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Anderson v. Zimbelman

Supreme Court of North Dakota

February 13, 2014

Craig ANDERSON, as assignee of First Western Bank and Trust, Plaintiff and Appellee
v.
Marvin ZIMBELMAN, Melanie Zimbelman, HIS Electric, Inc., Roger Sundsbak, George Bitz, Northern Livestock Auction, Mike Bryn dba Mike's Body Paint & Glass, State of North Dakota, acting through the State Tax Commissioner, and all other persons unknown claiming any estate or interest in, or lien or encumbrance upon, the property described in the Complaint, Defendants Roger Sundsbak, George Bitz, and Northern Livestock Auction, Appellants.

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James Cailao (argued), Bismarck, ND, and Jon R. Brakke (on brief), Fargo, ND, for plaintiff and appellee.

Sean Thomas Foss, Fargo, ND, for appellants.

CROTHERS, Justice.

[¶ 1] Roger Sundsbak, George Bitz and Northern Livestock Auction (collectively " Northern Livestock" ) appeal a district court judgment granting Craig T. Anderson's motion for summary judgment and denying Northern Livestock's motion to amend their counterclaim. Anderson is First Western Bank & Trust's (the " Bank" ) assignee. Northern Livestock argues the district court erred as a matter of law by entering summary judgment in favor of Anderson, by failing to enter summary judgment in favor of Northern Livestock's counterclaim for specific performance and by failing to provide sufficient findings of fact and conclusions of law to permit appellate review of its decision denying Northern Livestock's cross-motion for summary judgment. We affirm.

I

[¶ 2] Marvin and Melanie Zimbelman executed three mortgages on real property in McHenry County in favor of First Western Bank & Trust. The first mortgage secured a promissory note to the Bank for $150,750 and was recorded March 13, 2006. The second mortgage secured a promissory note to the Bank for $131,240 and was recorded on May 15, 2007. The third mortgage secured a promissory note to the Bank for $327,400 and was recorded on December 31, 2008. As of February 25, 2013, the Zimbelmans were indebted on all three mortgages in amounts exceeding the combined principal balance of the three notes.

[¶ 3] Northern Livestock obtained an interest in the real property by a judgment against Melanie Zimbelman for $727,495.41, docketed on September 12, 2008. On September 18, 2009, Northern Livestock executed on its judgment, directing the McHenry County Sheriff to satisfy the September 12, 2008 judgment against Melanie Zimbelman out of her property. The McHenry County Sheriff issued a notice of levy for Melanie Zimbelman's property on October 14, 2009. The Bank bid $495,000 at a Sheriff's sale on November 10, 2009 and received a certificate of sale for the property. However, the Bank did not pay $495,000 to the Sheriff, and the Sheriff returned the execution unsatisfied. The Bank paid $5,097.50 in commission and fees for the sale.

[¶ 4] The Bank and Sundsbak signed an agreement regarding the real property on December 13, 2010, and Bitz signed the agreement on January 5, 2011. The agreement stated the Bank paid fees and commissions to the McHenry County Sheriff, but did not pay the balance of their bid. It also stated the certificate of sale was issued with the knowledge and consent of Northern Livestock. The parties agreed Northern Livestock's judgment was subject and subordinate to the Bank's mortgages. The parties agreed Northern Livestock would assign any claim or interest they had in the certificate of sale to the Bank in exchange for the Bank releasing any claim it had against Northern Livestock

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for reimbursement of the fees and commissions paid to the Sheriff. The parties stipulated foreclosure of the mortgages would extinguish Northern Livestock's judgment lien.

[¶ 5] The Zimbelmans defaulted on the notes secured by the 2006, 2007 and 2008 mortgages. Because the Zimbelmans were unable to cure the defaults, the amounts due were accelerated. The Bank brought this action foreclosing the mortgages and naming Northern Livestock as a defendant because of its judgment lien. The Bank later substituted Anderson under an assignment agreement.

[¶ 6] Northern Livestock alleged that only the Bank's first two mortgages had priority over their judgment lien, while the third mortgage was subordinate. Northern Livestock also alleged that after paying the Bank's first two mortgages, the Bank's bid of $495,000 created a $210,977.93 surplus from the Sheriff's sale, proceeds which Northern Livestock was entitled to on debt, conversion, fraud and specific performance grounds. Anderson filed a motion for summary judgment claiming Northern Livestock waived their rights to the alleged surplus by subordinating their judgment to the Bank's mortgages in the 2010 agreement between Northern Livestock and the Bank. Northern Livestock alleged Anderson did not establish entitlement to judgment as a matter of law and summary judgment should be granted for their claim that ...


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