1252
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.
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.
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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
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.
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 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
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
Did the District Court err in determining that Halseth was not entitled to
possession of the mortgaged property during the statutory redemption period?
-
Following a judicial foreclosure of mortgaged real property, the judgment
debtor has the statutory right to redeem the property from the purchaser at the
sheriffs 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.
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 persons 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 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.
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Halseth does not challenge the District Courts 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 courts
finding of fact regarding his lack of intent--under § 1-1-215, MCA--to
make the Blaine County property his residence is clearly erroneous.
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 girlfriends name, Halseth gives
out--and receives calls at--that telephone number for both business and
personal purposes, even though he has telephone service at the Blaine County
property.
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 Halseths
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 Halseths testimony constitutes substantial
evidence supporting the District Courts 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.
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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 courts 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 District Courts
finding of fact regarding Halseths lack of intent to make the Blaine
County property his residence.
Based on its finding that the Blaine County property was not Halseths
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 courts 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.
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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