Appeal from the District Court of Stutsman County, Southeast Judicial District, the Honorable John T. Paulson, Judge.
James A. Reisnour, Jamestown, ND, for plaintiff and appellee.
Jack McDonald Jr. (appeared), Bismarck, ND, for defendants and appellants Marlin Michael Sabinash and Tanya Leigh Sabinash.
Douglas B. Anderson, Assistant Attorney General, Bismarck, ND, for amicus curiae State of North Dakota, doing business as the Bank of North Dakota.
Gerald W. VandeWalle, C.J., Carol Ronning Kapsner, Lisa Fair McEvers, Daniel J. Crothers, Dale V. Sandstrom. Opinion of the Court by VandeWalle, Chief Justice.
Gerald W. VandeWalle, Chief Justice.
[¶1] Marlin and Tanya Sabinash appealed from a corrected judgment quieting title to real property located in Stutsman County to Dana Baker. Because the district court erred as a matter of law in determining the county tax lien was superior to the interest held by the State through a Bank of North Dakota mortgage on the property, we reverse and remand for entry of judgment quieting title to the property in favor of the Sabinashes and for further proceedings consistent with this opinion.
[¶2] In 1992, Marlin Sabinash owned real property subject to a mortgage with the Bank of North Dakota. In 2001, Stutsman County property taxes were not paid on the property. The county provided both Marlin Sabinash and the Bank of North Dakota notice of a tax lien on the property requiring payment on or before October, 2006, and subsequently foreclosed on its lien. An auditor's tax deed was issued to the county in 2006, and the property was sold to Dana Baker at public auction. He received a county deed which was recorded.
[¶3] The Bank of North Dakota provided Baker notice of intent to foreclose on the same property in 2008 under its mortgage lien. The property was foreclosed upon and sold at a sheriff's sale to Raymond Sabinash. In 2009, Raymond Sabinash assigned his interest in the property to Marlin Sabinash, who received and recorded the sheriff's deed.
[¶4] Baker filed a quiet title action. Both parties moved for summary judgment to determine the superior interest and ownership of the property. The district
court granted Baker's motion and denied the Sabinashes' motion, holding that the State, through the Bank of North Dakota, was never at anytime the property owner and only held a mortgage. Although prior precedent established that the State of North Dakota's mortgage lien cannot be inferior to a county tax lien, the district court determined that was no longer applicable. It noted that the case law was decided prior to the 1943 amendments to Sections 57-28-08 and 57-28-09, N.D.C.C., which allows a county to receive a tax deed free from any encumbrances when an owner fails to satisfy a tax lien.
[¶5] " Summary judgment is a procedural device for promptly resolving a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if resolving factual disputes will not alter the result." Hale v. Ward County,2012 ND 144, ¶ 12, 818 N.W.2d 697. " A party seeking summary judgment bears the initial burden of showing there is no genuine dispute regarding the existence of a material fact." Id. " A district court's decision on a motion for summary judgment is a question of law ...