savoy's actions or inactions

also is    inappropriate.           It    results in     this   Court     telling

redemptioners      they    need not      comply with     mandatory      statutory

provisions,     in hopes that a party protesting the redemption will

not meet iudiciallv created and imposed standards.                   For example,

the Court notes that Savoy's protest did not specify the bases

under 5 25-13-807, MCA, for the protest.               The   Court   conveniently

fails to cite to any authority requiring such a specification of

the bases for a protest; in addition, the Court's conclusion that

the statutory requirements were not met by FmHA-on the face of it-

-hardly lends support to the notion that the failure to specify

bases for the protest is somehow relevant here.
      The Court also dwells on a variety of other omissions by

Savoy--none of which is statutorily based--in order to support its

resolution of       this   issue.        It suggests that Savoy had some

obligation to check property records and telephone around in order

to find for himself the information the statute required FmHA to

                                         15
provide to him.          The effect is to shift a clear statutory burden
from the redemptioner to the person from whom redemption is sought.
In essence,      the Court has either totally rewritten § 25-13-807,
MCA, or has decided to judicially repeal that statute.        We are not
free to do either.         See 55 l-2-101 and -102,   MCA.

        For these reasons, and others about which a lengthy recitation
of the multitude of defects in the redemption procedures used here
would    serve 1itt:Le   purpose other than to give the Court's opinion
more precedential effect, I dissent.        I would reverse the District
Court.




        Justice James C. Nelson and Justice Terry N. Trieweiler join
in the foregoing concurring and dissenting opinion of Justice Karla
M. Gray.




                                       16
                                       December 13, 1994

                                 CERTIFICATE OF SERVICE

I hereby certify that the folowing ceritied order was sent by United States mail, prepaid, to the
following named:


Gary S. Deschenes, Esq.
Deschenes Law Office
P.O. Box 3502
Great Falls, MT 59403-6112


George Darragh, Jr.
Assistant U.S. Attorney
P.O. Box 3447
Great Falls. MT 59403


Nancy Cory
Attorney at Law
P.O. Box 1746
Great Falls, MT 59403



ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA

BY: &-
Deputy              u
