NO. 96-606 INTHESUPREMECOURTOFTHESTATEOFMONTANA 1997

AGAMERICA, FCB, successor in interest to the Farm Credit Bank of Spokane,

Plaintiff and Respondent,
v. JAMESC.MEYERS; UNITED STATESOF AMERICA, acting through the Farmers HomeAdministration, United States Department of Agriculture; DANNY HANSARD; FREDAHANSARD, f/k/a FREDA MEYERS; andNORTHWESTFARMCREDIT SERVICES, ACA.,

Defendants andAppellants.

APPEAL FROM: District Court of the Twelfth Judicial District,

In and for the County of Hill, TheHonorable John Warner, Judge Presiding.

COUNSELOFRECORD:

For Appellant: James C.Meyers, Pro Se, Helena, Montana
For Respondent: John P. Paul, Alexander, Baucus, Taleff &Paul, Great Falls. Montana

Filed: Submitted onBriefs: January 16, 1997 Decided: February 25, 1997Chief Justice J. A. Turnage delivered the Opinion of the Court.

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1988 Internal Operating Rules, this decision shall not becited as precedent andshall bepublished byits filing asapublic document with the Clerk of this Court andbyareport of its result to the West Publishing Company. James C. Meyers, appearing pro se, appeals from an order of sale of real property issued by the Twelfth Judicial District Court, Hill County. Weaffirm. The nine issues which Meyers sets forth in his brief maybe consolidated into two claims: that the judgment and decree of foreclosure issued by the United States District Court, Great Falls, Montana, on June 11, 1996, was invalid; and that the District Court's Order of Sale is invalid. In June 1996, the United States District Court, Great Falls, Montana, issued ajudgment anddecree of foreclosure against James C.Meyers and others, in favor of AgAmerica, FCB, onmortgages of real property located in Hill County, Montana. Twomonths later, AgAmerica filed with the District Court anexemplified, certified copy of the federal court's judgment and decree, pursuant to the Uniform Foreign Money-Judgments Recognition Act, Title 25, Chapter 9, part 5, MCA, andmoved the District Court to enter anorder of sale directed to the Sheriff of Hill County. OnAugust 23, 1996, having determined that notice andother procedural requirements had been met, the District Court ordered the Hill County Sheriff to

2notice for sale and to sell the property to satisfy the federal

court judgment. Meyers filed anotice of appeal of the order of sale onAugust 28, 1996. Hethen moved to stay the sale of the property pending appeal. The District Court denied that motion on September 20, 1996, based upon Meyers' failure to furnish asupersedeas bond as required by Rule 7(b), M.R.App.P., and "a meritless motion and appeal." The sale of the property washeld onOctober 10, 1996. In the following weeks, Meyers moved this Court for an order setting aside the sale andfor anemergency stay of the lower court proceedings pending this appeal. Wedenied those motions. Meyers claims that the federal court judgment is invalid because it is in violation of federal and state statutes, the documents upon which it is based are invalid, and it allows deficiency andattorney fees in error. Heclaims that the order of sale issued bythe District Court is invalid because it "fails to stipulate areas where federal statutes should prevail," it failed to instruct onproper notice procedure, and it allows deficiency judgment. AgAmerica responds by raising the threshold argument that Meyers' appeal has become moot because the foreclosure sale has been held, citing Turner v. Mountain Engineering and Const. Inc. (1996), 276 Mont. 55, 915 P.2d 799. AgAmerica points out that Meyers did not post asupersedeas bond and obtain astay of the proceedings at the District Court pending appeal.

3Theprocedure for obtaining astay of judgment pending appeal

in acivil action is set forth at Rule 7(b), M.R.App.P.: Upon service of notice of appeal, if the appellant desires astay of execution, the appellant must, unless the requirement is waived bythe opposing party, present to the district court and secure its approval of a supersedeas bond which shall have two sureties or a corporate surety asmaybeauthorized by law. Meyers did not post asupersedeas bond, nor is there anything in the record to indicate that AgAmerica waived that requirement. Hence, the District Court did not grant his motion for stay of execution of judgment.

Generally speaking, loss of property through foreclosure is involuntary and will not give rise to a waiver of the right to appeal from the judgment. For example, if the property hasbeen foreclosed upon but not yet sold, it may still be possible for this Court to fashion aremedy. However, the underlying question we must confront in determining whether anappeal is moot is not whether the sale was involuntary, but, rather, whether or not this Court is in a position to grant effective relief.

. . As this Court recognized in Martin Dev. Co., when there is noeffective relief this Court can fashion, the appeal is moot. Appellants allowed foreclosure sale to proceed, did not stay the proceedings, and did not post asupersedeas bond. Ashas been recognized, there is a danger of dismissal for mootness and, thus, aspecial need for seeking a stay when the sale of property is ordered and is not enjoined. Aparty whois confronted with a judgment ordering a foreclosure sale and who allows the foreclosure sale toproceed runs the risk that his appeal will thereby berendered moot.

. . . [Wlhen compliance [with a judgment] is involuntary, asin most foreclosure actions, the appeal is not barred or waived, but may, nevertheless, bemoot to the extent that this Court cannot grant any effective relief. Turner, 915P.2d at 804-05 (citations omitted).

4

### In this case, because the foreclosure sale hasbeenheld, we

conclude this appeal is moot. Becauseof that conclusion, wedo not reach the issues raised byMeyers. This appeal is dismissed.



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Juskices