United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________ No. 96-1697

___________ 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. *

___________ Submitted: February 11, 1997 Filed: April 7, 1997

___________ Before MAGILL, BEAM, and LOKEN, Circuit Judges.

___________The Honorable John B. Jones, United States Dis trict Judge for 1 the District of South Dakota. The FmHA was renamed the Farm Services Administration i n 2 1994. 7 U.S.C. § 6932 (1994). -2- BEAM, Circuit Judge.
Gerald, Geraldine, and Theodore Fitzgerald appeal from vario us
or ders entered by the district court in foreclosure proceeding s 1 brough t by the United States after the Fitzgeralds defaulted o n Farmers Home Administration (FmHA) loans. We affirm.

I. BACKGROUND
In 1968, Gerald and Geraldine Fitzgerald (“the Fitzgeralds”) entere dinto a contract for deed with Gerald’s mother, Theress a Fitzge rald, for a parcel of farmland Theressa owned in Unio n County, South Dakota. Although the contract for deed require d Gerald and Geraldine to make yearly payments of $1,000, they made no payments after March of 1980. In 1985, Theressa quitclai med her interest in the land to the Fitzgeralds’s son, Theodore, who a t that time was thirteen years old.

Bet ween1978 and 1982, the Fitzgeralds obtained a number o f loans from FmHA, secured by mortgages on the p roperty. They later 2 defaul ted on the loans, and the government commenced foreclosur e proceedings in November of 199 2. 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 gover nment’s claim against the property. The government also claimed a s uperior interest to the Fitzgeralds’s other creditors, and named those-3-

parties as defendants as well. The government moved for summar y judgment on all issues except the value of Theodore’s lien.
Shortly thereafter, the Fitzgeralds filed for Chapter 1 2 ba nkruptcy, and the district court stayed the foreclosur e proceedi ngs. In June of 1995, the Chapter 12 case was dismisse d andthe district court vacated the stay. The Fitzgeralds an d Th eodore then filed briefs opposing summary judgment. Th e Fitzgeralds argued that they were entitled to a right of red emption under South Dakota law, and th at this right had to be given effect in FmH A foreclosure proceedings. Theodore moved for summar y judgment on the issue of the superiority and value of his in terest. The go vernment then moved for summary judgment on the valuatio n issue as well.

OnOctober 20, 1995, the district court issued an order an d
en teredjudgment on the motions, determining that: (1) th e Fitzgeralds were not entitled to a right of redemption; (2 ) Theodore’s vendor’s lien was s uperior 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 accru e interest at an annual rate of five percent until the balance was paid; and (4) the FmHA mortgag es were superior to all other potentia l claims, except Theodore’s, and any claims against the property by the remaining defendants wer e foreclosed. The court entered an amended Decree of Sale on November 27 , 1995, and the United States marshal filed a Notice of Sale o n 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 sa le and refused to convey a deed. OnRedemptionis “the right to repay the amount paid for rea l 3 propertyor any interest thereon, sold on foreclosure of a rea l estate mor tgage. . . .” S.D. Codified Laws § 21-52-1 (Michi e 1987). -4- February 13, 1996, the distric t court denied Theodore’s motion and issued an order, pursuant to R ule 70 of the Federal Rules of Civil Procedure, divesting Theodore of title and directing the mar shal to convey a marshal’s deed to the purchasers. Theodore’s share of the sale p roceeds, $53,045.94, was delivered to the Clerk of Court , where it apparently remained u nclaimed at the time this appeal was argued.
The Appellants raise five issues on appeal. The Fitzgeralds
as sert that the district court lacked jurisdiction because th e government failed to show that it had complied with what the y claim
are state law based mediation requirements and federal loa n pres ervationrequirements. The Fitzgeralds also claim that th e district court erred in concluding that they were not entitled to sta te law redemption rights. Theodore asserts that the distric t 3 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 th e property and lacked authority to divest him of title under R ule 70.

II. DISCUSSION We must first consider whether this appeal is timely. A par ty must file a Notice of Appeal w ith 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 procedura l requir ement, but "is mandatory and jurisdictional." Bartunek v

. Bubak , 9 41 F.2d 726, 728 (8th Cir. 1991). The government argue s that we have no jurisdiction on appeal because the district courtThe Fitzgeralds argue that we can nonetheless examine th e 4 merits of this issue because they claim that prior mediation an d loan servicing are jurisdictional requirements for FmHA fore closure proceedings. Their position d oes not excuse their failure to take a timely a ppeal. An appeal of a district court’s exercise o f jurisd ictionmust still satisfy the requirements for appellat e jurisdiction.
We note that Rule 54(b) of the Federal Rules of Civi l 5 Procedure would not have prevented review of the district court’s summaryjudgment order. That order fully disposed of all issue s and determined the rights and claims of all parties to the action, includ ing Theodore and the other potential lienholders. Th e district court determined the value of Theodore’s interest, found that it was a superior interest, and concluded that the propert y would be foreclosed subject to that interest. The district court further found that the interests of the other named defendan ts were in ferior to the government’s claims, and foreclosed thos e interests. Because there were no issues remaining for litigation, the summary judgment order was a final order “adjudicating all the -5- entere djudgment on the parties’ summary judgment motions o n October 20, 1995, but Appellants did not file their Notice o f Appeal until March 11, 1996.

We agree that with respect to those issues determined o n summary judgment, Appellants failed to timely appeal. Gerald and Geraldine Fitzgerald’s asserte d right of redemption was considered andspecifically rejected by the district court in its summar y jud gment order. The district court also implicitly rejected th e Fi tzgeralds’s purported right to mediation and loan preservatio n services, insofar as it exercised jurisdiction and entered j udgment for the government. Likewise, the value and superiority o f 4 Theodo re’s interest was before the district court on summar y 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 fina l order wi th respect to these issues, and the Notice of Appeal wa s therefore untimely and we lack jurisdiction. 5claims and the rights and liabilities of all the parties.” Fed. R.

Civ. P. 54(b). -6- Furthermore, these questions (except possibly Theodore’s cla im that his interest was improperly valued) are moot. Once for eclosed propertyis sold to a bona fide third-party purchaser, a cour t generallylacks the power to craft an adequate remedy for th e 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.2 d 189, 191 (8th Cir. 1987) (per curiam). Therefore, a debtor wh o fails to obtain a stay of the sale has no remedy on appeal and the appe al is moot. Van Iperen , 819 F.2d at 191. The Appellants i n this case not only failed to obtain a stay following summar y judgment, but indeed waited until after two decrees of sale, th e notice of sale, the actual sale, and the order confirming sal e before they even moved for a stay.
Theodore also appeals from the district court’s denial of his motionto set aside the sale and from the court’s Rule 70 orde r divesting him of title. The district court entered these orders, respec tively, 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 i n that it failed to clearly indicate that the property would be sold subject to his senior intere st. As in the proceedings below, Theodore asks us on appeal to set aside the foreclosure sale. However, the property is now in the h ands of good faith purchasers who reli ed upon the sale, and we cannot undo that purchase. Van Iperen , 819 F.2d at 191.

After the foreclosure sale, Theodore refused to deliver th e deed after he was tendered pay ment under terms of the contract forRule 70 provides in relevant part: 6 If a judgment directs a party to execute a conveyance of landor to deliver deeds or other documents or to perfor m anyother specific act and the party fails to compl y within t he time specified, the court . . . may enter a judgment divesting the title o f any party and vesting it in oth ers and such judgment has the effect of a conveyance executed in due form of law. Fed. R. Civ. P. 70.
-7- de ed. The district court entered an order pursuant to Rule 7 0 divesting Theodore of title an d vesting title in the United States marshal. On direction of the court, the marshal then conveyed a

6 dee dto the third-party purchasers. Theodore argues that th e 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 gran ted by reversing the district court. At any rate, Theodore’s positi on is groundless. In his motion for
summar yjudgment on the value of his vendor’s lien, Theodor e clearly elected that his inter est in the property be paid from the procee ds of the foreclosure sale. The district court’s summar y judgme nt order determined that value, directed the sale, an d provided that Theodore’s interest would be cashed out. Th e district court did not abuse its discretion in divesting Theodore of title after his refusal to convey a deed upon tender of ful l payment. See Gates v. Collier , 616 F.2d 1268, 1271 (5th Cir . 1980) (Rule 70 orders reviewed for abuse of discretion).-8-

III. CONCLUSION

For these reasons, we affirm the district court in al l respects.

A true copy.

Attest:

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