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Richard Bendish and Mary Bendish v. James

February 17, 2012

RICHARD BENDISH AND MARY BENDISH, PLAINTIFFS AND APPELLEES
v.
JAMES CASTILLO, CENDAK DEVELOPMENT CORPORATION, FORT RICE BAR & GRILL, INC. AND THE STATE OF NORTH DAKOTA ACTING THROUGH THE OFFICE OF THE STATE TAX COMMISSION, RESPONDENTS CENDAK DEVELOPMENT CORPORATION AND FORT RICE BAR & GRILL, INC.,
APPELLANTS



Appeal from the District Court of Morton County, South Central Judicial District, the Honorable Sonna M. Anderson, Judge.

The opinion of the court was delivered by: Kapsner, Justice.

N.D. Supreme Court

Bendish v. Castillo,

2012 ND 30

This opinion is subject to petition for rehearing. [Go to Documents]

[Download as WordPerfect]

AFFIRMED.

[¶1] Cendak Development Corporation and Fort Rice Bar & Grill, Inc. ("Cendak"), appeal from a judgment entered in favor of Richard and Mary Bendish, canceling Bendishes' contract for deed with James Castillo and holding Cendak had no right to redeem the property under a lease purchase agreement. We affirm, concluding the district court did not abuse its discretion in not granting Cendak a right to redeem the property.

I

[¶2] This is an action to cancel a contract for deed. In 2003, Bendishes owned land in Fort Rice, North Dakota, where they operated a business called the "Outpost." In March 2003, the Bendishes entered into a contract for deed to sell the property to Castillo for $40,400. Castillo made a down payment of $7,500 and was to make monthly payments of $620.86 on the contract for deed, with an annual interest rate of five percent. Castillo made regular payments on the contract for deed through January 1, 2005.

[¶3] On December 28, 2006, Richard Bendish, Castillo, and Ivan Gange, on behalf of Cendak, executed a "Lease Purchase Agreement," which included handwritten notations initialed by each of the parties. The agreement was not filed with the Morton County Register of Deeds. Castillo and then Gange operated the Fort Rice Bar & Grill on the premises. After January 2005, Bendishes received sporadic payments from Castillo and then Gange.

[¶4] In 2010, the Bendishes sued Castillo and Cendak, alleging default under the terms and conditions of the contract for deed and seeking to cancel the contract for deed. Cendak answered and counterclaimed, denying any default had occurred and alleging Bendishes had been fully paid under the contract. Cendak alleged that Castillo had assigned the contract for deed to Cendak and that Bendishes had agreed to the assignment and accepted payments from Cendak on the contract for deed. Cendak requested the court order Bendishes to execute a warranty deed transferring the property to Cendak.

[ΒΆ5] At trial, the parties disagreed regarding the amounts still owed on the contract for deed, whether the contract for deed was properly assigned to Cendak, and whether Castillo or Cendak was in default. After trial, the court found Castillo was in default under the contract for deed and Cendak was in default under the "Lease Purchase Agreement." The court canceled ...


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