Oliver-Mercer Electric Cooperative, Inc. v. Davis
Oliver-Mercer Electric Cooperative, Inc. v. Davis
Opinion of the Court
[¶ 1] AquaConcept Technologies, Inc., Richard D. Davis, III, Joseph Hauer, and Berkley Strothman (“AquaConcept”) appealed from a final judgment granting a deficiency judgment to Oliver-Mercer Electric Cooperative (“the Cooperative”). We reverse and remand with directions to enter an order denying a deficiency judgment.
I
[¶ 2] The underlying facts of the case are undisputed:
AquaConcept borrowed 1.8 million dollars from the Cooperative to purchase Fish N’ Dakota, a fish farm. The loan was documented by a promissory note and was secured by a mortgage and security agreement. The loan was also secured by the personal guarantees of each of the four AquaConcept stockholders. AquaConcept became delinquent on the loan, and on January 20, 2000, the Cooperative took possession of the business. The Cooperative ran the business and sold AquaConcept’s assets. After a period of time, it brought a deficiency and foreclosure action against AquaCon-cept and its personal guarantors for the unpaid portion of the debt.
Oliver-Mercer Electric Coop. v. Davis, 2004 ND 86, ¶3, 678 N.W.2d 757. In Oliver I, we reversed the trial court’s grant of a deficiency judgment and remanded the case for a finding of fair market value of the collateral at the time of sale, whether the sale was commercially reasonable, and whether the Cooperative was entitled to a deficiency judgment, and if so, in what amount. Id. at ¶ 1. On remand, the trial court determined the fair market value of the collateral was less than the debt owed and granted the Cooperative a deficiency judgment. AquaCon-cept appealed.
II
[¶3] On appeal, AquaConcept argues the trial court erred in granting a deficiency judgment because adequate evidence did not exist to determine the fair market value of the collateral at the time of sale. The Cooperative argues that they are entitled to a deficiency judgment because the trial court had ample evidence to determine the fair market value of the collateral
[¶ 4] A deficiency judgment is “an imposition of personal liability against the debtor for payment of the unpaid balance of a debt and is separate and distinct from enforcement of the debt against collateral given to secure the debt.” United Bank of Bismarck v. Glatt, 420 N.W.2d 743, 745 (N.D. 1988). A lender may seek “recovery on a debt against personal property collateral after foreclosing a mortgage securing the same debt.” Id.) see also Black’s Law Dictionary 846 (7th ed. 1999) (defining a deficiency judgment as “[a] judgment against a debtor for the unpaid balance of the debt if a foreclosure sale or a sale of repossessed personal property fails to yield the full amount of the debt due”). A secured creditor must satisfy two obligations in order to recover a deficiency judgment. N.D.C.C. § 41-09-SO^).
[¶ 5] In Oliver I, we stated, “A secured creditor may prove the fair market value of collateral in a number of ways. For example, appraisals, stipulations, market conditions, subsequent sales, and testimony of the purchaser.” Oliver-Mercer Electric Coop., 2004 ND 86, ¶ 24, 678 N.W.2d 757. We further noted, “If the record does not contain credible evidence allowing the trial court to make a finding as to the fair market value at the time of the sale, the Cooperative is not entitled to a deficiency judgment.” Id. at ¶25. Because the Cooperative failed to meet the notice requirement, “the amount received at the sales of AquaConcept’s collateral is not evidence of the fair market value.” Id. at ¶ 23.
[¶ 6] Determining the fair market value of collateral is a question of fact. See Stewart v. Henning, 481 N.W.2d 230, 233 (N.D. 1992) (determining fair value is a question of fact). A finding of fact will not be set aside unless it is clearly erroneous. N.D.R.Civ.P. 52(a). A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support the finding, or if, on the entire record, we are left with a definite and firm conviction a mistake has been made. Brandt v. Somerville, 2005 ND 35, ¶ 12, 692 N.W.2d 144.
[¶ 7] To support its finding of fair market value, the district court relied on the original purchase price, the property’s valuation from a 1999 tax abatement
[¶ 8] The record does not contain credible evidence to prove the fair market value of the collateral on the day of the sale; therefore, the district court’s finding of fair market value is clearly erroneous. Because the Cooperative did not carry its burden to overcome the presumption that the fair market value of the collateral was equal to the debt, the Cooperative is not entitled to a deficiency judgment. In view of our conclusion, we do not reach the issue of whether the sale was commercially reasonable.
Ill
[¶ 9] We reverse and remand with directions to enter an order denying a deficiency judgment.
. The 2001 legislature repealed N.D.C.C. ch. 41-09, entitled "Secured Transactions-Sales of Accounts, Contract Rights and Chattle Paper," and created and enacted a new ch. 41-09, entitled "Secured Transactions,” with an effective date of July 1, 2001. Under N.D.C.C. § 41-09-124(3), the revisions do not affect any case commenced before July 1, 2001. This case commenced before July 1, 2001, therefore, the pre-2001 provisions govern.
Reference
- Full Case Name
- OLIVER-MERCER ELECTRIC COOPERATIVE, INC., and v. Richard D. DAVIS, III, Michael P. Ossanna, Joseph Hauer and Berkley Strothman, Richard D. Davis, III, Joseph Hauer and Berkley Strothman, and Appellants Oliver-Mercer Electric Cooperative, Inc., and v. AquaConcept Technologies, Inc., and
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