No. 92-008 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

AETNA LIFE INSURANCE COMPANY, 

Plaintiff and Respondent, 

LAWRENCE EDWARD JORDAN; LAWRENCE EMMETT JORDAN, a/k/a 

Larry Jordan, a/k/a Larry E. Jordan; HELEN K. JORDAN, 

a/k/a Helen Jordan, 

Defendants and Appellants, 

and 

FIRST NATIONAL BANK OF HYSHAM; The partnership of MARV 

HUISMAN, LES BROECK and DOUG STRANGELAND; CHUCK 

KANANEN; and CENTRAL ELECTRIC SERVICE, 

Defendants. 

APPEAL FROM: District Court of the Tenth Judicial District, 

In and for the County of Fergus, 

The Honorable Peter L. Rapkoch, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Craig D. Martinson, Attorney at Law, Billings, 

Montana 

For Respondent: 

John G. Crist, Dorsey & Whitney, Billings, Montana 

For Defendants: 

James A. Patten, Patten Law Firm, Billings, Montana 

Michael B. Anderson, Holland & Hart, Billings, 

Montana 

Timothy J. OIHare, Attorney at Law, Lewistown, 

Montana 

James L. Stogsdill, Attorney at Law, Lewistown, 

Submitted on Briefs: June 4, 1992 
Justice R. C. McDonough delivered the Opinion of the Court. 

Lawrence Edward Jordan, Lawrence Emmett Jordan and Helen K. 

Jordan appeal from an order of the Tenth Judicial District, Fergus 

County, in favor of Aetna Life Insurance Company. We affirm and 

remand. 

The issues presented on appeal are: 

I. Whether the District Court erred in granting summary 

judgment in favor of Aetna, without a hearing; 

2. Whether the District Court erred in granting Lawrence 

Emmett Jordan and Helen K. Jordan occupancy of the house during the 

redemption period and in granting Aetna Life Insurance Company the 

income from the rented mortgaged premises during the redemption 

period: and 

3. Whether the District Court erred in granting Aetna Life 

Insurance company the CRP payments from the mortgaged premises 

during the redemption period when Jordans, subsequent to the 

mortgage, assigned their interest to a third party. 

On December 15, 1983, Lawrence Emmett Jordan and Helen K. 

Jordan, husband and wife , and Lawrence Edward Jordan (Jordans) 

executed a promissory note in the principal sum of $1,400,000, 

payable to Aetna Life Insurance Company (Aetna). The note was 

secured by a mortgage covering certain real property in Fergus 

County, Montana. Jordans executed a Mortgage Deed Security 

Agreement, and finance statement. The documents were recorded and 

filed with the Fergus County Clerk and Recorder on December 16, 

1983. 
The Jordans defaulted on the payment required under the Note 

and Mortgage. On July 3, 1985, Aetna brought an action to 

foreclose the Note and Mortgage against the Jordans. On June 30, 

1987, the Jordans filed bankruptcy under Chapter 11, which stayed 

the foreclosure proceedings. A plan of reorganization was approved 

on April 3, 1989. The Jordans defaulted on the plan. Aetna 

amended their foreclosure complaint on November 3, 1990, Aetna 

filed a motion for summary judgment on May 24, 1991. On August 7, 

1991, Aetna filed its motion requesting the order granting summary 

judgment. The District Court ruled in favor of Aetna. This appeal 

followed. 

I 

Whether the District Court erred in granting summary judgment 

in favor of Aetna, without a hearing. 

The District Court granted Aetnavs motion for summary 

judgment, entering judgment on August 13, 1991, two months after 

Aetnals motions and briefs were filed. The District Court was 

advised that the Jordans did not intend to file a response. Under 

Rule 2(b) of the Uniform District Court Rules, failure to provide 

an answer brief within ten days is deemed an admission that the 

motion is well taken. The District Court relied on Rule 2 (b) . The 

Jordan's contend that under Rule 56 (c) , M.R. Civ.P., a hearing must 

be held with a 10 day notice to the opposing party. 

Rule 56(c), M.R.Civ.P., provides in part: 
The motion shall be served at least 10 days before the 

time fixed for the hearing. The adverse party prior to 

the day of hearing may serve opposing affidavits . . . 

Jordans rely on Cole v. Flathead County (1989), 236 Mont. 412, 771 

P.2d 97, for the proposition that an oral argument is required for 

summary judgment unless it is specifically waived by all parties. 

In Cole we held that the procedure to be followed on motions 

for summary judgment must conform to the provisions of Rule 56, 

M.R.Civ.P. Cole at 417, 771 P. 2d at 100. In our discussion of the 

interplay between Rule 56, M.R.Civ.P., and Rule 2, Montana Uniform 

District Court Rules, we said: 

[Tlhe essential question for the District Court in 

deciding a motion for summary judgment either for the 

plaintiff or for the defendant is whether there exists a 

genuine issue of material fact. That inquiry does not 

admit of decision merely on a technical point, such as 

whether briefs have been filed on time. 

In the case before us, the District Court reviewed Aetnars 

motion and memorandum together with the supporting affidavits. The 

District Court found that the motion was properly supported by 

appropriate factual evidence, and that Aetna was entitled to 

summary judgment foreclosing the note and mortgage as a matter of 

law. 

However, Jordans argue that a hearing is required under Rule 

56, M.R.Civ.P. We stated in Cole that "under Rule 56 (c) , a hearing 

is contemplated from which the district court will consider not so 

much legal arguments, but rather whether there exists genuine 

issues of material fact." We went on to say that "a district court 
may not, by rule or otherwise, preclude a party from requesting 

oral argument, nor deny such a request when made by a party 

opposing the motion unless the motion for summary judgment is 

denied." Cole at 418, 771 P.2d at 101. 

After the granting of the order of summary judgment the 

Jordans retained a different attorney. The new attorney filed 

several motions with the District Court and requested a hearing. 

A hearing was held before the District Court on November 1, 1991 on 

Jordans' motion for a new trial or in the alternative to alter or 

amend judgment and motion to stay proceedings. 

During the hearing, the court stated that the Jordans did not 

raise any factual matters relevant to the issuance of the summary 

judgment, and Jordans admitted in their brief in support of such 

motions there was no fact questions of whether or not Jordans were 

in default on the terms of their note and mortgage. Questions of 

fact raised by Jordans in the hearing only related to post judgment 

proceedings or amendments to the judgment, such as the use of the 

property, rights to rents and profits fromthe property, government 

payments, and valuation of the property for deficiency purposes. 

Thus, the court believed that a hearing on raising genuine issues 

of material fact relative to the motion for summary judgment, was 

waived, and in its order of November 15, 1991 denying such motions, 

reinstated the August 13, 1991 order granting summary judgment. 
We conclude that the District Court was correct in reinstating 

the order of summary judgment to Aetna. We affirm the District 

Court on this issue. 

Whether the District Court erred in granting Lawrence Emmett 

Jordan and Helen K. Jordan occupancy of the house during the 

redemption period, and in granting Aetna Life Insurance Company the 

income from the rented mortgaged premises during the redemption 

period. 

The District Court concluded that the purchaser at the auction 

would be entitled to immediate possession of the balance of the 

mortgaged property from and after the date of sale, but that the 

Jordans would be entitled to possession of the residence. During 

the November 1, 1991 hearing, Lawrence Edward Jordan testified that 

his parents, Lawrence Emmett Jordan and Helen K. Jordan, currently 

resided on the foreclosed property. He testified they had lived on 

the property for 45 years. He also testified that the ranch had 

been one unit since the 1930's. Section 71-1-229, MCA, provides: 

The purchaser of lands at mortgage foreclosure is 

not entitled to the possession thereof as against the 

execution debtor during the period of redemption allowed 

by law while the execution debtor personally occupies the 

land as a home for himself and his family It is 

unlawful to insert in any mortgage of real estate any 

provision intended to constitute a waiver by the owner of 

real estate personally occupying land as a home for 

himself and family of the provision of this section or 

any provision intended to give the mortgagee possession 

of the land or premises prior to foreclosure upon default 

of tax, principal, or interest payments. The intention 

hereof is to insure to such owner the possession of his 
land prior to foreclosure and during the year of 

redemption. 

In Federal Land Bank v. Snider (1991) , 247 Mont . 508, 517, 808 

P.2d 475, 481, we held that the execution debtor who personally 

occupied the premises as a home was not required to pay rent or 

income to the purchaser during the redemption period. In Snider, 

the execution debtors held possession of some 3000 acres of land. 

The Bank argued that the Sniders were only entitled to possession 

of the portion of the property occupied as a home and the rest of 

the ranch should be separated out for purposes of possession. We 

held in Snider that when determining possession of foreclosed 

property during the redemption period, there is no basis for 

dividing lands that the execution debtor personally occupies. 

Snider held that execution debtors are entitled to 

personally possess the entire premises and the execution debtor 

need not pay rent or income to the purchaser during the redemption 

period. Thus, the Jordans are entitled to possession and are not 

required to pay rent or income to Aetna for the portion of the 

property that is not under lease to a third party. See also 

Interstate Credit Production Association v. DeSaye (1991), 250 

Mont. 320, 820 P.2d 1285. We affirm the District Court's 

determination that Jordans would be entitled to possession of the 

residence. 

On May 23, 1990, the Jordans leased a portion of their land to 

Jess and Jenny Knerrs. This lease was not before the District 

Court. Aetna filed a motion to supplement record before the 
Supreme Court, attaching the Knerrs' lease. We note that under 

Interstate Production Credit Association v. DeSaye (1991), 250 

Mont. 320, 810 P.2d 1285, the Jordans are not entitled to income if 

a third party is in possession of the land. We remand to the 

District Court for a hearing on the Knerrs' lease to determine the 

extent of Jordans' actual possession and determination of the 

rights of the parties. 

Whether the District Court erred in granting Aetna the CRP 

payments covering the mortgaged premises during the redemption 

period when Jordans, subsequent to the mortgage, assigned their 

interest to a third party. 

The District Court foreclosed all of Jordans' right, title and 

interest in and to "various grazing rights, government crop 

allotments, government subsidies or payments-in-kind compensation 

pertaining to the property." Previously a portion of the Jordans' 

property had been placed in CRP under contract with the federal 

government. The federal government was originally to make payments 

to the Jordans through ASCS. 

The mortgage between Aetna and the Jordans grants Aetna the 

first security interest in CRP payments because they are government 

crop allotments, subsidies or payments-in-kind compensation. Under 

the facts as presented here, we affirm the District Court's 

foreclosure of Jordan's rights, title and interest in these 

payments in favor of Aetna. 
For the reasons set forth above, we affirm the judgment of the 

District Court, and remand to the District Court for fact finding 

and determination of the rights of the parties as to the Knerrsl 

lease. 

Justice 

We Concur: