United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 96-1697

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United States of America, *

*

Plaintiff/Appellee, *

*

v. *

*

Gerald L. Fitzgerald; *

Geraldine K. Fitzgerald; *

Theodore J. Fitzgerald; *

*

Defendants/Appellants,* Appeal from the United States

* District Court for the 

State Bank of Alcester; Salberg * District of South Dakota.

Excavating & Supply; Sioux *

International; Farmers Coop *

Elevator; Siouxland Implement *

Company; South Dakota Department*

of Agriculture; Union County, *

South Dakota, a political *

subdivision of South Dakota; *

Stewart & Gerry; Boyer Ready *

Mix; Ben Hur Ford, Inc; *

Robert E. Locke, Executor; *

Valley Exchange Bank; Thomas L. *

Mau; Hauge Associates, Inc.; *

Sweeney Oil Company; Sweeney *

I-29 Station; L & L Motor *

Supply; *

*

Defendants. *

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 Submitted: February 11, 1997

 Filed: April 7, 1997

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Before MAGILL, BEAM, and LOKEN, Circuit Judges.

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The Honorable John B. Jones, United States District Judge for 1

the District of South Dakota.

The FmHA was renamed the Farm Services Administration in

2

1994. 7 U.S.C. § 6932 (1994).

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BEAM, Circuit Judge.

Gerald, Geraldine, and Theodore Fitzgerald appeal from various

orders entered by the district court in foreclosure proceedings

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brought by the United States after the Fitzgeralds defaulted on

Farmers Home Administration (FmHA) loans. We affirm.

I. BACKGROUND

In 1968, Gerald and Geraldine Fitzgerald (“the Fitzgeralds”)

entered into a contract for deed with Gerald’s mother, Theressa

Fitzgerald, for a parcel of farmland Theressa owned in Union

County, South Dakota. Although the contract for deed required

Gerald and Geraldine to make yearly payments of $1,000, they made

no payments after March of 1980. In 1985, Theressa quitclaimed her

interest in the land to the Fitzgeralds’s son, Theodore, who at

that time was thirteen years old.

Between 1978 and 1982, the Fitzgeralds obtained a number of

loans from FmHA, secured by mortgages on the property. They later 2

defaulted on the loans, and the government commenced foreclosure

proceedings in November of 1992. The government named Theodore as

an additional defendant, asserting that his vendor’s lien arising

by virtue of the contract for deed was inferior to the government’s

claim against the property. The government also claimed a superior

interest to the Fitzgeralds’s other creditors, and named those 
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parties as defendants as well. The government moved for summary

judgment on all issues except the value of Theodore’s lien. 

Shortly thereafter, the Fitzgeralds filed for Chapter 12

bankruptcy, and the district court stayed the foreclosure

proceedings. In June of 1995, the Chapter 12 case was dismissed

and the district court vacated the stay. The Fitzgeralds and

Theodore then filed briefs opposing summary judgment. The

Fitzgeralds argued that they were entitled to a right of redemption

under South Dakota law, and that this right had to be given effect

in FmHA foreclosure proceedings. Theodore moved for summary

judgment on the issue of the superiority and value of his interest.

The government then moved for summary judgment on the valuation

issue as well.

On October 20, 1995, the district court issued an order and

entered judgment on the motions, determining that: (1) the

Fitzgeralds were not entitled to a right of redemption; (2)

Theodore’s vendor’s lien was superior to the government’s interest

and would be satisfied from the proceeds of the foreclosure sale;

(3) the contract for deed had a remaining balance of $52,209.48 and

Theodore was entitled to accrue interest at an annual rate of five

percent until the balance was paid; and (4) the FmHA mortgages were

superior to all other potential claims, except Theodore’s, and any

claims against the property by the remaining defendants were

foreclosed.

The court entered an amended Decree of Sale on November 27,

1995, and the United States marshal filed a Notice of Sale on

January 5, 1996. Theodore moved to amend the Notice of Sale, which

the district court denied. At the foreclosure sale on January 25,

1996, a third party purchased the land for $108,931.82. Theodore

then moved to set aside the sale and refused to convey a deed. On
Redemption is “the right to repay the amount paid for real

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property or any interest thereon, sold on foreclosure of a real

estate mortgage. . . .” S.D. Codified Laws § 21-52-1 (Michie

1987).

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February 13, 1996, the district court denied Theodore’s motion and

issued an order, pursuant to Rule 70 of the Federal Rules of Civil

Procedure, divesting Theodore of title and directing the marshal to

convey a marshal’s deed to the purchasers. Theodore’s share of the

sale proceeds, $53,045.94, was delivered to the Clerk of Court,

where it apparently remained unclaimed at the time this appeal was

argued.

The Appellants raise five issues on appeal. The Fitzgeralds

assert that the district court lacked jurisdiction because the

government failed to show that it had complied with what they claim

are state law based mediation requirements and federal loan

preservation requirements. The Fitzgeralds also claim that the

district court erred in concluding that they were not entitled to

state law redemption rights. Theodore asserts that the district

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court should have set aside the foreclosure sale because the Notice

of Sale was defective. Theodore further argues that the district

court incorrectly determined the value of his claim against the

property and lacked authority to divest him of title under Rule 70.

II. DISCUSSION

We must first consider whether this appeal is timely. A party

must file a Notice of Appeal with the district court within thirty

days of the order or judgment from which the appeal is taken. Fed.

R. App. P. 4. Timely filing is not merely a procedural

requirement, but "is mandatory and jurisdictional." Bartunek v.

Bubak, 941 F.2d 726, 728 (8th Cir. 1991). The government argues

that we have no jurisdiction on appeal because the district court
The Fitzgeralds argue that we can nonetheless examine the

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merits of this issue because they claim that prior mediation and

loan servicing are jurisdictional requirements for FmHA foreclosure

proceedings. Their position does not excuse their failure to take

a timely appeal. An appeal of a district court’s exercise of

jurisdiction must still satisfy the requirements for appellate

jurisdiction.

We note that Rule 54(b) of the Federal Rules of Civil

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Procedure would not have prevented review of the district court’s

summary judgment order. That order fully disposed of all issues

and determined the rights and claims of all parties to the action,

including Theodore and the other potential lienholders. The

district court determined the value of Theodore’s interest, found

that it was a superior interest, and concluded that the property

would be foreclosed subject to that interest. The district court

further found that the interests of the other named defendants were

inferior to the government’s claims, and foreclosed those

interests. Because there were no issues remaining for litigation,

the summary judgment order was a final order “adjudicating all the

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entered judgment on the parties’ summary judgment motions on

October 20, 1995, but Appellants did not file their Notice of

Appeal until March 11, 1996.

We agree that with respect to those issues determined on

summary judgment, Appellants failed to timely appeal. Gerald and

Geraldine Fitzgerald’s asserted right of redemption was considered

and specifically rejected by the district court in its summary

judgment order. The district court also implicitly rejected the

Fitzgeralds’s purported right to mediation and loan preservation

services, insofar as it exercised jurisdiction and entered judgment

for the government. Likewise, the value and superiority of

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Theodore’s interest was before the district court on summary

judgment, and the court fully resolved that question in its order.

Appellants never challenged these conclusions in any way prior to

this appeal. The October summary judgment order was the final

order with respect to these issues, and the Notice of Appeal was

therefore untimely and we lack jurisdiction.5
claims and the rights and liabilities of all the parties.” Fed. R.

Civ. P. 54(b).

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Furthermore, these questions (except possibly Theodore’s claim

that his interest was improperly valued) are moot. Once foreclosed

property is sold to a bona fide third-party purchaser, a court

generally lacks the power to craft an adequate remedy for the

debtor. Roller v. Worthen Nat’l Bank (In re Roller), 999 F.2d 346,

347 (8th Cir. 1993); Van Iperen v. Prod. Credit Ass’n, 819 F.2d

189, 191 (8th Cir. 1987) (per curiam). Therefore, a debtor who

fails to obtain a stay of the sale has no remedy on appeal and the

appeal is moot. Van Iperen, 819 F.2d at 191. The Appellants in

this case not only failed to obtain a stay following summary

judgment, but indeed waited until after two decrees of sale, the

notice of sale, the actual sale, and the order confirming sale

before they even moved for a stay. 

Theodore also appeals from the district court’s denial of his

motion to set aside the sale and from the court’s Rule 70 order

divesting him of title. The district court entered these orders,

respectively, on February 13 and February 14, 1996. Theodore’s

appeal from these orders is timely, but without merit.

 The first of these issues is moot. Theodore argues that the

Notice of Sale was defective in that it failed to clearly indicate

that the property would be sold subject to his senior interest. As

in the proceedings below, Theodore asks us on appeal to set aside

the foreclosure sale. However, the property is now in the hands of

good faith purchasers who relied upon the sale, and we cannot undo

that purchase. Van Iperen, 819 F.2d at 191.

After the foreclosure sale, Theodore refused to deliver the

deed after he was tendered payment under terms of the contract for
 Rule 70 provides in relevant part: 6

If a judgment directs a party to execute a conveyance of

land or to deliver deeds or other documents or to perform

any other specific act and the party fails to comply

within the time specified, the court . . . may enter a

judgment divesting the title of any party and vesting it

in others and such judgment has the effect of a

conveyance executed in due form of law.

Fed. R. Civ. P. 70.

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deed. The district court entered an order pursuant to Rule 70

divesting Theodore of title and vesting title in the United States

marshal. On direction of the court, the marshal then conveyed a

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deed to the third-party purchasers. Theodore argues that the

district court lacked authority to divest his interest under Rule

70.

This issue, too, may be moot, as it is difficult to see what

effective relief could be granted by reversing the district court.

At any rate, Theodore’s position is groundless. In his motion for

summary judgment on the value of his vendor’s lien, Theodore

clearly elected that his interest in the property be paid from the

proceeds of the foreclosure sale. The district court’s summary

judgment order determined that value, directed the sale, and

provided that Theodore’s interest would be cashed out. The

district court did not abuse its discretion in divesting Theodore

of title after his refusal to convey a deed upon tender of full

payment. See Gates v. Collier, 616 F.2d 1268, 1271 (5th Cir. 1980)

(Rule 70 orders reviewed for abuse of discretion).
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III. CONCLUSION

For these reasons, we affirm the district court in all

respects.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.